Serious and Willful Misconduct
When evaluating occupational injuries arising from WorkSafeBC claims, it is crucial to consider the mechanism of injury and whether a claim satisfies the appropriate law and policy. Often a question that arises from employers is, “Is this really an acceptable claim?”, to which we often retort, “Yes, stupidity is covered!” However, luckily, there are exceptions to this statement.
In BC, the bar is set quite high for Policy item C3-14.10 – Serious and Willful Misconduct to be applied. However, with detailed documentation and supporting evidence, we can be successful in our objections to claims that meet the correct criteria.
The policy states that it must be considered whether the worker engaged in a deliberate and intentional violation of rules, regulations or laws known to the worker and whether this violation was in reckless disregard for their own safety. Furthermore, it must be demonstrated that the worker should have recognized this violation has the potential to result in injury.
It must also be considered whether the injury was solely attributed to the serious and willful misconduct. Simply put, this means without the misconduct the injury would not have resulted. The injury needs to be considered serious. The word serious is used in a physical rather than economic sense. For example, if a worker suffered a sprained wrist or finger which caused two or three weeks of lost wages, this may not be considered as a serious disablement event. If a worker’s injury that was attributed solely to the worker’s serious and willful misconduct did not result in death or serious or permanent disability, it is not compensable, even though it also arose out of and in the course of employment.
In a recent claim that I objected to there was a signed employee safety training policy and agreement which stated, “At no time should a team member stand on a 4-wheeler with or without a brake(s). Standing on a 4-wheeler with or without a brake(s) is seen as an unsafe act. Safety tip: If a product cannot be reached by a ladder it is stacked too high”. In this case, the worker was standing on a four wheeled wheeler in the freezer and fell off while reaching for product.
In the resulting decision letter, the Case Manager appropriately applied law & policy as follows:
“….I accept that the injuries arose out of and during the course of your employment. Clearly the evidence supports that the injuries resulted from a fall incident from a height, landing awkwardly against a skid and also landing on the floor, while you were performing an activity associated to the work. In addition, the incident was witnessed and reported.
However, I must also consider…..Policy item #14.10. In this case I find the injuries did result from serious and willful misconduct. I find the act of getting on the 4-wheeler was willful and that you were aware of the rules provided by the employer. This is supported by your recent acknowledgement of the refresher safety training, which specifically provided a rule against getting onto a 4-wheeler at any time. I also accept that you would have recognized the potential for injury in doing so. I find the injury resulted from the fall from this wheeler. I find the injuries were not serious in the meaning of the policy. While I recognize there is a resulting financial concern, I do not find the injuries to be ones that resulted in serious, or permanent impairment. In conclusion, I find the claim must be barred to compensation under Section 5(3) of the Workers’ Compensation Act.”
Having the correct documentation is key in the success of applying this policy. In this case, the employer has very specific, clearly worded instructions and guidelines to which the employee must sign as part of their annual Health & Safety Training.
It is possible to object to “stupidity” when employer instructions and guidelines are deliberately ignored by workers. The above law & policy, along with reasons for the decision, demonstrate just that.
Natasha Johnson is a Senior Return to Work Coordinator with TeksMed Services