CA 250

Posts from 2015-11-06

Employer wins extension of Time Limit to Appeal and then successfully appeals Entitlement


The claim was initially allowed after the worker suffered multiple injuries (fracture and sprain) falling from a counter-top in the cafeteria in which the worker was employed. The incident occurred outside of the worker’s usual working hours and did not involve a task for which the worker was being compensated by the employer in any manner. The worker did however have permission of the employer to decorate the room after hours. The fact that the employer had granted permission to three employees to decorate the cafeteria for a colleague who was transferring to another department, that the injury took place on the employer’s premises and that the activity allegedly benefitted workplace morale led to the WSIB seeing the activity as “reasonably incidental” to the workplace.

The employer initially proclaimed their objection to entitlement on the Form 7, and later in a telephone conversation with the Eligibility Adjudicator, a conversation which was mentioned in the Adjudicator’s decision. They faxed their written objection the day the decision was received, but upon reviewing this claim as new employer representatives it was discovered that there had been an error message on the fax transmission sheet and that the written objection had never been received by the WSIB. A new objection was submitted, citing the employer’s intention to object as expressed in the Form 7 and over the phone. The Eligibility Adjudicator denied the employer’s right to object on the grounds that the timeline had not been met. We appealed this decision on the merits and justice of the case, asking that the employer’s clear intent to object be recognized in spite of their unfortunately unnoticed mistake. Nearly four years after the date of injury, the Appeals Resolution Officer agreed and allowed the employer to proceed with their objection.

Four months later, an Appeals Resolution Officer (ARO) overturned entitlement . The employer’s appeal focused on three elements of the case: 1) the worker was engaged in a personal activity not reasonably incidental to their employment, and 2) the incident happened outside of working hours and was not organized or paid for by the employer, and 3) the employer did not experience any direct benefit from the actions of the worker. In fact, this large employer (hospital) with approximately 2000 employees would suffer a detriment if workers were regularly granted permission to engage in this type of personal activity.The Director of Food Services, in granting permission for the workers to engage in this personal activity very wisely set out some clear guidelines which were: 1) it had to be done on their own time 2) It had to be done after work 3) the decorations had to be removed after the day was completed and 4) the decorations had to be acceptable to their public health and safety. Even with these very clear restrictions, the claim for an injury arising out of a personal activity after work was still allowed by the WSIB. This claim cost the employer over $80,000 which will now be refunded by way of a manual adjustment plus interest.  

The ARO found particularly convincing that the employer had no involvement in the activity other than providing permission, that the worker was acting to satisfy a personal need rather than a professional one and that the activity engaged in by the worker was not at all typical for employees but rather if conducted at all, would be performed by management.  Both of these employer appeals were done by written submission only.