Document name
Arising Out of and In the Course of Employment
Document number
POL 03/2017

Effective date: September 1, 2017

Approved date: June 20, 2017

Application: All injuries on or after the effective date.

Policy subject: Decision making - Principals

Purpose:

To clarify when an injury arises out of or in the course of employment.

DEFINITION

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Acute injury means an injury caused by a specific or sudden work-related incident or traumatic event that results in immediate or near immediate symptoms.

Delayed onset injury means an injury caused by a single or series of work-related incidents, exposures or traumatic events over time that results in a delayed symptom onset.

Imported personal hazard means a risk or situation specific to the worker and is present regardless of employment. Imported personal hazards include items brought into the workplace by the worker and not under the control of the employer (e.g., lunches, personal vehicles, etc.).

Pre-existing condition means a non-work-related medical, physical or psychological condition that existed prior to the 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.

Employer premises means the work location that the worker is entitled to be. This includes, but is not limited to, any employer-controlled areas (either leased or owned by the employer) and those areas used by workers to enter and exit work (e.g., common entrances or exits, stairs, elevators, lobbies, parking lots and passageways).

Temporary lodging means a worker’s residence at a distant work location paid for by the employer (e.g., trailers, motels, or hotels).

Paid break means a rest break permitted under a labour agreement or authorized by the employer (e.g., coffee breaks).

BACKGROUND

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  1. The Workers’ Compensation Act, 2013 (the “Act”) defines an injury arising out of and in the course of employment as (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 to determine “whether any injury has arisen out of or in the course of employment” (Section 20(2)(b)).
  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 many circumstances where coverage applies cannot be addressed under one policy. The policy and any examples are intended as general guidelines only and 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.

POLICY

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  1. The WCB will cover a worker’s injury if it arises out of and in the course of employment.
  2. The WCB will make a decision on the real merits and justice of each case and decisions are not bound to follow any legal precedent. If the evidence in support of both sides of an issue is approximately equal, the WCB will resolve the issue in favour of the worker (POL 02/2019, Decision Making).
  3. The WCB will obtain all relevant information to determine if an injury arose out of and in the course of employment. The WCB will determine entitlement based on the weight of that information.
  4. Both acute and delayed onset injuries can arise out of and in the course of employment. If there is no evidence a worker has suffered an acute injury, the WCB will consider if the worker suffered a delayed onset injury.
  5. It is not automatically assumed that a worker who experiences symptoms or pain at work has suffered an injury due to employment. The WCB will gather information to determine if an injury arose out of and in the course of employment.
  6. After gathering all available information, it may be clear that one of the conditions (e.g., that the injury arose in the course of employment) is met but there is insufficient information to make a decision regarding the second condition (e.g., that the injury arose out of employment). In these cases, the statutory presumptions contained in Section 27 of the Act will apply and the WCB will presume the injury is the result of employment.
  7. General guidelines have been developed which outline what the WCB considers when determining if an injury arose out of or in the course of employment, as follows:
    1. Arising Out of and In the Course of Employment
    2. Serious and Wilful Misconduct
    3. Imported Personal Hazards and Pre-Existing Conditions
  8. Along with the general guidelines, the WCB may also consider specific guidelines to determine if an injury arose out of and in the course of employment, as follows:
    1. Travelling to and from or for Work
    2. Temporary Lodging
    3. Entering or Exiting Employer Premises
    4. Rest Breaks on the Employer Premises
  9. A corresponding procedure provides additional information about how WCB staff determine if an injury claim is acceptable.
  10. The WCB may provide additional guidelines for the adjudication of certain types of injuries to determine if a worker has suffered an acute or delayed onset injury. These guidelines will be outlined in Section 3, Injuries – Type of Injury of the WCB Policy Manual (e.g., Injuries – Occupational Disease, Injuries – Heart Attack, Injuries - Communicable Diseases, Injuries – Hearing Loss, Injuries – Psychological).

