- Arising out of employment (fighting)
- Initial entitlement
- In the course of employment (fighting)
The employer appealed the WSIB decision allowing a worker entitlement for injuries from an incident on October 4, 2022. On that day, the worker and a co-worker had two confrontations at a construction site: the first verbal with no physical contact, the second verbal with physical contact but no injuries. After work, the co-worker arranged for others to assault the worker at a nearby train station, resulting in a dislocated shoulder for the worker. Initially, WSIB denied the claim, but on appeal, entitlement was granted.
The Panel denied the employer's appeal, finding the initial dispute was work-related and the worker neither instigated nor voluntarily participated in a fight. The assault after work was directly related to the workplace confrontations, establishing a sufficient nexus to employment for entitlement under the insurance plan.WSIB Policy Document No. 15-03-11 generally denies benefits to workers injured while participating in fights, horseplay, or larking at work. However, if a fight results solely from work matters, and the injured worker was not the aggressor or a voluntary participant, entitlement may be allowed. Aggressors or voluntary participants remove themselves from the course of employment.The Panel found the conflict was entirely work-related based on several factors: i) the worker and co-worker did not know each other outside work; ii) they were placed together by the employer to perform work duties; iii) there was no prior interpersonal conflict; iv) the dispute concerned the co-worker's inadequate performance affecting the worker's safety on a construction task; and, v) witnesses corroborated the worker's complaints about the co-worker's lack of work. The Panel rejected the employer's claim that the dispute was personal, noting that emotional responses do not change the work-related nature of a dispute. The worker admitted to using disrespectful language but denied initiating physical contact. The co-worker was found to have initiated the second confrontation by physically approaching the worker face-to-face. The worker's minimal physical response was characterized as self-defense, not voluntary participation in a fight. The assault after work was a planned attack by the co-worker and others, not a mutual fight. The Panel also found insufficient evidence that the worker invited a fight verbally and emphasized that even if such an invitation occurred, no fight ensued at that time. The subsequent assault was a unilateral attack, not a consensual fight.Despite the assault occurring off-site and after work hours, the Panel relied on legal precedent that "arising out of" means originating from employment. It analogized the situation to prior cases where violence originating in the workplace continued off-site. The worker was assaulted due to a workplace-related dispute, and the co-worker planned the attack during work hours. The involvement of non-workers in the assault did not sever the employment nexus because they acted in concert with the co-worker. The Panel reasoned that denying entitlement would undermine the protective purpose of the workers' compensation system and expose employers to civil liability.