Injured workers groups in B.C. and Ontario received some good news from Ottawa recently, when the Supreme Court of Canada approved their application to intervene in the Kovach v. Singh appeal.  They will be allowed to file a 20 page written argument and to make a 15 minute oral argument - both of which are standard limits.  The argument which persuaded the Supreme Court to allow the intervention is reproduced below.
 

The Community Legal Assistance Society (CLAS), which represents the groups, needs more information about the law and policies in other provinces, to help it identify which jurisdictions bar lawsuits for similar reasons to s. 10(1) in B.C.,  and which jurisdictions compensate a worker for all disabilities caused by the work injury, similar to s. 22, 23, 29 and 30 in B.C.  CLAS must become familiar with the law and policies in Alberta, New Brunswick, and Nova Scotia, whose WCBs are also intervening in the Kovach appeal.  The law in Saskatchewan will be the subject of its own appeal.  The Supreme Court has granted an application for leave to appeal last week in the Lindsay case, which raises a nearly identical issue to Kovach.  CLAS would appreciate any assistance from injured workers groups and other organizations in all provinces to identify and interpret their laws and policies.
 

The Lindsay case provides a new opportunity for injured workers groups to intervene so that the Supreme Court will have their perspective on the important issues raised by these appeals.  The Court could hear Kovach and Lindsay separately (Kovach would likely be first), and then decide them together, or even hold a joint hearing.  The Court could also decide the Kovach appeal first, and then (depending on the outcome) send the Lindsay decision back to the Saskatchwan courts to be reconsidered.  The time limit for seeking to intervene in the Lindsay appeal is approximately June 1st.
 

The Argument in Favour of Leave to Intervene in Kovach v. Singh
 

16.  The issue in this appeal is the lawfulness of the ruling by the Appeal Division of the Board that would extend to doctors and others treating injured workers an absolute immunity from lawsuits for negligence or other tortious conduct.  The legislation already denies an injured worker the right to sue either his or her own employer, or any other worker or employer included in the workers' compensation system, for an injury or death arising out of and in the course of the employment.  The bar has been justified as necessary component of the "historical compromise" which led to enactment of early workers' compensation acts in Ontario, British Columbia, and other provinces.
 

17.  Mr. Justice Sopinka writing for the majority in Pasiechnyk, noted that worker's compensation schemes are based on four fundamental principles:

a.  compensation paid to injured workers without regard to fault;

b.  injured workers should enjoy security of payment;

c. administration of the compensation schemes and adjudication of claims handled by an independent commission, and

d.  compensation to injured workers provided quickly without court proceedings.

Justice Sopinka continued:

I would note that these four 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 then with any insurance.[emphasis added]

18.  The applicant groups submit that this rationale cannot justify extending the bar to protect doctors whose negligent conduct has caused further injury to the worker.  When undergoing treatment, a worker is a patient, and should benefit from the same duty of care and the same right of informed consent as any other patient.  Doctors do not pay assessments to the Board based on the wages of the injured workers they treat; they pay assessments, like other employers, based on the wages of their employees,and in some cases (such as these proceedings) their own "wages".  I.e., the risk of injury for which they are purchasing insurance is the risk of their employees (and perhaps themselves) sustaining an injury or contracting a disease during and caused by their employment.  The risk of liability for which they are purchasing immunity (according to the theory expressed in Pasiechnyk) is the risk that their conduct may cause a work injury to an employee or co-worker (such as a nurse, orderly or another doctor) during the course of the doctor's employment activities.  Permitting a patient who happens to have been injured at work such as Mrs.  Kovach to sue for negligent or unauthorized treatment in no way jeopardizes either the risk of injury protection or the liability protection for which doctors pay assessments.  

The Position of the Applicants  

19.  The applicants recognize that in many cases workers whose treatment has made their condition worse may be unable to prove negligence, or to afford a lawyer, or may simply not want to undertake a lawsuit.  For these workers, it is crucial that the Board be required to provide full workers' compensation benefits for their disability, despite the possibility that it was enhanced by negligent treatment.
 

