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.
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).