B.C. Hydro was not required to report an accident that injured a contractor working on its power lines, an arbitrator has ruled, even though company employees rushed to the scene to help the injured man.
In the fall of 2009, B.C. Hydro granted a contract to replace components of its overhead electrical distribution system near Fernie, B.C., to Arrow, a power line construction and maintenance firm. As the prime independent contractor, Arrow was responsible under provincial legislation for the protection and safety of all workers performing the work. There were no B.C. Hydro workers on the project.
On Nov. 26, 2009, an Arrow power line technician came into contact with an energized part of the overhead electrical distribution system and suffered electrical burns. A co-worker tried to call for assistance on his cellphone but was unsuccessful. He then used his radio.
A B.C. Hydro crew was in the area and heard the radio call, so they rushed to the scene and rescued the Arrow worker. By that time, an ambulance had arrived and the Arrow worker was taken to the hospital.
B.C. Hydro employees stayed to repair damage from the accident to restore electrical service. They also began to investigate.
B.C. Hydro’s line manager went to the hospital to give doctors materials on how to treat electrical injuries and went to the accident site where he reminded an Arrow employee to report the accident to WorkSafeBC, the province’s workers’ compensation board. Arrow reported the accident about five hours after it occurred.
The next day, WorkSafeBC officers arrived at the site to begin their own investigations. One of them knew the family of the injured worker but didn’t feel that would be a problem.
On Jan. 25, 2010, that officer issued a report citing B.C. Hydro for violating the B.C. Workers’ Compensation Act by allowing the accident scene to be disturbed and not reporting the accident, since it was the owner of the worksite and an employer related to the worksite.
But B.C. Hydro challenged the report, arguing Arrow was the employer responsible for the worksite and it ensured the contractor would report it in a timely manner.
B.C. Hydro also said it did what it could to preserve the accident site for the investigators but it had to restore electrical service as quickly as possible.
A review officer cancelled the citation for disturbing the accident site but confirmed the order for failing to notify WorkSafeBC of the accident. The obligation to report the accident wasn’t restricted to employers with workers involved, said the review officer — an employer that has a “significant connection to the worksite” should also report it to ensure the board has the timeliest notification possible.
Unsatisfied, B.C. Hydro appealed to the B.C. Supreme Court, arguing the officer who issued the original order was biased because of his connection to the injured worker. But the court found there was little reason to think the original officer was biased.
Also, B.C. Hydro didn’t make this argument until its appeal so the argument was dismissed for not being raised in a timely way.
The court also found the review officer was reasonable in dismissing the argument that B.C. Hydro instructed Arrow to report the accident and therefore negated the need for both to report.
“Since all that was required was a telephone call to the board, the simultaneous obligation to report did not impose unreasonable duplication of effort or expense and (the act) does not excuse the failure to do so,” said the review officer supported by the court.
However, the original officer and reviewing officer adopted an interpretation of the reporting requirement that was too broad, found the court.
Though it was reasonable to interpret the definition of “employer” as not limited to just the employer of the injured worker, in this case B.C. Hydro was not an employer with a reporting obligation, said the court.
The legislation specifies the difference in duties between the owner of a worksite and an employer on the worksite, and an owner is not obligated to report an accident, said the court.
Other than ownership, B.C. Hydro’s connection to the worksite and the accident was because its workers responded to the distress call and provided “co-operation and assistance” at the scene. It should not be penalized for its actions, said the court.
“B.C. Hydro submits, and I agree, that the interpretation of (the act) adopted by the board in this case would, if allowed to stand, have a chilling effect on any employer who was considering whether to assist, as a Good Samaritan, in the rescue of an unrelated worker,” said the court.
“I agree with the submission of B.C. Hydro that before an employer can be found to have a reporting obligation under (the act), that employer must, at a minimum, either be the employer of the injured worker or must be an employer whose workers are at a multiple-employer workplace within the meaning of (the act) at the time of the accident.”
The order for B.C. Hydro to report the accident was dismissed and remitted to the WorkSafeBC review division for reconsideration.
See British Columbia Hydro and Power Authority v. British Columbia (Workers’ Compensation Board), 2013 CarswellBC 4010 (B.C. S.C.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, see www.employmentlawtoday.com.
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