20.  If this honourable court should uphold the decision under appeal for the reasons given by the majority in the Court of Appeal, the Workers' Compensation Board in British Columbia, Ontario, and other provinces with similar provisions would likely find that a worker who suffers further injury due to negligent treatment for a compensable work injury would not be entitled to workers' compensation benefits for that additional injury.  If such a worker did not wish to sue or could not find the resources to do so, he or she would have no remedy for the additional loss.
 

21.  If, on the other hand, this honourable court should allow the appeal and uphold the reasonableness of the decision of the Appeal Division of the Workers' Compensation Board, workers who suffer further injuries due to negligent medical treatment for a compensable work injury would be prohibited from suing the doctor or other responsible person, as in British Columbia nearly all such potential defendants will be either workers or employers covered by the Act.  The statutory bar would be automatic, and absolute, even if the defendant committed an intentional wrong such as battery, or was guilty of gross negligence.
 

22.  The applicants submit that either of these results would be unfair to injured workers, and would violate both the specific language and the fundamental principles of workers' compensation.
 

23.  They will submit that any additional injury occurring to a worker who is undergoing treatment for a work injury can and should be regarded by the Board as a compensable consequence of the initial work injury, whether the additional injury results from negligence, misfortune, or the unavoidable risks of treatment.
 

24.  However, they will submit that such a worker cannot reasonably be found to have been acting "in the course of employment" within the meaning of s. 11(b) while undergoing the surgery or other treatment. Accordingly, such a worker would not be prohibited by s. 10 from suing the parties responsible for the negligent treatment.
 

25.  It may appear that the position of the applicants would result in an injured worker receiving double compensation for some aspects of their injuries.  This need not be the case.  The principles of trust law and damages in tort are sufficiently flexible to enable a court to require that any damages in a malpractice action which duplicate the workers' compensation benefits be paid to the Board rather than the worker.  Should the court grant leave, this issue will be addressed in detail in the applicants' factum.
 

Misinterpretation of the Legislation
 

26.  The applicants submit that neither the Appeal Division, nor the Supreme Court or Court of Appeal of British Columbia have properly interpreted the provisions that are central to the determination which the Appeal Division was required to make under s. 11 of the Act.
 

27.  The relevant provisions are set out in Schedule A to this Memorandum of Argument.
 

28.  Section 5(1), 10(1), and 11(b), all contain the phrase "injury ... arising out of and in the course of employment..." In s. 5(1), this phrase defines the injuries which can give rise to a workers' compensation claim, while in s. 10(1) it defines the injuries for which the worker is barred from suing his own employer, or any other employer or worker within the scope of Part I of the Act.  Section 11(b) authorizes the Board to certify whether such an injury has taken place, if requested by the court or a party to a court proceeding.  Section 96(1)(a) confirms that such a decision is within the Board's exclusive jurisdiction, if it does not unreasonably interpret the law.
 

29.  Section 5(4) provides that:

(4) In cases where the injury is caused by accident, where the accident arose out of the employment, unless the contrary is shown, it must be presumed that it occurred in the course of the employment; and where the accident occurred in the course of the employment, unless the contrary is shown, it must be presumed that it arose out of the employment.

30.  This provision removes any possible doubt as to whether "arising out of ... employment" is a separate requirement from "arising ... in the course of employment..." The rebuttable presumption created by s. 5(4) assists those workers injured by "accident" to establish the second branch of the test.  In all cases, however, both branches much be met.
 

31.  Nothing in the language of s. 10(1), or s. 11(b) suggests that this phrase bears a different meaning in those provisions than it does in s. 5.  In fact, the Appeal Division decided as much in its decision of October 6, 1993, where it wrote: The broad definition given to that phrase for the purposes of Section 5(1) must carry through into Section 11. There is no reason to assume that the legislature intended them to be interpreted differently.  [W.C. Reporter, p. 609]
 

32.  The applicants submit that the Appeal Division was therefore required by the request of Dr. Singh to determine pursuant to s. 11(b) whether both of these two tests were met; i.e., whether the additional disability which Mrs. Kovach alleged to have been caused by negligence on the part of Dr. Singh
a.  arose out of her employment; and
b.  arose in the course of her employment.
 

