Document name

Arising Out of and In the Course of Employment

Document number

POL 07/2021

1. The Workers’ Compensation Act, 2013 (the “Act”) defines an injury as all or any of the following arising out of and in the course of employment (Section 2(1)(r)):
   1. The results of a wilful and intentional act, not being the act of the worker.
   2. The results of a chance event occasioned by a physical or natural cause.
   3. A disabling or potentially disabling condition caused by an occupational disease.
   4. Any disablement.
2. The Workers’ Compensation Board (WCB) has exclusive jurisdiction (Section 20(2)) to determine:
   1. Whether any condition or death was caused by any injury, and
   2. Whether any injury has arisen out of or in the course of employment.
3. Unless the contrary is proven, the Act directs the WCB to presume the following (Section 27):
   1. If an injury arises out of a worker’s employment, it is presumed that it occurred in the course of employment.
   2. If an injury occurs in the course of a worker’s employment, it is presumed that it arose out of employment.
4. Unless the contrary is proven, the WCB will presume a worker, who has been found dead at a place where they had a right to be in the course of their employment, has died as a result of an injury arising out of and in the course of their employment (Section 29 and POL 04/2014, Fatalities, Presumption).
5. The various circumstances where coverage applies cannot be addressed under one policy. The policy and the examples included in the procedure are intended as general guidelines only. The WCB determines if an injury arose out of and in the course of employment based on the real merits and justice of each case (Section 23).

1. An injured worker is entitled to benefits and treatment if their injury arises out of and in the course of employment:

   1. An injury arises 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 or activities.

   2. An injury occurs 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 or activities.

2. The WCB will:

   1. Collect all available and relevant information to use as evidence to make, or help make, a decision as to whether the injury, more likely than not, arose out of and in the course of employment. This includes all relevant medical reports.

   2. Make a decision based on the facts (merits and justice) of each claim. Decisions are not bound to follow prior claim decisions or legal precedent.

3. WCB will determine whether an injury is work related by considering all available and relevant information, including any evidence suggesting the injury is not the result of employment. The WCB will presume an injury that occurred during employment is work related unless there is sufficient information to determine an injury did not arise out of or in the course of employment.

4. After gathering all available information, if one of the conditions in Section 27 of the Act (e.g., that the injury arose in the course of employment) is met, it is presumed that the second condition (e.g., that the injury arose out of employment) is met unless there is sufficient evidence to disprove the second condition. If the second condition is not disproved, the WCB will presume the injury is the result of employment.

5. Guidelines have been developed which outline when the WCB considers that an injury arose out of or in the course of employment, as follows:

   1. Arising out of employment.

   2. Arising in the course of employment.

   3. Delayed onset or non-specific incidents.

   4. Entering or exiting employment and rest breaks.

   5. Imported personal hazards.

   6. Travelling.

   7. Temporary lodging.

   8. Working from home (telecommuting).

   1. Recreational activities.

   10. Other employer sanctioned activities or events.

   11. Pre-existing conditions.

   12. Serious and wilful misconduct.

   13. Fatalities.

6. Additional guidelines for the adjudication of certain type of injuries are included in the Decision Making – Injuries section of the Policy and Procedure Manual:

   1. Communicable diseases.

   2. Hearing loss.

   3. Heart attacks.

   4. Hernia.

   5. Occupational diseases.

   6. Psychological injuries.

Arising Out of Employment

7. An injury arises out of employment if it occurs while the worker is performing activities consistent with and required for, or reasonably related to, their employment.
8. An injury may arise directly out of employment.
   Examples include, but are not limited to:
   1. A cut from machinery.
   2. Inhaling chemicals.
   3. A traumatic work-related event.
9. An injury may arise indirectly out of employment.
   Examples include, but are not limited to:
   1. Activities related to employment and while the worker was performing employment duties (e.g., the worker is injured because of tripping when walking from one point to another while performing an employment activity).
   2. An act of violence from a person external to employment.
10. An injury may arise from repetitive employment activities or exposure to a harmful substance in the workplace.
    Examples include, but are not limited to:
    1. Repetitive strain injuries.
    2. Occupational noise induced hearing loss.
    3. Exposure to substances such as mercury or asbestos.

