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Guidelines Workers Compensation Act

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Guidelines Workers Compensation Act Part 3 Division 11

G-D11-179-1 Advance notice of inspections

Issued October 27, 2004

Section 179(1) and (2) of the Workers Compensation Act states:

(1) An officer of the Board may enter a place, including a vehicle, vessel or mobile equipment, and conduct an inspection for the purpose of

(a) preventing work related accidents, injuries or illnesses,

(b) ascertaining the cause and particulars of a work related accident, injury or illness or of an incident that had the potential to cause a work related accident, injury or illness,

(c) investigating a complaint concerning health, safety or occupational environment matters at a workplace, or

(d) determining whether there is compliance with this Part, the regulations or an order.

(2) An inspection may be conducted

(a) at a reasonable hour of the day or night, or

(b) at any other time if the officer has reasonable grounds for believing that a situation exists that is or may be hazardous to workers.

Section 182 of the Act deals with the right of the employer and workers to have a representative present during an inspection. Section 182(5) states that "nothing in this section requires the Board or an officer to give advance notice of an inspection".

An inspection is a visit to a workplace to assess compliance with the regulations or to observe work procedures and conditions at the site.

Board prevention officers conduct inspections on the basis of a high-hazard priority system; that is those industries which involve a higher risk to workers are inspected more frequently than lower-risk industries.

Inspections take place whenever and wherever work is being done. They include isolated work locations, adverse weather conditions and shift work outside of the normal nine-to-five pattern.

Inspections may be made with no prior notice to any employer, union official, or any other person, except as specified below.

Where a union official or other worker makes a specific complaint, and also indicates a desire to personally show a prevention officer the subject of the complaint, a Board officer may make an appointment with that person for that purpose; but no other person will be informed of the intended inspection except another regulatory body when coordinated attention may be required.
Where an employer requests an inspection, it may be arranged by appointment with the employer; and in that case, the appropriate union official or workers' representative should also be informed.
Where a prevention officer regards it as necessary for the proper completion of an inspection that a particular management or union official, or other person, should be present, the officer may arrange an inspection by appointment. In that case, the appointment will be arranged with the appropriate management official, and the appropriate union official or appropriate workers' representative. Successive inspections by appointment should not be arranged at the same place of work.
Other situations by specific direction of the prevention officer's Regional Manager.

The above relates only to attendance for inspections for matters of occupational health, safety or first aid. It does not relate to attendance for other purposes.

If an employer invites an officer to inspect or review all or part of a work site and consult with the employer on the work site's compliance, and violations of the regulations are observed, officers are to initiate an inspection and issue appropriate orders.

With regard to operations with multiple temporary locations, the procedure is to contact the head office of the employer to determine the location of each individual project that the employer is operating. These are usually construction, excavation or logging operations of less than six months duration. The information received is relayed to Board officers in the relevant areas, and inspections are carried out. Where operations of this kind are noticed by an officer without information having been received from the head office of the employer, inspections will be carried out on the spot.

G-D11-179-2 Commencement of an inspection

Issued October 27, 2004

When starting an inspection, a Board prevention officer will inform the employer and worker representative, if any, as to the nature of the inspection; that is safety or hygiene, occupational environment, medical, or a combination of any two or more. Although an inspection is made for a specific purpose, for example safety, other observed violations will be addressed.

There are special procedures for initiating certain types of inspections, for example, federal WHMIS inspections conducted on behalf Human Resources Development Canada. The officers doing those inspections will be trained in those procedures.

Where a prevention officer attends at a place of work for a purpose other than an inspection, the employer and the appropriate workers' representative should be notified that the officer has not come for an inspection, although immediate hazards observed by the prevention officer will be addressed.

A prevention officer will only cross a picket line, legally established or otherwise, to carry out Board duties when so directed by a Manager or Director and when the union organizing the line agrees. If the union does not agree, the prevention officer will report the circumstances to the Manager or Director for instructions.

For the right of the employer and workers to have a representative accompany the officer during an inspection, see sections 140 and 182 of the Act and Policy D4-140-1.

G-D11-179-3 Follow up inspections

Issued October 27, 2004

A follow-up inspection is conducted to determine whether the orders issued on the last inspection have been complied with.