General Guidelines

Arising Out of and In the Course of Employment

  1. An injury arises out of employment if it is the result of an activity that has a link to, originates from, or is the result of a worker’s employment and would not have happened if not for their employment.
    1. An injury may arise directly out of employment.

Examples includes, but are not limited to:

      1. A cut from machinery.
      2. Inhaling chemicals.
      3. A traumatic work-related event.
    1. An injury may arise indirectly out of employment.

Examples include, but are not limited to:

      1. Access to and from work (i.e., if employer controlled, etc.).
      2. Reasonable use of employer premises (i.e., a lunchroom or washroom).
      3. Work-related travel.
      4. A lightning strike or insect bite while working outside.
      5. An act of violence from a person external from employment that occurs during work.
    1. An injury may arise from repetitive work 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.
  1. An injury occurs in the course of employment when it happens in a time and place linked to employment and if the worker is performing a task which is part of their obligations and purpose of employment.
  2. Time and place are not limited to the normal hours of work or the employer’s premises. However, there must be a relationship between:
    1. The time and place of the injury.
    2. Employment functions.
  3. An injury that results from an activity or event reasonably related to employment may be considered to have occurred in the course of employment. The WCB determines if an activity or event is reasonably related to employment on a case-by-case basis.

Serious and Wilful Misconduct

  1. A worker is not entitled to benefits if an injury that arises out of and in the course of employment is the result of the worker’s serious and wilful misconduct, unless it results in death or serious functional impairment (POL 08/2017, Serious and Wilful Misconduct).
  2. However, a worker may be covered for an injury resulting from the serious and wilful misconduct of another person, if it is determined that 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.

Imported Personal Hazards and Pre-Existing Conditions

  1. Imported personal hazards:
    1. Risks or situations that are specific to the worker are considered imported personal hazards and do not arise out of employment, unless it is demonstrated that a worker’s employment contributed to the injury.
    2. If it is clearly determined that the injury was not reasonably related to normal employment activities, the injury will not be considered to have arisen out of and in the course of employment.
    3. Imported personal hazards include items or situations brought into the workplace by the worker and not under the control of the employer (e.g., personal relationships, food poisoning from a homemade lunch, injuring their finger in the door of a personal vehicle in the employer’s parking lot, etc.).
    4. If an injury results solely from an imported personal hazard it will not be considered to have arisen out of or in the course of employment.
    5. 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 or the employer. Employers may be eligible for cost relief as per POL 03/2021, Second Injury and Re-Employment Reserve.
  2. Pre-existing conditions:
    1. A worker’s pre-existing condition is not considered during the initial decision to accept a claim, even though it may have increased the possibility that the worker would sustain an injury at work. The decision to accept a claim is based on if the injury arose out of and in the course of employment (i.e., either because of an acute or delayed onset injury).
    2. A pre-existing condition is a risk for the worker in and out of employment. The WCB will provide coverage if it is determined that conditions of the worker’s employment increased the likelihood of an injury occurring or the severity of the injury.

An example includes, but is not limited to, situations where a worker has a seizure due to epilepsy at work and is injured because of their employment activities (e.g., due to falling from an increased height or from a tool being used for employment).

    1. The WCB will compensate for a work injury and does not assume responsibility for any pre-existing condition the worker may have. Employers may be eligible for cost relief as per POL 03/2021, Second Injury and Re-Employment Reserve.
    2. If an injury is determined to have resulted from employment, and results in an aggravation or acceleration of a pre-existing medical condition, POL 12/2017, Pre-Existing Conditions – Aggravation or Acceleration will apply.
    3. In all cases, the medical and factual information is considered together, in order to determine if the pre-existing condition or the employment activity/situation resulted in the injury or death. Once initial entitlement is established, the WCB will consider the impact of a pre-existing condition and the work-related injury to determine ongoing entitlement.

Specific Guidelines

Travelling to and from or for Work

  1. The WCB does not provide coverage for an injury that occurs during travel to and from or for work, unless the travel is under the employer’s control.
  2. Considering the individual circumstances of each claim, the WCB may determine travel is under the employer’s control if:
    1. The worker is travelling to and from employment or for the purpose of employment in a vehicle owned, leased, or otherwise paid for by the employer.

