WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100161
OBJECTION BY: Employer
WORKER: Participating
PARTICIPANTS: Employer, Employer representative, Employer resource person, foreman, Two co-workers, worker, union representative, Observer.
HEARING DATE: August 26, 2010
ISSUE
The employer objects to the November 6, 2008 Claims Adjudicator decision accepting entitlement to WSIB benefits.
HOW THE ISSUE ARISES
October 3, 2008 this now 46 year old construction labourer suffered multiple injuries as a result of an altercation with his foreman. The adjudicator concluded the worker was not the aggressor in the altercation and as such was entitled to WSIB benefits.
The accident resulted in multiple reported soft tissue injuries. Ongoing entitlement has been accepted for the left shoulder (with arthroscopic surgery April 22, 2010) and psycho-traumatic disability. As of the hearing date the worker continued to receive full Loss of Earnings (LOE) benefits based on continuing recovery from shoulder surgery with the psychological condition reported as being at maximum medical recovery (MMR).
AUTHORITY
15-03-11 - Fighting, Horseplay, and Larking
11-01-01 – Adjudicative Process (Five Point Check, Proof of Accident)
11-01-02 – Decision Making (Weighing Evidence, Natural Justice)
RESOLUTION METHOD AND PROCESS
While all testimony was completed on the day of hearing it was determined additional records from the employer may assist in determining the presence of the witnesses at the worksite on the day of accident. This information was provided by the employer representative and both parties provided final written submissions. The additional evidence and related submissions have been placed on file.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
Submissions
The employer representative indicated the initial concern was that all information was not obtained when making the initial entitlement decision. The representative further suggests the provisions of operational policy 15-03-11 were not applied appropriately. The representative notes it is clear an altercation occurred and in the employer view it is clear the worker was the aggressor. The representative suggests the worker provoked the fight by following the foreman around and pursuing his argument. The representative suggests that accepting the worker was the aggressor would mean the worker took himself out of the employment and was therefore not entitled to WSIB benefits. The representative notes the police report uses the word retaliate in describing the events and suggests the intent of the policy in this respect is clear. The representative suggests while the testimony confirmed the act of hat flipping was initiated by the foreman the worker retaliated in turn and the retaliation in itself removed the worker from his employment. The representative notes while the witness statements differ as to the specifics they do confirm an altercation occurred. The representative suggests it would be appropriate to provide greater weight to the employer witness statements as the most accurate description of events. Finally, the representative has suggested the worker secondary witness recollection of events when discussed with the adjudicator shortly after the accident would carry more weight than his recollection some 2 years later.
The worker representative suggests all documents speak to the fact the worker sustained an injury, its nature, and cause. The representative suggests the records speak to the veracity and credibility of the worker. The representative suggests the worker claims an assault and injury and this claim was supported by witnesses. The representative points out the employer witnesses both maintain there was no fight and suggests if this was the case the employer representative argument is based on an inappropriate policy. The representative notes multiple physicians have confirmed the history and legitimacy of the worker’s condition while recommending the worker not return to work with the foreman or employer. The representative suggests it is hard to believe the worker is simply making this up. The representative suggests it is not appropriate to blame the victim as while an argument and disagreement took place it is not acceptable when a supervisor beats and threatens an employee.
Testimony
Noting the nature of the case and issue in dispute the parties each provided a witness who was directly involved in the events in question and a witness who was reported to have observed the events in question. In assessing the testimony the secondary issue is one of determining whether the reported witnesses were even on site that day in order to have observed the events as they occurred.
While I note the witnesses provided various opinions as to who was actually present at the time I am satisfied all parties were on the worksite that day. I am also satisfied that one may reasonably conclude that each individual for their own reasons was present immediately prior to the start of that day’s shift. From the testimony the parties clearly agree the worker and foreman were present during the period in question. From the available evidence I accept it is logical the employer secondary witness was also on site at the time. I base this on the employer timesheet and more specifically the duty to which this worker was assigned. In my experience it is logical the flagman would be present prior to the expected arrival of any trucks when a concrete pour is to occur. Based on the time sheets provided I also accept that given the hours he worked that day the worker secondary witness was also on the jobsite during the period in question. Having accepted all parties were present on the job site I may then address these individuals recollection as to what they observed.
The worker evidence is that during this dispute the supervisor flipped his hardhat off his head and the worker responded by doing the same to the supervisor. The worker evidence is that the supervisor then struck the worker knocking him to the ground, and when the worker stood back up the supervisor came at him again, picking him up by the neck against a wall, and verbally threatened the worker and his family. The worker maintains he did not physically retaliate to this assault.
The supervisor evidence confirmed the hat tipping sequence of events, maintained the worker was following him around as he tried to prepare for the scheduled concrete pour, and that a shouting and shoving match occurred. The supervisor evidence was that there was not much of an altercation and there was no punching or grabbing by the neck. The supervisor maintained he did not lose his temper and notes there were no specific employment or legal consequences from this confrontation.
The employer secondary witness reported he was a direct witness to these events. The witness supported the supervisor testimony as to the verbal argument and the worker following the supervisor around. This witness confirmed the hat tipping with minor bumping and shoving but maintained there was no punching. The witness reported both the worker and supervisor were shouting. He reported being concerned this would turn into a fight, but it didn’t.