The employer's and the workers' representatives will be contacted at the start of the inspection and have a right to accompany the Board prevention officer.

If the employer has failed to comply with an order on the last inspection report, the order may be re-issued as a repeat, and the officer may require the employer to send a compliance notice to the Board.

Orders may be issued for new hazards observed during a follow-up inspection. Where no new orders or no repeat orders are necessary, this will be stated in the report.

G-D11-179-4 Use of equipment during inspections

Issued October 27, 2004

The inspection of a place of employment, the investigation of accidents or inquiries by an officer of the Board is not dependent upon any permission from the employer (Section 179(1) and (2) of the Workers Compensation Act). The right of entry for inspection carries with it the right to bring and use the normal equipment required for safety and health inspections. The sampling, measurement, recording and testing equipment includes cameras and cannot be subject to limitations imposed by the employer. (Section 179(3))

The employer may object to use of equipment in the workplace on the grounds the use of the equipment could endanger workers, for example, the use of flash bulbs in an atmosphere where high concentrations of flammable gases or vapours may be present. The Board prevention officer should ensure the use of the equipment will not endanger workers in the place of employment where the equipment is intended to be used by the officer.

The officer will consider any concerns of the employer or any other person at the workplace about the prevention officer using equipment in the workplace. Depending on the circumstances, the prevention officer may proceed to use the equipment, consult with his or her manager or take whatever other steps seem appropriate.

G-D11-179-5 Incident Investigations

Issued: September 28, 2005; Revised February 6, 2006

Regulatory excerpt
Section 178 of the Workers Compensation Act ("Act") states:

This Division, as it applies in relation to inspections, also applies to investigations and inquiries.

Section 179(1) of the Act states:

An officer of the Board may enter a place, including a vehicle, vessel or mobile equipment, and conduct an inspection for the purpose of

(a) preventing work related accidents, injuries or illnesses,

(b) ascertaining the cause and particulars of a work related accident, injury or illness or of an incident that had the potential to cause a work related accident, injury or illness,

(c) investigating a complaint concerning health, safety or occupational environment matters at a workplace, or

(d) determining whether there is compliance with this Part, the regulations or an order

Purpose of guideline
The purpose of this guideline is to specify the responsibilities and practice for Worker and Employer Services Division (WES) prevention officers and Fatal and Serious Injury Investigations (FSII) investigating officers pertaining to the conduct of investigations.

Purpose of Board investigations
Under section 111 of the Act, the Board has a statutory mandate and duty to be concerned with occupational health and safety ("OH&S") generally and to undertake inspections, investigations and inquiries on matters of OH&S and occupational environment.

The Board responds to all reported workplace incidents that result in death or a serious injury, or that present a high risk of causing a serious injury or death to workers. Depending on the circumstances of the incident, the Board may conduct an in-depth investigation and produce an Accident Investigation Report.

The purpose of a Board investigation is two-fold. First, it is to identify the cause of the incident to learn how to prevent similar accidents from occurring in the future. The second purpose is to determine whether there has been non-compliance with the applicable OH&S law and to ensure that appropriate action is taken to promote future compliance. The overriding goal is to prevent workplace incidents through education and deterrence of unsafe practices.

Responding to incidents that may require investigation
WES prevention officers will respond to all:

Reported workplace incidents resulting in fatal or serious injuries.
Incidents that do not result in injury but where there is a high risk of fatal or serious injury to occur (near miss).

FSII investigating officers will investigate:

Any workplace accident that resulted in the death of a worker.
Selected serious injuries and near miss incidents.

FSII investigating officers will consider investigating any incident:

Where the cause of incident is unknown or difficult to determine.
That has potential for new or significant lessons-to-be-learned that can be communicated to stakeholders.
That supports a Board strategic initiative to reduce the serious injury rate.
Where the frequency of the incident as it relates to other similar incidents within an industry or sector appears to be on the rise.
Where the circumstances of the incident suggest it is in the public interest.
That is reportable pursuant to section 172 of the Act. Under s. 172 of the Act, employers are required to immediately notify the Board of the occurrence of any accident:

That resulted in serious injury to or the death of a worker.
Involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system or excavation.
Involved the major release of a hazardous substance.
Was an incident required by the OHS Regulation to be reported.
A blasting accident that is required to be reported as per s. 21.3 of the OHS Regulation.

