Almost every employer in every province pays into a workers’ compensation insurance system. This system of no-fault insurance reflects a historic trade-off whereby workers receive the right to benefits and employers receive protection from legal action by injured workers. This protection, or "bar to claims," is central to the workers’ compensation system. Without it, employers would likely seek exemptions from paying premiums toward an insurance system that would not, in fact, provide them with insurance.

This article briefly explains how employers can ensure they are protected under the system by being fully aware of "bar to claims" provisions as well as what constitutes a "compensable injury."

Bar to Claims

Every provincial workers’ compensation regime contains a provision that prohibits employees from resorting to a claim in lieu of benefits available under the workers’ compensation insurance plan. For instance, in Ontario, subsection 26(2) of the Workplace Safety and Insurance Act, 1997 provides that entitlement to benefits under the insurance plan is in lieu of all claims that a worker, a worker's survivor or a worker's spouse, child or dependant has against the worker's employer or an executive officer of the employer for an accident involving the worker, or an occupational disease contracted by the worker, while in the employment of the employer.

What Constitutes a Compensable Injury?

Despite this statutory protection, employers are often unaware of the breadth of coverage and are unclear as to what constitutes a compensable injury under the applicable provincial workers’ compensation legislation. For instance, an assault (including a sexual assault) that arises out of or during the course of employment may be a compensable injury under most workers’ compensation systems. In addition, an employer can expect protection from civil actions not only from its workers who sustain a compensable injury, but also from workers of other employers with whom its own workers interact.

Despite this breadth of coverage, many employers fail to identify such incidents as compensable workplace injuries covered by their workers’ compensation insurance plan. Failure to make such an identification can have costly consequences. An employer could find itself immersed in a multi-million dollar law suit for vicarious liability arising out of a workplace incident, such as an assault or battery, even though this civil action may be barred by the workers’ compensation legislation. An employer can avoid the cost of litigation and any ensuing damages by identifying from the outset that the incident was a compensable workplace injury under the workers’ compensation system.

Lessons for Employers

In light of the potential costs associated with such civil actions, employers must properly identify whether a workplace incident constitutes a compensable injury under their applicable workers’ compensation system. The following tips should assist you in making this determination:

1.Assess each incident arising out of and during the course of employment to determine whether it could constitute a compensable injury under your provincial workers’ compensation legislation. In making this assessment, refer to the legislation and operational policies associated with the legislation and consult with your provincial workers’ compensation board.

2.When in doubt about whether an incident is compensable, file the claim with the workers’ compensation board within the time periods prescribed and let them make the final determination. Every workers’ compensation scheme mandates that compensable injuries arising out of and during the course of employment must be reported in a timely manner. As such, it is better to error on the side of caution.

3.If you are served with a Statement of Claim in a civil action arising from an assault, battery, sexual assault or harassment claim, consult with legal counsel and determine whether the civil action is barred under your provincial workers’ compensation legislation