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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 624 16
3/30/2016
A. Baker

  • In the course of employment (horseplay)
  • In the course of employment (takes self out of employment) (misconduct)
  • Misconduct (serious impairment)

The worker walked behind an excavator that was engaged in a task that required it to move back and forth. The worker's intention was to play a prank on the operator of the excavator. The worker suffered a crush injury to his leg when the operator reversed the machine without seeing the worker. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the accident. Minor pranks were ignored or even condoned in the workplace. However, in this case, the worker's actions went well beyond a simple prank and amounted to serious and wilful misconduct. The prank that the worker intended was a harmless joke but the worker purposely walked up behind a large, moving machine without any notice to the operator. Section 17 of the WSIA provides that, if an injury is attributable solely to the serious and wilful misconduct of a worker, no benefits are provided unless the injury results in the worker's death or serious impairment. Thus, a finding that an injury is due solely to the serious and wilful misconduct of a worker will often, but not always, result in a denial of benefits. Further, as noted in Decision No. 397/11, egregious conduct may break the employment nexus while mere folly or negligence does not necessarily take a worker out of the course of employment. In this case, the worker's conduct may have been careless and reckless but the worker's actions were not so egregious as to break the employment nexus. Thus, it was necessary to examine the nature of the injury. The worker suffered a crush injury to his leg. He continued to experience swelling and stiffness, with restrictions on standing and lifting, more than three months after the injury. The Vice-Chair found that the case met the test of a serious impairment. Accordingly, the worker had entitlement to benefits for the injury. The appeal was allowed.