The Board may determine not to investigate every reportable incident. However, incidents not undertaken by FSII will be inquired into by the WES prevention officer in accordance with established inspection guidelines. In these cases, the preparation of a Board Accident Investigation Report is not required.

The Director of Investigations may direct an FSII investigation into any incident.

It is good practice for the officer to explain the investigation process to the employer and advise the employer of the potential for sanctions under the Act.

Practice
WES Responsibilities
When notified, a WES prevention officer will respond to a report of an incident.

The prevention officer will commence collecting information to determine the facts and circumstances of the incident. This may require going to the scene of the incident or making sufficient telephone inquiries. If the prevention officer response will result in a Notice of Incident the officer will contact and inform FSII as soon as practicable. In most cases, this should be done shortly after the prevention officer has arrived at the scene of the incident or has made sufficient inquiries to confirm the details of the incident reported, such as nature of injuries, WCB jurisdiction and employer contacts.

For after hours or holidays, the prevention officer will provide the information to the prevention duty manager who will then, if the circumstances warrant, contact and inform the manager of FSII.

It is important that the prevention officer communicate sufficient information and details about the incident and the parties involved. This will enable the FSII officer or manager to assess the incident, record the details and provide a timely decision to the prevention officer as to whether FSII will be investigating the incident.

The prevention officer will take initiative to secure the incident scene and begin collecting evidence. If an investigating officer is assigned the investigation, the transition of the file to FSII will be through collaboration and discussion between the prevention officer and the investigating officer.

The prevention officer will issue an Inspection Report to the "incident employer" documenting the officer's initial response to the incident before leaving the scene or as soon as practicable thereafter. The Inspection Report may contain orders that address immediate safety concerns or compliance issues (see Shared Responsibilities below).

The prevention officer will complete and submit a Notice of Incident, generally within 48 hours of the officer's response.

Prevention officers will follow up on orders that have been issued accordingly.

FSII Responsibilities
Upon being notified of an incident, FSII will take the prevention officer's name and call back number and return the call within 15 minutes.

Where an investigating officer is assigned to investigate the incident, the investigating officer will contact the prevention officer immediately and coordinate their response accordingly. The investigating officer will be responsible for the investigation, and providing a detailed Investigation Report upon conclusion.

The investigating officer will also issue an Inspection Report upon the conclusion of the investigation, in collaboration with the prevention officer. The Inspection Report text will provide a summary of the investigation and its findings and may also contain associated orders and the basis for the orders. If no orders result, the reasons for the decision not to issue orders will be contained in the inspection text.

Administrative penalty considerations may be considered following established Board policy and procedures.

Shared Responsibilities
A prevention officer or investigating officer may issue orders at any time during the accident investigation process, depending on the circumstances. For example, where there is an immediate high risk situation, a stop work order may need to be issued. There may also be circumstances where there are violations unrelated to the accident that require orders to be issued to address a specific safety issue or concern.

Once an investigating officer is actively involved in an investigation, all orders that are issued will be through collaboration and discussion between the prevention officer and the investigating officer. Typically, the prevention officer will be responsible for the management of all outstanding orders in accordance with the Inspection Order Management System business rules. Orders issued by the investigating officer will be transferred to the prevention officer.

G-D11-179(1) Board Authority on a Public Road

Issued August 16, 2000; Editorial Revision October 2004

Section 179 (1) of the Workers Compensation Act states "An officer of the board may enter a place, including a vehicle, vessel or mobile equipment, and conduct an inspection for the purpose of

(a) preventing work related accidents, injuries or illnesses,

(b) ascertaining the cause and particulars of a work related accident, injury or illness or of an incident that had the potential to cause a work related accident, injury or illness,

(d) determining whether there is compliance with this Part, the regulations or an order."

Note section 178 of the Act sets out that the authority under section 179 to conduct inspections also applies to investigations and inquiries.

