In many common law jurisdictions it is presumed that a worker has suffered a workplace injury, if the injury was the result of a workplace accident, unless it has been shown otherwise.
This page provides the relevant cases which confirms presumption
of a workplace injury with injured workers.
In every common-law country, the courts base their decision on previous court decisions. This is referred to as common-law. In the alternative in French countries they rely on the civil code - only written law.
In dealing with the WSIB and the WSIAT in Ontario, as well as most other WCBs in Canada this is sadly a different story. Injured workers must prove every cases rather than just stating the similarities of another case.
It is like common-law doesn't apply to WCBs, which is a breech of Natural Justice!
My point is don't rely solely on these cases to assist your fight against your WCB!
If you know of other similar cases please let me know using my contact page.
I will add them here and will give you full credit like I did for Gerry!
20168122 (Re), 2016 CanLII 88896 (NB WCAT)
20167949 (Re), 2016 CanLII 54508 (NB WCAT)
Deals with presumption of injury after workplace accident.
This is probably one of the MOST contentious issues with WCBs and injured workers.
In this case that went before the New Brunswick Appeals Tribunal the Injured worker representative effectively argued that the WCB did not properly show the injured worker did not have the injury, for it is presumed unless shown otherwise.
It makes mention of several other cases which is very relevant to this issue.
VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay et al 2011 NBCA 76 (CanLII).
Where they contend the Appeals Tribunal could not rely on the presumption found in s. 7(2) because, in its submission, the record features evidence that runs contrary to the hypothesis that the accident arose in the course of employment. With respect, I disagree. For evidence to be “evidence to the contrary” within the meaning of s. 7(2) it must tend to contradict or refute the presumption. Put another way, the evidence must be inconsistent with the presumption to qualify as “evidence to the contrary” (see Potocan Mining Co. v. New Brunswick (Workers’ Compensation Board) (1993), Equivocal evidence will not suffice (see Dunham v. Workmen’s Compensation Board (1967), The Worker's representative also referred to the Supreme Court of Canada case of British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25 (CanLII). In that decision the Supreme Court of Canada ruled that "The presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not, therefore, determinative of causation...This does not mean that evidence of relevant historical exposures followed by a statistically significant cluster of cases will, on its own, always suffice to support a finding that a worker’s breast cancer was caused by an occupational disease. It does mean, however, that it may suffice …"
The worker's representative also made reference to a section of a book Dr. Terence G. Ison, in Workers' Compensation in Canada, second edition. In it they quote the following:
"Arising out of and in the course of. The presumption having the broadest application is that where an injury was caused by an accident that arose out of the employment it is presumed to have occurred in the course of the employment, unless the contrary is shown; and where an injury was caused by an accident in the course of the employment it is presumed that it arose out of the employment, unless the contrary is shown.80… Where an injury arose in the course of employment, the claim must be allowed unless there is affirmative evidence of an alternative cause, and evidence that the employment was not contributory. 83 This presumption would seem to relate to the determination of the facts. It has, however, also been used to resolve questions of interpretation of the Act."
The worker's representative also stated the following from the same book:
"3.3.28. Neglect of the presumption. In practice, this statutory presumption has commonly been ignored, and it has even been replaced by contrary presumptions in the processes of adjudication. For example, a Board doctor may render an opinion that the injury was not caused by the employment. That opinion may rest upon nothing except the absence of any positive data about employment etiology. When that happens, the statutory presumption is, in effect, reversed. The opinion imports presumption of the
negative, while the Act prescribes a presumption of the affirmative. Yet the opinion may be applied by the adjudicator as evidence rebutting the presumption of employment causation. To reach conclusions in that way is clearly illegal!"
Thank you to Gerry Excellent submission!