WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20170017
OBJECTING PARTY: Worker
REPRESENTED by: Paralegal
RESPONDENT: Company Limited [Not participating]
HEARING: Hearing in Writing
DATE OF DECISION: June 21, 2017
ISSUE
The worker objects to the August 7, 2015 Eligibility Adjudicator decision which denied initial entitlement to a July 25, 2015 right eye injury.
BACKGROUND
On July 25, 2015, this then 16 year old cherry processor was struck in the right eye by a piece of wood thrown by a co-worker. In the Eligibility Adjudicator decision dated August 7, 2015, it was concluded that the worker had been involved in a fight with the co-worker and therefore had taken himself out of the course of employment at the time of the injury. As such, initial entitlement to the right eye injury was denied.
The worker disagrees with the above noted decision and has brought the case forward to the Appeals Services Division for further consideration. The worker representative completed an
Appeal Readiness Form (ARF) on May 15, 2017 requesting that the objection be resolved through a Hearing in Writing.
AUTHORITY
Policy Document : 11-01-01 Adjudicative Process
Policy Document : 15-02-01 Definition of an Accident
Policy Document : 15-02-02 Accident in the Course of Employment
Policy Document : 15-03-11 Fighting, Horseplay and Larking
ANALYSIS
For the reasons set out below, I find that the worker was in the course of his employment on July 25, 2015 when he was struck by a piece of wood purposely thrown by his co-worker. As such, initial entitlement to a compensable right eye injury is allowed in the claim.
Policy
WSIB policy document 15-02-01 relates to the issue of initial entitlement. In part, the policy states the following:
“Accident includes
A wilful and intentional act, not being the act of the worker
A chance event occasioned by a physical or natural cause, and
A disablement arising out of and in the course of employment.
The policy goes on to advise of the following:
“A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.
“The definition of disablement includes:
A condition that emerges gradually over time
An unexpected result of working duties.
Furthermore, policy document 11-01-01 describes the process used by decision makers to establish if initial entitlement in a claim is in order. In part, the policy reads as follows:
“All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the ‘five point check system’.
An allowable claim must have the following five points
An employer
A worker
Personal work related injury
Proof of accident, and
Compatibility of diagnosis to accident or disablement history.”
Policy 15-03-11, entitled Fighting, Horseplay and Larking, states that workers who sustain a personal injury as a result of participating in a fight, horseplay or larking at work are generally not entitled to WSIB benefits.
It goes on to state the following:
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.
File Review
The claim was established upon receipt of an Employer’s Report of Accidental Injury (Form 7) dated July 27, 2015. The accident history was identified as follows:
“Worker was engaged in an argument with another employee. The other worker threw a piece of wood at [the worker]. The piece of wood hit his [right] eye”.
The employer confirmed that the incident was witnessed by a co-worker. The employer did not express any concerns over the nature of the claim.
The August 4, 2015 Worker’s Report of Injury (Form 6) stated the following:
“A fellow employee became angry and threw a piece of wood that was approximately 2 inches wide X ¾ inches thick X 7 inches long at me from my right side while I was looking straight ahead at the machine I was monitoring and it hit me in the right eye”.
The only medical report on file is a Health Professional’s Report (Form 8) dated July 25, 2015 completed by an emergency room physician. The report identified that the worker suffered a laceration to the right eye lower lid after being assaulted by a co-worker who threw a stick at him. The worker was diagnosed with a right lower eyelid full-thickness laceration, a corneal abrasion, a pupillary sphincter rupture, a retinal commotion and a choroidal rupture.
In memo#1, the Eligibility Adjudicator spoke to someone from the employer who stated that the worker and a co-worker “were calling each other names”, following which the co-worker threw a piece of wood and hit the worker in his eye.
