WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20150104
DECISION DATE: October 2, 2015
OBJECTING PARTY: Company ‘V’
REPRESENTED by:
WORKER: Worker ‘E’
REPRESENTED by: Worker Representative ‘W’
RESPONDENT 1: Company ‘R’
REPRESENTED by: Representative ‘N’
RESPONDENT 2: Company ‘O’
RESPONDENT 3: Company ‘T’
HEARING: Hearing in Writing
BEFORE: C. da Cunha, Appeals Resolution Officer
ISSUE
The objecting party, V, seeks the reversal of the transfer of cost (TOC) adjuster’s decisions of June 25, 2012 and January 14, 2015, which transferred 100% of the claim costs to its accident cost record from the accident cost record of the employer, R.
BACKGROUND
On May 31, 2009, the worker sustained injury while preventing a brick roof assembly from falling on himself and his co-workers. He and his colleagues were working in the upper level of a furnace in order to reline it. In the process of placing a keystone and installing bricks inside the furnace, the bricks shifted, resulting in the apparent threat that the curved brick roof of the furnace above would collapse upon them. The worker used a bar to pry the bricks up, maintaining this position to prevent the brick roof from collapsing until his co-worker placed the keystone and the workers below moved to safety. Once his co-workers were clear of the threat and the stone had been placed, he released the bar and also ran to safety. He was 36 years of age at the time and had worked with the employer as a bricklayer for approximately 4 ½ years.
On June 29, 2010, R’s previous representative requested that the costs of the claim be transferred to the account of T, indicating that T had not installed the appropriate overhead supports to sustain the weight of the brick roof of the furnace.
The TOC Adjuster’s Decisions
On June 25, 2012, the TOC adjuster transferred 100% of the costs of the claim to V’s account on the basis that it had provided the wrong J-hooks to T, causing the J-hooks to fall and the roof to sag, leading to the worker’s injury.
The TOC adjuster reconsidered and upheld the original decision on January 14, 2015.
R’s Position
R puts forth that the brick roof sagged because T had welded into place ⅜ inch instead of ½ inch J-hooks to support the structure. Two of the ⅜ inch J-hooks fell out, leading to the sagging of the curved roof, the threat of a collapse and the worker’s injury. After the accident, T replaced the ⅜ inch J-hooks with the necessary ½ inch ones.
In a pre-hearing submission dated June 22, 2015, R’s current representative reiterated the above, requesting that the TOC adjuster’s decision transferring the costs of the claim to V be upheld and adding that T was also possibly responsible for the accident as it installed the inadequate J-hooks.
T’s Position
T contends that V asked it to install and weld into place missing J-hooks that were necessary to provide adequate support to the arches holding the furnace bricks. V directly provided the J-hooks and the installation instructions for the same to T. Furthermore, V’s engineers and project managers inspected its work daily to ensure that everything had been completed according to plan.
V’s Position
V argues that it is not responsible for any of the claim costs for the following reasons:
- It did not owe a duty of care to the worker – The periodic maintenance of its furnaces is a specialized task for which it hires independent contractors to complete. V hired A Ltd. (A), which O subsequently purchased, as the general contractor to carry out this task in 2009. In turn, A subcontracted certain aspects of the project to specialized sub-trades.
A subcontracted T to perform mechanical and structural engineering work on the project and R to install the refractories. Therefore, A owed a duty of care to its sub-contractors and their workers. V was not involved in the rebuilding and maintenance of the furnace.
- It did not breach its duty of care to the worker – Neither R nor T proved that the J-hooks were faulty and caused the accident. Even if the J-hooks were faulty, the contract between V and A placed on A the responsibility for verifying that the J-hooks were safe and usable before giving them to T.
O’s Position
O argues that it is not responsible for any of the claim costs for the following reasons:
(i.e. A) did not owe a duty of care to the worker – It subcontracted R to carry out the refractory installation. As outlined in its contract, R had the following direct responsibilities:
- The installation of all anchorage and hangers required to secure refractory components during the rebuild of the furnace crucible and roof; and,
- Inspection of all equipment and materials issued by V for damage, missing components, compliance with specifications or other errors and reporting of the same.
Remedial actions developed subsequent to the accident showed that R assigned the responsibility for inspection of the J-hooks to T. However, contractually, this was R’s responsibility. Any agreement made between R and T prior to the incident is not known to O.
It has not been adequately proven that the roof sagged.
It has not been sufficiently proven that the injury occurred on the jobsite as it was not reported for more than one month.
AUTHORITY
Section 84 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy:
14-05-01: TOC
Section 84 of the WSIA is the provision that governs issues concerning a transfer of costs. This section provides that, where the Workplace Safety and Insurance Board (WSIB) is satisfied that the accident giving rise to the worker’s injury was caused by negligence of some other Schedule 1 employer or that other employer’s workers, all or part of the costs of the accident may be transferred to that other employer’s record.
The legislation does not define “negligence”. The only WSIB guideline on this matter is set out in operational policy 14-05-01, TOC. This document states that the WSIB will apply common law principles and that “negligence” is defined as:
- failing to do something which a reasonable and prudent person would do, or
- doing something which a reasonable and prudent person would not do