Conditions for Entitlement – Secondary and Subsequent Injuries Policy 21-108 | Effective Date: July 19, 2022

Policy  

For an injury to be compensable, it must have been caused by an accident that arose out of and in the course of employment. However, an injury may also be compensable if it is linked to a previously accepted injury (referred to as a primary compensable injury). This can happen when an injured worker suffers a:

• Secondary injury; or
• Subsequent injury.

To determine whether a secondary injury is compensable, WorkSafeNB assesses whether a primary compensable injury either caused or significantly contributed to the secondary injury.

WorkSafeNB adjudicates claims for subsequent injuries 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. In determining whether a subsequent injury that arises out of rehabilitation is compensable, the site of a scheduled rehabilitation activity is treated as equivalent to a place of employment.

Secondary and subsequent injuries are new and distinct injuries and not a worsening of a primary compensable injury.

When adjudicating either secondary or subsequent injuries, WorkSafeNB weighs the evidence on the individual merits of the case, as outlined in Policy 21-113 Decision Making.

Interpretation

Secondary Injuries

1. To determine whether the primary compensable injury caused or significantly contributed to the secondary injury, WorkSafeNB uses the “but for” test. This test assesses whether the worker would be experiencing the secondary injury in the absence of the primary compensable injury. If the answer is yes, causation is not established. If the answer is no, causation is established.

2. An accepted secondary injury is considered to form part of the primary compensable injury. It is not treated as a new claim.

3. Secondary injuries can include:

• Physical disablements
• Comorbid psychological conditions; or
• Impacts on a worker’s pre-existing condition. See Policy 21-101 Pre-existing Conditions.

4. Secondary psychological conditions must be diagnosed by a qualifying psychiatrist or psychologist, but do not require the worker to have experienced a traumatic event, as is the case with traumatic mental stress injuries as described in Policy 21-103 Conditions for Entitlement – Traumatic Mental Stress.

5. When a worker is diagnosed with chronic pain during the treatment of, or after recovery from, a compensable injury, it is treated as a secondary injury. For more information on entitlement for chronic pain, see Policy 25-030 Chronic Pain.

Subsequent Injuries

6. Injured workers may be required to attend scheduled rehabilitation activities in order to recover from their workplace injuries and return to work. When a worker sustains a subsequent injury while attending such rehabilitation activities, the subsequent injury is considered to form part of the initial compensable injury.

7. 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 a subsequent injury. Specifically, WorkSafeNB looks to whether:

• The time the subsequent injury occurred is consistent with a scheduled rehabilitation activity approved by WorkSafeNB to treat a previous compensable injury;
• The place where the subsequent injury occurred is consistent with the location of a scheduled rehabilitation activity; and
• The activity leading to the accident is consistent with the rehabilitation approved by WorkSafeNB to treat the compensable injury.

8. If a worker is injured while travelling to or from a scheduled rehabilitation activity using the most direct route available, the workers may be considered to have been attending the rehabilitation activity when the injury occurred. This can happen 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.

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

Immunity from Suit

10. Employers or workers who are covered under the WC Act are entitled to immunity from suit if an injured worker sustains a secondary or subsequent injury. Healthcare providers are immune from suit when providing services to injured workers authorized by WorkSafeNB.