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 March 15, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB for an assault that occurred on August 25, 2016. The worker advised that he attended a trailer owned by his employer at about 11:00 p.m. to speak to a contractor who was working on the trailer. When he was there 3 other people arrived, they were all drinking. He was subsequently assaulted by the contractor and another person.

When seen for medical treatment on August 29, 2016, the treating physician reported: "fight at a friends (sic) trailer, after drinks and a wrestling match, followed by a home invasion by same people with subsequent trauma."

On October 19, 2016, a WCB adjudicator contacted the worker to gather additional information related to the events that occurred on August 25, 2016.

In a decision dated October 27, 2016, the worker was advised that his claim for compensation was denied as "…the details of the August 25, 2016 situation did not "arise out of and in the course of" your employment. The claim evidence establishes that you were involved in a personal dispute/altercation with other parties which was unrelated to the nature, conditions or obligations of your employment."

On November 4, 2016, the worker appealed the October 27, 2016 decision to Review Office. The worker stated:

Firstly, this did not happen at a friends place. The incident happened at…a [trailer] owned and under renovation by my employer…Secondly, the persons who assaulted me are not friends, it was a contractor and his nephew, the contractor was contracted by my employer to do renovate (sic) the vacant [trailer]. I was responsible in my course of employment to oversee the renovations…Therefore contrary to the reasons given in your decision that this happened at a friends place, with a friend the truth is this happened at my employers trailer, with a contractor, I would never have been there if not for my employment obligations.

On January 5, 2017, Review Office confirmed that the claim was not acceptable. Review Office noted that the worker went to the trailer and found the contractor was doing some repairs. The worker stayed and consumed alcohol and then partook in some arm and leg wrestling. These activities (consuming alcohol and wrestling) were a substantial deviation from the worker's employment activities to the extent that there was no longer a connection between these activities and his employment. Review Office determined that the worker's injuries did not arise out of or in the course of his employment and the definition of an accident had not been met. On January 5, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides:

4(1) 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.

Accident is defined in subsection 1(1) of the Act, which provides 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;

The worker is appealing the WCB Review Office decision that his claim is not acceptable.

Worker's Position

The worker was self-represented.  He explained that he was assaulted while performing his employment duties.  He said that when he fired a contractor, the contractor "punched me in the eye and knocked me into the ground, and he punched me in the forehead four times."  He submitted that the assault was work-related.

The worker advised that his duties involve site management, operation of the water treatment plant and supervision of other work being performed at the site.

Regarding the August 25, 2016 incident, the worker explained that the owner of the site had hired a contractor to renovate a trailer.  The owner was concerned about poor progress being made with the renovations, so asked the worker to keep an eye on the work.  The worker advised that he saw a light on at the trailer at about 11:00 PM one evening.  He went into the trailer to talk with the contractor.  He said he spoke to the contractor about his work and the owner's concerns about his performance of the contract.  He advised that the contractor offered him a drink and then made a telephone call and that three people, the contractor's nephew, his girlfriend  ,C, and a friend, subsequently attended at the trailer.  He said the contractor continued working,  and that there was a "comedy atmosphere" with lots of humour.  The attendees were drinking beer.  The worker acknowledged that while he does not drink beer, there was other alcohol present which he drank.

The worker said that the contractor continued to work and wanted more beer.  The worker explained that the contractor gave C money to buy beer. C and the worker went to the local beer vendor and picked up more beer.  The worker allowed C to drive his car because she expressed interest in the car.

He advised that the beer store was close to the site.  When they returned from getting beer, the worker and C participated in some wrestling activities. The atmosphere changed and the nephew became aggressive.  The worker then attempted to walk away but the nephew attacked him. Both the nephew and C assaulted him.  He said that the contractor then assaulted him, knocking out a tooth.  He said:

And after he was aggressive like that and I’m missing a tooth, and they’re treating me like that, I told him he was fired.

The worker said that when he told the contractor he was fired, the contractor punched him in the eye and got on top of him and punched him four times in the forehead. The contractor also kicked him when he was on the ground.

In reply to a question, the worker advised that;

I fired him because he was aggressive and he was allowing what was happening to go on. But I was planning on firing him anyway, because the project was taking too long and he was doing work he wasn’t supposed to do.

The worker then went to his home which was in the site.  A couple hours later, the nephew and C attended at his home and the nephew assaulted him again. C then called the police. 

The worker said that he believes that the contractor was angry about his comments regarding the work and that the gathering was a set-up by the contractor to get him.

