Highlights of Noteworthy Decisions

Decision 463 22
C. Huras - G. Burkett - J. Provato
  • Arising out of employment (fighting)
  • In the course of employment (fighting)
  • In the course of employment (takes self out of employment) (misconduct)
  • Misconduct (provocation)
  • Initial entitlement (eligibility)
  • Fracture (pelvis)
  • Fracture (hip)

The worker appealed a decision of the ARO dated June 4, 2021, which concluded that the worker did not have initial entitlement to benefits for a left hip fracture on November 16, 2020, as the worker removed himself from his employment by being the aggressor and provoking the altercation that led to his injury.

The appeal was allowed.
The Panel first considered whether the worker was in the course of his employment on November 16, 2020. It was found that he was. The initial incident between the worker and his co-worker had occurred over a pen which was used to sign into the work site. The Panel considered this a workplace activity that was reasonably incidental to employment. The Panel found that the second incident which led to the accident involved an argument, and was likely part of the regular customs and practices of the job site. The Panel determined that this made it incidental to the employment. In support of this, the Panel pointed to the worker's testimony which indicated that "bantering and swearing" was part of the customs and practices of the job site.
Next, the Panel concluded that the incidents constituted a "fight" within the meaning of OPM Document No. 15-03-11, as the second incident had escalated to being physical in nature.
The Panel then considered whether the worker was entitled to benefits in accordance with the provisions of OPM Document No. 15-03-11, which requires two stages of analysis. In the first stage, it must be determined whether the fight resulted from a personal matter or a work one. A personal matter will take the worker out of the course of their employment and disentitle them from benefits. However, if the fight resulted solely over work, this will require a second stage of analysis where the decision-maker must determine whether the worker was an aggressor/provoker of the fight or an innocent bystander.
The Panel noted that the events leading to the altercation were reasonably incidental to employment. Accordingly, the Panel was satisfied that the fight which led to the worker's injury resulted solely from work. In the second stage of analysis, the Panel found that the worker was the aggressor/provoker of the fight. The Panel found that the initial exchange of verbal profanities was provocative and initiated by the worker. It was acknowledged that it may not have been the worker's intention to provoke a fight; however, the act of taking/grabbing the pen from a co-worker, likely with some force, and throwing it 20 feet away, was an aggressive act. The Panel noted that this amounted to evidence of the worker entering into a fight and/or the worker's willingness to enter into a fight. This would disentitle the worker from benefits under OPM Document No. 15-03-11.
However, the Panel noted that the worker could still be entitled to benefits under section 17 of the WSIA, as his injury resulted in a serious impairment, and resulted solely from the worker's misconduct in re-engaging his co-worker verbally and physically. The Panel noted that this was consistent with many Tribunal decisions which have determined that a worker may not be entitled to compensation if an activity constitutes serious and willful misconduct, and was the sole cause of the injury, unless the injury was serious.
The Panel also agreed with the analysis of section 17 of the WSIA in Decision No. 624/16, which notes that this "prevailing statutory language does clearly provide an exception for seriously injured workers, despite their misconduct." The Panel applied the reasoning in this decision. The Panel found that this interpretation was consistent with OPM Document No. 15-03-11, as this policy states that workers "who sustain a personal injury as a result of participating in a fight, horseplay or larking at work are generally not entitled to WSIB benefits." The Panel noted that the use of the term "generally" in this policy suggests that in some cases where the worker's injury has resulted in a serious impairment, the worker can still be entitled to WSIB benefits. The Panel noted that the worker's hip/pelvic fracture was serious, requiring invasive surgery and resulting in a serious impairment.
The Panel found that the worker had initial entitlement for the left hip/pelvis injury occurring on November 16, 2020. The nature and duration of benefits flowing from this decision were remitted back to the Board for further adjudication, subject to the usual rights of appeal.