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Difference between revisions of "Introduction to Compensation Claims for Injured Workers (7:III)"
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Introduction to Compensation Claims for Injured Workers (7:III) (view source)
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An “aggravation” approach applies when the worker has a pre-existing but non-disabling condition. After acceptance, the worker’s injury is dealt with like any other claim and the whole disability is compensable. | An “aggravation” approach applies when the worker has a pre-existing but non-disabling condition. After acceptance, the worker’s injury is dealt with like any other claim and the whole disability is compensable. | ||
However, if the worker has a pre-existing disabling condition and becomes further disabled in the same body part through a work injury, the Board will apply section 5(5) of the WCA or “proportionate entitlement” whereby compensation is paid only for the increase in disability, rather than the whole disability. | |||
===== (3) Multiple Disabilities & Jurisdiction ===== | |||
Work outside of BC is regarded as non-work exposure for compensation purposes. However, workers’ compensation boards across Canada have entered into an “interjurisdictional agreement” that provides for reciprocal coverage of some disabilities arising from work exposure or activities indifferent jurisdictions, and also enables the ruling Board to administer a claim in another province. The Board may try to apportion benefits in cases where the disability is partially caused by non-work or out-of-jurisdiction factors according to the percentages of causation – at least when assessing a pension – although it is not clear that the Act authorizes this. | |||
==== c) Personal Injury ==== | |||
Under section 5 of the WCA, personal injury or death must arise out of, and in the course of, employment in order tobe compensable. | |||
'''“Arising out of employment”''' relates to causation and means that the work must have causative significance to the injury. Not all injuries at work are caused bywork, as some are naturally occurring conditions which would have happened inany event. One example is a heart attack for a worker with heart disease, who was working in a sedentary job. 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. Generally, an injury which occurs while the worker is commuting to work is not considered to be “in the course of employment”. | |||
'''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 sets out further and detailed criteria for acceptance of a claim under section 5 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 which is 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 employee is the sole cause of the injury, no compensation is paid unless death or severe disability results. | |||
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. | |||
The test for whether a secondary condition is compensable is one of '''“causative significance”'''. According to well-established jurisprudence, this means that the initial injury does not have to be the sole cause or even the dominant cause of a secondary condition; it must be only of causative significance greater than being trivial orde minimis: ''Chima v. Workers’ Compensation Appeal Tribunal'', 2009 BCSC 1574; ''Schulmeister v. British Columbia (Workers’ Compensation Appeal Tribunal)'', 2007 BCSC 1580 and ''Albert v. British Columbia (Workers’ Compensation Appeal Tribunal)'', 2006 BCSC 838. | |||
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'' decision (supra) 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. | |||