UNDERSTANDING THE WORKERS COMPENSATION SYSTEM ADVANTAGES AND DISADVANTAGES

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1 UNDERSTANDING THE WORKERS COMPENSATION SYSTEM ADVANTAGES AND DISADVANTAGES Presented By: Sonia Lanteigne and Michael McGovern Legal Counsel, WorkSafeNB October 8, 2015

2 TODAY S AGENDA History of workers compensation Founding principles in compensation law No-fault coverage and immunity from lawsuits Tort principles in negligence law Limits of tort law Case studies

3 SYSTEM Please ask questions at any time

4 SYSTEM: HISTORY Workers compensation began in Germany in In the early 20 th century, both Canada and the U.S. began to experiment with compensation plans. The first attempts in North America were mostly to improve the worker s legal position when suing his employer. Ontario government sent Sir William Meredith to Europe to undertake a review of the various kinds of workers compensation plans in use.

5 SYSTEM: HISTORY 1914 Ontario adopts Meredith s recommendations. Other provinces eventually follow Ontario s lead. New Brunswick brings in its first Workmen s Compensation Act in It is important to recognize and remember that workers compensation law is, and is intended to be, a separate and distinct area of law. Applying principles from other areas of law, such as tort law or insurance law, may not give the correct answer.

6 SYSTEM: PRINCIPLES All workers compensation legislation in Canada traces its roots back to Meredith. Meredith founded his recommendations on five key principles. Many of the key principles are interrelated and rely on each other to create a workable and cohesive compensation package,

7 SYSTEM: PRINCIPLES 1. No-fault compensation benefits 2. Security of benefits 3. Collective liability 4. Independent administration 5. Exclusive jurisdiction These five principles are the foundation for what is known as the historic compromise between workers and employers.

8 SYSTEM: NO-FAULT COVERAGE No-fault coverage: Fault does not determine coverage. Workers get 100% coverage even if they are 100% at fault. Employers get 100% immunity even if they are 100% at fault.

9 SYSTEM: NO-FAULT COVERAGE No-fault coverage eliminates workers having to sue their employers. Suing the employer had great risks and little chance of success because of defences available to the employer: Voluntary assumption of risk Common employment Contributory negligence None of these defences has application in compensation law today, though they can still apply in other areas of tort law.

10 SYSTEM Security of Benefits: Security of benefits gives certainty to workers. A specific fund is set up (known as the Accident Fund) to pay benefits. Workers are compensated at a rate set in legislation. Benefits are payable regardless of fault worker gets 100% of benefits even if at fault in the accident.

11 SYSTEM Collective Liability: Compensation is a program of mutual insurance. Costs of the system are borne by employers and passed on to consumers as a value added to the product. Collective liability protects workers and their families in case an employer goes bankrupt. Employers protected from costs of serious and costly accidents.

12 SYSTEM Independent administration Workers compensation is administered by an independent agency not under the direct influence of government or employers. An important element of independent administration is exclusive jurisdiction. The independent agency has expertise that cannot be overturned without reason.

13 SYSTEM Exclusive jurisdiction All workers compensation legislation in Canada creates a statutory body with the exclusive jurisdiction to make decisions in compensation matters. The independent agency has expertise that cannot be overturned without reason.

14 SYSTEM Remember the five key principles are interrelated and rely on each other to create a workable compensation system: I would note that these principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide them with any insurance. Supreme Court of Canada, Pasiechynk v. Saskatchewan (WCB)

15 SYSTEM Immunity from legal action flows from the principle of no-fault coverage. If there is no fault to assess, how can there be a lawsuit? If lawsuits are permitted, why would employers want to pay into a system of insurance that gave them no insurance? No-fault concept is fundamental to the entire workers compensation system. Is the right to sue of any real value anyway?

16 SYSTEM There have been many challenges to the concept of immunity from suit in compensation law. All the challenges have been unsuccessful. Courts have consistently ruled that while the compensation system may have flaws, and while a few injured workers may do better suing their employer, the majority is better off under a workers compensation system that includes protection from legal action.

17 SYSTEM Historically, only employers could take benefit of immunity from suit. Over the years, this protection has been expanded to include protection for workers too. In New Brunswick, the courts interpret the legislation as providing equal protection against lawsuits to both workers and employers.

18 SYSTEM While there are exceptions that allow suits against other employers and the workers of those other employers, it is worth remembering this: There is an absolute bar against suing your own employer or your own co-workers. There are no exceptions to this rule. The corollary to this rule is that, as workers, our assets are also protected against claims that we ve been negligent.

19 COURT OPINIONS ON COMPENSATION LEGISLATION In my view, any disadvantage to the applicant is not so unfair as to be discriminatory. The "disadvantage" is accompanied by the advantages of immediate payment of benefits by the board on a no-fault basis. The disadvantage is neither "invidious" nor "unfair." The ultimate question is whether a fair-minded person weighing the purposes of the legislation against its effects on the individuals adversely affected and giving due weight to the legislature to pass laws for the good of all would conclude that the legislative means adopted are unreasonable or unfair. In my view, the legislation is fair and equitable. It may be unequal but it is not discriminatory. The loss of a right to sue has been balanced with no-fault coverage. Medwid v. Ontario (Minister of Labour), 1988, paras

