Accident Reporting and Application for Benefits Policy 21-106 | Effective Date: January 1, 2020

PURPOSE

The purpose of this policy is to provide guidelines to:

• Injured workers and employers who report accidents to WorkSafeNB;
• Injured workers and survivors who apply for benefits;
• WorkSafeNB staff who adjudicate applications for benefits that are reported outside the legislated timeframes; and
• WorkSafeNB staff who determine if an employer has been prejudiced by the late reporting of an accident.

Scope

This policy interprets sections 16 and 44 of the Workers’ Compensation Act (WC Act) and sections 43 and 47 of the Occupational Health and Safety Act (OHS Act). It applies to:

• Workers and employers who are subject to the WC Act and the OHS Act; and
• Injured workers and survivors who are applying for benefits. Statements

1.0 General Statements

The WC Act and the OHS Act both require that accidents or incidents occurring in the workplace be reported to WorkSafeNB. In this policy, the term employee under the OHS Act and the term worker under the WC Act are used interchangeably.

Legislation requires accident reporting within specific time frames so that WorkSafeNB can:

• Provide timely benefits to injured workers;
• Provide claim management, and return to work services; and
• Conduct timely accident investigations, which lead to the protection of other workers.

WorkSafeNB encourages employers and injured workers to report accidents simultaneously. Employers must do this using WorkSafeNB’s Employer Report of Injury or Illness form and injured workers must do this using WorkSafeNB’s Application for Workers’ Compensation Benefits form.”  

Workers are required, under the WC Act, to notify:

• Their employer of an accident as soon as practicable following a workplace injury; and
• WorkSafeNB of the accident by completing WorkSafeNB’s accident report form.

Employers have two different timeframes in which they are required to report accidents:

• Immediately under the OHS Act; and
• Within three working days of receiving notification of the accident from the worker under the WC Act.

The diagram below provides an overview of WorkSafeNB’s accident reporting and application for benefits process.

2.0 Worker Notification of an Accident under the WC Act

Workers are responsible to ensure that they are aware of their employer’s accident reporting procedures, including the reporting requirements for occupational diseases.

Injured workers are required by section 44(6) of the WC Act to notify their employer of accidents, including disablements from occupational diseases, which occur in the workplace. This notification must be given:

• As soon as practicable after an accident occurs;
• According to the established employer procedure; and
• Before voluntarily leaving the employment relationship with the accident employer.

Injured workers must notify their supervisor, or a person designated by the employer, of the workplace accident. When injured workers are unable to give notice to their employer because of the injury, another worker can give notice to the employer on the injured worker’s behalf. Notice must be given before the injured worker has voluntarily left the employment relationship with the accident employer.

Injured workers who fail to notify their employer of the accident before leaving the employment relationship put themselves at an increased risk of having their application for benefits denied. The WC Act requires WorkSafeNB to deny the adjudication of a claim when, in its opinion, the employer has been prejudiced.

2.1 Late Notification to the Employer

When a worker fails to notify the employer of an accident as soon as practicable and before voluntarily leaving the employment relationship with the accident employer, the claim can only be adjudicated for entitlement to benefits if WorkSafeNB determines that the late notification has not prejudiced the employer.

Employers are considered to be prejudiced when, because of the late notification of the accident, information or evidence has been compromised or is unavailable which would cause the employer difficulty to defend against the claim.

WorkSafeNB gathers information to determine if information or evidence has been compromised or is unavailable due to the late notification of the accident. WorkSafeNB gathers this type of information by asking questions such as:

• Has the late notification resulted in an inability to gather information pertaining to circumstances that may have or could have contributed to the personal injury or claim?
• Has the late notification resulted in an inability to confirm the circumstances or evidence of the claim?

WorkSafeNB weighs all of the gathered information to determine if there is sufficient or insufficient evidence for the employer to defend against the claim. Based on the preponderance of evidence, WorkSafeNB determines that either:

• Prejudice has not occurred and the claim proceeds to adjudication for compensation benefits; or
• Prejudice has occurred as evidence has been compromised that would cause the employer difficulty in defending against the claim, and the claim does not proceed to adjudication for compensation benefits.

3.0 Employer Accident Reporting Requirements Under the OHS Act and WC Act

Every employer must establish a procedure requiring workers to notify them of workplace accidents that must be reported to WorkSafeNB. It is the employer’s responsibility to ensure that workers are aware of proper accident reporting procedures for all types of accidents, including those for occupational diseases.