The worker secondary witness reported he was also present at the time. This witness also confirmed the argument over work with the supervisor and worker knocking each other’s hats off. This witness suggested the supervisor then hit the worker, the worker got up, and the supervisor hit him again. The witness reported he and another co-worker then separated the worker and supervisor.
Analysis
As noted by the employer representative a significant limitation in any testimony is the period between when the actual events occur and when the evidence is provided. Additionally, decision makers must consider whether the witness is an interested party in terms of the outcome of the event at the time and how their involvement in these events may be portrayed at some future period. In this instance the testimony of each witness carries significant limitations. The worker of course has a direct vested interest in the outcome of the appeal; the primary employer witness is also not disinterested owing to the nature of the worker’s allegations. The secondary witnesses had no specific interest in the outcome of the events at the time (which may lead one to question the quality of their observations) while it is clear from the testimony each witness may be considered a friend of the primary witness.
In reviewing the testimony I note there are several points of agreement. Firstly, the parties agree there was a disagreement as to the terms of the worker’s employment October 3, 2008. The parties also agree this disagreement escalated to the point where an altercation occurred. The worker evidence is that at this point he became the victim of an assault to which he did not retaliate. The employer evidence is effectively that nothing significant happened and there was at most some pushing and shoving. Based on the employer witness’s characterization of events this would in my view mean there was in point of fact no fight. Accepting this characterization at face value would in my view simply negate the employer argument as in the absence of an actual fight there would be no reason to deny entitlement under operational policy 15-03-11.
The WSIB policy regarding entitlement for injuries resulting from a fight is relatively succinct. The policy provides for entitlement when a fight is over a work related matter where the worker is not the aggressor and does not provoke the fight. The policy further indicates aggressors and participants in a fight take themselves out of the course of employment. What the policy does not do and an issue which I consider significant in the context of this decision is provide a specific definition for the terms fight, participant, and aggressor.
In my view the appropriate definition of a fight for the purposes of the WSIB would require a worker engage in actions which may reasonably be expected to have the potential to result in a personal injury as defined within the context of the legislation. By this I interpret a worker (either as the aggressor or as a participant) to have engaged in a fight when the actions of the worker have reasonable probability of causing injury. By this definition based on the worker actions as described by the employer witnesses the worker was neither the aggressor nor a participant in a fight. The employer evidence is that the worker followed his supervisor around the sight arguing his point in respect of his right to work and to be paid for this work. I would not characterize this action as fighting within the context of the policy. I also would not define the actions of tipping the hats off as fighting within the context of the policy. I base these conclusions on the fact that neither of these activities are in my view likely to result in personal injury. Therefore, accepting the employer witness evidence (which on its face is the worst case scenario for the worker) I interpret the evidence to support the conclusion the worker was, at least initially, neither a participant nor an aggressor in a fight.
It is then necessary to consider the case at the point where, by all parties evidence, the work related dispute escalated into a physical confrontation. The employer witness evidence is that the argument escalated into a simple shoving match with no indication of injury to either the worker or supervisor. The worker evidence is that the worker was struck twice by the supervisor, knocked to the ground, and then grabbed by the neck. In my view the most appropriate evidence to consider when determining the veracity of this statement is to view the medical and claim information from the period immediately following October 3, 2008.
It is significant to note the worker and employer confirmed a confrontation occurred with the employer report (dated October 10, 2008) indicating no injuries occurred. The worker report (dated October 21, 2008) noted multiple injuries with first medical attention at hospital emergency on the day of accident. The emergency room report from the day of accident recorded a similar history to that claimed by the worker on all other documents and noted the admission time as 12:26. The report recorded an essentially normal examination with complaints of tenderness in the left neck and shoulder. The worker was advised to follow up with his family doctor in two weeks. Advil was prescribed for muscular pain. The WSIB First Report (Form 8) completed by the emergency room physician recorded the history as “assaulted at work” and in nature of injury indicated “contusion/hematoma” with the area of injury being “ears”. The worker attended his family doctor October 7, 2008 with the same accident history, reports of headaches since the injury, and the doctor reporting multiple soft tissue injuries. The doctor requested someone from the WSIB contact him to discuss the case
Having regard for the medical reporting on record I am satisfied the worker attended hospital on the day of injury and reported the cause of his injuries as an assault. The medical reporting, while limited, does in my view provide confirmation of findings consistent with the reported history. Given this evidence, I accept there is sufficient proof of accident on October 3, 2008 to accept entitlement. Given the employer witness evidence is effectively a claim that “nothing significant happened”, the worker evidence that he did not retaliate to the claimed physical assault, the medical reporting, and my previous conclusions in respect of the work actions not constituting the worker as a participant in a fight prior to the actual physical altercation I do not find the provisions of operational policy 15-03-11 a barrier to accepting entitlement.
For these reasons I am of the view the employer appeal must fail. The acceptance of entitlement to WSIB benefits is therefore confirmed.
CONCLUSION
The worker’s entitlement to WSIB benefits is confirmed.
The objection is denied.
DATED October 29, 2010
M. Evans
Appeals Resolution Officer
Appeals Branch