By Janet Curry of The Workers' Compensation Board of Nova Scotia and Richard Tingley of New Brunswick Workplace Health, Safety and Compensation Commission
Wireless communications systems, including cellular phones, interactive television, touch-screen based information stations, infrared technology and Blackberry-type devices, present numerous challenges for employers as the workplace moves from the traditional office structure. This article will focus on some of the challenges in the Canadian workers’ compensation system arising from the use of cell phones while operating automobiles.
Safety vs. Productivity
Companies are increasingly using wireless technology to improve productivity and realize cost savings. Modern businesses are faced with increased operational expenses and a workforce struggling to balance home/life demands with work. Wireless technology offers some solutions to the employer’s expense issue and makes the work environment more flexible for their staff. Most employers provide these devices to their staff in order to increase productivity (“multi-tasking”) and enhance the employer’s bottom line. For the employer, sanctioning this use by their staff is the challenge. They must ensure it is safe and appropriate, and that any potential injuries or resulting liability from its use does not offset the financial benefits. In this safety versus productivity dilemma, employers are struggling with several different components of their own bottom line to ensure that these devices are used appropriately and in a way that makes sense for them and their staff.
The high number of cell phone-related automobile accidents has caught the attention of the Canadian public and its legislators. Traffic collisions are recognized as a leading cause of workplace fatalities and among the leading causes of lost time injury. Moreover, workers who talk on cell phones while driving are more likely to get injured than workers who do not¹. According to the New England Journal of Medicine, a 1997 study by Dr. Don Redelemiere of the University of Toronto showed there is four times the risk of an injury while talking on a cell phone and operating a motor vehicle. A more recent 2005 study by the Insurance Institute for Highway Safety confirms that motorists who use cell phones while driving are four times as likely to be injured. This study suggests that distraction caused by cell phone use while operating a vehicle is the problem.
At least 25% of traffic crashes involve some degree of driver distraction². Clearly, the distraction presented by cell phones while driving is a real concern for workers and employers. Employers are left to consider whether cell phone use increases danger to their staff as well as their financial exposure by reason of tort action or additional compensation costs. Workers are exposed to these same risks. While employers are responsible for the workers’ compensation aspect of injuries, both employers and workers may also be held liable in tort for injuries to others caused when employees use cell phones while operating vehicles or engaging in work-related activities.
Compensation Entitlement in Canada
Entitlement to Workers’ Compensation benefits in Canada is based on two basic requirements:
- that an injured person is within the definition of “worker” in a provincial or territorial Workers’ Compensation Act, and
- that the worker’s injury “arises out of and in the course of the employment.”
Justice Kerans of the Alberta Court of Appeal in Macoon v Alberta, et al. 7 ALTA. L.R. (3d) 201 stated:
…compensation for an accident is limited by these two critical factors: the accident must first, arise out of employment, and, second, occur in the course of employment.
In our view, the words “arises out of” impose a causal tie between the accident and the employment. The words “occurs in the course of” impose a further tie to work in terms of time and place. In the result, the only compensable accidents are, subject to special qualifications elsewhere in the Act, those to which work is a contributing factor and which occur at work.
The determination of whether an injury arises out of and in the course of employment is made on a case-by-case basis that takes into consideration a number of factors involving the time, place and activity surrounding the injury. Most Canadian Boards, Agencies and Commissions have established policies and/or guidelines to assist their adjudicators in determining whether an injury arose out of and in the course of employment. The “indicia” of work-relatedness, which have been relied upon by the British Columbia Workers’ Compensation Board and the Ontario Workers’ Compensation Appeals Tribunal and are set forth in Decision No. 572-92 (1992) O.W.C.A.T. D. No. 882 and (1987) O.W.C.A.T.D. No. 720, are adopted and applied for the purpose of this analysis. They include a determination of whether:
- the injury occurred on the employer’s premises;
- it occurred in the process of doing something for the employer’s benefit;
- it occurred in the course of action taken in response to the employer’s instructions;
- it occurred in the course of using equipment or materials supplied by the employer;
- it occurred in the course of receiving payment or other consideration from the employer;
- the risk to which the employee was exposed was the same as in the normal course of production;
- the injury occurred during a time period for which the employee was being paid; and
- the injury was caused by some activity of the employer or fellow employee.
