Personal Injuries for Workers' Compensation (7:V)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 31, 2020.|
A. Did the Injury Happen at Work
Under sections 134 and 146 (previously 5) of the WCA, personal injury or death must arise out of, and in the course of, employment in order to be compensable. It is important to check policies and WCAT decisions for qualifying factors, as they change.
“Arising out of employment” relates to causation and means that the work must have causative significance to the injury. According to the well-established jurisprudence, this means that the work does not have to be the sole cause or even the dominant cause of the injury; it must be only causative significance greater than being trivial or de minimus:Chima v. Worker's Compensation Tribunal, 2009 BSC 1574, Schulmeister v. British Columbia (Worker's Compensation Appeal Tribunal), 2007 BCSC 1580, and Albert v. British Columbia (Worker's Compensation Appeal Tribunal), 2006 BCSC 838. Not all injuries at work are caused by work, as some are naturally occuring conditions which would have happened in any event. For example, a worker with heart disease, who is working in a sedentary job, may have a heart attack in the office. There is likely nothing in the work activity which would have causative significance for this injury.
“In the course of employment” relates to the employment relationship at the time of injury. It generally refers to whether the injury or death happened at the time and place and during an activity reasonably related to the duties and expectations of employment. Time and place are not strictly limited to the normal hours of work or on the employer's premises.
- NOTE: There is a statutory presumption that if an injury is caused by an accident at work, the injury is presumed to have occurred in the course of employment [section 5(4) of the WCA]. An accident can include someone else’s intentional act.
The determination of whether an injury arose out of and in the course of employment is set out in policy C3-14.00 and can be made with reference to factors such as:
- whether the injury occurred on the premises of the employer;
- whether it occurred in the process of doing something for the benefit of the employer;
- whether it occurred in the course of action taken in response to instructions from the employer;
- whether it occurred in the course of using equipment or materials supplied by the employer;
- whether the risk to which the worker was exposed was the same as the risk to which he or she is exposed in the normal course of production;
- whether the injury occurred during a time period for which the worker was being paid;
- whether the injury was caused by some activity of the employer or of a fellow worker;
- whether the injury occurred while the worker was performing activities that were part of their regular job duties; and
- whether the injury occurred while the worker was being supervised by the employer.
This list is not exhaustive, and alone, none of the above factors are conclusive.
Chapter 3, RSCM II sets out further and detailed criteria for acceptance of a claim under sections 134 and 146 of the WCA. Current policy states that the injury need not occur while the worker is engaged in specific productive acts, so long as it occurs within the broad circumstances of carrying out the employment duties. An injury incurred while commuting is generally not a compensable injury; however, travelling may be considered an activity in the course of employment if travel is part of the worker’s duties or if the accident occurs on the employer’s property or on a “captive road” provided and controlled by the employer, such as logging roads used by forestry workers.
If serious and willful misconduct on the part of the worker is the sole cause of the injury, no compensation is paid unless death or severe disability results.
B. Secondary Conditions
Where the worker suffers consequences from the injury, in addition to the injury, these may be “compensable consequences”. Some common compensable consequences of injury include chronic pain and the development of psychological conditions after the initial injury (unless they arise due to the WCB process). The test for whether a secondary condition is compensable is also “causative significance”, meaning that the initial injury does not have to be the sole cause or dominant cause of the secondary injury, it must only be causative significance greater than being trivial.
As discussed above, if the worker suffered from a pre-existing condition and the injury aggravates, accelerates or activates this condition, the resulting aggravation may also be compensable. (NOTE: this policy is complex and should be consulted for specific details).
The Kovach v Singh (Kovach v WCB),  SCJ No 3 decision upheld the Board’s policy that a worker who is undergoing treatment for a work injury remains in the course of employment, even if the treatment takes place long after the job itself has ended (even years after). This decision means that workers undergoing treatment for an injury or disease generally cannot sue negligent medical providers for medical malpractice.
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