Decision No. 107 10, May 6, 2010, WSIAT, Highlights of Noteworthy Decisions

Decision No. 107 10

· Independent operator (truck driver)
· Jurisdiction, Tribunal (right to sue) (statutory accident benefits)
· Right to sue (statutory accident benefits)
· Worker (test)

The driver of a truck was injured in a motor vehicle accident in March 2008. He received statutory accident benefits from the vehicle’s insurer. He did not claim workplace insurance benefits and he did not commence an action. The insurer applied under s. 31 of the WSIA to determine whether the driver’s right of action was taken away and whether the driver was entitled to claim workplace insurance benefits.

The relationship between the driver and transport companies was intricate. On the evidence, the majority of factors point to an employment relationship. The Vice-Chair concluded that the driver was a worker, notwithstanding efforts to describe the driver as an owner-operator.

There has been some divergence in Tribunal decisions whether the Tribunal’s jurisdiction in this type of application is derived from s. 31(1)(a) or (c) of the WSIA. Decision No. 1362/06I found that there was jurisdiction even in cases where a SABs claimant had not commenced an action. That decision found that the word “plaintiff” in s. 31(1)(c) included a claimant for statutory accident benefits. Decision No. 14/06 took a different approach, finding that the applicable provision in such circumstances is s. 30(1)(a) as to whether the right of action is taken away, because that provision does not refer to a plaintiff.

The Vice-Chair preferred the approach in Decision No. 1362/06I, since it did not depend on the right to commence an action as the basis for jurisdiction to address the issue. Although it may be premature to conclude that there is a consensus emerging from recent Tribunal decisions, the Vice-Chair applied the approach in Decision No. 1362/06I and found that “plaintiff” in s. 31(1)(c) including an claimant for statutory accident benefits.

The Vice-Chair concluded that the driver was entitled to claim workplace insurance benefits under the WSIA.