The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on November 9, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The accident employer filed an Employer's Incident Report with the WCB in October 2015 to advise that the worker suffered an injury to his left hand on October 26, 2015. The employer reported that while working at a project, the worker had noticed that tools had been stolen from his tool bag several times in previous weeks. On realizing that a newly-purchased set of tools had been stolen, the worker, out of frustration and before thinking, punched a junction box and suffered injury to his left hand.

On November 4, 2015, a WCB adjudicator spoke with the worker, who confirmed the accident description as outlined by the accident employer. The worker explained that he has high anxiety and that the incidents at work took him past the point of where his medication normally calmed his stress and anxiety. In a further telephone conversation with the adjudicator on November 13, 2015, the worker indicated that he was stressed that his employer was not doing anything about his tools being stolen.

On November 16, 2015, the worker was advised that his claim was disallowed as the WCB was unable to establish an accident occurred as a result of his work duties. The adjudicator based her decision on WCB Policy 44.05.30, Adjudication of Psychological Injuries, stating that:

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no wilful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

In email correspondence dated December 9, 2015, the worker asked that the adjudicator reconsider his claim based on WCB Policy 44.10.30.30, Serious and Wilful Misconduct.

On December 24, 2015, the worker was advised that no change would be made to the original decision. The adjudicator stated, in part: "For a claim to be accepted under the Misconduct policy the first criteria still remains that your injury has to be the result of your job duties. Given you hurt yourself and were not injured as a result of the work you were performing we remain unable to accept your claim."

In a submission to Review Office dated February 8, 2016, a worker advisor requested reconsideration of the adjudicator's decision to deny the worker's claim. The worker advisor contended that the October 26, 2015 incident occurred within the time and location of employment. The obligation and conditions of the worker's employment were that he have his own tools to perform his duties. The worker was in the process of getting his tools to perform his duties when he discovered a recently purchased tool was missing, contributing substantially to the October 26, 2015 incident. It was their opinion that the October 2015 injury met the requirements of subsections 1(1) and 4(1) of The Workers Compensation Act (the "Act").

In a submission to Review Office dated March 15, 2016, the employer's representative indicated that they supported the WCB's decision to deny the claim. The employer's submission was then forwarded to the worker and his worker advisor for comment. A response from the worker dated March 28, 2016 is on file.

On April 5, 2016, Review Office confirmed that the claim was not acceptable as it was unable to find that an accident occurred on October 26, 2015 as defined by subsection 1(1) of the Act.

Review Office found that the WCB's Misconduct policy was not applicable in this case. The legislation specific to the application of subsection 4(3) of the Act and the Misconduct policy only applied if subsection 1(1) of the Act was satisfied. It was Review Office's opinion that the worker removed himself from his employment when he punched the junction box. This reaction/action was not related to the performance of his work duties. Therefore, the worker did not have an accident as defined by subsection 1(1) of the Act.

On April 22, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

"Accident" is defined in subsection 1(1) of the Act as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes (a) a wilful and intentional act that is not the act of the worker, (b) any (i) event arising out of, and in the course of, employment, or (ii) thing that is done and the doing of which arises out of, and in the course of, employment, and (c) an occupational disease, and as a result of which a worker is injured.

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides, in part:

Generally, an injury or illness is said to have "arisen out of employment " if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

…

While workers are on the employer's premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises.

…

Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of the worker's employment, when a worker is engaged in personal activities not related to or required by his or her employment the resulting injury would not be compensable. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.

Worker's Position

The worker was represented by a worker advisor, who made a presentation on his behalf. The worker participated in the hearing by teleconference. The worker's position was that the injury to his left hand arose out of and in the course of his employment on October 26, 2015 and his claim should be accepted.

In response to questions from the worker advisor, the worker described his work with the employer, and what happened on October 26, 2015. He said that it is the nature of the work that workers are expected to supply their own tools, and referred to a long list of tools which he had to have for the job. Workers would store their tools in a big steel toolbox provided by the company, with company locks on it. All of the workers had keys to the toolbox, which was located in a high traffic area.

