WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150031
DECISION DATE:
May 7, 2015
OBJECTING PARTY:
Employer
REPRESENTED by:
Self-Represented
RESPONDENT:
Worker (Not Participating)
HEARING:
Hearing in Writing
HEARD by:
C. Ihasz, Appeals Resolution Officer
ISSUE
The employer objects to the establishment of Initial Entitlement in this case, as contained in decisions dated September 23, 2014, and November 3, 2014.
HOW THE ISSUE ARISES
Garry Bryson had been employed as a ready-mix driver since 2004, with Teskey Concrete Company.
Mr. Bryson is now 54 years of age.
Mr. Bryson completed his accident report to state on September 16, 2014, he was driving the company truck when the truck rolled over. As a result, he sustained multiple injuries and was sent to the hospital by ambulance. The employer acknowledged immediate reporting of this accident, but also objected to the establishment of initial entitlement. It was their belief that no benefits should be paid in this case, as the accident was as a result of speeding and therefore, serious and willful misconduct.
The employer submitted evidence to indicate that this injured worker was disciplined in the past for driving offences. Medical information was obtained, regarding the injured worker's multiple injuries and the treatment for those injuries. On September 23, 2014, the eligibility adjudicator wrote to the employer to advise that initial entitlement was established. The employer objected to this decision. They provided an Intent to Object Form dated October 16, 2014, as well as additional evidence to support that the injured worker was involved in a serious and willful misconduct situation. This information was reviewed; however, the decision to allow Initial Entitlement was upheld on November 3, 2014. As the employer continues to pursue this issue, the matter was referred to the Appeals Services Division for further consideration.
AUTHORITY
Policy Number:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
11-01-03 Merits and Justice
11-01-13 Benefit of Doubt
Section 17 Workplace Safety and Insurance Act, 1997
RESOLUTION METHOD AND PROCESS
The employer has asked that this matter be addressed via a hearing in writing. They have submitted information to the file, both with the Intent to Object Form, as well as surrounding the issue of breach of employment. The injured worker has not provided a Respondent's Form, thus indicating he did not wish to participate in the objection process.
ASSESSMENT OF THE EVIDENCE
I have carefully reviewed all of the information in the claim record. I noted the submissions made by the employer, regarding the injured worker's past offences. He has received various warnings and suspensions due to driving-related issues in the past.
Section 17 of the Workplace Safety Insurance Act outlines the position on serious and willful misconduct. It states,
"If an injury is attributable solely to the serious and willful misconduct of a worker, no benefits shall be provided under the Insurance Plan, unless the injury results in the worker's death or serious impairment".
In this case, it is clear that the injured worker suffered serious impairments as a result of the single motor vehicle accident on September 16, 2014. These injuries are both organic and non-organic.
With respect to the accident itself, the injured worker was in the course of his employment, doing an activity arising out of and in the course of his employment. There is sufficient proof of accident.
Although I have considered the information provided by the employer and agree there is evidence that he was reprimanded in the past for driving behaviours, I find I cannot withdraw entitlement to the injury suffered as a result of the accident here, on the basis of "serious and willful misconduct". This is because of the seriousness of the injuries. Sufficient proof of accident has been established.
I note there is a decision provided by the case manager where it was found that the employer did not breach their re-employment obligation by terminating this injured worker in September 2014.
CONCLUSION
The objection is denied.
DATED
May 7, 2015
C Ihasz
Appeals Resolution Officer
Appeals Services Division