Arising in the course of employment

11. An injury occurs in the course of employment when it happens in a time and place linked to employment and the worker is performing an activity required or related to their employment.
12. Time and place are not limited to normal hours of work or the employer’s premises. However, there must be a relationship between:
    1. The time and place of the injury, and
    2. Employment activities.
13. Coverage will be extended if an injury occurs because employment required the worker to be in a specific time or place, even though the worker may be at the same risk of injury as the general population.
    Examples includes, but are not limited to:
    1. Motor vehicle related incidents.
    2. The external environment (e.g., due to weather conditions, an insect bite while working outside, etc.).
    3. An act of violence from a person external to employment.
14. Coverage may be extended if an injury occurs when a worker is not performing a specific employment activity but is engaged in a brief interlude of personal activity during normal hours of work. This interlude may not be considered incidental to the worker’s employment, but would be an accepted and/or allowed brief respite or interval in a work environment and reasonably expected of all workers (e.g., washroom or water break).

Delayed onset and non-specific incidents

15. In situations:
    1. Where an injury or disablement has emerged over time, or
    2. Where the worker experiences symptoms or pain at work and there is no specific incident, WCB will determine if there was an injury and, if so, whether it is more likely than not, the injury or condition arose out of and in the course of employment.

16. An injury may result from a single incident, several incidents, or a gradual process that develops over time (e.g., non-specific incidents). WCB does not automatically assume that a worker who experiences symptoms or pain at work has suffered an injury due to employment. To be considered a work-related injury in these situations, the worker’s employment activities must have contributed to, or be the dominant cause for, the onset of the worker’s injury or disablement.

17. For claims where the incident is not obvious (i.e., there is no distinct, identifiable incident or exposure), the WCB will investigate further to determine whether a work-related injury has occurred and there is sufficient evidence of employment risk factors that would be considered to have caused an injury.

18. WCB will consider all relevant information, including information provided by the worker, employer and health care providers.

19. WCB will make decisions on the real merits and justice of each situation based on evidence. Decisions will be made in accordance with the conclusion that is more likely (i.e., more evidence for the fact than against). POL and PRO 02/2019, Decision Making, will apply.

Entering or exiting employment and during rest breaks

20. The WCB considers employer premises to include any location or area directly or indirectly under the employer’s control or provided by the employer. This includes, but is not limited to, the following employment settings:
    1. Any building, location, worksite, or within any areas, the worker is required or entitled to be for employment.
    2. Within, or on, any common public areas where the employer owns, leases, or rents space for business purposes or used by workers to enter and exit work or take rest breaks. This includes:
       1. Common or shared entrances and exits to employment in multi-user premises such as a mall or office tower.
       2. Common or shared areas en route to the employer’s place of business such as coffee rooms or shops, food courts, bathrooms, lobbies, stairs, walkways, and elevators.
    3. Parking lots controlled, leased, maintained or provided by the employer, including those where the employer has allocated or arranged parking privileges for workers.
21. The WCB considers a rest break to mean a break permitted under provincial employment standards, a labour agreement or authorized by the employer (e.g., coffee breaks, lunch break).
22. A worker is considered to be in the course of employment if a link between employment and the worker’s activity can be established.
23. Each situation will be determined on a case by case basis. Generally, coverage is provided if:
    1. An injury occurs while the worker is entering or exiting employment or during a rest break.
    2. The injury occurred on what is considered the employer’s premises or the common entrance or exit to employment in a multi-user premise.
    3. The worker was in or crossing these areas in the performance of their work, while entering or exiting employment or during a rest break,
    4. The worker was making reasonable and permitted use of the employer’s premises or access route, and
    5. It was the result of a hazard or condition of the employer’s premises or employer provided equipment.
24. An injury is not covered if:
    1. It resulted solely from an imported hazard (see below) and not a hazard or condition of the employer’s premises.
    2. It occurred while the worker was on, or crossing, public property (e.g., sidewalk, street, public parking area, etc.).
    3. It occurred during rest breaks taken off the employer’s premises for personal activities or personal business (including but not limited to personal shopping, attending a personal appointment, paying bills, or on a parking lot not under the employer’s control).
    4. It occurred on a parking lot arranged by the worker (i.e., not considered an employer premise).