The worker said that a number of his tools had been stolen prior to October 26. He had told the superintendent about this, but nothing had been done. On October 26, the worker went to get a specific tool out of his tool bag, which was in the toolbox, but the tool was not there. The worker needed that tool for the particular work he had been assigned to do that day, and had purchased it specifically for doing that work, at a cost of over $100. When he could not find the tool, he asked around and the consensus was that somebody must have taken it. After talking with the people in the office and the superintendent, he went to pack up his tool bag, then reached out and hit the junction box, breaking his hand.

Noting that workers compensation is a no fault insurance plan, the worker advisor submitted that the worker should not be held responsible for the left hand injury. It was submitted that the injury arose out of employment as it was caused by a hazard which resulted from the conditions or obligations of the employment. The hazard was the theft of the tool which the worker was required to provide. The incident occurred in the course of employment, during the time and at the location of employment. The worker was in the process of getting his tools out of his tool bag for work when he discovered that the tool had been stolen.

The worker advisor also submitted that the theft of a tool which was necessary to the worker's employment constituted an environmental hazard associated with the employment, and noted that workers are entitled to compensation for accidents arising out of the employment premises.

It was further submitted that the obligations of the worker's employment contributed substantially to the aggravation of a situation that resulted in an injury. The worker had spoken to the employer about previous thefts of his tools, but the employer had taken no action to deal with the situation. The employer had control over the company toolbox where the worker's tools were stored and over the premises. The employer also had control over the action of its employees with regards to theft. The theft of the worker's tool was a wilful and intentional act that was not the act of the worker, and met the definition of an event arising out of and in the course of employment that resulted in an injury.

The worker advisor submitted that the worker's act of hitting the junction box was an impulsive response and not a wilful or intentional act on his part. The worker did not remove himself from employment when he hit the box as he did not have time to think about it.

In conclusion, it was submitted that the worker's claim met the requirements of subsection 1(1) of the Act and WCB Policy 44.05, and should be accepted.

Employer's Position

The employer was represented by its Ability Manager. The employer's position was that the worker's injury did not arise out of or occur in the course of his employment.

The representative submitted that the employer did everything it could to provide a safe work environment for its workers. It made what it believed were reasonable provisions for workers to store their tools. The employer did not introduce a hazard into the workplace.

It was submitted that the worker was responsible for his own behaviour. In the employer's view, the worker removed himself from his employment when he punched the junction box and injured his hand. The employer's representative recognized that the worker was frustrated by the situation involving the theft of his tools, but submitted that this was not a WCB issue, and the appeal should be dismissed.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the worker sustained an injury arising out of and in the course of his employment. Both tests must be met for there to be an accident under subsection 4(1) of the Act. The panel is unable to make that finding.

The employer's representative acknowledged, and the panel accepts, that the October 26, 2015 incident occurred in the course of the worker's employment. The worker was already at work on a scheduled work day, and the incident occurred as he was getting ready to start his job duties. Thus, the first test has been met.

The panel is unable to find, however, that the worker's injury arose out of his job duties or employment. The panel finds that the act of punching the junction box, which resulted in the injury to the worker's hand, was a personal act of self-harm which fell outside the scope of the Act. That act was initiated by a work-related incident, namely the alleged theft or loss of the worker's tools, but it was the worker's choice to respond or react to that incident as he did. The panel recognizes that the worker was frustrated, but finds that his action/reaction in physically attacking company property (and a consequential personal injury) was clearly outside of the realm of the worker's job duties, and constituted the type of personal act which removed him from his employment.

The panel notes that the worker advisor stated during the course of the hearing that the worker's appeal and their argument were based on the physical aspect of the claim only. Their focus was therefore on the fact that the event occurred and resulted in the worker being injured. While there had been references previously to psychological injury, the advisor confirmed that they were not arguing or relying on any psychological injury on this appeal.

Based on the foregoing, the panel finds that the worker did not sustain an injury arising out of and in the course of his employment, and his claim is therefore unacceptable.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer

A. Finkel, Commissioner

M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of January, 2017