Document name

Arising Out of and In the Course of Employment

Document number

PRO 07/2021

POL 07/2021, Arising Out of and In the Course of Employment outlines when the Workers’ Compensation Board (WCB) considers an injury to have arisen out of and in the course of employment. Operations staff will consider the following guidelines when determining if an injury claim is work related. Examples are also provided in the Appendix.

1. What steps do Operations staff take to determine if an injury claim is work related?
   1. Operations staff will initiate inquiries and begin to collect all relevant information needed to make a decision.
   2. In all cases, Operations staff will consider all of the following:
      1. If the worker is covered under the Act.
      2. If the worker sustained an injury or the worker’s symptoms or conditions were caused by an injury.
      3. If the medical diagnosis is consistent with the type of injury reported.
      4. If the injury or condition arose out of and in the course of employment.
2. What is the injury presumption?
   1. Injuries that occur in the workplace are presumed to be the result of employment, unless the contrary can be proven.
   2. Operations staff will use all available information as evidence to determine if:
      1. It is more likely or not that the worker’s employment caused or contributed to the injury or disease, or
      2. There is sufficient evidence that suggests the injury is not the result of employment.
3. What information is considered to make a decision?
   1. Operations staff will collect all available information and will make decisions on a case by case basis by:
      1. Confirming details of the injury with the employer and worker.
      2. Reviewing medical reports to confirm that an injury has occurred and the medical diagnosis is consistent with the injury reported.
      3. Requesting any additional information they may consider relevant and required from the worker, employer, or health care provider(s).

Questions considered

4. In addition to the policy and procedure guidelines, WCB staff will consider the following questions for guidance in determining if the injury arose out of and in the course of employment:
   1. What activity was the worker doing when they were injured and how did the injury happen?
      1. Was the worker performing an activity consistent with or required for employment?
      2. Was the activity part of their job or in response to instructions from the employer?
      3. Did the injury occur when the worker was in the process of doing something for the benefit of the employer or incidental to normal employment duties?
   2. Is there a link (direct or indirect) between time and place of the injury and the worker’s employment duties?
      1. Did the injury occur on the employer’s premises?
      2. Did the injury occur during normal work hours?
      3. Did the injury occur while the worker was using equipment or materials supplied by the employer?
   3. Was the injury caused solely from an imported personal hazard brought in by the worker? Or were they injured from equipment required for employment duties?
   4. Does the medical diagnosis support a work injury? Or is there medical evidence indicating that the symptoms or condition was due to factors unrelated to employment?
   5. Is there sufficient evidence to prove that the injury, more likely than not:
      1. Did not occur in the course of employment?
      2. Did not arise out of employment?

Medical Reports

5. How are medical reports used to make a decision?
   1. Operations staff will review medical reports received from any health care provider (e.g., a family or hospital physician) the worker visited following the reported work injury.
   2. Based on the diagnosis provided in the medical reports, Operations staff will consider if:
      1. The nature, extent and severity of the injury are compatible and consistent with the injury and work activities reported.
      2. The medical reports establish a connection between work and the injury. This includes considering if symptoms were immediate or delayed (i.e., an injury due to repetitive activities or exposure to a harmful substance), and
      3. Any other relevant medical research or opinions.
   3. When reviewing medical reports, Operations staff will determine:
      1. If all necessary medical information has been obtained.
      2. If further information and/or medical examinations are required, or
      3. If an opinion from a WCB Medical Officer is required to establish if the diagnosis is consistent with the injury and work activities reported.