Imported personal hazards

25. The WCB considers imported personal hazards to include items or situations brought into the workplace by a worker and not under the control of the employer. They are considered risks or situations specific to a worker and do not arise out of employment, unless it is demonstrated that a worker’s employment contributed to the injury.
    
    Examples include, but are not limited to, personal relationships, food poisoning from a homemade lunch, injuring a finger in the door of a personal vehicle in the employer’s parking lot, etc.
26. If it is clearly determined that the injury resulted solely from an imported personal hazard and not related to normal employment activities, it will not be considered to have arisen out of or in the course of employment.
27. If an injury occurs because of an imported personal hazard of another worker, it may be considered to have arisen out of or in the course of employment (e.g., allergic reaction to a food item brought into the workplace by another worker, etc.). In these cases, the imported personal hazard is not under the control of the injured worker and the injury may be covered.

Travelling

28. The WCB does not typically cover injuries that occur while a worker travels between their residence and work. However, coverage is provided when the travel is under the employer’s control or employer-directed and part of the worker’s employment duties. Each situation will be determined on a case by case basis, considering the following.
    1. Under the employer’s control:
       1. The WCB considers travel under the employer’s control if the employer:
          1. Pays for or provides the mode of transportation (e.g., vehicle, bus, airplane, etc.), and/or
          2. Pays the worker for any time spent travelling or for any mileage (e.g., in a personal vehicle or employer provided vehicle).
    2. Employer directed:
       1. The WCB considers travel employer directed if:
          1. It is a specific requirement of employment duties (e.g., transporting goods, field staff, etc.).
          2. The worker is travelling to a work site from an employer-designated pickup location.
          3. The worker is required to travel between work sites during and outside normal work hours.
          4. The worker is expected to respond to an emergency call. Coverage begins from the time the worker is notified of the emergency and includes travel to and from the emergency site. POL 01/2016, Injuries – Responding to Work-Related Emergencies, will apply.
29. If the worker’s travel is determined to be under the employer’s control or employer-directed:
    1. Coverage applies if the worker was travelling on a practical and reasonable route to the work site.
    2. Coverage will also be extended to basic comfort needs (e.g., rest stops and meals) that are reasonably close to the route of travel. Each situation will be considered on a case by case basis.
30. Injuries incurred during travel may also be covered in the following situations:
    1. The worker responds to an emergency situation encountered in the course of employment. POL 07/2009, Injuries – Workers Acting as Good Samaritans, will apply.
    2. The worker is injured while travelling as a union delegate. POL 03/1999, Coverage – Trade Unions, will apply.

Temporary lodgings

31. The WCB may provide coverage for injuries that occur while a worker is staying in temporary lodgings if:
    1. Paid for or reimbursed by the employer (e.g., hotel accommodations), or
    2. Provided by and under the employer’s control at distant or remote work locations (e.g., bunkhouse or campsite that is leased, owned, or rented by employer and considered an extension of the workplace).
32. If the lodging is paid for by the employer or is under the employer’s control, coverage is extended to injuries that occur:
    1. As a result of a hazard or condition of the temporary lodgings, and
    2. While the worker was making reasonable and permitted use of lodging facilities for employment purposes or activities reasonable for daily living (e.g., common areas, bedrooms, and dining and laundry facilities).
33. Coverage is not extended to fitness facilities in temporary lodgings, unless the worker was performing a recreational activity required for, or consistent with, their employment, or the injury occurred within an employer provided recreational facility (see recreational activities below).

Working from home (telework)

34. Telework (also referred to as telecommuting or e-work) refers to a flexible work arrangement under which a worker performs employment duties from an approved workplace other than the employer premises. Typically, this will mean the employer has authorized the worker to work from their home.
35. When working from home, either on a permanent or temporary basis, a worker is considered to be in the course of employment, provided that:
    1. The worker was directed or authorized by their employer to work from home, and
    2. The injury occurs:
       1. While performing an activity required or related to their employment,
       2. Within the defined or designated workspace as authorized by the employer (i.e., in a place where the worker might reasonably have been expected to be while engaged in work-related activities), and
       3. During hours when the worker would normally be expected to work.
36. Coverage is not extended to:
    1. Occasional situations when a worker brings work home on their own initiative and not directed by the employer.
    2. Injuries resulting from imported personal hazards not related to normal employment activities or outside the designated workspace.

