The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 11th and July 12, 2001, at the request of legal counsel acting on behalf of the applicant. The Panel discussed this appeal on several occasions, the last one being October 25, 2001.

Issue

Whether or not the claimant's right of action is removed pursuant to Section 68(4) of the Act.

Decision

That the claimant's right of action is removed pursuant to Section 68(4) of the Act.

Background

In January 1996, the claimant filed a workers compensation claim for a right shoulder injury that occurred at work in November 1995. On his application form for benefits, the claimant indicated that he touched the back of a co-worker's knee and it went forward. The claimant continued walking towards a shelf to put a tool on it and when he turned around the co-worker was waiting for him. The co-worker took the claimant by the neck with force and lifted him off the ground and then shoved him against a 2 x 2. The claimant indicated that he felt immediate pain in his right shoulder blade area.

The Workers Compensation Board (WCB) accepted the claim and wage loss benefits were paid to the claimant between November 8, 1995 and November 4, 1999. On November 5, 1999 the claimant commenced receiving WCB vocational rehabilitation benefits which have continued to date.

In October 2000, the WCB commenced an action in the Court of Queen's Bench on behalf of the WCB and the claimant against the claimant's co-worker in respect of damages alleged by the claimant to have been caused by the accident. The following is a brief summary of the allegations in the statement of claim:

• on or about November 9, 1995, the co-worker, with intent, came into physical contact with the claimant thereby causing the claimant injury.
• the physical contact by the co-worker against the claimant constituted an assault.
• in the alternative, the co-worker was negligent in the manner in which he moved about his work space.
• as a consequence of the co-worker's actions, the claimant sustained a severe shoulder sprain and soft tissue injury to his cervical spine.
• the WCB and the claimant plead the provisions of the Workers Compensation Act (the Act) and, in particular, Section 9(5) - that any right of action which the claimant had to recover damages for injuries is vested in the WCB.
• as a result of the accident, the WCB is entitled to recover from the co-worker special damages, general damages and interest in accordance with the Queen's Bench Act.
• The claimant pleads and relies on the Occupiers Liability Act.

In a letter dated October 2, 2000, legal counsel for the co-worker requested, pursuant to Section 68(4) of the Act, that the Appeal Commission determine whether or not the claimant's right of action against the co-worker in respect of the matters alleged in the statement of claim has been removed by the Act.

Following a pre-hearing meeting held on January 31, 2001, the Appeal Panel requested that a copy of the statement of defense be provided to it prior to the hearing. On February 2, 2001 a copy of the statement of defense was provided to the Panel by the co-worker's legal counsel. The following is a brief summary of the reply contained in the statement of defense:

• the co-worker admits that on November 9, 1995 he and the claimant came into contact with the other. The co-worker said that on that date and at the material time, the claimant approached him from behind and without prior warning, pushed, shoved or jostled the co-worker. Acting out of surprise and in reaction to the claimant's having initiated this contact between them, and with no intention to do harm to the claimant, the co-worker responded by pushing the claimant away. The co-worker said that his reaction to the claimant was not undertaken in a manner intended or likely to cause injury. The co-worker stated that the claimant was not injured.
• the co-worker denied that he had been negligent.
• in the alternative, if the co-worker was negligent, which was denied, the co-worker said that the claimant was guilty of contributory negligence.
• at all material times the co-worker was a worker within the meaning of the Act and the alleged incident happened within the conduct of the operations usual in or incidental to the business operations carried on by the employer of both the co-worker and the claimant.
• neither the WCB nor the claimant are entitled to maintain this action against the co-worker. The co-worker pleads and relies on section 9(7) of the Act.
• by reason of the claimant's contributory negligence, no damages to which the WCB and claimant would otherwise be entitled to recover are recoverable in respect of that portion of the damages caused by the negligence of the claimant. The co-worker pleads and relies on section 9(8) of the Act.
• the co-worker denies that he owed any duty to either the WCB or the claimant arising out of The Occupier's Liability Act.

