WorkSafeNB makes decisions on acceptance of all claims using section 7 of the Workers’ Compensation Act (WC Act). Subsection 7(1) of the WC Act requires that evidence establish the following three legal tests:
Subsection 7(2) of the WC Act provides a rebuttable presumption related to the tests of arising out of and in the course of employment. If either test is met, the other is presumed to have also been met, unless there is evidence to the contrary. For more information on determining these two tests, see Policy 21-104 Conditions for Entitlement - Tests of Time, Place and Activity.
When there is evidence to the contrary that the accident did not arise either out of or in the course of employment, the presumption is rebutted and all evidence is weighed using the preponderance of evidence to make a decision.
For guidance on the criteria applied by WorkSafeNB when assessing specific injuries and illnesses, refer to the following policies:
Considerations prior to adjudication
1. Prior to adjudicating a claim for compensation, WorkSafeNB determines whether the claim is eligible for adjudication by:
For more information on these requirements, see Policy 21-106 Accident Reporting and Application for Benefits.
2. WorkSafeNB also considers:
Decision-making model
3. When WorkSafeNB is satisfied that the claim is eligible for adjudication, it uses an information-gathering model in order to make an informed decision. This includes gathering information regarding the who, what, where, when, how, and why of the accident, as well as circumstances surrounding the claim, and any other details related to an issue requiring a decision to be made.
4. If there are any gaps in information, it is the responsibility of the decision-maker to actively search for the missing evidence before making a decision. For more information on WorkSafeNB’s decision-making process, see Policy 21-113 Decision-making.
Determining whether a personal injury exists
5. Medical evidence is critical when establishing whether there is a personal injury, including a diagnosis or clinical findings.
Determining whether personal injury or death was caused by an accident
6. When a personal injury or death has been established, the decision-maker must determine whether that personal injury or death was caused by the reported accident. Medical evidence is critical in this analysis.
7. To support the determination as to whether the personal injury or death was caused by the reported accident, the decision-maker may ask questions including, but not limited to, the following:
Determining whether the accident arose out of and in the course of employment
8. The presumption in subsection 7(2) of the WC Act establishes that if the evidence demonstrates that the accident arose out of the worker’s employment, WorkSafeNB will presume that the accident also occurred in the course of the worker’s employment, and vice versa, unless there is evidence to the contrary.
9. When the statutory presumption applies, the legal test that the accident arose out of and in the course of employment has been met.
Evidence to the contrary
10. When reviewing the information gathered, WorkSafeNB may find evidence that the accident, which caused the worker’s personal injury or death, did not arise out of or in the course of their employment. When such evidence to the contrary exists, the presumption is rebutted.
11. Some examples of evidence to the contrary include, but are not limited to:
12. Evidence to the contrary must contradict or point away from a work-related cause to rebut the presumption.
Preponderance of evidence
13. Subsection 7(2.1) of the WC Act says that if there is evidence to the contrary, WorkSafeNB makes a decision based on the preponderance of evidence. When the preponderance of evidence weighs more heavily towards that the accident arose out of and in the course of employment, the claim is accepted.
7(1), 7(2), 7(2.1), 31(1), 34(1), 34(2), 34(4)
Case Law
Dunham v. Workmen’s Compensation Board, 1967 (CanLII) 609 (NB CA)
VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay et al., 2011 NBCA 76 (CanLII)
Robichaud v. WorkSafe NB, 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 (Workers’ Compensation Act).
Adjudication – make a decision regarding a claim.
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 – an illness, disease, disablement, or physical or psychological injury.
Preponderance of Evidence – the most persuasive and impressive information on one side of a case that outweighs the information on the other side. A preponderance of evidence is not decided on the quantity of information alone, but on the significance and strength of the evidence as well.
Presumption – finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted (Adapted from Black’s Law Dictionary).