Arising Out of and In the Course of Employment

July 1, 2022 and still in effect

2.1

Purpose

This policy provides information on the established principles that have evolved to define arising out of and in the course of employment within the compensation system.

Definitions

arising out of employment means that there is a causal connection between the conditions of the work required to be performed and the resulting injury

board means the Workers’ Safety and Compensation Board

in the course of employment means that an injury is linked to a worker’s employment in terms of time, place and activity consistent with the obligations and expectations of that employment

intoxication means that a worker is under the influence of alcohol, drugs, and/or the improper use of medications

removing oneself from the course of employment means what happens when there is a distinct departure by the worker from the obligations and/or expectations of their employment duties for personal reasons or when there is an act of serious and wilful misconduct

serious and wilful misconduct means a deliberate and intentional act of the worker that demonstrates a disregard for safety or consequence that the worker should reasonably have recognized as likely to result in personal injury and, hence, is considered to have been undertaken for the purpose of receiving compensation

Policy Statement

1. General

A worker who suffers a work-related injury or death is entitled to compensation unless the work-related injury is attributable to conduct deliberately undertaken for the purpose of receiving compensation.

An injury to or the death of a worker that arises “out of their employment” is presumed to be an injury or death that occurred “in the course of the worker’s employment”, unless the contrary is shown; and that an injury to or the death of a worker that occurs “in the course of the worker’s employment” is presumed to be an injury or death that arose “out of the worker’s employment”, unless the contrary is shown.

A claim for compensation must meet the following criteria:

    a. the injured worker is a “worker” as defined in the Act; and

    b. the injured worker suffered a work-related injury.

 

2. Work-related injury

A work-related injury means an injury or death arising out of and in the course of a worker’s employment resulting from:

    a. a chance event occasioned by a physical or natural cause;

    b. a wilful and intentional act, not being the act of the worker,

    c. a disablement, or

    d. an occupational disease.

but does not include

    e. mental stress; or

    f. an injury resulting from any decision by the worker’s employer relating to the worker's employment, including a change in the work to
       be performed or working conditions, or promotion, transfer, demotion, lay-off, discipline, suspension or termination.

2.1 Arising out of employment

Arising out of employment generally refers to the cause of the injury or death. An injury arises out of employment if there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. The link between the causative employment hazard and the injury may be direct or incidentally related to the employment. An injury does not arise out of employment if it is caused by a hazard to which the employee would have been equally exposed apart from the employment.

In making this determination the board considers, on a case by case basis, criteria including, but not limited to:

    a. whether the injury occurred when the worker was in the process of doing something for the benefit of the employer;

    b. whether the injury occurred while the worker was doing something at the instruction of the employer;

    c. whether the injury occurred while the worker was using equipment or materials supplied by the employer;

    d. whether the injury was caused by some activity of the employer or another worker; and

    e. whether the activity was an accepted or condoned part of the work environment.
 

2.2 In the course of employment

In the course of employment generally refers to whether the injury or death happened at a time and place and during an activity consistent with, and reasonably incidental to, the obligations and expectation of the employment.

A worker is considered to be in the course of employment from the time the worker enters the employer’s premises to start the work-shift and terminates when the worker leaves the employer’s premises. Routine travel to and from work is not considered in the course of employment.

Appendix A contains examples of common situations relating to in the course of employment. This is not an exhaustive list.

3. Removing oneself from the course of employment

Workers are not entitled to compensation if they have removed themselves from the course of employment by their actions. Actions which may be considered as removing oneself from the course of employment include, but are not limited to:

    a. activities which are exclusively personal;

    b. criminal acts;

    c. intoxication, when drinking or the use of drugs is not permitted or condoned by the employer and intoxication is a major contributing
        factor to the incident;

    d. an intentional self-inflicted injury;

    e. fighting, if the worker is an instigator or the issue is purely personal with no employment relationship; or

    f. horseplay.

However, an injury does not cease to be considered arising out of and in the course of employment merely because some other factor extrinsic to the employment also has causative significance. Injuries are often caused, for example, by inattentiveness due to nausea, depression, lack of sleep, or a variety of other factors, and may still be compensable.

4. Presumption

The presumption of work-relatedness exists from the outset of the claim. Following submission of the initial reports, the decision maker will review and determine the claim. During this process, the decision maker may find it necessary to further investigate, particularly where there is some possibility that the injury may not have been work- related.

When decision makers seek out information, it is not from the perspective of gathering evidence for or against the worker. Rather, it is an active, impartial inquiry to obtain relevant facts, and to seek complete information.
 

4.1 When the Presumption Applies

When processing a claim, decision makers must ensure that workers who potentially have a claim are dealt with as quickly as possible. Whether the injury arose out of and in the course of employment is the first determinations a decision maker must make in processing a claim. Both criteria must be met, on a balance of probabilities.

In some cases, however, it may not be possible to obtain sufficient evidence to decide both criteria.

In these cases, there is a presumption that where an injury or death arises out of a worker’s employment it is presumed to have occurred in the course of the worker’s employment unless the contrary is shown. Similarly, where the injury or death occurs in the course of a worker’s employment, it is presumed to be an injury that arose out of the worker’s employment unless the contrary is shown.

The presumption ensures that workers are covered where one criterion applies, (either arises out of or occurs in the course of employment) but there is insufficient evidence to determine the second criterion.

For example, if a worker is found unconscious bleeding at their workplace and there are no witnesses. In this case the evidence is clear that the worker was in the course of employment as the worker was at their workplace, however there is no evidence on what caused the worker to fall and sustain the injury - whether it arose out of their employment activities. This criteria will be presumed to be met and the injury would be determined to be work-related.

The presumption does not apply where there is sufficient evidence to decide both criteria.
 

4.2 When the presumption does not apply

If there is sufficient evidence to decide both conditions, then the presumption does not apply.

If there is evidence to the contrary, the presumption does not apply. The decision maker is not required to identify an alternative explanation for the injury, supported by evidence of greater weight, in order to make this decision.

In some cases, this may mean that a claim originally accepted based on the presumption is eventually denied because of further evidence to the contrary.

If the decision maker determines that, based on the evidence, the injury was not work-related, the worker always has the opportunity to provide further information to the decision maker. This information may be provided at any time, and will be weighed along with all of the other evidence.

 

5. Contagious Diseases

For the contagious disease to be compensable there must be an inherent risk of contracting the disease in the nature of the employment which had causative significance, and where there:

    a. is significantly greater than the ordinary exposure risk of the public at large; or

    b. is acquiring a kind of disease to which the public at large is not normally exposed.

A worker is not entitled to compensation simply because they contracted the disease while in the course of employment.

For example, a claim for meningitis may be accepted from a health care provider who was engaged in the treatment of a patient with meningitis. Here, the nature of the employment involved a risk of contracting a disease. Conversely, a claim would not be accepted from a worker where there was an outbreak of meningitis affecting the community at large. The disease would be viewed as a public health problem.