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 September 13, 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 on December 29, 2014 reporting that he was threatened and physically assaulted by a co-worker on May 23, 2014.

The Employer's Accident Report dated December 31, 2014 stated there were no reported incidents for the worker on May 23, 2014 and they therefore believed it was a non-occupational incident.

File records contain a handwritten letter from the worker received at the WCB on February 2, 2015 which describes the events that occurred in the workplace on May 23, 2014 between 12:00 and 1:00 p.m. The worker reported that he left his work station to go eat lunch in the lunchroom. The room was almost full of workers, and he found a chair with a pair of dirty gloves on it. He removed the gloves and placed them on the rim of a garbage bucket. Shortly afterwards, he was approached by a co-worker who asked what the worker was doing sitting in his seat. After a few verbal exchanges, the co-worker "grabbed me outta my chair, I pushed him away from me and then he charged at me and we ended up on the floor with me on top of him...I got up, then he charged me again and began choking me to the point of regurgitating my food and would not let go of my throat until another worker pulled him off of me…"

The worker stated that he went to the washroom to clean up his hand because it was bleeding in several places. He then went to the supervisor's office which was attached to the lunchroom. He told his boss that he was leaving and didn't feel like talking at that time. He then got dressed and went home. The worker indicated that he was supposed to go to work the next day, but didn't go, as he was bruised in a couple of places and his left hand was swollen.

The worker indicated that on May 27, 2014, he requested an 8-week personal leave of absence to try and deal with all the issues he was having. He said he was told that he could probably not get that time off, and even if he did, the employer would require some sort of documentation.

The worker stated that he submitted his letter of resignation on May 29, 2014 because he could not go back to "that toxic workplace." The worker indicated that a month or so prior to the altercation, the co-worker had approached him and said there was a job opening at another building on site and he should apply for it.

The worker said he did not seek any medical attention because he was not physically sick as of that day, except for the problem with his left hand. He said he became depressed and hardly left the house. This had caused problems in his personal relationship and financially, which added to the stress. He also kept playing the incident and what happened over and over in his mind, trying to figure out what he had done so wrong to get the treatment that he got.

The worker stated that he became very sick the previous year, and his doctor took him off work and gave him a note, but it did not have a return to work date on it. He was prescribed medication for a chest infection at the time, and was told to go a hospital emergency facility, but he declined to go, as he did not want to miss any work. He had to sign a waiver before he could leave the doctor's office, which he did, and he returned to work on his next set of day shifts. The worker said his health kept getting worse and after the incident on May 23, 2014, he could not return and decided it was in his best interest to quit. He applied elsewhere with the intention of going back to work, but kept getting panic attacks and depression.

In a memorandum dated March 24, 2015, the WCB adjudicator documented information she obtained from the foreman, who stated he had no knowledge of the lunchroom incident. He said the worker sort of rushed into his office that day, opened the door really quick, and said he had to go home and didn't want to talk about it. The worker seemed a bit upset but it was nothing out of the ordinary. He asked the guys in the lunchroom what happened and everyone just shrugged their shoulders.

The WCB adjudicator also spoke with the worker's superintendent who confirmed that the worker sent him an e-mail on December 31, 2014 reporting that an injury had occurred on May 23, 2014, but that he did not know what to make of it. The representative advised that the worker sent him an e-mail requesting time off and he sent an email back to the worker indicating that he needed more information. The worker replied that he needed to go back home as he just had a grandchild. He told the worker that it was unlikely he would get the time off.

In a memorandum dated March 25, 2015, the WCB adjudicator documented that she spoke with the co-worker who the worker had identified as his assailant. The co-worker confirmed that an incident took place in the lunchroom between him and the worker.

On March 30, 2015, the WCB determined that an incident as described by the worker did occur on May 23, 2014 but that it was unable to establish that the worker's stress-related difficulties were related to an "accident" as defined by The Workers Compensation Act (the "Act"). The decision was based on the following factors:

• the worker did not report any injuries or difficulties to his employer until December 31, 2014;

• the worker did not seek medical attention; 

• when requesting a leave of absence, the worker indicated he wanted time off to attend a sick relative and to visit a grandchild; 

• the worker did not report any issues to his employer when he resigned.

On April 30, 2015, the worker appealed the March 30, 2015 decision to Review Office. The worker argued that not seeking medical attention and late claim filing were irrelevant. It did not mean he did not sustain injuries.

On June 29, 2015, Review Office determined that the claim was not acceptable. Review Office stated in part that no valid indication was provided that the worker sought or had been diagnosed with any psychological or physical condition that would allow them to relate this to the events which occurred in the workplace on May 23, 2014. Based on the evidence, Review Office found that the claim did not meet the requirements of an accident as outlined by the Act.

On September 9, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing by teleconference was arranged for February 4, 2016. As the Appeal Commission was not able reach the worker by teleconference on that date with the telephone number he had provided, the hearing was adjourned.

