2015 CBA Insurance Presentation

WCB & Personal Injury Law
CBA Insurance Section - South
Patrick Kenney, Chantel Cabaj & Ronald Matthezing
June 22, 2015

Agenda:
1) Overview of the WCB
2) WCB and Personal Injury Law
a) Legislative Regime
b) Retainer Agreements
3) Specific Topics
1) Application of the Insurance Act
2) Vicarious Liability Claims
3) Director Coverage
4) Interjurisdictional Agreements
4) Questions
2|June 22, 2015

What is the WCB?
• A statutory, non-profit corporation; not the Crown.
– The Workers’ Compensation Act, RSA 2000, c. W-15 (the WCA)
• Intended to replace tort law for workplace injuries.
• Exclusive jurisdiction over all matters arising under the
WCA.
– Jurisdiction over all workers and employers in Alberta except
those exempted by the WCA or the Regulations.
3|June 22, 2015

What is the WCB?
• Governed by a tripartite Board of Directors appointed by
the Government (workers, employers and the public).
• Administer claims by Alberta/NWT/Nunavut workers
under the federal Government Employees Compensation
Act, the Alberta Blind Workers’ Compensation Act and the
Alberta MLA Compensation Act.
4| June 22, 2015

Operations
• Fully funded by employers
– Assessments based upon % of payroll and expressed as
dollars/$100 of payroll
– Rates set by combination of industry risk plus experience of
individual employers
– Employers submit payroll estimates at beginning of each year,
adjustments made based on actual payroll
5| June 22, 2015

Operations
• Case Managers and Adjudicators determine entitlement
and benefit levels
• Treatment modalities determined by Case Managers in
conjunction with Medical Advisors
• Medical panels used to arbitrate disputes or differing
medical opinions
6| June 22, 2015

Operations
• WCB Benefits:
– Wage replacement based upon 90% of net income at the time of
the Accident, subject to legislative limits (for total disability)
– Pension benefits for dependants of fatal accidents
– Medical expenses and treatment approved by the WCB, retraining
and rehab, assisted living allowances and modifications to homes
or vehicles
– Reasonable funeral expenses, counseling and transportation
allowances
– Other services or treatment deemed by the WCB to be
appropriate to assist the worker or dependants
7| June 22, 2015

The WCB’s Jurisdiction in Personal Injury Claims
• Where a worker is injured and is entitled to compensation
under the WCA, any action that arises in respect of the
accident vests with the WCB – s.22(3) WCA
8| June 22, 2015

• The Action:
– Only relates to personal injury claims – s.22(1)(a) WCA
– There is no viable action where:
• the defendant was in the course of employment (worker or employer);
• in an industry to which the Act applies; and
• the conduct that caused the injury arose out of and in the course of
employment – s.23(1) WCA
9| June 22, 2015

• Vesting:
– The WCB has the right to:
• Determine whether or not to bring the action – s.22(a)(iv)(A) WCA
• Pursue all claims the worker would have, but for the vesting, whether or not
they were accepted by the Board – s.22(5)(a)(iii)
• Maintain control of all aspects of the action – s.22(5)(a)(iv)
• Compromise and effect a settlement – s.22(5)(a)(iv)(B) WCA
• Fully or partially release any party from liability – s.22(5)(iv)(C) WCA
• Divest an action where it believes pursuing the action is not in the interests of
the Accident Fund or the workers’ compensation system – s.22.1(1) WCA
10| June 22, 2015

• Vesting:
– The worker is required to fully co-operate with the WCB
throughout the legal process – s.22(9) WCA
• On non-cooperation, the WCB may:
– suspend periodic compensation; or - s.22(9) WCA
– withhold a portion of the worker’s settlement – s.22(10) WCA
– Any settlement or release made by the worker, without the
approval of the WCB, is void – s.22(8) WCA
– The WCB is not placed in a conflict of interest nor does it owe a
fiduciary duty to the worker by bringing the 3rd party action –
s.22(6) WCA
11| June 22, 2015

• Retainer Agreements
– The WCB may retain and instruct counsel of its choice –
s.22(5)(a)(iv)(D)
• Counsel will either be in-house or external on certain subject matters
(product liability, medical malpractice etc.)
– A worker may select counsel, where an action is brought by the
WCB, however counsel must be approved, retained and
instructed by the Board – s. 20.1(2),(3) WC Reg
– WCB is the only client vis-à-vis personal injury claims
– Legal costs and taxable costs payable by the Board to outside
counsel are an amount set by the Board, not to exceed 25%
unless the Board directs otherwise – s.21(1),(2) WC Reg
12| June 22, 2015

Application of the Insurance Act
• The WCB is not subject to the provisions of the Insurance
Act – s. 1.1 WCA
– An insurer may not deduct payments made by the WCB from any
settlement/award the worker is entitled to
– Minor Injury treatment protocols do not apply to the WCB or its
workers
13| June 22, 2015

Vicarious Liability Claims
• The WCB is entitled to pursue vicarious liability claims, for
the negligence of an individual who is protected under the
WCA
– Ie. a defendant owner may be pursued for 100% of the damages
caused by a worker driver
– Wadsworth v Hayes, 178 A.R. 256, Rayani v Yule & Co (Hong Kong
) Ltd, 178 A.R. 231
• This principle has been extended to vehicle lessors, even
where they hold WCB coverage, as it is not the conduct of
the lessor or its workers which causes or contributes to
the injury
– Lepine v Fraser, 1985 ABCA 38, Barker v Budget Rent-A-Car of
Edmonton Ltd, 2011 ABCA 297
14| June 22, 2015

Director and Business Owners Coverage
• Employers, directors, partners and proprietors performing work in
those capacities are not workers – s.16(1) WCA
• Pursuant to s.23, a action for personal injury can be advanced against
a director, partner or proprietor unless that individual applies for
individual coverage – s.15(1) WCA
15| June 22, 2015

Determining Status
• If you are uncertain as to the WCB status of a party
involved in a personal injury claim, obtain a ruling from
the WCB Legal Services Department
– Determinations are subject to the statutory review and
appeal process, as well as judicial appeal
16| June 22, 2015

Questions?
17| June 22, 2015

2015 CBA Insurance Presentation

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