Employer v. Worker, 2023 CanLII 37839

20230059

REPRESENTED by:

Hearing in Writing

HEARD by:

DATED:

Stephen Crisostomo, appeals resolution officer

MARCH 13, 2023

ISSUE

The employer objects to the Adjudicator’s decision dated April 19, 2022, which granted the worker initial entitlement to Workplace Safety and Insurance Board (WSIB) benefits for bilateral hand burns sustained on April 1, 2022.

BACKGROUND

The employer completed the Employer’s Report of Injury/Disease (Form 7) dated April 6, 2022 and indicated on April 1, 2022, the worker reported accidently bring a personal chemical gas bomb to work and while cutting rebar, the hot ambers from the steel ignited the bomb. The worker tried to put out the fire using their hands and sustained bilateral hand burns, for which they sought medical attention on April 1, 2022.

The worker completed the Worker’s Report of Injury/Disease (Form 6) dated April 12, 2022 and indicated that they suffer from attention deficit hyperactivity disorder (ADHD), and on April 1, 2022, during break, they were at home showing a co-worker "The Giant Killer", which looks like a little firework with a wick and is used to smoke out rodents (beavers, rabbits). Afterwards, they put the chemical gas bomb in their tool pouch and drove back to work. While cutting rebar/cage, sparks flew and hit the chemical gas bomb, causing it to ignite and releasing flames, which they put out with their gloved hands. The worker sustained bilateral hand burns, for which they sought medical attention on April 1, 2022.

The worker was seen by Dr. Heaton at the Stratford General Hospital on April 1, 2022, who completed the Health Professional’s Report (Form 8) and diagnosed the worker with bilateral burns to the hands related to a chemical gas bomb igniting.

On April 19, 2022, the Adjudicator granted initial entitlement in the claim for the worker’s diagnosed bilateral hand burns after determining proof of accident was established for the hand injuries sustained on April 1, 2022

The employer objected to the April 19, 2022 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Employer Representative’s Position

The employer’s representative submits:

The worker brought an explosive item to work and placed it in their tool belt. By doing so, the worker endangered themselves and/or other workers, and violated Section 28(2)(c) of the Occupational Health and Safety Act.
Granting entitlement in the claim places no accountability on the worker for bringing an explosive to work and their safety.
By the worker using a tool that causes sparks, while knowingly having an explosive on them is clear and undisputable evidence of a wilful and serious misconduct, as per Section 17 of the Workplace Safety and Insurance Act, 1997.
Initial entitlement in this claim should be rescinded.

AUTHORITY

Sections 2(1), 13 (2) 15 and 17, and Schedule 3 and 4 of the Workplace Safety and

Insurance Act, 1997 (the Act)

Operational Policy Manual:

Published

11-01-01 Adjudicative Process

11-01-02 Decision-Making

15-02-01 Definition of Accident

15-02-02 Accident in the Course of Employment

November 3, 2008

October 12, 2004

ANALYSIS

I have carefully considered all of the available information, the applicable legislation and the relevant operational policies in reaching this decision.

I find the worker sustained bilateral hand burns on April 1, 2022, which resulted from a chance event accident, arising out of and in the course of their employment and there was no serious and wilful misconduct by the worker on April 1, 2022. Therefore, initial entitlement to WSIB benefits for the worker’s diagnosed bilateral hand burns was appropriately allowed. The reasons for my decision follow.

I note that the employer’s representative submits that the worker brought an explosive item (chemical gas bomb) to work and placed it in their tool belt and by doing so; the worker endangered themselves and/or other workers and violated the Occupational Health and Safety Act. However, I must note that the WSIB provides no-fault (my emphasis added) collective liability insurance, which takes into account the relevant WSIB policy/policies and the relevant provision/provisions of the Workplace Safety and Insurance Act or the Workers' Compensation Act when making decisions. Claims are not adjudicated in accordance with the Occupational Health and Safety Act.

Policy 11-01-01 provides criteria for ruling on initial entitlement to WSIB benefits. The system is known as the “five-point check system” and an allowable claim must have all of the following points:

an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.

Operational Policy 15-02-01 states in part:

Accident includes

a willful 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.

and:

A chance event is defined as an identifiable unintended event which causes an injury. An injury itself is not a chance event.

Occupational disease cases are adjudicated under Section 2 (1) and Section 15 of the Act and by Regulation in Schedules 3 & 4 of the Act. If the disease is not listed in the Schedules, entitlement to benefits and services, is determined based on the merits and justice of the case.