Examples include, but are not limited to:

      1. A crew bus, or
      2. A vehicle supplied by the employer to respond to calls outside normal working hours.
    1. The worker is travelling to and from employment or for the purpose of employment and the employer pays for any time spent or any mileage for distance travelled in a personal vehicle.
    2. The worker responds to an emergency call and is expected to take immediate action. In this instance, coverage is from the time the worker leaves home until their return (POL 01/2016, Injuries – Responding to Work-Related Emergencies).
    3. The worker responds to an emergency situation encountered in the course of employment (POL 07/2009, Injuries - Workers Acting as Good Samaritans).
  1. In the above cases:
    1. Coverage will only apply when the worker is following the most practical route between their residence and the work site.
    2. Coverage will extend to basic comfort needs (e.g., rest stops and meals) which are reasonably close to their direct route of travel.
  2. Coverage will not apply to a worker who receives a predetermined travel allowance unrelated to the actual distance travelled. In these cases, the employer does not have control over the route or mode of travel.

Temporary Lodging

  1. If an employer reimburses a worker for temporary lodging:
    1. Coverage will extend to the reasonable and permitted use of temporary lodging facilities (e.g., dining and laundry facilities).
    2. Coverage will not extend to the use of facilities which introduce significant additional risk (e.g., pools or fitness facilities).

Entering or Exiting Employer Premises

  1. The WCB will provide coverage when an injury:
    1. Happens on the employer’s premises, and
    2. Results from the condition of the property or an event under the control of the employer.
  2. The WCB may extend coverage when there is a combination of:
    1. An imported personal hazard of the worker or another worker, and
    2. A hazard(s) related to the employer’s premises.
  3. A worker is covered when using or crossing an employer controlled parking lot for the purpose of:
    1. Accessing an employer provided parking spot, or
    2. Entering or exiting employment.
  4. A worker is not covered while crossing public property to enter or exit employment.
  5. In multi-user premises, such as malls and business towers, generally the employer will make payments to the owner of the property to maintain the areas intended for common use. This includes areas exclusive to the employer and may include common use areas such as; parking lots, lobbies, stairs and exits, walkways, and elevators.
    1. Coverage will extend to common use areas if a worker crosses these areas in the performance of their job or while entering or exiting employment.
    2. Coverage will not extend to common use areas if the worker crosses these areas for a purpose unrelated to employment (e.g., personal shopping).

Rest Breaks on an Employers Premises

  1. The WCB will extend coverage to an injury that occurs during a paid break on the employer premises when it results:
    1. From a hazard(s) or condition of the premises.
    2. While making reasonable use of the premises.
  2. During a paid break, there is no coverage for an injury resulting from an imported personal hazard or pre-existing condition.
  3. Coverage will not extend to breaks taken away from the employer’s premises. Examples include breaks taken offsite for personal activities, such as:
    1. Shopping.
    2. Bill paying.
    3. Work breaks off of the employer premises, or
    4. Walking to a car that is not on an employer controlled parking lot.

Policy references

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Section heading

Legislative Authority

Page/document title
The Workers’ Compensation Act, 2013 Sections 2(1)(r), 20, 23, 26, 27, 29, and 30

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Document History

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(1)    POL 12/2013, Arising Out Of and In the Course of Employment (effective January 1, 2014 to August 31, 2017).
(2)    POL 13/2001, Arising Out of and In the Course of Employment (effective November 30, 2001 to December 31, 2013).
(3)    POL 12/98, Injuries, Travelling to and from or for Work (effective September 16, 1998 to December 31, 2013).
(4)    POL 27/95, Injuries, Rest Breaks (effective January 1, 1996 to December 31, 2013).
(5)    POL 17/91, Injuries, Entering or Exiting Employer Premises (effective June 28, 1991 to December 31, 2013).
 

Section heading

Complements

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