In the recently-released Decision No. 463/22R2, the WSIAT discussed and clarified the principles applying to workers’ compensation claims for injuries arising from physical altercations in the workplace. The decision concerned a worker’s injury arising from an altercation with a co-worker on a construction site, which resulted in the worker being thrown to the ground and sustaining a hip fracture.
The worker’s appeal was allowed, finding that despite having engaged in serious and wilful misconduct in the lead-up to the altercation, the worker had not removed himself from the course of employment. The WSIAT found the worker’s hip injury to be a “serious impairment," bringing him within the ambit of compensability under the WSIA.
BACKGROUND
Legislation
Under section 13 of the WSIA, workers are generally entitled to benefits for injury by accident “arising out of and in the course of his or her employment.” The no-fault nature of the workers’ compensation scheme under the WSIA allows workers to remain even where they are responsible, or partially responsible, for causing same.
Entitlement to WSIB benefits is also subject to the exception contained within section 17 of the legislation, which provides that injuries attributable solely to the serious and wilful misconduct of a worker are not compensable under the insurance plan, unless the injury results in the worker’s death or serious impairment. Interpretation of the terms “serious and wilful misconduct” and “serious impairment” were at the core of the WSIAT’s analysis in this decision.
WSIB Policy
Additional policy guidance on this point is provided by WSIB OPM Document No. 15-03-11, “Fighting, Horseplay and Larking”. The Policy clarifies that while injuries from fights resulting solely over a personal matter are not compensable, injuries attributable to fights solely over work may be accepted if the injured worker was not an aggressor and did not provoke the fight, or was an innocent bystander. The Policy further provides that aggressors and participants in a fight take themselves out of the course of their employment.
FACTS LEADING TO THE WORKER’S INJURY
The injured worker and their colleague were both employed in the construction industry. Despite having previously worked together on another worksite, they had no relationship to one another outside of their employment. The worker’s colleague was approximately ten years younger, two inches taller, and twenty pounds heavier than the worker himself.
The fight primarily arose from the worker’s verbal harassment of a colleague, leading to two confrontations on the date of injury. The first was over a pen that the colleague was using to complete some preliminary paperwork, which was required for the construction work to begin. The second confrontation, which led to physical contact and the worker’s hip injury, occurred at a cooling tower on the worksite.
The first confrontation, regarding the pen that the colleague was using to complete relevant paperwork, arose when the colleague refused to lend the worker the pen, citing COVID-related concerns. The colleague alleged that the worker had been “aggravating and berating” him, and that he had threatened to “stab him in the neck” with the pen.
During the second confrontation, the colleague held out the pen to the worker, daring him to do so. The worker grabbed the pen and threw it in the opposite direction, following which the colleague grabbed the worker and threw him to the ground. The fight was then broken up, but the worker sustained a broken hip.
THE WSIAT’S PRELIMINARY FINDINGS
Verbal harassment as “serious and wilful misconduct”
The WSIAT accepted that the worker had been “pestering or badgering” his colleague. It further concluded that the colleague may have been offended, startled or embarrassed in front of others as a result of the verbal abuse that he had been receiving, as well as surprised at the worker’s grabbing and throwing of the pen. However, the WSIAT determined that it was unlikely that the colleague would have experienced actual fear in the course of the confrontations. The evidence provided was ultimately most consistent with the coworker initiating physical contact, and out of anger rather than fear.
The WSIAT did not accept the worker’s characterization of his speech as “harmless banter between men on a construction site," nor that he would have been unaware of the fact that he was annoying his colleague. Rather, it found that the worker’s conduct constituted a form of verbal harassment, and, given its persistence, was a form of serious and wilful misconduct on the worker’s part.
Physical altercation an assault, not a voluntary fight
The WSIAT then proceeded to consider the nature of the altercation, finding that when the colleague held out the pen, he was “essentially daring” the worker to follow through on his remark about stabbing him. The evidence further demonstrated that the worker attempted to step back and avoid his colleague as he moved forward, backing up a few steps in response. It considered the worker to be “retreating” at this point.
The WSIAT then found that the worker did not place his hands on his colleague until after the colleague had grabbed him. Notably, this did not indicate willingness to engage in a fight, and was instead characterized as an “ineffective attempt by the worker at self-preservation." The worker also did not attempt to deliver blows or throw his co-worker to the ground.
Accordingly, the WSIAT considered the worker’s contribution to the incident to be limited to verbal harassment. It concluded that while the worker was responsible for creating the circumstances that led to the altercation, he did not “participate” in the fight per se, as he took no active steps to actually injure or strike his colleague.
THE WSIAT’S ANALYSIS
Removing oneself from the course of employment by fighting
In determining whether the worker in this case had provoked a fight and, therefore, had removed himself from the course of employment, the WSIAT undertook a detailed discussion of existing case law and principles applicable to such circumstances. In particular, the WSIAT noted:
- The defining factor that removes a worker’s conduct from the “course of employment” is either (a) the escalation of a dispute to the physical level by initiating or inviting forceful contact, or (b) voluntary participation in a dispute at the physical level;
- Angry exchanges, even including crude language or shouting, do not generally constitute the kind of aggression that WSIB policy considers “instigation” for or an attempt to provoke a fight (Decision No. 734/08, 2008 ONWSIAT 1127 and Decision No. 1061/21, 2021 ONWSIAT 1730); and
- Blame for a poor working relationship in general is distinct from actual provocation or instigation of a fight (Decision No. 2214/01, 2001 ONWSIAT 3062).