20 COURT OPINIONS ON COMPENSATION LEGISLATION All workers are entitled to the benefits provided by the Act and regulations. In return for those statutory benefits, the right of action to assert a claim for compensation in tort is taken away from all. To find an inequality by comparing those covered by the Act with those not so covered and therefore free to take an action in tort one must ignore the underlying purpose of the Act and the myriad of benefits enjoyed by those covered by the Act and not available to those others. In my view any economic loss that may be sustained by the taking away of the right of action for workrelated injuries is more than off-set by the overall benefit of the act and is a necessary incident to the implementation of a valid legislative scheme. Newfoundland Reference Case, para 170. Adopted by the Supreme Court of Canada

21 TORT LAW PRINCIPLES OF NEGLIGENCE Common law of negligence applies principles developed over time Duty of care Individuals can sue for $ in negligence where they establish the following: A duty of care existed (Donoghue v. Stevensen) The defendant failed to exercise reasonable care (negligence) The plaintiff was injured as a result (direct cause) It was foreseeable that plaintiff would be injured as a result of negligence (foreseeability) The plaintiff can prove damages resulted from the defendant s negligent actions BUT

22 PRINCIPLES OF NEGLIGENCE Defendant has available defenses to reduce his liability and amount of damages he could be found to be responsible for: Contributory negligence (plaintiff did not exercise care for his safety and was partly at fault for injuries) Remoteness (plaintiff damages were too remote from the accident) Third-party actions (adding another person(s) who may have some responsibility)

23 NB INSURANCE ACT CAP TO GENERAL DAMAGES In 2004, N.B. brought changes to its Insurance Act that limit the amount of general damages a plaintiff can recover for what a court considers to be minor personal injury resulting from motor vehicle accidents. Initially, general damages for pain and suffering were capped at $2,500 and further changes to the Act in 2014 increased that amount to $7,500. This doesn t mean a claim in negligence is capped at $7,500. Special expenses are above and beyond.

24 DAMAGES IN TORT FOR PERSONAL INJURIES General or Non-Pecuniary Damages (can t put monetary value on suffering) Andrews v. Grand & Toy (1978 SCC) Pain and suffering/loss of enjoyment of life Minor personal injuries capped unless permanent serious impairment of an important physical, mental or psychological function. Highest damage award in N.B. ( Powell v. Leger 2003) General damages $235,000 Loss of future income $766,000 Costs of future care $2,300,000 Plaintiff responsible for accident at 80% ($650,446) Diminution of earning capacity and loss of future income Loss of valuable services/ housekeeping / insurability

25 DAMAGES IN TORT FOR PERSONAL INJURIES Special damages (damages can be proven) Loss of past income Costs of medical aid (wheelchair, supplies, etc.) Medical treatment (physio, chiro, etc.) Prescriptions Costs of bringing action Costs of experts (medical reports, testimony, etc.)

26 COST OF BRINGING LEGAL ACTION Most lawyers in N.B. will accept to represent a client and bring action in negligence against defendants under contingency fee arrangements Most require 25% of award + disbursements. If appeal is required, fee goes up. Disbursements are what lawyer has to pay to put case together and includes: Court filing fees Administrative fees (photocopies, travel, discovery proceedings, transcripts) Evidence fees (medical reports, attendance of witnesses, expert reports)

27 COSTS AND DISBURSEMENTS ON AVERAGE: Trial can last one to two weeks and require 4-6 witnesses. Expert witness reports cost between $1,000 - $2,000 each. Expert attendance at trial cost $2,000-$5,000 per day per witness. Trial is usually five to eight years following accident. Interest gathers on disbursements until damage award received. THIS MEANS: Disbursements to attend trial can easily reach $20,000 on simple case. If plaintiff successful, defendant can be ordered to reimburse some legal costs and disbursements, but may not cover everything. If plaintiff loses case, plaintiff still has to pay disbursements and legal costs to successful party.

28 TAKING A NEGLIGENCE CASE TO TRIAL Accident (Jan 2015) Hire lawyer and identify defendant Notice of action must be filed within two years of accident (Jan 2017) Service on defendant must be within six months of filing (July 2017) Wait for defendant to file defense 30 days after being served with notice of action unless agree otherwise (August 2017) Exchange documents/evidence Discovery Can take one to two years (August 2019) Usually one year following exchange of documents (October 2019) Satisfy undertakings Can take two years, motions for disclosure (October 2021) Set down for trial and request trial dates All parties must agree (December 2021) Trial dates given by court Usually one to two years following set down (January 2023) Decision follows six months to one year later (July 2023) 8 YEARS LATER!!!!!!!

29 CASE STUDY #1 Scenario A - Workers Compensation applies and Bob receives benefits Bob is employed by ABC as a mechanic. Bob falls down a flight of stairs at his work. There is a broken tread on the top stair. The area is well lit and the stairs are built according to code. There is a guardrail on the stairwell. Bob is alert and nothing is obstructing his view. Bob breaks his dominant hand and is now unable to work. Scenario B - Worker s Compensation doesn t apply; Bob has no other option but to start action (sue) Same facts, but the accident occurs at the mall on a Saturday when Bob is off.

30 CASE STUDY #2 Scenario A Worker s compensation applies and Josée completes form of election, choosing benefits instead of suing Josée is employed as a extra-mural nurse with VON. Josée is driving a VON vehicle and proceeding through a green light at an intersection, on her way to see a client. Josée is not wearing her seatbelt. Josée is T-boned by a vehicle running a red light. Josée break her dominant wrist in the accident and re-injures her lower back (pre-existing low back problems). Josée is now unable to return to her work due to her injuries. Scenario B Worker s Compensation doesn t apply and Josée has to sue Same facts, but the accident occurs on a Saturday when Josée is off work and on her way to the mall.

31 Questions? Thank you for your interest and attention. If you want copies of any of the cases mentioned or have further questions, please contact us:

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