In memo#2, the Eligibility Adjudicator obtained a statement from the worker. The worker advised that he was sitting on a chair at a table along with a co-worker BB. Another co-worker, who normally didn’t sit with them, was sitting about 3 feet away from him facing the same way. He stated that the worker was angry with him and was trying to annoy him by saying hateful terms. He indicated that this started the day before with the co-worker calling him derogatory names.
On the date of injury, July 25, 2015, the co-worker again started calling him names while sitting at the table. He said this went on for about 3 minutes. The worker subsequently responded to the name calling by stating “even if I was, you would be in the wrong as you are a homophobe”. After hearing the worker say this, he said the co-worker got angry, said he was not a homophobe and then got up and threw the stick at him, hitting him in the eye.
The worker did not describe being in any fight other than being hit in the eye after responding to the co-workers taunts. He indicated that he went immediately to a local hospital where surgery was performed on the right eye.
In the same memo, the Eligibility Adjudicator again contacted the employer who advised that she was unaware of the name calling incidents from the day prior to the incident. The employer stated that she discussed the incident with the worker while taking him to the hospital. She advised that it was “her impression” that the name calling had been going “back and forth”. However, she also noted that the co-worker who threw the stick was fired immediately after the incident occurred, whereas there was no punishment meted out to the worker.
The employer stated that they were no longer able to contact the witness to the incident [BB] given that he had finished his employment with the company.
A different person from the employer was also contacted who stated that the dismissed worker told him that the co-worker was also calling him gay. He advised that the police were contacted and took statements from the various parties, and that an internal incident interview took place with the worker and co-worker. He stated that the internal review revealed that both co-workers were name calling over a period of 2-3 days.
The employer followed up the conversation with a letter to file dated August 6, 2015. In the letter, the employer confirmed their earlier statement that the worker had told his supervisor that he and his co-worker had “been arguing for two or three days”. It eventually culminated in the co-worker throwing a stick at the worker. In an interview with the co-worker who threw the stick, he reportedly advised that both parties had been arguing for 2-3 days and that he admitted to throwing the stick at the worker. Again, there was no indication of the worker being involved in a physical fight or altercation. The employer confirmed that the co-worker who threw the stick was terminated immediately.
In memo#3, the Eligibility Adjudicator concluded that entitlement was not in order given that the WSIB does not provide coverage for workers who are injured while participating in a fight that results solely over a personal matter. She accepted that the worker had called the co-worker a name just prior to the workplace incident and therefore he was considered to be a participant in the non-work related altercation.
The worker representative appealed the decision and in a letter dated May 16, 2016 requested that the Eligibility Adjudicator obtain any notes the employer may have on the incident as well as contact the co-worker who witnessed the incident to obtain a statement.
In memo#8, the Eligibility Adjudicator spoke to the employer who confirmed they had no copy of any notes that may have been taken at the time of the incident. Instead they relied on their August 6, 2015 letter for their version of events. In addition, the Eligibility Adjudicator did not feel it was necessary to contact the co-worker as she relied on her determination that the worker was a participant in a non-work related altercation. Of note, she also did not pursue obtaining a copy of any police records that were taken at the time of the incident. To date, there has been no statement obtained from the co-worker who witnessed the incident.
The worker representative’s submission, attached to the May 2017 ARF, provided a copy of the police report taken at the time of the incident, a handwritten letter from the worker describing what happened and a copy of a court judgement placed against the co-worker who threw the stick.
The worker’s statement confirmed his earlier statements that the situation had begun a day earlier with the worker calling him derogatory names. He stated that he told his co-worker BB about the name calling, who replied that they should just ignore the other individual. The letter indicates that the worker worked near the same work station as his co-worker BB, while the co-worker who threw the stick worked at a station about 30 feet away.
At the time of the incident, the worker described sitting at his work station, along with his co-worker BB, waiting for a skid to be moved out of the palletizer area so that they could shrink wrap the skid. For some reason, the other co-worker came over to his workstation table and sat down facing the machine. The worker stated that there was no reason for the co-worker to do this.