Officers of the Board have not traditionally investigated vehicle accidents occurring on highways or other public roads. The practice was in part based on Policy 6.04 of the Occupational Safety and Health Division Policy and Procedure Manual, which discusses the investigation of log truck accidents. Policy 6.04 states that the Board's inspection jurisdiction is limited to "landings, dumpsites, sorting yards, wharves, and other areas involving loading or unloading equipment on an industrial road"; it does not extend to other portions of industrial roads nor to public highways. The policy also states that the Board must be notified of accidents involving injuries on public highways or any portion of an industrial road in all cases, and in some situations the Board may investigate those accidents. This policy is based on a 1982 letter from the Superintendent of Motor Vehicles.

A recent court decision (Regina vs. H.M.C. Services Inc) and changes to the Workers Compensation Act have made Policy 6.04 no longer valid. In the referenced court case the Board initiated a prosecution as a result of a vehicle accident occurring on a public highway in 1998. The case involved a road sweeper unit being operated on a public road without any traffic control in place. The employer brought a preliminary challenge to the Board's jurisdiction to investigate an accident on a public highway. The court ruled that the Board has jurisdiction to inspect where a worker or employer is involved.

In addition to the above referenced court decision, the following discussion looks at some other applicable principles.

1. Section 108(1)(b) of the Workers Compensation Act states that the Board's prevention jurisdiction extends to "every employer and worker whose occupational health and safety are ordinarily within the jurisdiction of the Provincial government". Section 108(2) of the Act excludes certain industries from the Board's jurisdiction under Part 3 of the Act, notably mines and railways, but does not generally exclude vehicle accidents or highways. Certain operations on highways, such as inter-provincial trucking, fall within federal jurisdiction and are therefore excluded from the Board's jurisdiction by the Constitution of Canada. Apart from these exceptions, the Board has jurisdiction over all work activities on highways in BC.

2. If the Board has prevention jurisdiction over a particular industry, location, activity or other circumstance, all the relevant prevention provisions of the Act and regulations apply. This includes the obligation of the employer to notify the Board of accidents, and the Board's powers to inspect and investigate accidents. It is not possible, for example, for there to be an obligation to notify the Board without there being a right to inspect and investigate.

3. There are several other provincial statutes regulating activities on public roads. These include the Commercial Transport Act, the Forest Practice Code of British Columbia Act, the Highway Act, the Industrial Transportation Act, the Motor Vehicle Act, and the Motor Carrier Act. These Acts do not remove the Board's general jurisdiction over activities on highways. Generally speaking, persons on highways must comply with all the relevant provisions of the applicable acts and regulations. If, for example, there are Motor Vehicle Act regulations and Workers Compensation Act regulations governing their activities, they must follow both.

4. If there is an inconsistency between two Acts or their regulations, the one that is most specific to the particular circumstance will govern. This means that generally speaking the special provincial acts relating to highways listed in item 3 above would override any contrary provision in the Board's regulations. This is reflected in the note to section 16.2 of the OHS Regulation, which states "Mobile equipment required to meet the requirements of the Motor Vehicle Act or the Industrial Transportation Act is subject to this Regulation for matters not specifically governed by those Acts and the regulations under them."

5. It is not the role of officers of the Board to enforce other provincial acts and regulations relating to activities on public roads. Inspections and investigations by officers of the Board should generally be confined to matters covered by the Workers Compensation Act and regulations. Violations of other acts and regulations would typically be drawn to the attention of the other appropriate jurisdictional authority.

Policy 6.04 was retired effective October 1, 2001.

Officers of the Board should inspect and investigate occurrences on highways on the basis of the same criteria that they apply with respect to other workplaces. This means they should not inspect or investigate if:

1. activities of the employer are subject to the specific exceptions in section 108(2) of the Act or to federal jurisdiction,

2. the circumstances involve an issue where the governing statutory or regulatory provision is under an act other than the Workers Compensation Act, for example, an accident resulting from a violation of the rules of the road laid down under the Motor Vehicle Act.

Federal jurisdiction over motor vehicles can generally be determined by looking at or inquiring on three criteria. First is the way the company or operation is chartered or governed. For example, operations of the federal government are in this group, as well as activities of airlines, telecommunication and broadcast (radio, television and cable TV) operations. Second is how the labour relations of the operation are governed. If the Canada Labour Code is the applicable law, it is federal jurisdiction. If the BC Labour Code applies, it is provincial jurisdiction and the WCB likely has inspection and investigation authority. And third, if the company is a transportation operation regularly transferring items to or from locations outside of BC, it is likely a federal jurisdiction. Note the Board generally administers work-related injuries or occupational disease claims from the federal jurisdiction, but this aspect is not an indicator of the Board's jurisdiction to inspect or investigate for prevention purposes at a particular operation or activity in the federal jurisdiction.