Claim Decisions

6. How do staff make a decision based on the available evidence?
   1. Operations staff will make decisions according to the evidence or lack of evidence received and not on unsupported information or speculation.
   2. Operations staff will evaluate and consider the evidence to establish the facts of the case. This involves making judgments about the evidence (e.g., relevance, credibility, quality) and considering what is more likely than not.
   3. If there is any doubt in a decision because the evidence on both sides is approximately equal (i.e., the evidence equally support two possible conclusions), the benefit of doubt goes to the injured worker or the dependant(s) of a deceased worker.
   4. POL and PRO 02/2019, Decision Making, will apply
7. What if the worker did not seek medical following the injury or medical confirmation is delayed?
   1. In most cases, medical confirmation of the injury is required prior to accepting a claim. However, at their discretion, Operations staff may accept a claim if:
      1. The injury has a clear employment connection.
      2. The worker reported the injury to the employer, and
      3. The employer can confirm the injury is work related.
8. Can a decision be made if the employer does not confirm the injury?
   1. If the employer cannot confirm the injury is work related, Operations staff will require medical confirmation before determining acceptance. Medical reports must establish a connection or relationship between work activities and the injury.
   2. If the employer fails to provide information about the injury after repeated requests, Operations staff will make a decision using any relevant information already received.

Arising Out of Employment

9. An injury is considered to have arisen out of employment if it is the result of an activity that is reasonably related to, originates from, or is the result of the worker’s employment or employment duties.
10. How does WCB determine if an injury arose out of employment?
    1. Operations staff will consider:
       1. What activity was the worker engaged in when they were injured?
       2. Is the activity consistent with and required for, or reasonably related to, the worker’s employment? For example:
          1. Was the activity or action required for the worker to complete an employment duty (e.g., walking from desk to photocopier, etc.)?
          2. Was the worker performing an activity related to employment?
          3. Is the activity a custom or regular practice of the particular workplace (i.e., an activity the employer explicitly or implicitly allows)?
    2. Operations staff will follow guidelines for specific injuries and situations (e.g., Occupational Diseases, Heart Attacks, etc.) outlined in the Decision Making – Injuries section of the WCB Policy Manual.

Arising in the Course of Employment

11. An injury is considered to have occurred in the course of employment when it happens in a time and place linked to employment and the worker is performing an activity that is part of their employment duties.
12. How does WCB determine if an injury arose in the course of employment?
    1. Operations staff will consider:
       1. Where was the worker when the injury occurred? Was the worker in that place at that time for employment reasons?
       2. When did the injury occur? Did it occur while the worker was in engaged in employment?
13. Is an injury considered to have occurred in the course of employment if it happens when the worker is not performing an activity for employment?
    1. Operations staff will consider if the worker was making reasonable use of the employer’s premises and the nature and duration of the activity.
       1. Coverage may be extended while the worker is engaged in a brief interlude of personal activity that is considered an acceptable respite or interval in a work environment and reasonably expected of all workers during the course of employment (e.g., washroom or water break).
       2. As specified in sections below, coverage may also be extended if the injury was a result of a hazard or condition while the worker was:
          1. Performing a recreational activity.
          2. Staying in temporary lodgings.
          3. Entering or exiting employment, or
          4. During a rest break.
       3. Coverage will not be extended if a worker is injured at work solely as a result from their imported personal hazard.
       4. Coverage may be extended if an injury occurs because of an imported personal hazard of another worker, if not under the control of the injured worker.

