Worker’s Compensation Insurer - Hygiene and safety control

In re: “Rivero, Mónica y otros c/ Techo Técnica S.R.L.”, plaintiff filed a complaint against the employer company and the Worker’s Compensation Insurer (“ART”) owing to a work accident. The complaint against the ART was based on the grounds of alleged breach by the ART incurred when the tasks of controlling hygiene and safety which could have prevented the accident were not carried out or carried out in a deficient manner.

The Court of First Instance approved the claim and condemned the employer and the ART. The judgement was appealed and Room VIII of the Court of Appeals on Labor Matters partially revoked the first instance judgement, rejecting the complaint filed against the ART based on the following grounds:

(a) the ART was not charged with omissions relevant to the ocurrence of the accident;

(b) all obligations and duties of insurers in matters of prevention and surveillance are exercised with regard to insured employers. Insured employers may not be compelled by those entities to adopt the recommended measures nor prevented from rendering their services in deficient conditions of safety;

(c) failure by the insurers to issue recommendations on safety and hygiene matters, only makes them liable towards affiliated employers, not towards employees, with whom they have no legal or material relationship;

(d) the accident occurred strictly because of physical causes which could not have been prevented even if the ART had done what it is accused of not having done;

(e) it is not the task of the insurers to control daily activity, throughout the entire work day, in each work site, nor to give instructions with regard to the manner of carrying out tasks or preventing them because of risk.

Plaintiff filed an extraordinary appeal against this judgement, which was dismissed by the Court of Appeals and gave rise to the appeal to the Supreme Court mentioned in this article. With the vote of 5 of its 9 members, the Argentine Supreme Court of Justice on December 12, 2002, dismissed the extraordinary appeal filed by plaintiff against the judgement pronounced by Room VIII of the Court of Appeals on Labor Matters.

The decision of the Supreme Court was based on the following grounds:

(a) Failure to control hygiene and safety is not sufficient to attribute liability; the existence of an adequate causal link between said omission and damage is a mandatory requirement to the success of the monetary claim.

(b) The challenged resolution may only be dismissed by a probability judgement, the purpose of which should be to determine if the failure attributed to the ART could have produced the harmful result, which places the appealed judgement beyond the limited scope of the doctrine of arbitrariness.

(c) The fact that the ART did not report the failure incurred by the insured employer to the Worker’s Compensation Superintendency is not sufficient to frame the challenged judgement within the terms of the doctrine of arbitrariness, because it is a matter of opinion whether the ART’s omission is a relevant condition to the occurence of the accident.