In response to a question about participating in the party, the worker said that:

"…this wasn’t a social event, but I felt like…they wanted me to be there and I felt like it was just public relations..."

The worker told the panel that he often visits with the residents. The worker acknowledged drinking alcohol that night but compared this to having coffee with an elderly resident. 

The worker advised that he has known the contractor for more than 10 years and has worked with him on past occasions.

In answer to questions from the panel, the worker confirmed that he missed time from work but has returned to work.  He also provided details of medical treatment he has received as a result of this injury and his past injuries.

Employer's Position

The employer, an incorporated entity, was represented by its owner. The owner confirmed that his company operated the site and owned the trailer where the assault occurred.  He indicated that the worker was employed as the manager of the site. He also confirmed that he was not present during the incident.

He advised that he had purchased a trailer and hired a contractor to renovate the unit.   As the contractor was taking longer to complete the work than expected, the owner asked the worker to keep an eye on this trailer and contractor.  He said that he understood the worker saw activity at the trailer that evening and went to speak to the contractor. 

The owner stated:

Anyway, so he went to -- he noticed the car there at night, like, he usually drives around and checks to see if everything’s okay and so on. And then I think it was around 11:00 at night, he drove, he saw the contractor’s car at this trailer that we own.  And so he went in, he had already known I was concerned about what was going on there, so he went in to see what, you know, address the situation. The contractor, subsequent to [the worker] arriving, had…some of his friends come over and they were having a drinking party, they were drinking beer.

He said that the worker fired the contractor and subsequently the contractor assaulted the worker. 

The owner submitted that:

But anyways, the incident took place at the workplace, so it was at a home owned by the [employer] which [the worker] was required to oversee.  He was doing work for the [employer], he was on duty, doing his work, and making sure that things were sort of progressing fine.

He submitted that the worker "…met all the conditions to qualify for Workman’s Compensation."

Analysis

The worker appealed the WCB decision that his claim was not acceptable.  For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker sustained personal injury by accident arising out of and in the course of his employment.  The panel was not able to make this finding.

As a preliminary matter, the panel was advised by the worker that he had suffered a brain injury.  The panel carefully explored the nature and extent of the injury insofar as it might affect the quality of his evidence, with both the worker and his father.  The panel found the worker to be an excellent historian.  His recall of events was detailed and correlated closely with the information he provided at the time of the incident.  He spoke clearly and answered questions appropriately.

From the information on file and that provided at the hearing, the panel finds that the worker was not in course of his employment when he was assaulted.  While the panel finds that the worker was initially in the course of his employment when he attended at the trailer to speak with the contractor about the performance of the contract, the worker's status in the trailer changed when the other persons arrived, alcohol was consumed and other activities took place.  The evidence supports a finding that the worker participated freely with the other persons in the social activities.  

With respect to removing himself from his employment, the panel finds that his actions as the manager of the site and his status as a worker, in the course of his employment, changed over the course of the evening and particularly when:

• he accompanied C to the beer vendor to pick up beer, and
• he participated in wrestling activities with C

The panel finds that the above noted activities are a substantial deviation from the worker's employment duties to the extent that there was no connection between the activities and his employment.  Accordingly, the injuries did not arise out of or in the course of his employment and the requirements of the Act have not been met.

The panel notes the worker's position that in remaining at the trailer and participating in the activities, he was fulfilling a public relations function on behalf of the employer.  The panel acknowledges that there is a public relations component to the worker's job, which would have occurred in close proximity to the worker's original discussion with the contractor inside the trailer.  The panel finds, however, that the worker's ongoing activities greatly exceeded this role.  He became a willing participant in a broader social partying setting which later turned sour.  Unfortunately for the worker, the evening later took a bad turn resulting in the assaults.  The panel notes the evidence that the assaults were initiated by the nephew who was angry about the worker's treatment of C.  The panel finds that the assaults occurred as a result of the social interaction at the trailer and not as a result of work duties performed by the worker.

The worker stated that the contractor assaulted him when he fired the contractor.  The panel notes, pursuant to the worker's evidence, that the assault by the contractor started before the worker fired the contractor rather than as a consequence of the firing, and continued after this occurred. The panel considers the firing was a reaction to the assault, but that it did not occur while the worker was in the course of his employment. 

In conclusion, based on the evidence, the panel finds, on a balance of probabilities, that the worker was not in the course of his employment at the time of the assaults and is not entitled to WCB coverage.

The panel recognizes that this was an unfortunate event and has resulted in serious injury and loss to the worker, but the panel is not able to find that the incident was work-related.

The worker's appeal of this matter is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of April, 2017