Conditions for Entitlement – General Principles Policy 21-100 | Effective Date: June 1, 2019

Policy

For a claim to be accepted, section 7(1) of the WC Act requires that evidence establish three legal tests: 1) that there exists a personal injury or death; 2) that it was caused by accident; and 3) that the accident arose out of and in the course of the worker’s employment.

Section 7(2) of the WC Act provides a rebuttable presumption related to the test of arising out of and in the course of employment. If one part of the test is met, then the other part is presumed to have been met, unless there is evidence to the contrary.

When there is evidence to the contrary, all evidence is weighed using preponderance of evidence to make a decision.

Interpretation

  1. When a claim for compensation is made, WorkSafeNB first determines if the claim is eligible for adjudication in accordance with the WC Act. WorkSafeNB has the authority to refuse to adjudicate a claim when:
    • The worker failed to report the accident to the employer before voluntarily leaving the employment; and/or
    • The application was not made within one year of the date of accident, or six months from the date of death.
  1. WorkSafeNB uses an information-gathering model to ensure there is sufficient information to make an informed decision; this includes establishing any evidence to the contrary.
  1. Policy 21-104 Conditions for Entitlement – Tests of Time, Place and Activity can help determine evidence related to the test of arising out of and in the course of employment. 
  1. Medical evidence is also critical to establish if there is a personal injury and if the accident described could have resulted in that injury (etiology).

 

Workers’ Compensation Act (RSNB 1973, c W-13)

7(1), 7(2), 7(2.1), 31(1), 34(1), 34(2), 34(4)

Regulation 84-66 – General Regulation – Workers’ Compensation Act

Case Law

Dunham v. Workmen’s Compensation Board, 1967 CanLII 609 (NB CA)

VSL Canada Ltd. Workplace Health Safety and Compensation Commission and Duguay et al, 2011 NBCA 76 (CanLII)

Robichaud v. WorkSafeNB, 2018 NBCA 44 (CanLII)

Workplace Health Safety and Compensation Commission v. St-Onge, 2018 NBCA 53 (CanLII)

Accident – includes a wilful and intentional act, not being the act of a worker, and also includes a chance event occasioned by a physical or natural cause, as well as a disablement caused by an occupational disease and any other disablement arising out of and in the course of employment, but does not include the disablement of mental stress or a disablement caused by mental stress, other than as an acute reaction to a traumatic event (WC Act).

Adjudication – make a decision regarding a claim.

Disability – an alteration in an individual’s capacity to meet functional or occupational demands of pre-accident or alternate employment.

Disablement – a limitation in movement, senses or activity (adapted from Oxford Dictionary).

Evidence – information or things presented to prove a fact.

Evidence to the contrary – evidence that tends to contradict or refute the presumption that the accident arose out of and in the course of employment (VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay et al., 2011 NBCA 76).

Personal injury – trauma to a person that results in physiological or psychological change because of a single traumatic event or a series of cumulative events.

Preponderance of Evidence – It is more likely than not, based on the weight and strength of the evidence. (Adapted from Merriam-Webster Dictionary).

Presumption – finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted (Adapted from Black’s Law Dictionary).

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