Highlights of Noteworthy Decisions

Decision 852 19
T. Mitchinson - P. Greenside - C. Salama
  • Arising out of employment (intoxication)
  • Collective agreement
  • Credibility
  • Evidence (inconsistencies) (description of accident)
  • Misconduct (intoxication)
  • Procedure (agreed statement of facts)

An employer appealed an ARO decision which granted initial entitlement to a worker for serious spinal cord injuries and paraplegia sustained in a motor vehicle accident which occurred while intoxicated. An agreed statement of facts was prepared by the parties.

The employer argued that the worker made a personal choice to consume alcohol, and to make a stop to purchase alcohol after leaving a construction site, which took him out of the course of employment. The employer submitted that it was only alcohol consumption, and no other factors, which contributed to the accident. The worker's representative stated that there must be more than carelessness, fault or even some degree of negligence in order to break the employment nexus.
The employer's appeal was denied.
The Panel found that the requirements of the work-relatedness test set out in OPM Document No. 15-02-02 were established on the evidence, and the worker was in the course of employment at the time of the accident. The following factors were noted: the worker had been driving himself and two co-workers back to the point of origin; he was being paid to perform this duty, in accordance with his employer's understanding and agreement; and the driving activity was an employment duty or was incidental to the employment, in accordance with the nature of the work and the customs and practices of the workplace.
The Panel did not accept the employer's position that the worker fell within the "personal errand" exception as the video footage depicting the worker and his crew purchasing alcohol, which formed part of the initial criminal investigation, was not in fact confirmed to be them. As such, the worker remained in the course of employment as per OPM Document No. 15-03-05.
The Panel then turned to section 17 of the WSIA, which prohibits entitlement to benefits to a worker if they engage in serious and willful misconduct. It was examined whether the worker's alcohol consumption was sufficient to sever the employment relationship nexus. The Panel noted that the employer had a zero tolerance policy for alcohol consumption in the workplace. The worker was aware of these policies but chose to consume alcohol anyway. The Panel found the worker's testimony to be further evidence of willful misconduct, and noted that the worker's guilty plea to the criminal charge of driving while impaired was also an admission of serious misconduct.
However, the Panel pointed out that the second part of the section 17 analysis includes an exception that applies regardless of whether the worker's injury is attributable solely to his serious and willful misconduct, if the injury has resulted in "death or serious impairment". The Panel found the worker's injury clearly resulted in "serious impairment" which culminated in a 77% NEL award. Thus, the exception provided by the second part of Section 17 was established, and the worker's benefits were deemed payable regardless of his serious and willful misconduct.