By Maurice Dransfeld
Perhaps the question I get asked the most when an employer is contacting me for advice on a workers’ compensation board (WCB) claim is some version of “how is this even a claim?” There is usually some skepticism centered around the extent of the injury, the likelihood of injury or why an injury would be covered when clearly, the worker was not following safety procedures or was otherwise fooling around at work.
This initial stage of workers’ compensation denial usually moves through the well-known stages of grief and, in most cases, culminates in acceptance upon being reminded of the nature of the workers’ compensation system, namely that it is a system of no fault insurance that aims to provide coverage to workers who are injured while carrying out their work.
At its core, workers’ compensation is a remedial system, meaning that its fundamental objective is to provide coverage for injured workers. It does so by drawing a wide box around the types of things that will constitute compensable claims. The shared feature of all workers’ compensation schemes across Canada is that coverage is extended to all injuries, regardless of fault, that are work related.
The threshold question that workers’ compensation boards ask in assessing whether a particular injury is “work related” is whether it “arose out of and occurred in the course of employment.” Both conditions must be met in order for workers’ compensation coverage to follow. The injury arises out of employment if it is the result of some sort of hazard of employment. It occurs in the course of employment where it occurs at a time and place consistent with the obligations and expectations of the job.
Ultimately, most workers’ compensation cases are fairly straightforward. Most claims concern workers who are injured while they are carrying out their work at their employer’s place of business. But there are claims that reside at the fringes of what it means for an injury to be “work related.” These are claims for injuries that may occur outside of the employer’s premises or claims that occur prior to work even starting, or perhaps during breaks.
Injuries that occur during travel to and from the workplace are one such category of fringe claims that might force employers to take a close look at the applicable workers’ compensation policy to assess whether it will attract coverage.
The general rule for travel to and from work is that it is not covered. However, as is the case with most rules, there are exceptions. Work-related travel can be considered as “occurring in the course of employment” in certain circumstances and this exception is generally based on how much direction or control the employer exercises over the travel.
So, while the morning drive to the workplace is not covered, the drive to the airport at the direction of the employer might be. On the other hand, the personal detour to a nearby mall may not be.
A WCB will look at various factors to determine whether the employer directs or controls the travel in some fashion. For example, travelling to work in employer-provided transportation, like a bus, would ordinarily be covered. Similarly, exceptional travel, such as errands for the employer, are covered. There are also cases where a worker travelling in his own vehicle is covered, such as while on a private road owned by the employer leading to the work site.
If a worker’s travel falls within one of the covered categories of work travel, injuries that occur during the ordinary side activities of travel, such as coffee breaks, lunches or rest stops, can also attract coverage.
A recent case involved a worker who was found dead inside his vehicle parked off to the side of a highway. The cause of death was cardiac arrest and the employer correctly reported this injury to the WCB. The employer was understandably nervous about the extension of coverage for this unfortunate fatality. Under the applicable policy, coverage could extend if the worker died during a rest stop on the highway, if his travel was under the direction of the employer.
As the investigation ultimately discovered, the worker died as a result of a fentanyl overdose, something the WCB accepted took the worker outside of the course of employment.
Another contentious area involves injuries during lunch breaks. Again, the general rule is that a worker who is injured while taking a personal lunch break would not be covered by workers’ compensation. For example, the worker who slips and falls on the way to the café would not be covered. However, just as with travel, the principle of employer control and direction provides the exception. The same worker who slips and falls on the way to the café might be covered if he was asked by the employer to pick up lunch for others.
Similarly, injuries that occur during lunch in an employer-run cafeteria can attract coverage.
I came across a stunning example of such a lunch break issue in a case that involved a worker with a severe food allergy. The employer was aware of this allergy and it was accommodated to the extent that this worker’s work area was completely isolated from any lunch areas and the worker was excused from attending any meetings where food would be served.
After the employer organized a lunch meeting, another employee took some food back to her work area that was in close proximity to the worker. The allergens in that food caused a severe allergic reaction for the worker who had to be hospitalized immediately. Complicating this matter was the fact that the worker was pregnant at the time, which then raised issues about injuries affecting the unborn child. The fact that the lunch food that caused the reaction was employer provided would inform the WCB in this instance.
This same principle of employer control and direction also governs coverage issues for things like company events. Injuries during the company softball game or Christmas party will usually attract coverage. Injuries during a private poker game between co-workers will not.
Most workers’ compensation systems in Canada are also prepared to extend coverage to areas outside the four corners of the actual employer premises. For example, injuries that occur in common areas such as hallways or lobbies in front of, or en route to, a workers’ place of employment will usually be covered. Coverage is also extended to parking lots, usually where the employer owns, leases or otherwise maintains the lot or provides parking privileges for workers there.
Workers’ compensation boards will look for the nexus to the workplace and, in particular, to the employer to assess whether an injury that does not neatly present as “work related” might still attract coverage. Employers need to be aware that much of this decision-making is informed by the remedial nature of the workers’ compensation system. As such, we would expect to see an expansion of the categories of times and areas that might attract workers’ compensation coverage.
For example, one board has extended coverage to a worker for a fall on an icy city sidewalk some distance away from the entry to the workplace on the basis that the issue was well-known to the employer. The question concerning the time and place of a workplace injury poses many questions and challenges. Employers that face workers’ compensation claims should always analyze whether a particular claim actually meets the threshold requirement of “arising out of and occurring in the course of employment.” However, employers must be careful not to be unduly dismissive of claims that occur outside of working hours and outside of the four walls of the actual place of employment. Workers’ compensation can extend to such claims and as the workplace continues to extend its fingers further and further into our lives; I would expect the categories of covered claims to only be broadened in the future. After all, the more direction and control an employer purports to exert over its workers, the wider the category of “work relatedness” will become.
This article originally appeared in the December/January 2017 issue of COS.
Maurice Dransfeld is a lawyer in the Edmonton office of McLennan Ross who provides advice to employers on a variety of labour and employment issues. He can be reached at email@example.com or (780) 482-9223, or visit www.mross.com for more information.