Conditions for Entitlement – Injuries During Rehabilitation Policy 21-108 | Effective Date: January 23, 2017

Purpose

The purpose of this policy is to provide staff with guidelines for determining entitlement to compensation benefits for an injury that occurs during rehabilitation of a compensable injury.  

Scope

This policy applies to all injured workers who sustain injuries while participating in the rehabilitation of a compensable injury.  

Statements

1.0 General 

For an injury to be compensable it must have been caused by an accident that arose out of and in the course of employment. This means that the accident must have occurred at work and it must have been caused as a result of work.

Similarly, for accidents that occur during the rehabilitation of a compensable injury, the subsequent accident must have occurred during rehabilitation and it must have been caused as a result of rehabilitation.  

WorkSafeNB adjudicates claims for injuries that occur during rehabilitation using the same process as all other injuries as outlined in Policy 21-100 Conditions for Entitlement – General Principles and Policy 21-104 Conditions for Entitlement – Tests of Time, Place and Activity.

For WorkSafeNB to adjudicate these claims in a timely manner, it is the responsibility of the injured worker to report an injury that occurs during rehabilitation to WorkSafeNB as soon as practicable following the injury. Timely reporting is important to ensure that:

  • Treatment of such an injury can begin immediately; and
  • Preventative measures are explored and implemented.

2.0 Injuries During Medical Rehabilitation 

Injured workers may be required to participate in medical rehabilitation in order to recover from their workplace injury and return to work. This may include scheduled rehabilitation with doctors, physiotherapists, occupational therapists, or other authorized providers. These services may be provided at offices, clinics, hospitals, the Workers’ Rehabilitation Centre or other locations and may occur during the day or through evening appointments.

WorkSafeNB determines if an injury during rehabilitation is compensable by gathering information and weighing evidence related to the three tests of time, place, and activity.

The New Brunswick Court of Appeal confirmed the tests of time, place, and activity as key criteria to assist in determining if an accident arose out of and in the course of employment. These tests are also used when determining if an accident arose out of and in the course of rehabilitation and all three must be considered together.  

To accept a claim as an injury during rehabilitation, evidence must show that:

  • The time of the day the worker was injured is consistent with the scheduled rehabilitation;
  • The place of the accident was consistent with the location of the scheduled rehabilitation activity; and
  • The activity leading to the accident is consistent with the rehabilitation approved for the injured worker’s compensable injury and the medical evidence shows that the extent and severity of the injury are compatible with the cause of the injury.

In all cases, WorkSafeNB weighs the evidence on the individual merits of the claim, and determines if all three tests of time, place, and activity have been satisfied before accepting the claim.

2.1 Injuries During Return to Work and Vocational Rehabilitation Programs 

As part of their rehabilitation plan, injured workers may participate in return to work programs with their pre-accident employer. Such programs may be on a gradual or full-time basis and may involve modified and\or alternate duties. 

WorkSafeNB may also provide vocational rehabilitation to assist injured workers who have a work restriction and cannot be accommodated by their pre-accident employer.

Injured workers may participate in vocational rehabilitation programs on a part-time, full-time, or gradual basis - on an employer’s premises or at an educational institution. For more information, see Policy 21-421 Vocational Rehabilitation. 

When rehabilitation involves an authorized return to work program with the pre-accident employer or other authorized vocational programs, WorkSafeNB weighs the evidence on the individual merits of the claim, and determines if all three tests of time, place, and activity have been satisfied before accepting the claim as an injury during rehabilitation.

If the injury occurred after the completion of the authorized return to work program or vocational program, WorkSafeNB gathers and weighs evidence to determine if there was a new accident, or a recurrence of the original injury. 

2.2 Injuries Arising During Travel

Generally, workers are not considered to be in the course of employment when travelling to and from their employment, or when carrying out normal daily activities. Some exceptions may exist and are outlined in Policy 21-104 Conditions for Entitlement – Tests of Time, Place, and Activity.  

An injured worker may be in the course of rehabilitation, when travelling using the most direct route, if WorkSafeNB:

  • Makes the travel arrangements for the injured worker;
  • Requests that an injured worker make specific travel arrangements to attend an appointment, treatment, or vocational activity;
  • Pre-authorizes reimbursement of transportation expenses; and/or
  • Determines that it is appropriate to authorize travel because of a specific circumstance.

3.0 Immunity from Suit

Employers or workers who are covered under the WC Act are entitled to immunity from suit if an injured worker’s compensable injury is aggravated or worsened during rehabilitation. Immunity from suit is also granted in cases where a new injury occurs as a result of rehabilitation or treatment. Healthcare providers are immune from suit when providing services to injured workers authorized by WorkSafeNB.

4.0 Cost Relief

For information on allocating claim costs for injuries during rehabilitation, see Policy 21-300 - Allocation of Claim Costs.

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

1 definition of accident, 7(1), 7(2), 7(2.1), 43

Case Law

The Supreme Court of Canada has concluded that if an injury arises out of rehabilitation of a workplace injury, then there is causal connection between that injury and the original workplace injury. Also, any employer or worker who may have aggravated or worsened the original workplace injury is entitled to immunity from suit.

Robert Lindsay v. WCB Saskatchewan, [2000] 1 SCR 59

The court ruled that when a worker suffers a workplace injury, then the injury is said to be derived from his employment. When treatment is performed as a result of a work injury and another injury occurs, then, it can be said that the injury from the treatment is a result of the workplace injury. There is a connection between the workplace injury and the injury derived from the treatment. The treatment was performed to improve damage caused by the workplace injury. Therefore, the worker’s injury caused by the treatment arose “out of his employment”. 

Kovach v. Singh and WCB British Columbia, [2000] 1 SCR 55

The court ruled that Ms. Kovach’s injury sustained as a result of surgery for a workplace injury is derived from the workplace injury. If Ms. Kovach had not been injured at work she would not have been operated on by Dr. Singh.

This forms a causal link between the employment-related injury to the negligence alleged against Dr. Singh. Dr. Singh was a worker under the B.C. Workers’ Compensation Act, therefore; entitled to immunity from suit.  

Sandra Lee Keddy v. Region 3 Hospital, 2002 NBCA 24

The New Brunswick Court of Appeal ruled that a subsequent injury sustained while receiving medical treatment for a work-related injury is within the course of employment. A sufficient causal connection exists in that the subsequent injury is a result of the initial compensable injury. The court ruled that if an injured employee is involved in an accident during the course of treatment by an employee also covered by the Workers’ Compensation Act, the injured employee may not sue the negligent employee or the employer.

Appeals Tribunal – means the Workers’ Compensation Appeals Tribunal established under the WHSCC & WCAT Act.

Immunity from suit – the exemption of a worker or employer from legal action when covered under the Workers’ Compensation Act (WC Act) and a workplace accident occurs. 

Return to work program – a program in the workplace designed to facilitate return to work of injured workers through a coordinated effort addressing individual needs, workplace conditions, and legal responsibilities.

WorkSafeNB – means the Workplace Health, Safety and Compensation Commission or "the Commission" as defined by the WHSCC & WCAT Act.

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