Recreational activities

37. A recreational activity includes any physical activity for the purpose of physical fitness or for volunteer or community activities.
38. Required by employment:
    1. Injuries resulting from the worker performing a recreational activity during employment are considered to have arisen out of employment if:
       1. The activity is a requirement of employment (i.e., to maintain a mandated level of physical fitness) or consistent with the type of employment.
       2. The injury occurred during normal work hours, which includes during rest breaks.
       3. The injury occurred at a facility or location provided or approved by the employer, and
       4. The injury occurred during reasonable and permitted use of the facility or designated location.
    2. These injuries will be covered if the injury is:
       1. The result of the recreational activity (e.g., sprain while running), or
       2. The result of:
          1. A hazard or condition of the premises, or
          2. Equipment provided by the employer.
39. Not required by employment:
    1. Where the recreational activity is not compulsory or a requirement of employment, WCB will cover injuries if all of the following apply:
       1. The injury is the result of a hazard or condition of the recreational facility (e.g., broken exercise equipment).
       2. The recreational facility (e.g., gym) is provided and controlled by the employer, and
       3. The employer allows workers to use the facility during or outside of normal work hours.
    2. An injury that occurs during a voluntary recreational activity is not covered if:
       1. It is the sole result of the recreational activity (e.g., stretching, straining a muscle while lifting weights or dropping a weight on a body part), or
       2. It did not occur in a facility provided and controlled by the employer, even if the employer paid for the activity or selected and/or approved the location.
40. In all cases, the WCB does not assume responsibility for a worker’s pre-existing condition. To determine the extent of benefits, the WCB will consider any exposure to non-employment related risk factors (e.g., personal recreational sports, etc.).
41. An injury that occurs during recreational activities may not be covered if it is the result of the worker’s serious and wilful misconduct or an imported hazard.

Other employer sanctioned activities or events

42. Injuries that occur during employer sanctioned events (e.g., wellness or social events, training and educational courses, conferences) may be considered to have arisen out of employment if the activity or event was being performed at a location approved or designated by the employer and:
    1. The employer directed the worker to participate, or approved the worker’s participation, in the activity or event, or
    2. The activity or event is a requirement of the worker’s employment (i.e., compulsory).
43. Each situation will be determined on a case by case basis.

Pre-existing conditions

44. The WCB considers a pre-existing condition to be a non-work-related medical, physical or psychological condition that exists prior to a work-related injury. The existence of the condition must be medically confirmed, either pre-injury or post-injury, and may have been evident prior to the occurrence of the work injury or it may become evident afterwards.
45. Entitlement for a work-related injury will not be denied due to the existence of 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. However, the WCB will only compensate for a work injury and does not assume responsibility for any pre-existing condition the worker may have.
46. Whether or not a pre-existing condition exists, WCB will determine if a new distinct injury arose out of and in the course of employment by considering the adjudication principles above:
    1. If an injury occurred while the worker was performing activities consistent with and required for, or reasonably related to, their employment.
    2. If an injury happened in a time and place linked to employment and the worker is performing an activity required or related to their employment.
47. A pre-existing condition or disease may be aggravated or accelerated by an accepted work-related injury. In such cases, POL and PRO 12/2017, Pre-Existing Conditions – Aggravation or Acceleration, will apply.

Serious and wilful misconduct

48. A worker is not entitled to benefits if an injury is attributable solely to the serious and wilful misconduct of the worker, unless it results in death or serious functional impairment (POL 08/2017, Serious and Wilful Misconduct).
49. However, a worker may be covered if the injury is the result of the serious and wilful misconduct of another person, if it is determined the worker was a non-participant (i.e., innocent bystander). Coverage for these types of claims will be determined based on whether the worker was in the course of employment at the time of injury.

Fatalities

50. If a worker is found dead on the employer’s premises, the WCB will presume the death arose out of and in the course of employment, unless the contrary is shown (POL 04/2014, Fatalities, Presumption).

Appeals

51. All decisions are subject to reconsideration. If a worker or employer disagrees with a claim decision, they may request a reconsideration or an appeal. POL 23/2014, Reversing Decisions, and POL 21/2013, Appeals – Claims, will apply.