Canadian Safety Reporter

11 Canadian HR Reporter, a Thomson Reuters business 2016 News | April 2016 | CSR Injury on lunch break while doing unauthorized work still compensable Worker didn't ask to use machine or if he should do the task but it met the requirements to be considered in the course of employment BY JEFFREY R. SMITH AN ONTARIO WORKER is en- titled to health care benefits for an injury suffered at work, even though the injury occurred while the worker was performing an unauthorized task on a machine for which he wasn't formally trained during his lunch break, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled. The worker was employed in a factory environment and his job duties included making deliveries in a truck. On May 23, 2012, the worker wanted to make wheel chocks for his deliv- ery truck, so he planned to cut a piece of steel about four inches by four inches and one-eighth of an inch thick, then weld it to other smaller pieces of iron. He felt the wheel chocks would help prevent his truck from rolling if he had to park on a slope, something he had heard could happen with the truck he was operating. The worker had engaged in other self-directed projects in the past and had never been ad- vised not to or disciplined by the employer. The worker started putting to- gether the materials for the wheel chock just before his lunch break. He was planning to use a ma- chine called a Cincinnati shear- ing machine to cut the metal to the size he needed, though he didn't have any formal training on the machine. He had his lunch and then, just before the end of his lunch break, he used the ma- chine to cut the metal. As the worker attempted to cut a piece of metal in the shearing machine, he slipped and severed his left third fingertip. After the accident, he had to stay at home to recover for a period of time, so the employer provided him with work he could do at home while he continued to earn full wages. Once the worker returned to work, the employer assigned him modified duties — organizing manuals — for two weeks. Af- ter that time, he returned to his regular duties and didn't lose any pay. Employer didn't authorize project The worker filed a claim for an entitlement to health care ben- efits for the injury and the em- ployer reported its concerns that the employee was injured on his lunch break while operating a machine that he was not trained to use. The employer also noted that the worker hadn't been asked to make wheel chocks, nor had he been authorized to do so, so his actions had taken him out of the course of employment and therefore negating any entitle- ment. An eligibility adjudicator for the Ontario Workplace Safety and Insurance Board (WSIB) investigated. The adjudicator found the worker had initial en- titlement for the injury as the worker, though not formally trained on the shear machine, had experience assisting co- workers on it and felt he was able to use it properly. In addition, the piece of metal the worker was cutting was not for personal use, but rather it was to create a wheel chock that he was planning on using later that day while making deliveries, which were part of his job duties. The adjudicator also consid- ered the fact the worker was on the employer's premises at the time of the accident, using the employer's equipment, and the accident occurred during work hours, even if it was during the worker's lunch break. The employer appealed to the adjudicator to reconsider and, when that wasn't successful, went to the WSIB appeals resolu- tion officer (ARO). The ARO denied the appeal and agreed with the adjudicator, finding that the accident was a chance event that wasn't inten- tional and occurred during the course of the worker's employ- ment. "In a chance event accident the presumption clause applies, it is presumed that the injury was in the course of employment if it arose out of and vice versa, un- less the contrary is shown," said the ARO. "In this case I consid- ered the worker was not repri- manded for using the machine; it was not established that the use of the machine was for anything other than what the worker stat- ed. Rather I find the worker was engaged in an activity reasonably related to his employment and was injured doing so." The employer appealed once again, this time to the Workplace Safety and Insurance Appeals Tribunal. The tribunal referred to the WSIB policy manual, which states "a personal injury by ac- cident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related." The manual also indicated that an injury at the workplace during business hours where the worker has a fixed workplace and fixed working hours will generally have occurred in the course of employment. In addition, if the injury occurs while the worker is performing an activity "reason- ably incidental to the employ- ment," this would also qualify as happening in the course of em- ployment. The tribunal found the work- er believed the wheel chock he was making was necessary for his delivery work — something the employer's health and safety specialist confirmed — he wasn't making something for his per- sonal use and, though the injury occurred during his lunch break, he actually started the project be- fore his lunch break. Either way, the accident occurred during work hours and at the worker's regular place of work, said the tribunal. The tribunal also agreed with earlier findings that while the worker wasn't formally trained on the shearing machine, he had helped others on it previously and felt he was able to operate it. Since the worker hadn't been dis- ciplined or warned after he did other projects on his own with- out being requested to, he had no reason to believe he shouldn't have taken on this project that was related to his job duties, said the tribunal. The tribunal upheld the deci- sions of the eligibility adjudica- tor and the ARO and found the worker's finger injury occurred in the course of his employment, making him entitled to health care benefits under Ontario's worker's compensation legisla- tion. For more information see: • Decision No. 2181/15, 2016 CarswellOnt 2016 (Ont. W.S.I.A. Trib.). e employer argued that the worker hadn't been asked to make wheel chocks nor had he been authorized to do so, so his actions took him out of the course of employment

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