A worker who has been injured during the course of his or her employment will likely want compensation for the losses incurred as a result of the injury, such as loss of income and medical costs.
If the employer of the worker pays premiums to the Workers’ Compensation Board (WCB), the worker must make a claim for compensation with the WCB.
Once a claim with the WCB is made, irrespective of whether the claim is successful or not, section 23(1) of the Workers’ Compensation Act (WCA) states that the worker loses his or her right to sue the employer in a negligence action in Court.
Section 23(1) protects the liability of the employer and thereby has various impacts on injured workers.
If the worker’s WCB claim is successful and he or she receives compensation, that compensation will likely be significantly less than the damages that the worker would receive if he or she were successful in a negligence lawsuit.
If the WCB claims adjudicator rejects the worker’s claim or makes a decision with which the worker is not satisfied, the worker must resort to taking action within the WCB scheme.
First, a worker can ask the claims adjudicator or a supervisor to review the claim again at which time new information can be submitted.
If that is unsuccessful, a request for an internal review from the Dispute Resolution and Decision Review Body of the WCB can be made.
As a last resort, the decision can be appealed to the Appeals Commission.
If the Commission makes an unsatisfactory decision, a request can be made to the Commission to reconsider the decision. Lawyer representation is not required for any actions within the WCB scheme.
If the worker is unsuccessful at the Appeals Commission stage, he or she may take the decision to the Court of Queen’s Bench to have it reviewed. Lawyer representation will be required at this point.
The Court will assess the case differently depending on whether it involves questions of law or questions of fact. As an example, case law has held that the question of whether a University student is a worker and therefore falls under the WCB scheme is a question of law whereas the question of the level of weight that should be given to expert medical evidence in the course of a hearing is a question of fact.
If the question before the Court is a question of law, the Court will review the case on the standard of correctness meaning that the Court will consider whether the decision of the Commission was correct.
On the other hand, if the issue is a question of fact, the Court will consider whether the decision of the Commission was reasonable and will only overturn the decision if it was unreasonable.
Therefore, if the worker is appealing the Commission’s decision, his or her chances of success at the Court of Queen’s Bench are better if the case is framed as a question of law as the Court is more likely to intervene with the decision of the Commission.
Ultimately, it must be kept in mind that taking any type of legal action is expensive, lengthy and does not guarantee success.
From a policy perspective, the WCB scheme ensures an efficient system as it prevents expensive and time consuming legal action, freeing up the already flooded court system, while ensuring that injured employees are compensated and are able to return to work in a timely manner.
Legally Speaking appears every second week in LIFE. It is intended for information purposes only. Readers with a specific legal problem should consult a lawyer. This week’s column was written by Klara Stepanik, a student-at-law with the Red Deer law firm Duhamel Manning Feehan Warrender Glass. Stepanik can be reached at 343-0812 or at www.reddeeraltalaw.com.