On March 20, 2017, the worker filed a new appeal with the Appeal Commission regarding the decision made by Review Office and a hearing was arranged for September 13, 2017.

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.05, Arising Out of and in the Course of Employment ("Policy 44.05"), provides general information on the interpretation of the phrase arising out of and in the course of employment and states, 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. … 

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.

WCB Policy 44.10.60.40, Accidents Occurring in Lunchrooms (the "Lunchroom Policy"), specifically addresses incidents or accidents in lunchrooms, and provides as follows:

When an employer provides a lunchroom, accidents occurring in it are considered to be compensable, provided the worker has not created his or her own hazard.

When a worker sustains an injury during a lunch hour, coffee break, or other similar period, that injury will be considered to have arisen out of and in the course of employment provided:

a) The injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, and

b) The injury arises from a hazard of the facility, and not a personal hazard.

Worker's Position

The worker was self-represented, and participated in the hearing by teleconference. The worker made a brief presentation and responded to questions from the panel.

The worker's position was that he was attacked at the workplace and had not been the same since then, and that his claim should be accepted.

The worker said that the injury he suffered is stress. He said that he was nearly choked on the lunchroom floor. He confirmed that the altercation occurred while he was on his scheduled lunch break in the lunchroom. The lunch room is on the employer's premises. He went to his supervisor after the altercation and told him he was leaving. He did not say anything else. The worker said that he was a victim of workplace violence.

In terms of how this was connected with the job duties, the worker stated that he would not have been in this situation if he was not at work. He said that he knows he is suffering from stress because he has not been the same since the incident. He requested a leave of absence because he did not want to go back to that situation. He said he has not worked since the incident. He has applied for jobs, but cannot go through the interview process because he is so stressed. He said he needs help with the stress and financially.

Employer's Position

The employer was represented by its WCB Coordinator. The employer's position was that the evidence does not satisfy the criteria under the Act or provide proof of an accident, and the worker's claim is not acceptable.

In particular, the employer representative submitted that:

• In email correspondence around May 27, 2014, the worker requested a leave of absence for 8 weeks. Two days later, he resigned, stating that he could not thank the company enough for the opportunities they had provided. This correspondence, and the fact that the worker left work on the day of the accident without mention of the altercation, are not consistent with an injury or an accident. 

• The worker applied for another position with the employer almost 8 weeks after he resigned. This is not consistent with his claim that this was a "toxic environment" where he could no longer work. 

• In the handwritten statement he submitted to the WCB on January 31, 2015, the worker indicated that his problems with depression and anxiety arose out of the way he was treated during the recruitment process. This does not fit with his claim that the May 23 altercation was the cause of his problems. 

• The altercation was an escalation of a personal conflict and was not in the interest, direction or control of the employer. Both workers actively participated in the altercation. 

• The worker did not provide notice of the accident within the time limits under section 17 of the Act. 

• There were no medical documents to support the claim or any time loss resulting from a work-related injury.

Analysis

The issue before the panel is whether or not the worker's claim is acceptable. For the appeal to be successful, the panel must find that the worker suffered an injury by accident arising out of and in the course of his employment. The panel is not able to make that finding, for the reasons that follow.

The panel accepts that the incident occurred. The panel notes that the worker and co-worker who were involved described the incident in the same way. The employer's representative indicated at the hearing that the employer did not dispute that there was an incident.

To be acceptable under the Act, a workplace incident must have been the result of an accident "arising out of and in the course of employment". A number of WCB policies have been developed to clarify these terms.

More specifically, the Lunchroom Policy provides when a worker sustains an injury during lunch hour, the injury will be considered to have arisen out of and in the course of employment provided that:

a) The injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, and

b) The injury arises from a hazard of the facility, and not a personal hazard.

Both of these criteria under the Lunchroom Policy must be satisfied for such an injury to be considered compensable.

Based on the evidence, the panel finds that neither of these criteria has been satisfied.

With respect to the first criterion, that the injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, the panel is not able to find that engaging in an altercation with another individual is "making reasonable and proper use" of the lunchroom. While the worker has described himself as a victim, the evidence indicates that he was an active participant in the events leading up to the altercation and the altercation itself.

With respect to the second criterion, that the injury arises from a hazard of the facility, and not a personal hazard, the panel finds that engaging in an altercation with a co-worker is a personal hazard, and not a hazard of the facility. The evidence indicates that the incident took place in the lunchroom behind closed doors and the supervisor was not present. There is no indication that what took place between the worker and co-worker was in any way condoned by the employer or in any way part of the worker's job duties. The panel notes that Policy 44.05 states that "Accidents arising out of purely personal sources over which the employer has no control are generally not compensable."

In conclusion, the panel finds that the May 23, 2014 incident and the worker's stress-related difficulties do not satisfy the requirements of the Lunchroom Policy or of subsections 1(1) and 4(1) of the Act. The worker therefore did not suffer an injury by accident arising out of and in the course of his employment, and his claim is not acceptable.

The worker's appeal is dismissed.

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 10th day of November, 2017