Chapter 9

Question 1

What is negligence?

Answer 1

an act or omission that involves no intention to
cause harm but that a reason-able person would anticipate might cause harm

Question 2

What is contributory negligence?

Answer 2

a common law defence in an action arising from negligence in which it is
asserted that the plaintiff’s own negligence directly caused or contributed
to the injuries suffered

Question 3

What does WCA stand for?

Answer 3

Workers’ Compensation Act

Question 4

What is co-worker negligence?

Answer 4

a common law defence in
an action arising from negligence in which it is asserted that the plaintiff’s injuries were caused by the negligence of the plaintiff’s co-worker, not the employer

Question 5

What is voluntary assumption of risk?

Answer 5

a common law defence in which it is asserted that the plaintiff voluntarily assumed the risk of injury.

Question 6

What are 8 key features of Workers Compensation in BC and Alberta?

Answer 6

1. Alberta and BC operate no-fault workers’ compensation systems, compensating for work-related injuries regardless of fault, barring workers from suing employers.
2. Employers fund benefits based on industry risk, with good safety records paying less via experience-rating.
3. Workers cannot contribute to premiums by law.
4. Workers cannot waive their rights to compensation.
5. Coverage is mandatory for many, with exemptions listed; BC applies universally.
6. Focus is on early and safe return to work, requiring cooperation between workers and employers.
7. Labour market re-entry plans aid workers unable to return to their employer.
8. Independent boards administer compensation, oversee claims, rehabilitation, and premium management, excluding private insurance.

Question 7

What is the role of the WCB?

Answer 7

he WCBs are independent statutory agencies that administer the WCAs. They run under the operating names of WorkSafeBC in BC and WCB Alberta in Alberta. They have a wide jurisdiction to perform a number of functions as set out in section 96 of the BC WCA and sections 17 and 97 of the Alberta WCA. They determine how much the assessments should be that are paid by employers in specific industries, including special additional assessments for specific employers who have not complied with safety standards or have been found to have unsafe working conditions.

Question 8

What does the WCB stand for?

Answer 8

Worker’s compensation boards

Question 9

Where can decision of the WCB be appealed to?

Answer 9

The Workers’ Compensation Appeal Tribunal (WCAT)

Question 10

When are WCB benefits available?

Answer 10

The WCA insures workers against only those injuries or diseases that relate to the workplace; non-occupational injuries or illnesses are not covered. The WCB deter-mines whether a worker qualifies for benefits on the basis of requirements set out in the WCA.

Question 11

What are the main points of the BC wording “arising out of and in the course of the employment”?

Answer 11

been broadly interpreted—again, favouring compensation of the worker. Benefits are paid as long as a worker is performing work-related duties anywhere on the employ-er’s premises during work hours.

Question 12

What is rebuttable presumption?

Answer 12

an inference that a court will draw unless the contrary is proven

Question 13

What is the but for test?

Answer 13

this is a logic test commonly used to determine causa-tion in law; the test asks “but for the existence of X, would Y have occurred?” and if the answer is yes, then factor X is an actual cause of result Y.

Question 14

If two employees get in a fight at work is it covered?

Answer 14

the BC legislation does not cover an injury that is “attributable solely to the serious and wilful misconduct of the worker” (emphasis added), unless the injury results in death or serious or permanent disablement

Question 15

What actions might remove a worker from the course of employment?

Answer 15

a criminal act with gainful intent;
* intoxication, when drinking is not permitted or condoned by the employer and intoxication is the sole cause of the accident;
* an intentional self-inflicted injury; * fighting, when the issue is purely personal with no employment relationship;
* horseplay, if the worker is the instigator and it is a serious deviation from or abandonment of employment duties;
* activities which are exclusively personal and have no relationship, directly or indirectly, to the worker’s employment duties or the employer’s operations.

Question 16

According to section 24(7) of the WCA states the date of the accident for the purposes of the Act is deemed to be what?

Answer 16

a) in the case of disablement, the date the dis-ablement occurs, and (b) in the case of potential disablement, the date
the potential disablement comes to the Board’s attention.

Question 17

How is post traumatic stress in first responders dealt with?

Answer 17

4.2(2) If a first responder, correctional officer, emergency dispatcher or
any other class of worker prescribed by the regulations is or has been diag-nosed with post-traumatic stress disorder by a physician or psychologist, the post-traumatic stress disorder shall be presumed, unless the contrary is proven, to be an injury that arose out of and occurred during the course of the worker’s employment. (3) If a worker (a) is or has been exposed to a traumatic event or events during the
course of the worker’s employment, and (b) is or has been diagnosed with a psychological injury by a physi-cian or psychologist,
the psychological injury shall be presumed, unless the contrary is proven,
to be an injury that arose out of and occurred during the course of the work-er’s employment.

Question 18

What are the three criteria set out in section 5.1 of the Act that are needed for a claim for a mental disorder?