On July 11 and 12, 2001, an Appeal Panel hearing was held at the Appeal Commission. At this time, the Panel heard arguments from legal representatives acting on behalf of both the WCB/claimant and the co-worker.

Following the hearing, the panel met on several occasions to discuss the case. At a meeting on August 14, 2001, the Panel requested that the following information be obtained from the employer:

• any company policy covering horseplay in the workplace; and
• information as to whether or not any disciplinary proceedings took place in connection with the November 1, 1995 incident.

On October 3, 2001, the employer responded to the Panel's request. All interested parties were provided with a copy of the employer's response and were invited to provide comments to the Panel. On October 25, 2001, the Panel met to render a final decision with respect to the issue under appeal.

Reasons

Workers compensation legislation was first introduced into Manitoba in 1916 as a disability scheme, which was devised to compensate workers who were injured as a result of workplace accidents. The system is based on no fault insurance principles designed to provide an expeditious remedy to an injured worker without resorting to litigation.

The Workers Compensation Act of Manitoba (the Act) establishes a social contract of insurance whereby workers have relinquished their right to sue in exchange for reasonable compensation regardless of fault and on the other side of the equation, whereby employers have received immunity from suit in exchange for their funding the costs of the scheme. The contractual entitlement to compensation in lieu of other rights is set out in section 13(1) of the Act:

"The right to compensation provided by this Part is in lieu of all rights and rights of action, statutory or otherwise, to which a worker, or his legal representative, or his dependents, are or may be entitled against the employer, for or by reason of personal injury to, or the death of, the worker occasioned by any accident which happens to him arising out of, and in the course of, his employment; and no action in any court of law against the employer in respect thereof thereafter lies."

The contractual entitlement to immunity from suit is set out in section 9(7) of the Act:

"In any case within subsection (1), the worker, his or her legal personal representative and dependents, and the employer of the worker have no right of action in respect of the accident against an employer in an industry, or against a worker of such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer."

According to section 9(1) of the Act a worker, who is injured in the course of his employment and who is entitled to compensation as a consequence thereof, has the right to claim compensation or to bring an action against some person other than his employer should the circumstances so warrant. However, as previously pointed out, section 9(7) restricts or limits this right as follows: a worker has "no right of action in respect of the accident against an employer in an industry, or against a worker of such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer."

It should be noted, as well, that once an injured worker makes an application for compensation and the claim is approved by the Workers Compensation Board (the WCB), then according to section 9(5) of the Act, immediately on approval of the claim by the WCB any right of action for or in respect of a personal injury to that injured worker becomes vested in the WCB. In the present case, the WCB pursuant to this section commenced an action in its name and that of the injured worker (claimants) against the defendant (co-worker) for or in respect of the personal injuries suffered by the worker.

As the background notes indicate, this case involves an application by the defendant (co-worker), named in Court of Queen's Bench Suit No. CI 97-[numbers], requesting that the Appeal Commission determine, pursuant to section 68(4) of the Act, whether or not the claimants' right of action against him has been removed by the provisions of the Act. Section 68(4) states as follows:

"Where an action in respect of an injury is brought against an employer or a worker of an employer by a worker or the legal personal representative or a dependant of the worker, the board has jurisdiction, on the application of a party to the action, to adjudicate and determine whether the right of action is removed by this Act; and the adjudication and determination is final and conclusive, and if the board determines that the right of action is removed by this Act, the action shall be forever stayed."

The exclusive jurisdiction to make such a determination has been specifically conferred on the Appeal Commission by virtue of section 60.8(1)(b) of the Act. It is also significant to note that the Appeal Commission's decision and ruling with respect to such matters in question is final and conclusive. In addition, once it has been determined that the right of action has been removed by the Act, then the action or suit shall be forever stopped from going forward.

The basic facts giving rise to this application are, by and large, not in dispute. According to the pleadings filed in the Court of Queen's Bench by the claimants and defendant, a workplace accident took place in December of 1995, at which time the plaintiff (injured worker) sustained personal injury as a result of his coming into physical contact with the defendant. Following this incident, the injured worker made application to the WCB claiming compensation for his injuries. Ultimately, the claim was approved by the WCB and benefits were paid to the worker.