Delayed onset and non-specific incidents

14. How does Operations staff determine if a condition, symptoms or pain a worker experiences at work is considered a work-related injury?
    1. It is not automatically assumed that a worker who experiences symptoms or pain at work has incurred an injury due to employment. There must be sufficient evidence to determine there was an injury, and if so sufficient evidence to establish that, more likely than not, an activity at work caused the condition.
    2. Staff will consider if there is evidence that indicates the worker’s employment activities or conditions of employment significantly contributed to, or predominantly caused an injury and the resulting onset of the worker’s condition, symptoms or pain. This includes determining the following:
       1. Is there a relationship between the worker’s recent employment activities and the onset of symptoms or pain?
       2. Is the type of injury reported is consistent with the medical diagnosis indicated on the medical reports? For example, are the symptoms medically known or are more likely to occur following the specific employment activities?
       3. Did the condition emerge over time as a result of normal work activity? Repetitive strain guidelines in PRO 04/2017, Injuries – Occupational Disease may apply.
       4. Did the worker’s employment activities aggravate or accelerate a pre-existing condition? POL 12/2017, Pre-Existing condition – Aggravation or Acceleration may apply.
    3. Operations staff will also consider if there is evidence of any non-work-related factors, which may have contributed to an injury.
15. If Operations staff cannot gather the required information to determine entitlement, the file may be referred to a WCB investigator.
    1. The investigator will gather evidence and further information from the worker, employer, co-workers, witnesses and others. This may include viewing the worksite.
    2. Any findings will be provided to Operations staff to determine if evidence indicates the worker’s employment activities contributed to the onset of the worker’s condition.
16. Using medical reports and information regarding the worker’s employment activities, staff will determine if, it is more likely than not, the worker’s employment activities resulted in an injury that caused or contributed to the worker’s condition, symptoms or pain.
    1. Is there sufficient evidence demonstrating that the employment activities are not the predominant cause of the worker’s condition and the injury would not be considered work related?
    2. If there is any doubt in a decision because the evidence on both sides is approximately equal (i.e., the evidence for and against the issue is approximately equal in weight), the WCB will decide the issue in favour of the worker. POL and PRO 02/2019, Decision Making, will apply.
17. When making a decision, Operations staff will document a description of what occurred, what employment activities were involved, and the relationship between the incidents and/or employment activities reported and the medical diagnosis.

Entering or exiting employment and during rest breaks

18. If an injury occurs while a worker is entering or exiting employment or during a rest break, how is coverage determined?
    1. Operations staff will determine each situation on a case by case basis, considering the following:
       1. Was the injury a result of a hazard or condition of the employer’s premises?
       2. Was the worker in that location for the purpose of employment?
       3. Was the worker making reasonable and permitted use of the employer’s premises or access route?
       4. Was the worker entering or exiting employment to start or end work or during a rest break?
       5. Was the worker crossing a parking lot or the common areas of a multi-user premises enroute to the employer’s place of business (i.e., to enter or exit employment or during a rest break)?
       6. Was the worker accessing a parking spot on the employer’s premises for the purpose of employment?
       7. Was the worker accessing or within a designated break or lunch area?
    2. Operations staff will not extend coverage if:
       1. The injury occurred while the worker was on public property (e.g., while crossing a sidewalk or road that’s not on the parking lot or a multi-user premises), or
       2. The injury occurred on a parking lot not provided or arranged by the employer.
19. How do Operations staff determine if a parking lot is considered part of the employer’s premises?
    1. Operations staff will consider if:
       1. The employer owns or has a level of control over the parking lot.
       2. The parking lot is connected or adjacent to a multi-use premises where the employer owns, leases or rents space for business purposes, or
       3. The employer has arranged parking privileges or provides the worker with a parking spot on a distant parking lot.

Travelling

20. Is a worker covered if they are injured while travelling?
    1. Coverage is provided when the travel is under the employer’s control or employer-directed.
    2. Operations staff will confirm:
       1. The worker was travelling for the purpose of employment (i.e., part of their employment duties), and
       2. Travel was under the employer’s control or employer-directed.
    3. To determine this, Operations will consider if:
       1. The employer pays for any time spent or any mileage for distance travelled in a personal vehicle. This includes predetermined travel allowances if it is based on the worker’s regular or average mileage (e.g., weekly, monthly).
       2. The worker was travelling in a mode of transportation paid for by the employer or owned, leased, or rented by the employer. Examples include, but are not limited to:
          1. Any form of public transportation paid for or reimbursed by the employer (e.g., bus, plane, etc.).
          2. A vehicle supplied by the employer to respond to calls during and outside normal working hours.
          3. A crew bus.
       3. The worker was travelling as required by their employment (e.g., transporting goods, field staff, expected to respond to an emergency call, etc.).
21. When is travel not considered under the employer’s control or employer directed?
    1. Operations staff will determine if the employer does not have control over the mode of travel or does not reimburse for actual time or distance travelled.