33.  The Appeal Division, however, did not examine these questions separately at all.  Mrs. Kovach argued that she was not a worker at the time of her operation, and directed the panel to a very significant addendum to Decision 152, which was decided by the Commissioners of the Board on November 6, 1975, and which is quoted almost verbatim in the Board's policy manual.  In the final paragraph of that decision, the 1975 Commissioners stated:

Where a subsequent injury within the scope of this directive is accepted as compensable, it is not accepted on the ground that the injury is one arising out of and in the course of the employment.  It is accepted on the ground that the subsequent injury is a compensable consequence of the original injury. Thus the provisions of Section 10 might not apply to any tort claim arising out of the subsequent injury.

Where a further injury arises as a direct consequence of treatment for a compensable injury, the further injury is also compensable.  For example, if a worker is undergoing surgery for a compensable injury and some mishap in the process of surgery cause further injury, that is also compensable.

34.  Despite having their attention directed to this distinction which was recognized by Professor Ison and the other 1975 Commissioners, the Appeal Division noted that the last paragraph had not been reproduced in the Board's policy manual, and apparently felt that this meant that they did not have to address the issue which it raises.  They failed to consider the two-part test set out in s. 11(b) and s. 10(1), and instead decided the case on the assumption that any subsequent injury which is a "direct consequence" of a compensable work injury automatically arises out of and in the course of the original employment:

An original injury which arose out of and in the course of employment is both compensable under Section 5(1) and gives rise to a certificate under Section 11 which can result in a legal action being barred. It follows that the same must be said for the direct consequences of that injury which gave rise to further entitlement to compensation. The worker is undergoing treatment because of a work injury. Exposure to the risk of further injury during that treatment is due to having suffered the work injury. Otherwise, the worker would not be undergoing the medical treatment. There is a direct causal link between the two injuries. The risk in treatment is part of the original compensable injury for the purposes of compensation under Section 5(1) of the Act. We find that it is also part of the compensable injury for the purposes of Section 11. That is, the direct consequences of a compensable injury also arise out of and in the course of employment. [W.C.R., p. 608- 9, emphasis added]

36.  The Board's jurisdiction to determine what compensation will be paid for the consequences of a work injury is set out in s. 22, 23, 29 and 30 of the Act, and confirmed in s. 96(1)(b-e).
 

37.  Sections 22, 23, 29, and 30 all provide for benefits "where ... disability results from the injury", while s. 96(1)(b) requires the Board to determine "the existence and degree of disability by reason of an injury".  Both of these phrases are solely concerned with the existence of a causal link between the injury (not the worker's "employment") and the disability in question.
 

38.  In other words, the 1975 Commissioners were right in suggesting that the test for determining whether a subsequent injury is a compensable consequence of a work injury is quite different from the test under s. 5(1), etc., which determines whether the subsequent injury would be accepted as a new claim in its own right, and hence, whether the bar to litigation in s. 10(1) would be applicable.
 

39.  To be compensable, the Act simply requires that there be a causal connection between the original injury and the subsequent one.  Board policy, reflected in Decision No. 152 and in the Manual at paragraph 22.11, is that such a causal connection exists between the consequences of medical treatment and the work injury for which the treatment was undertaken.  In the words of the Appeal Division, there is a "direct causal link" between the risks of treatment and the initial injury. Therefore, the applicants submit that compensation for the adverse consequences of treatment not only can be paid (contrary to the view of the Court of Appeal), but must be paid pursuant to the Act.
 

40.  The Appeal Division, however, completely lost sight of the separate, two-part test in s. 5(1), 10(1), and 11(b) and in the process ignored that requirement that it determine not only whether any injury occurring during surgery "arose out of employment" , but also whether it arose "in the course of employment".
 

41.  Indeed, the Appeal Division appears to have assumed that only one branch of the two-part test needed to be satisfied, in effect interpreting the legislation as if it read "... arising out of or in the course of employment".

