Construction worker attacked after confronting individual who damaged his car in lot used by employees
An Ontario construction worker is not entitled to compensation for injuries sustained in a fight in the employer’s parking lot because he removed himself from the course of employment, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The worker was a layout man at a condominium construction site, responsible for marking locations for workers to build concrete building structures based on blueprints. Workers at the site parked their vehicles in a parking lot adjacent to the site, which was fenced off for use by construction workers.
On June 1, 2007, the worker’s car was damaged while parked in the lot. Four days later, after he clocked in at work, he identified the person who hit his car. The other worker worked for another company that worked at the site and shared the parking lot.
The worker approached the other to ask him to take responsibility for the damage. The other swore at him and when the worker said he was going to call the police, the other attacked him. The worker was smaller and didn’t fight back, so he injured his head, neck, back, shoulder, both arms and one elbow. When police were called, the other individual was charged — and later convicted — of assault.
The worker reported his injuries to his foreman and went to the hospital for treatment. He and his employer both filed report of accident forms with the Workplace Safety and Insurance Board (WSIB) and the worker filed a claim on the basis that the parking lot was restricted to workers wearing protective equipment and therefore part of the workplace. He also made it clear that he didn’t get in a fight, but rather was assaulted. In addition, the altercation took place during the normal hours of work, said the worker.
The worker was unable to return to work because of his injuries and after his union insurance plan ran out, he was left with no income.
The WSIB rejected the claim because it found the worker removed himself from the normal course of employment when he went to the parking lot to confront the individual who damaged his car. The injuries were not work-related and stemmed from a personal matter, said the WSIB. The WSIB also referred to its policy manual, which stipulated parking lots must be owned or leased by the employer to be considered part of the workplace.
The worker appealed to the tribunal, which found that because the lot was fenced off and restricted for use by employees — and the employer encouraged employees to use it — it could be considered to be part of the employer’s premises. However, the tribunal agreed that the worker’s actions in the parking lot were not related to his job duties.
“(The worker’s) job duties have no direct relationship to the episode resulting in his injuries; nor, in my view, is the episode accurately characterized as ‘incidental to his work or employment’ as claimed,” said the tribunal. “Although the parking lot was part of the workplace, the worker removed himself from the course of his employment when he approached the other individual concerning a matter that was entirely personal in nature and had no relationship, incidental or otherwise, to his job duties or employment relationship.”
