Decision #40/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 5, 2004, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits and medical aid benefits.

Decision

That the claim is acceptable; and

That the worker is entitled to wage loss benefits and medical aid benefits.

Decision: Unanimous

Background

On November 25, 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a left hand injury that occurred during the course of his employment as a meat cutter. The claimant's description of the accident was as follows:
"I was cutting pork loins and going back and forth between the saw and the cutting block and I was cutting pork stir fry and I cut my hand with my knife on the palm side beside my small and ring finger."
The date of accident was recorded as being November 19, 2002 and was reported to the employer on the same day.

During a telephone conversation on December 9, 2002, the claimant advised his adjudicator that he had not been wearing protective gloves at the time of the accident as he was going back and forth between using the band saw and the cutting block and he was in a hurry. The claimant said that he usually wore protective gloves and that he had not been reprimanded in the past for omitting to wear the gloves.

On December 11, 2002, the employer voiced his concerns to the adjudicator that the claimant had been trained at safe work practices and should have exercised better judgment. He had been given a written note and disciplined with regard to the accident.

In a subsequent conversation with the adjudicator, the claimant advised that he normally wore his protective gloves and that he had been in a hurry on the date of accident. The claimant could not wear the gloves while working on the band saw as it was unsafe. However, while working on the cutting table, he was able to wear his gloves.

On December 19, 2002, the claimant was advised by primary adjudication that his claim for compensation had been denied. It concluded that the claimant was guilty of serious and willful misconduct and that his disregard for safety regulation was the sole cause of his injuries. Reference was made to Section 4(3) of The Workers Compensation Act (the Act) and WCB policy 44.10.30.30 which governed the adjudication of claims where serious and willful misconduct was in issue. On January 17, 2003, the claimant's union representative disagreed with the decision and the case was then referred to Review Office.

On August 1, 2003, Review Office considered the file evidence together with a submission prepared by the employer dated July 28, 2003. Review Office concluded that although the claimant did experience an injury arising out of and in the course of his employment on November 19, 2002, he was guilty of serious and wilful misconduct. As misconduct was the sole cause of the claimant's left hand injury, and the time loss and medical aid were less than three weeks, Review Office determined that the claim was not acceptable and that the claimant was not entitled to wage loss or medical aid benefits. In reaching its conclusion, Review Office placed weight on the following evidence:
  • the claimant made a conscious choice not to wear the cut-resistant glove.

  • the claimant's voluntary actions of not wearing the protective glove was a disregard for safety regulations and was the sole cause of his injury.

  • the claimant should have recognized that his reckless disregard for his own safety was likely to result in a personal injury.

  • the worker was a health and safety committee member and was aware of the importance for personal safety of following the employer's safety regulations.

  • the claimant as a former department manager was responsible to ensure that all employees followed policy by wearing the cut resistant glove.

  • the claimant signed a cut resistant glove policy #0709 indicating that he had read and fully understood the policy.

  • the claimant, as a health and safety committee member, should have been aware of part (b) of Section 5 of The Workplace Safety and Health Act "DUTIES OF WORKERS".
On October 9, 2003, the union representative disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes
  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises
      out of, and in the course of, employment, and
  3. an occupational disease
and as a result of which a worker is injured."

As the background notes indicate, the claimant while slicing meat cut the palm side of his left hand. The incident was reported to the employer in a timely fashion. The claimant attended the emergency ward of a local hospital where the left hand laceration was sutured. We have no hesitation in finding that the worker sustained an accident resulting in an injury which arose out of and in the course of his employment. Therefore, we further find that the claim is acceptable.

The employer's representative took the position that the question to be addressed by the Panel was "whether or not there was a reckless disregard for the employee's own safety?" In this regard, the employer's representative advanced the argument based on the evidence and on the facts that section 4(3) of the Act was applicable in this case. The particular section reads as follows:

"Notwithstanding subsection (2), where the injury is attributable solely to the serious and wilful misconduct of the worker, as determined by the board,

(a) wage loss benefits are not payable for three weeks following his or her loss of earning capacity; and

(b) medical aid is not payable for three weeks from the day the worker requires medical aid."

On questioning by the Panel, the employer's representative conceded that before section 4(3) can be applied the case must first come within the purview of section 4(1) i.e., that there has been an accident resulting in an injury. The employer's representative agreed that the injury happened and that "it's just whether or not it meets the entitlement to benefit at that point."

We find as a fact that the claimant's cutting of his hand was not as a result of serious and wilful misconduct on his part. In other words, given the particular circumstances of this case the alleged misconduct on the part of the claimant in not wearing his glove was not in our view a reckless disregard for his own safety and something which he should have necessarily recognized as being likely to result in personal injury. Rather, it was an inadvertent omission on his part with respect to the usual way in which he performed his work duties. Therefore based on the facts of this case, we further find that section 4(3) of the Act is not applicable. Accordingly, the worker is entitled to wage loss and medical aid benefits that may be payable. The claimant's appeal is hereby allowed.

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 19th day of March, 2004

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