For example, if the employer pays the worker a pre-determined travel allowance unrelated to actual distance travelled, travel may not considered under the employer’s control. The employer has no control over the distance travelled or the mode of travel and the worker is not considered in the course of employment or completing employment duties.

22. If the worker’s travel is determined to be under the employer’s control or employer directed, how do Operations staff determine what is considered a practical and reasonable route to a work site?
    1. Operations will determine if a reasonable person would have chosen the route the worker was travelling on when the injury occurred. This will be determined on a case by case basis considering the individual circumstances.
    2. Operations staff will consider:
       1. Did the worker choose or divert to a route that added travel time or distance? If yes, did the worker choose this route because it was unsafe to travel on a more direct route (e.g., because of weather or a motor vehicle accident)?
       2. Did the worker choose another route because their travel time would have been delayed if they took a more direct route (e.g., due to construction)?

Temporary lodgings

23. In what situations would coverage be extended within temporary lodgings?
    1. Operations staff will consider:
       1. Was the worker required to travel for employment?
       2. Are they working in a distant or remote work location that requires them to relocate temporarily during periods of employment?
       3. Are the temporary lodgings under the employer’s control?
       4. Was the worker making reasonable and permitted use of temporary lodging facilities?
24. When is temporary lodging under the employer’s control?
    1. Operations staff will confirm if:
       1. The facility is provided by, and under the direct control of, the employer. This includes residential, recreational and food facilities (e.g., at a bunkhouse or campsite), or
       2. The employer pays for (or reimburses) the cost of the temporary lodgings (e.g., hotels).
25. What is considered reasonable and permitted use of temporary lodging facilities?
    1. Operations staff will consider:
       1. Where did the injury occur?
       2. Was the worker within an area or using amenities required for daily living (e.g., common areas, bedrooms, bathrooms, or and dining and laundry facilities)?
       3. Was the injury the result of a hazard or condition of the temporary lodging?
26. Are injuries covered if they do not occur within the temporary lodgings building?
    1. Operations staff may extend coverage if an injury occurs while a worker is accessing amenities not included in the temporary lodgings.
    2. Operations staff will consider coverage on a case by case basis, considering the individual circumstances of the claim.
       1. What amenities are provided within the temporary lodgings?
       2. Where was the worker when they were injured?
       3. Were they accessing amenities reasonably close to the temporary lodgings?

For example, it would be reasonable to extend coverage if there is no restaurant within the temporary lodgings and the worker is injured while travelling to or while at a nearby restaurant.

Working from home (telework, telecommuting)

27. If an injury occurs while a worker is working from home, how is coverage determined?
    1. Operations staff will consider if:
       1. The worker was directed or authorized by their employer to work from home.
       2. The worker was performing an activity required or reasonably related to their employment or the injury occurred in the course of using equipment or materials supplied or required by the employer.
       3. The worker was in a designated workspace within the home or in an area reasonably related to the employment activity, and
       4. The injury occurred during the hours the worker would normally be expected to work or during a defined period of time the worker was required to be available (i.e., on call).
    2. Operations staff will determine coverage on a case by case basis, considering the individual circumstances of each claim.

Recreational activities

For example, this includes, but is not limited to, a police officer or firefighter participating in exercises or sports activities during working hours or a rest break.

28. Is an injury covered if it occurs while a worker is participating in a recreational activity?
    1. Operations staff will confirm the injury:
       1. Occurred during the worker’s normal work hours, and
       2. Was the result of a recreational activity that is required by employment or consistent with the worker’s employment duties.
    2. If the injury did not occur on the employer’s premises or was outside of normal work hours, Operations staff will confirm if:
       1. The worker was required to participate in the activity (i.e., compulsory), and
       2. The activity was performed at a location designated and/or approved by the employer.

29. What questions will Operations staff consider when determining if the recreational activities are a requirement of, or consistent with, employment? 

