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Workers’ Compensation: Secondary Injuries and the Statutory Bar

June 20, 2022

Accidents happen. Even for the most diligent of employers, some workplace injuries cannot be avoided. Luckily, the Saskatchewan Workers’ Compensation Board (“WCB”) provides no-fault insurance that benefits both workers and employers.

The Historic Trade-Off

The WCB regime balances the interests of both the workers and employers. It has been described by the Supreme Court of Canada in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board) [Pasiechnyk] as the “historic trade-off”. Workers obtain certainty in this trade-off. In exchange for giving up their cause of action against their employers, workers are guaranteed relief through benefits paid immediately. The immediate benefits are not subject to a costly, uncertain litigation in the tort system or subject to the solvency of their employer.

Employers also obtain certainty from the historic trade-off. Employers are protected from any cause of action relating to workplace accidents in exchange for the premiums paid into the WCB regime. The premiums are calculated differently depending on the risks of a particular industry. In this way, employers are not discouraged from participating in industries that are inherently dangerous. Employers are also incentivized for registering with the WCB regime; they gain certainty that in exchange for their premiums, they are insulated from potentially crippling liability.

It would be unlikely for this system to function as intended, without one of its most important aspects: the statutory bar which abolishes all actions of workers against employers for all workplace injuries.

How Far Does the Statutory Bar Extend?

The statutory bar extends to bar a worker’s cause(s) of action against any employer that is insured under The Workers’ Compensation Act [WCA]. The relevant questions to determine whether an action is barred under the WCA are outlined in Pasiechnyk as follows:

  1. Is the Plaintiff an employer, a worker or any dependant of a worker, within the meaning of the Act?
  2. If so, was the injury sustained in the course of his or her employment?
  3. Is the defendant an employer or a worker within the meaning of the Act?
  4. If the defendant is an employer or a worker within the meaning of the Act, does the claim arise out of the acts or defaults of an employer or a worker, while engaged in, about or in connection with the industry or employment in which the employer or worker causing the injury, is engaged?
  5. Is the action for a work injury?

It is important to note that the “employer” in question does not need to be the employer of the “worker” in question, under the test as formulated by the Supreme Court of Canada in Pasiechnyk. This leads to the statutory bar extending in fascinating ways in certain scenarios.

Further Injury During Medical Treatment

Hospitals and medical clinics are employers under the WCA and, therefore, the statutory bar also applies to any action for injury sustained while getting treatment in response to a workplace injury. For example, if a worker is injured at work and while obtaining treatment for that injury, the hospital or medical clinic’s alleged negligence causes further injury (or secondary injury), the statutory bar applies and all injuries are dealt with under the WCB.

It has previously been argued that medical negligence may sever the chain of causation, and give rise to a new cause of action that can be brought against the hospital or medical clinic who provided the worker with medical treatment, despite being registered as an employer under the WCA. This is the doctrine of novus actus interveniens (“new intervening act”).

That is not how the “historic trade-off” has been interpreted by the Courts, or the WCB, however. The WCB, under the guidance of Pasiechnyk, is not bound to apply common law rules of causation, due to the differences of the tort-based system and a no-fault scheme. The WCB is reluctant to apply principles such as nous actus interveniens, because it may result in situations where a worker falls between both systems without compensation.

The WCB in Saskatchewan has previously addressed claims of negligent medical treatments after a workplace injury and consistently concluded that any further injury while obtaining treatment will also qualify as a workplace injury. The benefits under the workers compensation regime are extended to cover any secondary injury caused during the treatment of the original injury.

Another case adjudicated by the Supreme Court of Canada involved a worker who had been “gassed” while working at a mine in Northern Saskatchewan. During his treatment, he underwent a lung biopsy. The worker alleged that the surgeon negligently cut into certain nerves, causing him extreme pain and other difficulties. His subsequent lawsuit against the physicians was barred by then sections 44 and 180 (now sections 43 and 181) of the WCA. It was stated that “it is a necessary consequence of a work injury that worker seek appropriate medical attention. Any untoward result of such medical attention is the result, albeit unfortunate, of the hazards of the workplace.”

In another matter adjudicated by the WCB of another province, a worker underwent surgery due to a work injury. He was recommended to use a tub transfer bench during his recovery. The bench allegedly collapsed, and he was injured as a result. The WCB held that the secondary injury would not have happened without the original work injury; therefore, it ruled that the action against the seller of the bench was barred.

Parting Words

The jurisprudence on the issue demonstrates that when obtaining treatment for a workplace injury, the WCB will consider secondary injuries and complications to be part of the original workplace injury. The injuries are all compensated under the WCB regime. As part of the “historic trade-off”, the benefits ought to continue until not only the original injury, but all complications encountered as a result of that injury, are compensated.

Injured workers deserve appropriate compensation for any and all workplace injuries, including secondary injuries that still qualify as a workplace injury. Further, employers deserve certainty. Thankfully, the WCB system as it exists does address both these interests.

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