- Evidence (videotape)
- In the course of employment (takes self out of employment)
- In the course of employment (takes self out of employment) (dangerous driving)
- In the course of employment (takes self out of employment) (misconduct)
- Misconduct
The issue to be determined in this appeal was whether the worker's initial entitlement for injuries sustained in a motor vehicle accident should be rescinded. This centered on: a) whether the worker had removed himself from the course employment due to using his cell phone while driving; and, b) if in the course of employment, would the worker be disentitled to benefits due to serious and wilful misconduct.
The employer's appeal was denied.The Vice-Chair noted that for misconduct to break the employment nexus, the conduct must involve an active intent to cause harm or malign intent (see Decision No. 397/11). The Vice-Chair noted that texting while driving - a failure to follow a safety precaution - could be likened to a host of ways in which a worker may not follow safety rules and protocols. In a no-fault system, such safety violations do not take the worker out of the course of employment. Similarly, a breach of employer policy does not take a worker out of the course of employment (see Decision No. 897/09). The necessary threshold of egregious conduct involving an intent to cause harm was not met in this case. Furthermore, the worker was not excluded from entitlement due to section 17, as although the accident was solely due to the worker's misconduct, he was entitled to claim benefits because he had suffered a serious impairment. It was noted that Tribunal decisions have accepted that "serious impairment" in this context need not necessarily mean permanent impairment (see Decision No. 1435/04).