    1. Is the worker required to maintain a required level of physical fitness for their employment?
       1. For example, this includes, but is not limited to, a police officer or firefighter participating in exercises or sports activities during working hours or a rest break.
    2. Is the activity compulsory and under the direction and control of the employer?
       1. For example, workers are required to participate in stretching exercises before starting a shift or during a team-building exercise.
    3. Is the activity a requirement of or part of the worker's regular employment duties?
       1. For example, childcare workers may be required to lead and/or participate in sports activities.
30. If the recreational activity is a requirement of employment, what injuries are covered?
    1. Injuries resulting from the recreational activity (e.g., a muscle strain during stretching), and
    2. Injuries resulting from a hazard of the employer provided recreational facility or any equipment the employer provides (e.g., if broken gym equipment causes an injury).
31. What is considered an employer provided recreational facility?
    1. Operations staff will confirm if the facility is on the employer’s premises and if the employer provides any recreational equipment. This includes recreational facilities within temporary lodgings (e.g., bunkhouse or campsite).
    2. Operations staff will not extend coverage if the injury occurred in an independent recreational facility (e.g., fitness club) and the employer pays the membership fees. These facilities are not considered part of the employer’s premises.
32. If the recreational activity is not a requirement of employment and the worker is injured using an employer provided facility, when is an injury covered?
    1. Operations staff will confirm:
       1. The worker was making permitted use of an employer provided recreational facility, and
       2. The injury was the result of a hazard or condition of the employer provided recreational facility.
    2. Operations staff will extend coverage to injuries that occur because of a hazard or condition of the employer provided recreational facility or equipment (e.g., if broken equipment causes an injury).
    3. Operations staff will not extend coverage to injuries that occur because of the recreational activities (e.g., a muscle strain because of the activity or improper use of equipment).

Other employer sanctioned activities or events

33. Is an injury covered if it occurs while a worker is participating in other activities or events (e.g., wellness or social events, training or educational courses, conferences)?
    1. Operations staff will confirm:
       1. The worker’s attendance at the event was a requirement of their employment (i.e., compulsory), or
       2. The employer directed the worker to participate in the activity or event.
    2. If the attendance or participation was required or directed by the employer, an injury occurring during the event will be considered to have arisen out of and in the course of employment.
    3. If attendance or participation was not required or directed, coverage will not be provided.

Pre-existing conditions

34. Is an injury covered if the worker has a pre-existing condition?
    1. Entitlement for a work-related injury will not be denied if the injured worker has a pre-existing condition, even though it may have increased the possibility that the worker would sustain an injury or it was a factor in an injury occurring.
    2. As in all cases, WCB staff will determine whether a work-related injury has occurred.
35. What information is used to make a decision?
    1. Operations staff will consider the following questions:
       1. Did the worker incur a distinct new injury?
       2. Was the worker performing activities consistent with and required for, or reasonably related to, their employment?
       3. Did the injury happened at a time and in a place linked to employment?
    2. Operations staff will review the medical reports to confirm that an injury has occurred and will consider the adjudication guidelines above.
    3. Operations staff may request additional information and/or an opinion from a WCB Medical Officer.
    4. If Operations staff determine there was a distinct new injury that arose out of and in the course of employment, the work-related injury will be covered, but no responsibility is assumed for the pre-existing condition.
    5. Operations staff will consider specific adjudication guidelines for the following types of injuries where a pre-existing condition may be present (included in the Decision Making – Injuries section of the Policy and Procedure Manual):
       1. Heart attacks.
       2. Hernia.
       3. Occupational diseases.
       4. Psychological injuries.
    6. Where employment-related activities or a work injury aggravates or accelerates a worker’s pre-existing condition, Operations staff will apply POL and PRO 12/2017, Pre-Existing Conditions – Aggravation or Acceleration.

Appeals

36. What if a worker or employer does not agree with the claim decision?
    1. If there is new and/or additional relevant information, Operations may reconsider the decision (POL 23/2014, Reversing Decisions).
    2. A worker or employer may appeal any claim decision (POL 21/2013, Appeals – Claims).