Workers’ comp pays benefits to workers who suffer injuries that are work-related. But there’s one kind of work-related injury workers’ comp won’t pay for: injuries caused solely or primarily because of a worker’s own “wilful misconduct.” So what constitutes wilful misconduct? Here are two cases in which a workers’ comp board or commission had to decide whether to deny a claim because of a worker’s wilful misconduct.
A worker at a group home was assigned to supervise a client who had a history of acting out physically and of escalating behaviour. When the client refused to go to school, the worker forced him to go. He was disruptive at school and was asked to leave. The worker went to the school but instead of bringing the client home, he took the client back into the school. The client began acting aggressively. Rather than leave the area, the worker confronted the client, who then assaulted him. The worker filed a workers’ comp claim for the injuries he suffered in the assault.
The BC Workers’ Compensation Appeals Tribunal denied the claim, ruling that the injury was caused by the worker’s wilful misconduct.
In determining whether a worker’s injury was the result of wilful misconduct, the Tribunal looked at whether the worker was aware of a rule and knowingly chose to break it. In this case, the worker had reviewed and signed off on the risk assessment book for the client, which detailed the rules for dealing with him. For example, the rules said not to force the client to do anything he didn’t want to do. So the worker shouldn’t have forced the client to go to school. And the rules required the worker to leave the area when the client began acting out physically. Instead of leaving, the worker confronted the client. The worker not only failed to follow these rules, but also argued that the rules didn’t “work in the real world.” The Tribunal concluded that if the worker had followed the detailed rules for dealing with this client, the assault would never have happened. Thus, but for the worker’s “serious and wilful misconduct,” he wouldn’t have been injured.
WCAT-2008-01404,  CanLII 33554 (BC W.C.A.T.), May 12, 2008
A worker was driving a tractor trailer containing chemicals to a customer for delivery. As he made a left turn at an intersection, the truck overturned, spilling the chemical on the roadway. The police issued the worker a ticket for careless driving. No other vehicles were involved in the accident. However, the worker was hurt and filed a workers’ comp claim.
The Appeals Commission for Alberta Workers’ Compensation approved the claim, ruling that the injury wasn’t caused by the worker’s wilful misconduct.
The worker’s employer argued that the worker’s serious and wilful misconduct violated both company policy and the traffic laws and caused the accident, which resulted in his injuries. It claimed that the worker had been speeding and driving unsafely. But the Commission disagreed. There was no evidence that the worker was speeding. And although he got a ticket for careless driving, there was no evidence he was convicted of that charge. There’s no question that the worker deliberately made the left turn. But there was nothing to suggest that he deliberately disregarded safety when doing so. Thus, his behaviour in relation to the accident didn’t constitute serious and wilful misconduct, concluded the Commission.
Decision No. 2010-542,  CanLII 38710 (AB W.C.A.C.), July 7, 2010