With respect to case law where there has been “some form of physical activity” directed by a worker at their assailant prior to an altercation, the WSIAT distinguished instances of no “deliberate or purposive attempt to cause hurt or harm to the co-worker by starting a fight” from more serious situations, like punching the co-worker’s shoulder (Decision No. 3091/17, 2018 ONWSIAT 1971). In the present case, the WSIAT concluded that, despite having a physical component, the action of grabbing a coworker’s pen and throwing it across the room was not evidence of actual intention by the worker to initiate a fight. Further, it was the humiliation that the colleague was exposed to by the worker, rather than any incidental physical contact (in grabbing the pen), that was the altercation-inciting conduct.
The WSIAT ultimately ruled that while the worker’s behaviour was “serious and wilful misconduct” in the workplace, it did not initiate physical conflict or render him an active participant following the coworker’s assault.
Fights arising “out of and in the course of employment”
Given its finding that the worker was an involuntary participant in the actual physical altercation, the WSIAT further considered whether it had arisen out of and in the course of employment. In so doing, it reviewed existing case law on when a fight can be considered “reasonably incidental” to employment. It concluded that the issue that gave rise to the disagreement – the use of the pen that was being used to complete work forms - was no different than any other tool used to perform work, and that none of the factors that contributed to the fight occurring developed outside or were brought into the workplace.
Accordingly, the dispute was deemed work-related. The Tribunal also noted that the preponderance of existing case law suggests that personal animosity between workers, when it develops in the workplace, is generally seen as being work-related rather than personal in nature.
“Serious impairment” and entitlement despite serious and wilful misconduct
The WSIAT then proceeded to address the term “serious impairment," and confirmed that such impairments are generally accepted to be ones that last six weeks or more, but do not necessarily need to be permanent impairment. Because the worker’s hip fracture entailed hospitalization, surgery and an extended period of disablement, the WSIAT considered it to be a serious impairment. Consequently, as the fight in question was work-related and the worker had a serious impairment, the WSIAT allowed entitlement to benefits, despite there being serious and wilful misconduct on the part of the worker.
Given the presence of a serious impairment, the WSIAT noted that it was not necessary to address the parties’ arguments regarding the consequences of serious and wilful misconduct in the context of WSIA section 17, and when an injury can be found “solely attributable” to same. In so doing, it pointed to the no-fault nature of Ontario’s workers’ compensation system, and clarified that failure to follow the rules of the workplace does not necessarily result in a determination that one has removed themselves from the course of employment.
The WSIAT also took the opportunity to specify the incorrectness of interpreting section 17 of the WSIA as providing an exception to the requirement that a worker be in the course of employment as a condition of allowing entitlement. On this point, it referred to Decision No. 894/22, which addressed the different ways in which worker misconduct is assessed under WSIA sections 13 and 17.
Under WSIA section 13, the inquiry is whether a worker, who would otherwise be in the course of their employment, is entirely removed from same by way of conduct that is so incompatible with any work-related activity that breaks the employment nexus itself. For the purposes of removal from the course of employment under section 13, a worker’s conduct must be “something more” than serious and wilful misconduct, and extend to active intent to cause harm.
Under WSIA section 17, conversely, the question is whether a worker – who was in the course of employment at the time of injury – engaged in conduct warranting exclusion notwithstanding that they were still in the course of employment. Under this section, the WSIAT has concluded that active intent to cause harm is not required. Rather, the section 17 exception contemplates that some workers who commit serious and wilful misconduct may still remain in the course of employment, and, therefore, still warrant entitlement to benefits.
The WSIAT noted that the above interpretations are consistent with the legislative history of provisions regarding serious and wilful misconduct within the Ontario workers’ compensation regime, particularly in light of the September 13, 1984 debates concerning proposed Bill 101 amendments to the Workers’ Compensation Act. The amendments intended to remove the WCA’s section 3(4), which provided that where serious and wilful misconduct results in injury, no benefit would be awarded unless death or serious disability had occurred.
Statements issued in the course of debate confirmed that one intended effect of such legislative wording was to promote the determination that in certain cases, workers can remain in the course of employment (and thus receive compensation), notwithstanding engagement in “serious and wilful misconduct.” Absent such a provision, the risk of all such misconduct jeopardizing entitlement would increase, running counter to the “no-fault” nature of the workers’ compensation system.
CONCLUSION
Because the worker’s serious and wilful misconduct in Decision No. 463/22R2 did not remove him from the course of employment under OPM Document No. 15-03-11, the worker was not disentitled from benefits by way of WSIA section 13. Further, because he had sustained a serious impairment, he was not restricted from same by section 17. The appeal was therefore allowed.
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