When home is where the workplace is, injury claims become obscure

Delineating professional and personal tasks in the event of an injury is increasingly becoming an area of ​​interest for employment lawyers.

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As remote working enters another year as a mainstream concept, workplace injuries have become a gray area of ​​proliferation for employers, employment lawyers and workers’ compensation boards.

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Overall, the total number of workers’ compensation claims has not increased and is not expected to increase, many lawyers said. But when home is where the workplace is, the delineation of professional from personal injury duties becomes an area of ​​growing interest for employment lawyers.

“This remote working environment is in disarray because it’s a bit of a weird physical setting where injuries can occur,” Vancouver-based Ascent Employment Law partner Richard Johnson told Postmedia News.

A Quebec ruling earlier this month revealed that an Air Canada call center worker who was injured descending a staircase in her home deserved workers compensation. The judge found that because she was taking a mandatory lunch break, the injury occurred during working hours and inside the workplace.

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The judge said the employee’s injury met the definition of a “sudden and unexpected event on the job.”

While it’s not clear whether related cases have been tried in British Columbia, similar hazy circumstances are not new in employment law, according to Alissa Demerse, a partner at Roper-Greyell, a mid-market law firm. working in British Columbia. It is not uncommon for employees to file claims for personal injury outside of working hours, such as an employee injured at the airport after drinking with co-workers while traveling. business.

Those blurry lines are difficult to navigate at home, Johnson said, as the definitions of work areas and personal spaces can often be nested within each other. Reviewing each claim will assess every little detail of the incident, including where the person was from, what they were doing before, and where they were at the time of the incident.

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“If you go straight from your office to the kitchen and have an accident along the way… then it’s more like walking into the dining room,” said Fred Wynne, lawyer at Tevlin Gleadle Curtis Employment Law Strategies.

“But if you stop on the way and do some other task, it’s more like walking down the street to the cafe,” a task that would not be covered by WorkSafeBC.

Wynne believes these types of complaints will increase as people move on with their working lives from home, which will be the subject of scrutiny by WorkSafeBC.

“They’re going to look at if anyone was actually doing work at that time, if it was during working hours, and then … in which room did that happen compared to the rooms you normally do. your job, ”Johnson said.

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Uniquely, the decisions made by the Workers’ Compensation Board do not use stare decisis, a legal doctrine that requires lower courts to use similar cases to guide their decisions – meaning that even though prior claims can be used as examples, they do not serve as a precedent.

Even if it were permissible, the number of variables at play in situations involving remote working means that the former would often have little influence, according to Wynne.

“I’m not sure we’re going to get a clear diagram of WorkSafe because there are so many factual variables,” Wynne said. “There isn’t really a clear pattern at the moment, which is why we are fighting so hard for these kinds of claims.”

WorkSafeBC said in a statement to Postmedia that employers should remove as many dangerous variables as possible and control hazards such as ergonomics, falls and working alone as much as possible. The latter, working alone, presents a risk in the event of injury to the employee alone.

Still, the financial impact on companies that follow these steps is unlikely to see a difference in their bottom line, unless the practices diverge from their previous operations, Demerse said.

Despite all the peculiarities and nuances of the matter, Johnson is delighted that conversations around work have become more fluid during the pandemic.

“The definition of the workplace is changing as we become more technologically capable as a society,” he said. “It raises a lot of questions. “

– With files from Christopher Nardi

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@ mattscace67

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