Highlights of Noteworthy Decisions

Decision 183 23
M. Lai - M. Falcone - S. Roth
  • Burns
  • In the course of employment (fighting)

The sole issue before the Panel was initial entitlement for a May 5, 2017 workplace accident. The worker was a registered nurse in a hospital's psychiatric ward. On May 5, 2017, while accompanying a patient back to a locked unit, the latter threw a cup of coffee at the worker, which caused first-degree burns to the worker's neck and upper chest. The ARO determined that the worker had removed herself from the course of employment due to her aggressive behaviour towards the patient, which had provoked the patient into throwing the hot coffee in self-defense. In the ARO's view, the worker had been the aggressor in a fight, which disqualified the worker from entitlement to benefits under the Board's policy on fighting.

The appeal was allowed.
In referencing OPM Document No. 15-03-11, "Fighting, Horseplay and Larking", the Panel considered the ordinary meaning of the word "fight," as a violent altercation between two or more parties, in which at least one of the parties has the intention of injuring or harming the other(s). The Panel accepted that the worker was aggressive towards the patient in using unnecessary force to direct the patient towards the locked unit. The worker was the first to instigate physical contact with the patient. However, the Panel found that her conduct did not rise to the level of abuse or violence.
The employer's representative argued that the worker's use of excessive force in the treatment of the patient amounted to serious and wilful misconduct, as contemplated under section 17 of the Act. This section states that: "If an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits shall be provided under the insurance plan unless the injury results in the worker's death or serious impairment." Decision No. 949/04 found that an intent to cause harm is necessary to sever the employment nexus through misconduct, and reckless or careless behaviour alone is not sufficient to disentitle the worker to benefits. Although the employer found the worker's behaviour to be unacceptable and grounds for termination, this is not the standard that must be applied.
The Panel determined that the act of escorting the patient was not outside the scope of the worker's employment. There was a clear workplace nexus to the accident that caused the worker's burn injuries. Furthermore, there was no evidence to indicate that the worker acted with intent to cause harm, to herself or to the patient. Nor was the worker's burn from coffee thrown by the patient a predictable result of the worker's actions. As such, the worker's behaviour immediately before the workplace accident did not meet the standard of "serious and wilful misconduct," and the worker was in the course of her employment when the patient threw hot coffee at her. Accordingly, the worker had initial entitlement for the injuries sustained in the May 5, 2017 accident.