Determination of a Worker’s Right to Bring Action
Effective date: February 1, 2013
Approved date: January 22, 2013
Application: Applies to all applicants desiring to bring an action.
Policy subject: General
To establish guidelines for determining if a right of action exists.
POL 01/2013, Determination of a Worker’s Right to Bring Action, establishes the Board Members’ exclusive responsibility in determining applications for right of action under Section 169 of The Workers’ Compensation Act, 2013 (the “Act”).
- As per POL 13/2014, Third Party Actions, Operations staff and the Subrogation Administrator will attempt to identify claims where a worker has a right of action against a third party. Where the possibility of an action is raised, Operations staff will consider the issue and advise the claimant if they feel, in their opinion, the facts available are likely to provide the basis for an action.
- Where there is a dispute on whether a right of action exists, any party to an action may request a ruling on whether the action is barred by the Act. It is not necessary for a compensation claim to have been initiated for a ruling to be made under Section 169.
- All inquiries concerning a Section 169 ruling should be forwarded to the Board Services department.
- On straight forward matters, Board Services may contact the party making the inquiry and inform them of WCB practice and previous rulings in similar cases. This may allow the party to avoid the necessity of a full Section 169 ruling. The advice provided by Board Services will not remove the party’s right to request a ruling and is not intended to suggest the Workers’ Compensation Board (WCB) has prejudged the case.
- An application for a Section 169 ruling must be in writing and no application will be considered unless an action has been commenced. It is necessary for the WCB to have all the details of the grounds for the action in order to make a ruling.
- On receipt of an application, Board Services will contact all parties requesting their submissions. Board Services will ensure the parties are provided copies of all the submissions and are given the opportunity to submit rebuttal arguments. Appropriate timeframes for submissions will be established.
- Any party to the action may request an in person hearing and any such request will be considered by the Board Members.
- The Board Members will make their ruling once:
- all submissions are received; and
- if indicated, an in person hearing has occurred.
Each party to the application will receive an original signed decision.
The Workers’ Compensation Act, 2013
Sections 43, 167, 168, 169
(1) POL 26/95, Determination of a Worker’s Right to Bring Action (effective January 1, 1996 to January 31, 2013).
(2) POL 50/82, Determination of a Worker’s Right to Bring Action (effective December 7, 1982 to December 31, 1995).
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