Workers’ Compensation

Workers’ compensation — a system of social insurance that has evolved over the last few decades — is sometimes said to be the first no-fault insurance system in this country.

Various workers’ compensation systems were passed at various times between 1913 to 1950, designed to protect the employer from being sued for work conditions.

Workers’ compensation is subject to the requirements set out in the Workers’ Compensation Act. It is, generally, mandatory.

It is critical when handling a claim, to determine early whether or not it falls within the framework of workers compensation. There are questions that need to be answered immediately:

• Was the worker in the course of employment at the time of the incident
• Is the employer registered or required to be registered under the applicable Workers’ Compensation Act
• Was the person who caused injury to the worker, if applicable, also in the course of employment at the time.

A detailed statement is required in order to identify all of the issues necessary and determine whether you have a bar to the claim.

The statement must include not only the facts of the accident, but also historical information on the claimant, including where they work; when they last worked; where they had been for the preceding 12 to 24 hours; when were they working next; and what brought them to the location where the accident occurred. The same detail that goes into describing what was done by the claimant immediately prior to the accident occurring should go into a history of his employment in order to determine whether, at the material time, he was in the course of employment.

In order to fund the system, the various workers compensation acts require the registration of employers who have at least three full-time employees under the system throughout the year. As an example, see the New Brunswick Regulation 82-79 under the Workers’ Compensation Act, s.3(1).

New Brunswick has even gone one step further than many other jurisdictions in bringing a situation under the Workers’ Compensation Act even if a particular employer was not registered as an employer under the Act at the time of an industrial accident. Section 70 of the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13 has been used successfully to find that so-called independent workers, such as taxi drivers and couriers, are covered by workers’ compensation. This included a situation where the employer attempted to argue that couriers were independent contractors and therefore should not have to pay workers’ compensation premiums. The courts of New Brunswick, as well as the Workers’ Compensation Board, found that as a result of Section 70 of the Workers’ Compensation Act they have it in their power to assess these types independent contractors under the Act and therefore they would become covered by the Workers’ Compensation Act: Joey’s Delivery v. WHSCC.

New Brunswick Regulation 82-79 under the Workers’ Compensation Act provides that the fishing industry is excluded from the scope of the Workers’ Compensation Act “except for undertakings in which 25 or more workers are at the same time usually employed” [s.3(2)]. In other words, people working on fishing boats would generally be excluded, but workers in a fish processing plant where there were at least 25 or more workers employed would be covered.

In order to be covered by workers’ compensation, the worker must have been injured while “in the course of employment.” There is a presumption that where an injury was caused by an accident that arose out of the employment of a worker it is presumed to have occurred in the course of the employment. There are many injuries that take place in the “grey area,” where it is questionable as to whether or not the employee was in the course of employment at the time and therefore should be covered. When an application is brought to apply the civil litigation bar to a particular fact situation, there are a number of variables that are considered in deciding that issue. Some of those variables include:

• 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 it occurred in the course of receiving payment or other consideration from the employer;
• Whether the risk to which the worker was exposed was the same as the risk to which he 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.¹

There is never a question about coverage in the course of one’s employment when the accident takes place on the shop floor or while carrying out the clearly defined duties of ones employment. However, the wealth of cases take place in those grey areas which are not quite so clearly defined as being within the work environment. For instance, a number of cases take place during the course of going to or leaving work and in many instances a question may arise as to where is the workplace located. For a travelling salesman the workplace is different than someone who works in an office in downtown Moncton. Where travel is part of a job function, an injury resulting from the travel is obviously one resulting from the person’s employment. Situations can arise, however, where a travelling salesman or other employee is injured while at a hotel in another city. It doesn’t need to occur during business hours and can happen late at night when the employee is watching TV, leans back too far in a chair and falls to the floor of the hotel room injuring himself. In such a situation, one would argue that he would not be in that hotel room if not for his employment and the risks that he was exposed to were not out of the normal course of events that one would find for such an employee. In that particular case, not only would the employee be covered by workers’ compensation, but if he considered suing the hotel, and that hotel was a registered employer under the Workers’ Compensation Act, then any claim would be barred as against that employer.  

