Friday, 10 April 2020

In the Course of…

In the Course of…

Ok I am struggling to understand something in the entitlement of personal injuries, as a result of a workplace accident and I was hoping to get some insight from others.

My understanding being that a personal injury being physical or psychological in nature. A work accident being a sudden event or an over time event which causes the personal injury.

The law, depending on Province/Territory has a statement to the effect of presumption of a workplace accident being in and out of the course of employment. The presumption being until proven otherwise.

When a worker suffers a personal injury from a workplace accident, we consider these two separate things. The workplace accident is the event. The personal injury is the result/cause of the event. Often, workers compensation boards will grant a work accident and then deny the personal injury. They will say there is no medical documentation proving the injury is related to the work accident.

However, when you look at the written law, it provides for definitions.

For example, in Ontario’s most current edition of the Workplace Safety and Insurance Act, 1997 it provides the definition of what an accident is:

“accident” includes,

(a) a wilful and intentional act, not being the act of the worker,

(b) a chance event occasioned by a physical or natural cause, and

(c) disablement arising out of and in the course of employment; (“accident”)

The first two are what most would describe of an accident. However, the third is what we would describe as the resulting injury. If one knows what a disablement is “the act of becoming disabled to the extent that full wages cannot be earned also : the state of being so disabled”. It should also be added that if there is a permanent disfigurement this too is considered a disablement.

So, a work accident is something that causes a loss of earning capacity. Moreover, this cause is presumed under law as mentioned above.

In our civil court system, when a person is suing another, for a personal injury. The individual must establish something called causation. Causation is the act of the defendant, which caused the harm to the plaintiff. Or more accurately defined:

Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.

Therefore, in dealing with workers compensation matters, specifically the granting of workplace accidents and injuries, the causal effect of the injury is proven once the accident has been accepted, unless proven otherwise.

For example, when Betty is working at her employer’s workplace, she is involved in a workplace accident when a machine crushes her arm. The workplace accident is “the machine crushed betty’s arm”. Betty’s injury as a result of the workplace accident is “a crush injury to her arm”.

One is the event and the other is the result.

The WSIB (Ontario’s WCB) receives the three reports employer, worker, and doctor. After reviewing the reports, the WSIB grants or accepts the workplace accident occurred but, in some cases, then denies the injury to Betty’s arm. The WSIB has a lawful duty to state the reason (to prove otherwise) the injury was denied, as, in effect, an injury is presumed when an accident is accepted.

Often, workers compensation boards will deny claims for personal injuries, based on improper or no medical documentation. This I believe is unlawful. There is a lawful requirement for the workers compensation boards to prove the lack of causation between the accident and personal injury, as the law makes them one and the same. Instead, the workers compensation boards claim a worker MUST have medical documentation of a personal injury. In doing so, this places an unlawful reverse onus on the injured worker to prove their work injury, even though the accident was accepted by the workers compensation board.

So, if your personal injury in your claim for workers compensation benefits has been denied initial entitlement, then maybe you should look to see if the work accident was accepted or denied by the workers compensation board.

This is not legal advice but my thoughts on understanding causation in workplace accidents.

Please let me know your thoughts in this topic. Am I right, wrong, or totally insane?

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