Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Decision Number: 20090095
Objection By: Worker
Participants: Worker, Worker Representative, Employer, Employer Representative
Issue
The worker is objecting to the denial of initial entitlement in this claim as outlined in the claims decision dated September 9, 2008.
How the Issue Arises
On July 31, 2008 this now 44 year old warehouse selector was involved in a physical altercation with a co-worker during which the co-worker used his hard hat to hit the worker on the head. The worker sought immediate medical attention and was diagnosed with contusion and concussion in the left occipital area. The worker lost time from work as a result of injuries sustained. The worker was also suspended for one day for provoking the incident.
Entitlement to this accident was denied on the basis that the worker verbally provoked the co-worker to hit him and therefore it was considered that the worker removed himself from the course of his employment.
The worker is now objecting to this decision.
Authority
Operational Policy Manual document:
#15-03-11 Fighting, Horseplay and Larking
Resolution Method & Process
The worker requested a decision without a hearing based on claim file information. The employer is participating and has agreed with this method of resolution. No further submissions were received.
Assessment of the Evidence
In looking at the claim file evidence, I note that statements were obtained from the injured worker, the co-worker involved in the altercation and the supervisor with regard to the events that led to the physical altercation. It appears as though on the day of accident the co-worker was looking for his scan gun when he noticed one sitting on a rider machine. He picked up the gun to look at the ID number and noted it was not his. The injured worker noticed his co-worker had picked up his scan gun and told him to put it back as it was his. This is where there is some variation in what was reportedly said between the two, however the supervisor provided a statement in Memo #3 which I believe is likely closer to what actually occurred. The supervisor reported that the injured worker was talking to the co-worker as the co-worker was walking away and although the injured worker did not swear directly to the co-worker, the co-worker felt provoked enough by what was said to hit the injured worker on the head with his helmet.
The injured worker apparently fell to the ground holding his head and was dazed and had to be helped up. The co-worker apparently repeated: Why he disrespected me like that?
While there appears to be some discrepancy as to what exactly was said between the two co-workers, I believe there is no dispute that words were exchanged and then the co-worker hit the injured worker on the head with a helmet. The injured worker did not actually fight or physically retaliate in any way.
Policy 15-03-11 provides the following guidelines when dealing with fight claims:
The Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act) does not provide coverage for workers who are injured while participating in a fight that results solely over a personal matter. However, if the fight results solely over work, the claim may be accepted if the injured worker
- was not the aggressor and did not provoke the fight, or
- was an innocent bystander.
Aggressors and participants in a fight take themselves out of the course of their employment.
The adjudicator took the position that as the injured worker was verbally abusive or disrespectful to the co-worker, the injured worker then provoked the physical altercation and as a result removed himself out of the course of his employment and was thus ineligible for WSIB benefits.
In looking at Policy #15-03-11, entitlement may be allowed in this type of situation if the fight resulted solely over work and if the injured worker was not the aggressor and did not provoke the fight.
The verbal altercation stemmed from questions surrounding the scan gun. There is nothing to suggest that there was another underlying reason, therefore I accept that the issue between these two men was the scan gun and therefore clearly related to work. Therefore the question remains as to whether or not the injured worker was the aggressor and actually provoked the fight? The evidence implies that the injured worker may have verbally insulted the co-worker and used foul language, although the supervisor pointed out that the injured worker did not swear directly to the co-worker. But do verbal insults constitute provoking a fight? I do not believe so.
Although the injured worker may have verbally insulted or disrespected the co-worker, this in my mind is not provocation for physical retaliation. There was no threatening behaviour exhibited by the worker such as shoving or pushing which could potentially lead to a physical fight. The co-worker in Memo #4 confirmed that what set him off was a slur against his race and that is what caused him to then hit the injured worker. The co-worker confirmed that he was suspended for one week and that he apologised to everyone for his actions. Verbal insults, regardless of what was said, are not sufficient to excuse physical retaliation or to accept that they were provoking to the extent that physical retaliation was an anticipated result especially when no other threatening behaviour accompanied the verbal insults.
Conclusion
Based on the preponderance of evidence I confirm that the cause of the fight was reasonably incidental to the employment in that it was the scan gun that set everything in motion. I also confirm that the injured worker did not provoke the co-worker to a physical altercation and did not remove himself from the course of his employment.
The worker’s objection is allowed.
The worker is entitlement to benefits stemming from a work accident of July 31, 2008 as a wilful and intentional act, not being the act of the worker.
The scope and breadth of benefits allowed is to be at the discretion of the Operating area.
DATED December 7, 2009
C. D’Angelo
Appeals Resolution Officer
Appeals Branch