The Appeals Commission for Alberta Workers’ Compensation has upheld a previous ruling granting temporary total disability (TTD) benefits to a worker who was terminated after testing non-negative for cannabinoids following a workplace injury. The employer’s appeal, which argued that the worker’s conduct constituted “egregious conduct” under Workers’ Compensation Board (WCB) policy, was denied.
Background
The worker sustained a left elbow fracture on April 3, 2022, after tripping over frozen mud at work. The injury claim was accepted by the WCB. On the same day, in accordance with the employer’s post-accident drug testing policy, the worker underwent testing for drugs and alcohol and returned a “non-negative” result for cannabinoids.
Although medical evidence confirmed the worker was fit for modified duties, the employer terminated his employment on April 13, 2022, citing the positive drug test result. The WCB approved wage loss benefits effective from the termination date. The employer challenged this decision, asserting that the worker’s actions met the threshold for “egregious conduct” as defined by WCB Policy 04-05, Part II, Application 4, and that benefits should therefore be denied.
The WCB initially determined on September 16, 2022, that while the worker had violated the employer’s drug and alcohol policy, his behaviour did not meet the high standard required for “egregious conduct.” This decision was upheld by the Dispute Resolution and Decision Review Body (DRDRB) on July 25, 2023. The employer then appealed to the Appeals Commission.
Legal framework and key issues
Under section 56(14) of the Workers’ Compensation Act (WCA), if an employer withdraws modified work or terminates a worker, the WCB must continue paying TTD benefits unless the termination was due to “egregious conduct.” Policy 04-05, Part II, Application 4 defines egregious conduct as behaviour that is “flagrantly bad” or “staggeringly bad, or obviously wrong, beyond any reasonable degree.” The policy requires a contextual analysis to determine whether a reasonable person would find the behaviour “shockingly bad.”
The Appeals Commission considered three key questions:
- Was the worker terminated while performing modified work?
- Was the termination due to egregious conduct?
- Was the worker capable of performing other suitable employment during the benefits period?
Findings
The panel found that the worker was terminated while performing modified duties, but his actions did not meet the threshold for egregious conduct.
1. Impairment and drug testing
The employer argued that testing non-negative for cannabinoids was inherently egregious, as it violated the company’s zero-tolerance policy in a high-risk industry. However, the panel determined that testing non-negative alone was insufficient to prove impairment.
The employer’s representative admitted to the panel that they did not know when the worker had consumed cannabinoids, the concentration in his system, or whether he showed any signs of impairment. The panel noted that a positive test for cannabinoids does not necessarily indicate recent use or impairment at the time of the injury. In the absence of further evidence, the panel found no basis to conclude the worker was impaired.
2. Intentional violation of policy
The Appeals Commission found no clear evidence that the worker had deliberately violated the employer’s policy. While the worker had signed the company’s drug and alcohol policy approximately two months before the injury, the panel noted the policy was a lengthy 22-page document and contained ambiguous language regarding the consequences of a positive test.
For instance, Clause 5.7 of the policy stated that “Any violation of this policy may result in discipline up to and including termination.” The use of the word “may” suggested discretion in enforcement, which the panel found undermined the employer’s argument that termination was the automatic consequence of a non-negative test.
3. Risk to workplace safety
The employer argued that the worker’s alleged impairment created a serious safety risk, making his conduct “staggeringly bad.” However, the panel reiterated that there was no evidence of impairment or unsafe behaviour. Without proof that the worker was physically or mentally incapable of performing his duties, the Commission could not conclude his conduct met the standard for egregious behaviour.
4. Worker’s capability for other employment
The panel also considered whether the worker was capable of performing suitable employment between April 13, 2022, and October 26, 2022. Medical reports from multiple sources, including a WCB medical consultant, the worker’s orthopedic surgeon, and a physiotherapist, indicated the worker was progressively recovering but remained under work restrictions for much of the period in question.
On October 20, 2022, the worker’s orthopedic specialist confirmed that the worker was “fit for work.” By October 25, 2022, the specialist noted that the worker was “feeling much better,” and X-rays showed the fracture had satisfactorily healed. The panel concluded that the worker was capable of performing suitable employment as of October 26, 2022.
Decision
The Appeals Commission upheld the DRDRB’s decision, finding that the worker was entitled to TTD benefits from April 13, 2022, to October 26, 2022. The employer’s appeal was denied.
For more information, see Decision No.: 2025-0007, 2025 CanLII 10464 (AB WCAC).