He went on to state that part of his job was to sit at the table to watch the palletizer machine operate in case something happened during the palletizing process and the machine needed to be reset. He wrote that while he [and his co-worker BB] were sitting at their table, the co-worker continued to call him derogatory names, even though he continued to have no reason to be sitting at their table.
He indicated that his co-worker, BB, asked the “aggressor” co-worker why he was even at their table, to which the “aggressor” co-worker responded “to piss him off”. After listening to the derogatory name calling, the worker admitted to saying to the co-worker “even if I was gay, you would be at the wrong in today’s society for being homophobic”. He stated that he did so without raising his voice, making any gestures or issuing any threats. Then, while he was still watching his machine operate, the worker stated that the co-worker got up, yelled “I am not a ____ homophobe” and threw the stick at him, hitting him in the eye.
The police statements essentially confirmed the version of events as described by the worker. There are no statements available from either the co-worker BB or the other co-worker.
The worker representative also attached a copy of a Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision from another claim which provided a ruling on whether a worker who participates in a verbal altercation with a co-worker would be considered to have taken himself out of the course of his employment if, after doing so, there was a one sided physical incident.
The WSIAT decision essentially found that the two parties in the case participated in an exchange of verbal profanities but that this, in the Tribunal’s opinion, did not constitute a fight. In the WSIAT case, the affected individual did not participate in any physical altercation but rather was assaulted by a co-worker. It was determined that the worker did not remove himself from the course of employment and therefore initial entitlement was granted.
The worker representative submits that this case is similar in nature to the WSIAT example. He feels that the worker was not involved in a “fight” on July 25, 2015 but rather was the victim of an assault through no fault of his own. He seeks to have initial entitlement established in the claim.
Assessment
When I assess all of the available information in the claim file, I accept that initial entitlement is in order for the eye injury suffered by the worker on July 25, 2015. The level and duration of benefit entitlement will be left to the discretion of the Operations area.
In reaching this conclusion, I find that the worker was not involved in a fight at the time of the workplace incident when he was hit in the eye by a stick thrown by a co-worker.
While I acknowledge that the worker had been involved in a verbal altercation with his co-worker, possibly from the day before the workplace accident took place, I accept that he was in the course of his employment when the co-worker threw the stick.
The evidence available supports that the worker was sitting at his workstation, where he was supposed to be, when the incident took place. There has been no evidence put forth to dispute the worker’s written statement that part of his job duties are to view the palletizing machine while in operation. I accept that the worker was actively performing his regular job duties when he was struck and injured.
I also find that the worker verbally responding to a co-worker’s personal taunts, while still conducting his regular workplace activities, does not remove him from the course of employment, and does not constitute a “fight” as required by policy. I note that the record has consistently identified that there was a witness to the event [BB] who was not contacted at any time to provide a statement to corroborate the accident history put forth by the worker.
Moreover, the fact that the employer only chose to terminate the co-worker and not the worker implies that the employer was satisfied that the worker was not at fault or did not contribute in any meaningful way to the incident occurring. I find that the same reasoning as applied by the WSIAT panel in the sample decision provided by the representative [that the worker was not a meaningful participant in the workplace incident but rather the victim of the accident] applies in this case as well.
As such, I find that initial entitlement is in order for the right eye injury, diagnosed as a right lower eyelid full-thickness laceration, a corneal abrasion, a pupillary sphincter rupture, a retinal commotion and a choroidal rupture. The level and duration of benefits will be left to the discretion of the Operations area.
CONCLUSION
I find that initial entitlement is in order for a July 25, 2015 right eye injury, diagnosed as a right lower eyelid full-thickness laceration, a corneal abrasion, a pupillary sphincter rupture, a retinal commotion and a choroidal rupture. The level and duration of benefits will be left to the discretion of the Operations area.
DATED June 21, 2017
K. Gowans
Appeals Resolution Officer
Appeals Services Division