Workers’ Compensation 4 : Using a Prior Decision
Q: My vehicle collided with another, and my wife and I commenced an action to recover damages for personal injuries against the other driver. During discovery, we learned that the other driver was working at the time of the accident and even received workers’ compensation benefits for his injuries.
“Deep pocket!” we cried, and named his employer as an additional defendant. Obviously, the employer should be held vicariously liable for the driver’s actions, since the Workers’ Compensation Board had already determined that an employer-employee relationship existed between the driver and the employer on that date.
A: Not so fast. Our courts will rule that the determination of the WCB must have been based on the consideration it deemed most appropriate – sufficient ‘control’ to establish an employer/employee relationship for the purposes of the Workers’ Comp Law.
However, the WCB’s determination is not entitled to preclusive effect with respect to the issue of whether the employer was vicariously liable for the driver’s actions on the day of the accident. You will have to prove on your own that the driver was operating the vehicle during the course of his employment. You may well be able to prove it; it’s just that you won’t get a free ride based upon the WCB decision.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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