A B.C. Supreme Court Justice has upheld a Workers Compensation Appeals Tribunal finding that a man who suffered serious injuries when a logging truck struck his pickup truck on the Barkerville Highway was still on the job, even though he had been driving home at the time.
The outcome means David Gordon Campbell's personal injury lawsuit against the logging truck's driver, his employer and the company responsible for maintaining the highway "cannot succeed," Justice Nigel Kent acknowledged in the decision, issued Friday.
Instead, Campbell will have to continue to rely on WorkSafeBC for care and treatment of his injuries.
Campbell had been driving home in a pickup truck he owned personally when he was struck by the logging truck on March 2016, and the collision occurred on the paved portion of the highway.
But in a February 2020 decision, a WCAT adjudicator agreed with an application from the maintenance contractor for the highway that he was still in the course of his employment.
The adjudicator acknowledged that Campbell, a log processing machine operator, was being paid only for the time he was at the worksite
But the adjudicator also noted that Campbell's employer issued him a credit card to cover the cost of fuel and paid him a flat rate of $75 per day for wear and tear on his vehicle. His pickup truck also carried a Tidy Tank that he had used to deliver fuel to the worksite and had picked up a hose that was needed to keep one of the machines operating while on the way to work.
The adjudicator also noted Campbell had turned down an offer to use a company truck and cited the time it took him to travel to the site, at least 90 minutes in winter.
"The remoteness of the worksite, the limited availability of transportation to the site, the distance and the nature of the travel (with part of it along radio-controlled roads) show that the journey was not typical of a regular commute," the adjudicator wrote.
Counsel for Campbell had also argued that, while he could not remember whether he did so that day, he typically stopped at a ski hill on the way home to change out of his work clothes and to have a drink and to consume some cannabis. Given that he could not do so while on the job, Campbell's counsel argued it was further evidence he was no longer at work.
The adjudicator dismissed that part of the claim due to a lack of evidence. But in the appeal to the B.C. Supreme Court, counsel presented measurements from samples collected from Campbell while in hospital that showed alcohol and cannabis in his system.
In response, Kent found that the adjudicator "may have overlooked" those measurements but also determined it would not have been enough to overturn the decision because the adjudicator made an alternative finding that was not challenged. Kent then cited the adjudicator's comment that even if the break was "more than an incidental meal break...the employment connection was restored once he began driving home again."
In his lawsuit against the three defendants, Campbell provides a long list of alleged injuries, essentially from head to foot, many of them long-lasting.
Campbell had also filed a concurrent lawsuit seeking disability and medical benefits from Insurance Corporation of British Columbia. ICBC had been invited to participate in the WCAT process but declined to participate other than to adopt the submissions of the other defendants.
