Worker's Compensation - 2

Further to my last post, the question often is whether a worker is in the course of employment or not.

For example, if a worker is on a smoke break at work when they get injured, is this an “injury by accident, arising out of and in the course of his or her employment”? Is this employee entitled to benefits from the Worker’s Compensation fund or is the worker able to sue?

There are several decisions from the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), going back 15 to 20 years ago, in which the Tribunal held that workers who drive around most of the day as part of their employment and who have an accident while on a coffee break, stopping for lunch or running an errand not far off their scheduled route, do not create a “distinct departure” from their employment activities. Therefore, the accident was held to fall within the parameters of Section 13 of the WSIA, 1997, “an accident arising out of and in the course of employment”. The WSIAT ruled that the tort action was barred. These are cited at WSIAT decisions 351/90, 62/94 and 669/89.

In another case found at WSIAT decision 901/95, at paragraph 44, the tribunal found that a plaintiff who slipped and fell when he was going into a donut shop was engaged in a work-related activity that was reasonably incidental to his employment. In that instance, the plaintiff was a salesman and often used the donut shop for filling out paper work because he did not have an office of his own. He also often met clients at the donut shop.

The test used by the WSIAT is whether the personal injury in a work-related activity was “reasonably incidental” to the injured person’s employment. The WSIAT, in their decision of 901/95, also stated that they were persuaded that the plaintiff was engaged in a work-related activity that was reasonably incidental to his employment on the basis that the timing, duration, and potential cancellation of each break was determined by the requirements of the plaintiff. In other words, the plaintiff, as a salesman, was self-directed and there was not a bright line to distinguish between when he was on a break or when he was working in the donut shop.

In a more recent decision, the WSIAT, at decision 285/05, affirmed the work-relatedness test when deciding that an employee’s right of action had been taken away by the WSIA, 1997 when the employee slipped and fell in a parking lot of an airport while on a business trip.

The WSIB has an Operational Policy Manual which contains policies related to this issue. Policy document 15-02-02, which applies to all decisions made on or after July 1, 1990, states that a personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time and activity indicate that the accident was work-related. Further, policy document 15-03-03, applicable to all decisions made on or after June 1, 1989, states that a worker is considered to be in the course of employment on entering the employer’s premises but that the “in the course of employment” status ends on leaving the employer’s premises, unless the worker leaves the premises for the purposes of employment. These policies seem to be in conformity with the WSIAT’s decisions.

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