The claimants' counsel contends that the defendant willfully and intentionally grabbed the claimant (injured worker) by the shirt collar and drove him backward into a shelving unit. In counsel's words, such "activity cannot in any way, shape or form be related to the employment situation. It was not in furtherance of the employer's goals and ambitions in terms of serving the public. It did not relate to, in any way, shape or form, the manner in which these employees were carrying out their activities." This willful intentional application of force was at law an assault. The defendant by his conduct had taken himself outside the course of his employment, thereby removing himself from the scope of the Act as a whole and more specifically section 9(7).

A co-worker witnessed the altercation between the plaintiff (injured worker) and the defendant. The following is his account of the events surrounding the alleged assault.

Q. And something happened in that front counter area. I'd like you to describe for the panel in as much detail as you can what you recall of it, what you recall seeing, involving Mr. [the plaintiff] and Mr. [the defendant].
A. Okay. I remember [the plaintiff] coming to the front and he hit, yes, he hit [the defendant] in the back of the knee and that the knee kind of buckled. And I remember [the defendant] turning around and he kind of pushed him up against the shelf. Also in number 3 [picture of the work site] you can see the shelf in the background there. And he [reference to the defendant] told him [ie. the plaintiff] to quit it or to stop it, I can't recall exactly what he said to him. And from what I can remember, that's pretty much about it.

Q. What did each of you do - let me go back. Mr. [the plaintiff] has come into contact with the shelves. What did each of you do at that point?
A. I think everybody just went back to what we were doing and that was pretty much about it.

Q. Do you recall what Mr. [the plaintiff] did immediately after contacting the shelf as you've described?
A. Well, from what I can recall he just went back to work and just kept on doing what we were doing.

After having reviewed and considered all of the evidence, we were able to make the following findings of fact:

• That the plaintiff's (injured worker's) accident, by definition, arose out of and in the course of his employment.
• Verbal and physical teasing were common occurrences in the workplace.
• The plaintiff's (injured worker's) assault on the defendant was both unanticipated and unprovoked. It definitely caught the defendant by surprise.
• The defendant, in response to this assault, instinctively and immediately reacted by turning around and pushing the plaintiff (injured worker) backward into the shelving.
• In our view, this instinctive response on the part of the defendant was not a 'wilful and intentional act' as there was insufficient time for him to implement such a purpose.
• We accept the evidence of the independent witness who implied that the assault on the plaintiff (injured worker) was very insignificant in nature. This impression is also consistent with the defendant's evidence concerning the incident.
• The seemingly trivial character of the discord between the plaintiff (injured worker) and the defendant is further reinforced by the conduct of all the parties following the incident in that the interaction among the parties did not vary from what can best be described as normal daily routine.
• We find that both the plaintiff (injured worker) and the defendant were in the course of their employment at the time of the happening of the accident.

Counsel for both the plaintiffs and the defendant have referenced a few cases dealing with horseplay and/or misconduct. These cases all suggest that some degree of teasing and bantering is considered to be normal activity or behaviour within the workplace and does not necessarily remove the aggressor from the course of his employment. While the cases were instructive, the Act prescribes that an Appeal Panel should decide each case before it in accordance with the 'real merits and justice of the case' and that it 'is not bound to follow strict legal precedent'. Nevertheless, we certainly do, as a matter of course, examine the cases to which we have been referred for guidance and direction.

In our view, the wording of section 9(7) of the Workers Compensation Act of Manitoba is similar to the 'in the course of employment test' being used in other workers compensation jurisdictions. The test is to determine whether the offending or harmful activity, by its very nature, breaks the employment connection and consequently can not be considered to come within the course of employment. Based on the factual findings previously cited, we conclude that the actions of both the plaintiff and the defendant were minor in nature and occurred within "the conduct of the operations usual in, or incidental to, the industry carried on by the employer." Accordingly, we find that the claimants' right of action is removed pursuant to section 68(4) of the Act.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of December, 2001