We have had situations where an employee will be on a refreshment break and the question arises as to whether or not they are covered under workers’ compensation. If the injury occurs during a coffee break or a refreshment break it is generally one that would be covered under workers’ compensation if it occurs at the premises of employment. This would include for instance the cafeteria or lunchroom of a particular business. Similarly, if the break is taken in the course of travel for an employment purpose, then generally speaking you would be covered if you were insured as you drove through, for example, the Tim Horton’s drive-thru. However, if the worker is at a fixed place of employment and elects to leave his place of employment during that break to get a coffee at the Tim Horton’s next door, then since the injury takes place off of the premises it will generally not be one where workers’ compensation would cover the situation.  

In relation to company cars and their use the following general rules have application:

• If the car is being used for travel in the ordinary course of work, the injury is obviously compensable.
• If the car is provided for business use only and the injury occurs while commuting to or from work, the injury is compensable.
• If the car is provided as a fringe benefit for the personal and business use of the wor
  ker and the injury occurs while commuting to or from work, there are different views. The injury is compensable in Manitoba, but not in British Columbia or Alberta.
• If the injury occurs while the car is being used for purely personal purposes, it is not compensable.
• If the injury occurs while taking the company car to a dealership for service, it is compensable, and it makes no difference if the journey is undertaken outside of normal working hours.²

In New Brunswick, it is Sections 10 and 11(1) of the Workers’ Compensation Act, which take away the cause of action of an injured worker. The issue which the Board must determine is whether the plaintiff’s right to sue is taken away by the provisions of Section 11(1) of the Workers’ Compensation Act.

Section 11(1) reads as follows:
“In any case within section 10, no employer and no worker of an employer within the scope of this Part or dependent of that worker shall have a right of action against any employer within the scope of this Part or against any worker of that employer, where the workers of both employers were in the course of their employment at the time of the accident, but in any case where it appears to the satisfaction of the Commission that a worker of an employer in any class was injured or killed owing to the negligence of an employer or the worker of an employer in another class, the Commission may direct that the compensation awarded in that case shall be charged against the class to which the last mentioned employer belongs.”

Section 10 and 11(1) of the Act clearly prohibit the right of a fellow worker to sue for personal injury by accident, which “arises out of or in the course of employment.” The meaning of this phrase is a question of fact and law. It is to be determined by reference to the circumstances of the plaintiff’s employment and the facts existing at the time of the accident. It is also a question of law to be determined after consideration of the various tests and jurisprudence that have developed in relation to the interpretation of the phrase arising out of or in the course of employment.”

In a non-motor vehicle accident situation, as long as both workers are in the course of their employment at the time the claimant was injured, then the Workers Compensation Act would bar the claim against the tortfeasor worker and tortfeasor employer.

The Workers Compensation Act of New Brunswick has a special provision applicable to motor vehicle accidents. Section 11(1.1) has been interpreted in conjunction with the other enabling legislation to mean that if two workers are not employed by the same employer, then this section would apply to restrict the workers compensation bar if the injured worker is injured while being transported in a motor vehicle where PLPD insurance would be required or as a result of an accident involving the use of a motor vehicle. However, it has been interpreted such that if both the injured worker and the tortfeasor worker are both workers of the same employer and in the course of their employment at the time then the bar does apply.

Where a civil action is not barred, then the worker may elect in New Brunswick to pursue the remedy in damages against the tortfeasors, i.e. person responsible for the damages, or to claim compensation: Workers’ Compensation Act, R.S.N.B., 1973, c. W-13, s.10(1).  

You should keep an open mind as to what other claims might be barred pursuant to the Workers’ Compensation Act against an insured employer or employee.  When a former employee sues for wrongful dismissal and includes a claim for harassment, sexual or otherwise, assault or battery, is it possible that parts of the claim being made constitute an injury? If that is the case could not an application be brought to the Workers’ Compensation Board to bar that portion of the claim and its ensuing damages?

Henry Murphy is a senior partner at Murphy Collette Murphy in Moncton, N.B.

1. Workers’ Compensation in Canada, Second Edition, Terence G. Ison at page 26
2. Workers’ Compensation in Canada, Second Edition, Terence G. Ison at pages 31, 32