An Alberta worker’s injury claim has been accepted despite a positive test for cocaine following a workplace accident, but she has been denied temporary total disability (TTD) benefits due to what was deemed “egregious conduct” by the Appeals Commission for Alberta Workers’ Compensation.
The worker, identified as T.H., suffered a left ankle fracture on Dec. 12, 2021, after stepping on uneven ground and rolling her ankle during her regular duties. The Workers’ Compensation Board (WCB) accepted her claim and provided wage loss benefits for the time she missed from work.
However, the employer required T.H. to undergo post-incident drug and alcohol screening, which returned a positive result for cocaine. Arguing that T.H. had violated the company’s safety policies and removed herself from the course of employment, the employer disputed the decision to accept the claim and provide wage loss benefits.
The Appeals Commission considered two main issues: whether T.H. had an acceptable claim and whether she was entitled to TTD benefits.
Acceptable claim despite positive drug test
Regarding the first issue, the panel found that T.H. had an acceptable claim for her ankle injury. “The evidence shows the reporting of the accident and injury are consistent from all sources,” the panel noted. T.H. was performing her usual job duties during her scheduled work shift when the injury occurred.
The panel referred to Policy 02-01, which states that an accident must arise out of and occur in the course of employment to be compensable. They concluded that the uneven ground, hole, and tarp were hazards of employment and contributed to the accident. “We find there is no dispute that the worker was in the course of her employment at the time of the injury because the accident occurred at a time and place consistent with the obligations and expectations of employment,” the panel stated.
While acknowledging the positive drug test, the panel determined that even if T.H. was intoxicated, the intoxication was not the sole cause of the accident. “Policy allows the WCB to remove the worker’s right to compensation only if it is determined that intoxication was the sole cause of the accident,” the panel explained. “In this case, we find there were hazards of employment that contributed to the accident and therefore, the worker did not remove herself from the course of employment.”
As a result, the panel denied the employer’s appeal on the first issue, confirming the Sept. 22, 2022, Dispute Resolution and Decision Review Body decision.
Denial of temporary total disability benefits
On the second issue, the panel addressed whether T.H. was entitled to TTD benefits. Under Policy 04-05, Part II, Application 4, a worker is not entitled to TTD benefits when an employer withdraws or terminates modified work because of the worker’s egregious conduct.
The panel found that T.H.’s actions in consuming cocaine constituted egregious conduct. “The worker’s conduct is egregious in that it is so obviously wrong, beyond any reasonable degree, that the worker would trigger the financial consequences,” the panel stated.
Evidence showed that T.H. had violated the employer’s zero-tolerance drug and alcohol policy, which she had acknowledged during orientation. The employer’s safety manual prohibits “the possession, use, distribution, or sale of illegal drugs on Company business or premises” and states that violations are grounds for disciplinary action, including termination.
The panel also noted that T.H.’s consumption of cocaine likely occurred during her stay at the employer’s camp accommodation, coinciding with the start of her work shift. “We understand the worker started her shift cycle on December 10, 2021, and she was on her third work shift on the date of accident,” the panel observed.
Despite T.H.’s claim that she used cocaine on her days off and that a medical condition slowed its metabolism in her body, the panel found insufficient evidence to support this. “We place little weight on the worker’s statements about her condition and the effect it would have on her test results,” they stated.
Considering these factors, the panel concluded that T.H.’s conduct met the definition of egregious conduct, disqualifying her from receiving TTD benefits. “The worker’s actions in using an illegal substance at the start of her shift is egregious behaviour that removed her from any modified work arrangement that employer may have offered,” the panel ruled.
They also referenced Section 56(15.1) of the Workers’ Compensation Act, which states that the WCB will pay periodic compensation to the worker if the employment is terminated or modified work is withdrawn, except when the worker’s conduct is egregious.
“The worker’s wage loss was caused by the worker’s egregious conduct which led to the termination of her employment,” the panel concluded. “The worker is not entitled to wage loss benefits.”
For more information, see Decision No.: 2024-0320, 2024 CanLII 100948 (AB WCAC).