As a chemical burn is an occupational disease case, which is not listed in Schedules 3 & 4 of the Act and for which there is no specific policy, entitlement for the worker’s chemical burns sustained on April 1, 2022 must be determined based upon the available evidence and the individual merits and justice of the case.

There is no dispute that there is an employer and worker relationship in this claim.

Noting, the worker claimed that on April 1, 2022, while cutting cage, sparks flew and ignited the chemical gas bomb in their tool pouch, the claimed accident is a chance event accident, which is an identifiable unintended event, which caused an injury.

With chance event accidents, the presumption under Section 13 (2) of the Act applies. That is:

If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

In determining whether “proof of accident” has been established in a claim, four immediates are often relied upon by the decision maker. Those immediates are immediate: reporting, medical attention, pain and lay off from work. Based on the information before me, I note the worker immediately reported the April 1, 2022 accident to the employer; they also had immediate pain that resulted from the accident for which they immediately laid off work and sought immediate medical attention. As such, I find all of the immediates have been met and that proof of accident has been established for an April 1, 2022 accident.

With respect to the determination of whether a personal injury by accident occurred in the course of the worker’s employment, the guidelines under Operational Policy 15-02-02 states the decision-maker applies the criteria of place, time, and activity. Based on the information before me, I am satisfied that the April 1, 2022 accident occurred at the worker’s workplace, during their work hours and while the worker was performing their work duties. As such, I find the facts of this case related to place, time and activity, related to the worker’s personal bilateral hand injuries by accident on April 1, 2022, establishes that they sustained a personal injury by accident, while in the course of their employment.

Based on the available evidence, I find the presumption under Section 13 (2) of the Act has not been rebutted.

With respect to compatibility of diagnosis to the accident, I recognize the worker was diagnosed with bilateral hand burns related to putting out flames with their hands. Based on my analysis of the mechanism of injury, I am satisfied that putting out flames with ones hands can cause bilateral hand burns. As such, I am satisfied the worker’s diagnosed bilateral hand burns are compatible with the April 1, 2022 accident.

In summary, I find the worker sustained a personal injury by accident (chance event) in the course of their employment on April 1, 2022, which they reported and sought medical attention. The accident occurred while the worker was engaged in the performance of their work-related duties. When the worker sought medical attention, they related their bilateral hand injuries to the April 1, 2022 accident and the bilateral hand injuries are viewed as the cause for the need of the medical attention.

Therefore, I find that “proof of accident”, proof of a personal work-related injury and compatibility of diagnosis to the accident history have been established, and that the criteria in Operational Policy 11-01-01 for ruling on initial entitlement to WSIB benefits have been met.

The employer representative’s main submission is that entitlement in the claim should be denied under Section 17 of the Act based on the worker’s serious and wilful misconduct on April 1, 2022.

Section 17 of the Act state:

If an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits shall be provided under the insurance plan unless the injury results in the worker’s death or serious impairment.

In reviewing Section 17 of the Act, I note a worker would not be entitled to WSIB benefits if they sustain an injury that is solely attributable to their serious and wilful misconduct unless the injury results in a worker’s death or serious impairment.

While, I acknowledge that it was not good judgement for the worker to bring a chemical gas bomb to work, based on the evidence contained in the record, I find no evidence that the worker deliberately and intentionally planned to bring the chemical gas bomb to work. In addition, I find no evidence that the worker premediated or planned to ignite the chemical gas bomb at work using the hot ambers from the cutting of the rebar. Based on the available evidence, I am satisfied that the events on April 1, 2022 were unintentional and accidental, as there is a lack of compelling evidence to suggest otherwise. Accordingly, I find there is no basis to deny entitlement to benefits under Section 17 of the Act.

Noting, the criteria in Operational Policy 11-01-01 for ruling on initial entitlement to WSIB benefits have been met and that there was no serious and wilful misconduct by the worker on April 1, 2022, I find that initial entitlement to WSIB benefits was appropriately allowed for the worker’s bilateral hand burns sustained on April 1, 2022.

CONCLUSION

Based on the evidence outlined in this decision, I conclude initial entitlement to WSIB benefits for the worker’s bilateral hand burns sustained on April 1, 2022 was appropriately allowed.

The employer’s objection is denied.

DATED March 13, 2023

S. Crisostomo

Appeals Resolution Officer

Appeals Services Division