Physical Altercations in The Workplace and Removing Oneself From Being “In the Course of Employment”: Decision No. 463/22R2

  • April 17, 2024
  • Joanna Strozak, associate lawyer at Mathews, Dinsdale & Clark LLP

In the recently-released Decision No. 463/22R2, the WSIAT discussed and clarified the principles applying to workers’ compensation claims for injuries arising from physical altercations in the workplace. The decision concerned a worker’s injury arising from an altercation with a co-worker on a construction site, which resulted in the worker being thrown to the ground and sustaining a hip fracture.

The worker’s appeal was allowed, finding that despite having engaged in serious and wilful misconduct in the lead-up to the altercation, the worker had not removed himself from the course of employment. The WSIAT found the worker’s hip injury to be a “serious impairment," bringing him within the ambit of compensability under the WSIA.

BACKGROUND

Legislation

Under section 13 of the WSIA, workers are generally entitled to benefits for injury by accident “arising out of and in the course of his or her employment.” The no-fault nature of the workers’ compensation scheme under the WSIA allows workers to remain even where they are responsible, or partially responsible, for causing same.

Entitlement to WSIB benefits is also subject to the exception contained within section 17 of the legislation, which provides that injuries attributable solely to the serious and wilful misconduct of a worker are not compensable under the insurance plan, unless the injury results in the worker’s death or serious impairment. Interpretation of the terms “serious and wilful misconduct” and “serious impairment”  were at the core of the WSIAT’s analysis in this decision.

WSIB Policy

Additional policy guidance on this point is provided by WSIB OPM Document No. 15-03-11, “Fighting, Horseplay and Larking”. The Policy clarifies that while injuries from fights resulting solely over a personal matter are not compensable, injuries attributable to fights solely over work may be accepted if the injured worker was not an aggressor and did not provoke the fight, or was an innocent bystander. The Policy further provides that aggressors and participants in a fight take themselves out of the course of their employment.