Answer 18

1. it is either a reaction to a traumatic event related to the employment, or pre-dominantly caused by work-related stressors, including bullying or harass-ment but also including more general accumulated stressors;
2. it is diagnosed by a physician or psychologist as a mental or physical condi-tion; and
3. it does not arise from the proceedings involved in making a claim for compensation.

Question 19

Claims for chronic onset injury or stress are compensable only if all of the follow-ing criteria are met:

Answer 19

• there is a confirmed psychological or psychiatric diagnosis as described in the DSM;
• the work-related events or stressors are the predominant cause of the injury; predominant cause means the prevailing, strongest, chief, or main cause of the chronic onset stress;
• the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation; and
• there is objective confirmation of the events.

Question 20

where the policy definition for
chronic pain has been met, the condition will give rise to a compensable claim when the following conditions are met:

Answer 20

• the causal connection between the work injury and the worker’s pain has to be more than insignificant,
• the work injury contributed to a material degree in the development of chronic pain,
• the worker’s pain complaints are consistent with the work injury and/or effects of treatment,
• it is reasonably likely/biologically plausible that the reported pain symptoms are a consequence of the compensable injury, and
• there are no other medical factors unrelated to the compensable injury that are a more likely explanation for the worker’s pain

Question 21

Assume that Robert is a 38-year-old head mechanic at Otto’s Auto Body Shop, a
family-owned business that has 21 employees. Robert has worked at Otto’s Auto for the last four years. At the beginning of his eight-hour shift on February 12, 2015, Robert tore a ligament in the thumb of his right hand. This is the same ligament he damaged several years before, when he worked for a previous employer. Robert is in a lot of pain, and he tells his employer he cannot work the remainder of his shift. The employer asks a co-worker to drive Robert to the hospital. This is a work-related injury, and the employer files the necessary paperwork with the WCB, as required by the legislation, to start a WCA claim for Robert. At the hospital, the attending physician advises Robert that he has badly injured his hand and he will not be able to use it for at least four weeks. He will also need extensive physiotherapy if he hopes to recover its full use. What benefits will Robert be entitled to under the WCA? (Robert’s after-tax earn-ings, including his benefits package, are approximately $200 per day, or $1,000 per week.)

Answer 21

Health care costs associated with a work-related injury or disease—such as chiro-practic care, dental care, prescription drugs, and artificial limbs—are covered by the Act in both provinces. Therefore, the WCA system will cover all health care costs that result from Robert’s injury. Also covered are modifications to a worker’s home or vehicle. In most cases health care benefits start immediately (that is, on the day of injury).In our example, as long as the disability arising from the accident lasts, the WCB will compensate Robert for lost earnings from the first working day following his injury. Loss-of-earnings benefits are calculated in BC as 90 percent of the difference between the worker’s average net earnings before the injury and what the WCB considers bestreflects the injured worker’s loss of earnings: the average net earnings he is earning after the injury, or the average net earnings the WCB estimates he would be capable of earning in a suitable occupation after the injury (s 30). The earnings take into account contributions to the Canada Pension Plan, employment insurance, and retirement funds (s 33). Robert will therefore receive $900 (90 percent of $1,000) per week while he is off work completely with his work-related injury. These benefits are non-taxable.Suppose that Robert suffered a much more serious injury than previously described, an injury so serious that he was left permanently and totally disabled. In BC, Work-SafeBC would pay him a periodic payment equal to 90 percent of his average net earnings, which would be paid to him for the rest of his life (

Question 22

What are employees required to do under the duty to cooperate?

Answer 22

• contact the worker as soon as possible after the accident and maintain com-munication throughout the recovery period;
• attempt to provide suitable employment that is consistent with the worker’s functional abilities and, where possible, restores the worker’s earnings to pre-accident levels; and
• provide information to the Board as requested regarding the worker’s return-to-work status.

Question 23

Who pays for the WCA?

Answer 23

Employers pay the full cost of the WCA system by means of premiums. It is illegal for employers to recover any part of their premium from workers.

Question 24

How do you calculate the premiums of the employer?

Answer 24

multiply its total pay-roll (excluding amounts per individual worker that are above the earnings ceiling) by its assessment rate of 1.88 percent. For example, if the 21 employees at Otto’s Auto earn a total of $630,000 (excluding earnings above the ceiling), the WCA assess-ments for that year amount to $11,844 ($630,000 × 1.88%).

Question 25

What does the appeal process look like plus timeline?

Answer 25

In BC, a worker or employer who disagrees with a decision of WorkSafeBC may in some circumstances, and within 90 days of the decision, request that the decision be reviewed by a review officer (s 96.2 of the WCA). The review officer’s decision will be made in writing and delivered to the Board and the interested parties. A party not content with the review officer’s decision may file a written notice of appeal with the Workers’ Compensation Appeal Tribunal within 30 days (s 243(1)).