It may be difficult to say that an injured worker who is undergoing an operation miles from her place of employment is still in the course of her employment. It is less difficult, however, to characterize the operation as arising out of such employment.  [W.C.R., p. 608]

42.  The statement appears as part of the central explanation of the Appeal Division's conclusion, in which the panel clearly (and wrongly) assumed that it had to find that a worker was acting in the course of employment in order to validate the Board's policy that compensation be payable for any adverse consequences of medical treatment:

As noted by counsel and seen in such cases as Smith v. Vancouver General Hospital (1981), 31 B.C.L.R. 358 (C.A.), the Board apparently has routinely determined in the past that, when an injured worker's condition was made worse during treatment for a compensable injury, the worker was still a worker and the subsequent injury arose out of and in the course of employment....  That approach appears to fit more closely the intent of the Act than the interpretation suggested by the plaintiff...  The important issue in workers' compensation is whether the injured worker should be covered for any subsequent injury arising from the treatment. The Board has decided, properly in our view, that these subsequent injuries are compensable if they are a direct consequence of treatment for a compensable injury...

43.  Thus, the Appeal Division's decision resulted from its failure to recognize that the Board's statutory authority to pay compensation for the disability caused by a compensable work injury is based on the test in s. 22, 23, 29 and 30. This test only concerns the causation of the disability, and does not require a determination that each compensable consequence also arises in the course of employment.
 

44.  The panel's mistaken interpretation of the Act led it to ignore the actual requirements of s. 11(b), in order to achieve what it considered to be the "important" result that workers receive compensation for injuries arising out of treatment.  The applicants agree that this it is indeed important - in fact, crucial - that this occur, but submit that this does not require that workers be artificially and unreasonably deemed to be "in the course of employment" while lying on an operating table, in some cases years after their actual employment ended.
 

45.  The Supreme Court of British Columbia upheld the Appeal Division's decision, on the footing that it was not "patently unreasonable".  In the decision under appeal, the majority in the Court of Appeal disagreed, and ordered the Appeal Division to reconsider its decision. Like the Appeal Division, however, both of the courts below also erred by referring to s. 5(1), rather than s. 22, 23, 29 and 30 as the source of the Board's jurisdiction to determine what conditions resulting from an injury are compensable.
 

Liability in Tort Protects Workers' Safety
 

46.  The applicants also submit that the position of the Board and Dr. Singh, if vindicated in this appeal, would leave them uniquely vulnerable to negligence, battery, and other wrongful conduct when undergoing medical treatment for their work injuries.  If the Appeal Division is right, the doctor is absolutely immune from legal action for any additional harm caused by the treatment.  However, the doctor is also immune from the usual consequences and sanctions imposed by workers' compensation legislation for causing injuries.
 

47.  While the Board does not directly determine whether an employer is at fault for an injury to a worker, it does regulate most workplaces and can impose penalties for unsafe practices which violate the applicable regulations.  It has never, however, regulated the competence of doctors in the treatment of their patients, and probably does not have the legal authority to do so.
 

48.  Under the "experience rating" scheme in British Columbia and other provinces, an employer is automatically assessed an additional amount to cover in part the cost of a work injury.  The increased assessment is considered by both the Board and the employer community to be a necessary element of accident prevention.  As described by the Royal Commission: Experience rating is meant to provide a financial incentive for employers to invest in workplace safety (thereby reducing the firms injury profile) and encourage safe return to work (thereby reducing the cost of claims). Experience rating is also a mechanism for promoting equity among employers within a subclass by reducing the extent to which employers with good claims experience subsidize the industry's poor performers.
 

49.  In circumstances such as these, however, experience rating does not work.  If the cost of the claim is increased due to improper treatment, the worker's actual employer rather than the doctor might be assessed an additional cost.  In the absence of liability in tort, a doctor would risk no financial consequences of any kind for improperly treating an injured worker.
 

Contact CLAS to Assist in Developing Appeal
 

CLAS asks that injured workers groups, unions, and other supportive organizations who can help by identifying and interpreting the relevant legislation and policies in their provinces contact James Sayre at:

clas@vancouver.net
jfsayre@bctel.ca
#800 - 1281 West Georgia Street
Vancouver, B.C.   V6E 3J7
(604)  685 3425 Phone
(604)  685 7611 Fax
  or:

Craig McLachlan
email to CompoNet
PO Box 54237 Lonsdale West Postal Outlet
North Vancouver B.C. V7M 3L5
(604)  604-990-9009 Phone
(604)  604-990-1101Fax