There are separate accident reporting requirements under both the WC Act and the OHS Act. Depending on the circumstances of the accident, employers may be required to report the accident under the OHS Act and the WC Act. For example, if an accident or incident resulted in the worker sustaining a fractured bone, the employer is required to report immediately under the OHS Act, and within three days of receiving notice from the employee under the WC Act.

Employers who fail to report an incident or accident within the legislated timeframes may be prosecuted under the OHS Act, or may incur an administrative penalty the WC Act.

3.1 Reporting Immediately Under the OHS Act

Under section 43(1) of the OHS Act, employers must immediately report to WorkSafeNB workplace injuries resulting in:

• A loss of consciousness;
• An amputation;
• A fracture other than a fracture to fingers or toes;
• A burn that requires medical attention;
• A loss of vision in one or both eyes;
• A deep laceration;
• Admission to a hospital facility as an in-patient; or
• Death.

In addition, under section 43(4) regardless of whether a person is injured, employers must report the following incidents immediately to WorkSafeNB:

• Accidental explosions;
• Unexpected and potentially harmful exposures to chemical, biological, or physical agents; or
• Any catastrophic event or catastrophic equipment failure which occurs at a place of employment that results, or could have resulted, in an injury.

3.2 Reporting Within Three Working Days Under the WC Act

Under the WC Act, employers are required to report accidents to WorkSafeNB when a worker has an injury or occupational disease that results in or is likely to result in:

• Medical aid costs; and/or
• Loss of earnings.

Employers must report these accidents using WorkSafeNB’s prescribed accident reporting form within three working days of:

• The injury occurring;
• The diagnosis of an occupational disease; or
• Notification by the worker to the employer of an injury or occupational disease, if the employer has knowledge of the accident only by such notice.

Legislation requires employers to report accidents using WorkSafeNB’s accident report form.

Accidents not meeting the reporting requirements do not have to be reported to WorkSafeNB. However, employers are encouraged to report injuries to WorkSafeNB that result in disablement beyond the date of accident and are required to maintain a record of all injuries requiring first aid treatment. For more information, see OHS First Aid Regulation 2004-130.

4.0 Applying for Benefits Under the WC Act

Joint reporting of accidents facilitates timely adjudication and payment of benefits. However, injured workers may apply for benefits independent of the employer.

Workers apply for compensation benefits using WorkSafeNB’s accident report form.

Injured workers must apply for benefits within one year after the date of the workplace accident. In the case of a workplace fatality, an application for compensation benefits must be made within six months after the date of the accident.

WorkSafeNB considers the date of accident to be the date:

• Of the acute workplace accident;
• Of disablement from an occupational disease, see Policy 21-111 Conditions for Entitlement - Occupation Diseases.
• For hearing loss, see Policy 21-112 Occupational Hearing Loss; or
• Of diagnosis of a work-related cumulative trauma disorder.

Injured workers or survivors who fail to apply for benefits within these time frames may not be eligible to receive benefits.

4.1 Time Limitations for Application of Benefits

Injured workers or surviving dependents who fail to apply for benefits within the legislated time frames may still be eligible for benefits if:

• The claim meets all other conditions for entitlement (see Policy 21-100 – Conditions for Entitlement – General Principles);
• The employer has not been prejudiced by late reporting of the accident (see section 2.1); and
• WorkSafeNB determines that the delay in application for benefits is justified.

WorkSafeNB determines whether a delay in application for benefits is justified on a case-by-case basis. Using the available evidence to determine whether or not there are reasonable explanations for the delay, WorkSafeNB assigns greater credibility to documented evidence that is factual and measureable (objective). For more information on its decision-making model, please refer to Policy 21-113 Decision Making.

Circumstances WorkSafeNB considers reasonable for a delay include:

• There were ongoing medical investigations that extended past the one year time period to determine whether the injury or disease was related to employment;
• The worker has an occupational disease characterized by a long latency period before disablement occurred. This does not include occupational noise induced hearing loss;
• The worker was medically incapable of applying for compensation;
• Commission error;
• Extension on notice of election;
• Third party settlements/judgments; or
• The employer failed to fulfill their legislated responsibility.