Clearly, then, the use of wireless technology in relation to work that squarely arises out of and in the course of employment means that Workers’ Compensation Boards and Commissions will be required to compensate for these injuries if there is a clear causal link between the accident and the employment. Canadian workers’ compensation systems protect workers from the fault-related consequences of their work injuries. It is a true no-fault system. Even if a worker knowingly does not follow a policy or safety protocol set by an employer, that worker, if injured, is entitled to compensation benefits. The only exceptions to no-fault compensation coverage are legislative provisions where personal injuries are attributable wholly or primarily to the serious and willful misconduct of workers.
In many of the Canadian provincial or territorial contexts, even this principle is not applied if the injury results in death or serious and permanent impairment, or is likely to result in a serious and permanent impairment³. Considering the seriousness of many motor vehicle accidents, many are likely to remain covered despite this limit. Removing or limiting no-fault provisions is not a step that legislators appear to be willing to take in the workers’ compensation context.
Employer Policy Challenges
One solution that is often proposed to the challenges relating to wireless technology is the imposition of a policy or guideline clarifying how staff may use wireless technology. Any policy or practice that is binding on staff must also ensure that employers are not the main offenders (e.g., an employer attempts to contact an employee by wireless technology, resulting in the employee accepting a phone call contrary to the policy). Restrictions that cover many situations are difficult to write and very difficult to enforce. Additionally, the consequence for a worker who removes him/herself from the course of employment is the loss of entitlement to workers’ compensation benefits. Furthermore, workers would be exposed to fault consequences for those injuries, thereby subjecting their
personal assets to seizure and sale. For an employer, if a worker truly removes him/herself from the course of employment, there would be removal of premium costs; however, the statutory bar to suit would also be removed.
Legislation and Court Decisions
Unlike some recent decisions in the United States4, no Canadian court rulings exist that have awarded significant damages against employers for work-related cell phone injuries. Limitations on cell phone use while operating a motor vehicle are slow in coming to Canada. On the legislative side of the equation, in April 2003, the Province of Newfoundland and Labrador banned the use of handheld cell phones while driving5. Similar legislation is currently being considered by Manitoba and Ontario. This moves Canada closer to the approximately 45 countries with a cell phone ban, and four countries with a partial ban (including the United States, which has a ban in four states and a partial ban in 14 states). The breach of any of these legislative provisions by a
seriously-injured worker, however, does not disentitle the worker to workers’ compensation benefits. In contrast, in the field of health and safety, at least six Canadian jurisdictions have mandatory legislation or regulations requiring workers who work in isolation to have a communication device with them.
As the issues around wireless technology evolve, employers must balance staff safety in the context of operating automobiles with their desire to reduce the financial implications of wireless communication automobile accidents. An employer’s best solution is to create a well-crafted policy or guideline. Even then, the risk of cost exposure remains. That will change only if Canadian jurisdictions amend their workers’ compensation legislation systems to introduce fault into the current no-fault compensation system, amendments which are not likely to occur soon. Employers and workers therefore must become partners in the cultural shift occurring in Canada, where working safely is now seen as the priority. Safety must necessarily include the proper use of wireless communication devices while operating automobiles.
¹ Safety Compliance Insider, Volume II, Issue III, March 2006.
² Insurance Information Institute – Cell Phones and Driving January, 2006; and, Transport Canada July/August, 2005 TP1440#225.
³ Workers’ Compensation Act, S.N.S. 1994-1995, c.10, s. 10(3); S.N.B. 1973, c. W-13, s. 7(1).
4 U.S. Dyke Industries and Safety Compliance Insider, November, 2005.
5 Highway Traffic Act, R.S.N.L. 1990, chapt. H-3.