An officer of the Board should not exercise the Board's authority to inspect or investigate work activity involving vehicle operation on a public road by flagging down and stopping a moving vehicle, unless such activity is being done jointly with another jurisdiction authorized and equipped to do so. Police or inspectors operating under the authority of the Motor Vehicle Act are examples of other jurisdictions that have such authority and the relevant equipment.

If a vehicle is stopped on a public road, an officer of the Board needs to exercise good judgement in determining whether it is reasonably safe to carry out an inspection or investigation at that time. This involves consideration of traffic volume on the road, sight lines for other vehicle operators to see and safely react to the stopped vehicle's location, and if other traffic can safely pass the stopped vehicle. If necessary, the officer should ask the driver to move the vehicle to another location on the road nearby or elsewhere so the inspection may be safely conducted.

If an inspection/investigation is taking place at the scene of a vehicle accident, an officer of the Board should only proceed with onsite activity if the scene is effectively controlled as necessary to make it safe from other road traffic. The officer should also make sure the vehicle(s) involved are not presenting a hazard through instability or the release of a hazardous material.

G-D11-179(3)(c) Use of Legal Sample Bags for samples collected by Board officers

Issued April 27, 2000; Editorial Revision October 2004

Section 179 (3) (c) of the Workers Compensation Act states that an "officer may ...for the purposes of an inspection under this Division ...take samples and conduct tests of materials, products, tools, equipment, machines, devices or other things being produced, used or found at the place, including tests in which a sample is destroyed;..."

Effective January 1, 2000, the Prevention Division initiated a "Preservation of Sample" program for all samples collected by a Board officer for submission to Occupational Disease Prevention Services for laboratory analysis. This is to ensure continuity of evidence and establish that tampering has not occurred during the conveyance of the sample (in a Legal Sample Bag) from the officer to Occupational Disease Prevention Services representative. This procedure is consistent with the generally accepted practices followed by other enforcement agencies for the seizure of items related to criminal investigations.

Each sample is to be sealed individually into a Legal Sample Bag at the time the sample is taken. This applies to all samples, whether a bulk sample or an air monitoring cassette or similar sample collection device. Bulk samples, such as asbestos-containing material, should be placed in a glass Teflon vial or other sealed enclosure before being placed in the Legal Sample Bag. Officers are to use sampling supplies and shipping containers as provided by Occupational Disease Prevention Services. The officer must fill out the required information indicated on the label attached to the legal sample bag. Ensure the bag is effectively sealed using the label fold-over tab. Ship the samples in accordance with the Occupational Disease Prevention Services "Field Officer Sampling Guide" along with a completed Analytical Request form.

Upon receipt of each sample bag at the laboratory, a laboratory representative will check the integrity of the sample bag. If the bag appears to be properly sealed and in good condition, the laboratory representative will indicate this by signing the sample bag label and forwarding the sample for the required analysis. If the sample bag appears to have been improperly sealed, tampered with, or has been opened, the officer who submitted the sample will be contacted by the laboratory representative to discuss why this may have occurred, and to make a decision on analysis and use of the sample results.

Requests for supplies of Legal Sample Bag and other sampling equipment and collection devices should be made to the Occupational Disease Prevention Services. For further information on the collection and shipment of samples, refer to the current "Field Officer Sampling Guide" issued by Occupational Disease Prevention Services.

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Disclaimer: The Worker and Employer Services Division issues Guidelines to help with the application and interpretation of sections of the Occupational Health and Safety Regulation and with divisions of the Workers Compensation Act that relate to health and safety. Guidelines are not intended to provide exclusive interpretations but to assist with compliance. WorkSafeBC ("Workers' Compensation Board of B.C.") does not warrant the accuracy or the completeness of the online version of the Guidelines and neither WorkSafeBC nor its board of directors, employees or agents shall be liable to any persons for any loss or damage of any nature, whether arising out of negligence or otherwise, which may be occasioned as a result of the use of the online version of the Guidelines.