Serious and Wilful Misconduct
Effective date: September 1, 2017
Application: All work injury claims on and after the effective date.
Policy subject: Decision making - Principles
To establish adjudication guidelines for injury claims involving serious and wilful misconduct.
Serious functional impairment exists when an injury results in:
- A Permanent Functional Impairment (PFI) rating of 10 per cent or more, or
- Time loss of three months or more.
- To be considered compensable under The Workers’ Compensation Act, 2013 (the “Act”), an injury must arise out of and in the course of employment (Section 27).
- An “injury” means all or any of the following arising out of and in the course of employment (Section 2(1)(r)):
- The results of a wilful and intentional act, not being the act of the worker;
- The results of a chance event occasioned by a physical or natural cause;
- A disabling or potentially disabling condition caused by an occupational disease; or
- Any disablement.
- The Act provides the Workers’ Compensation Board (WCB) exclusive jurisdiction to determine whether any condition or death was caused by an injury and whether any injury arose out of or in the course of employment (Section 20(2)).
- If an injury is attributable solely to the serious and wilful misconduct of the worker, no compensation is payable unless that injury results in death or serious functional impairment (Section 30).
- In all cases, the WCB will first establish if an injury is work-related by determining if it arose out of and in the course of employment (POL 07/2021, Arising Out of and In the Course of Employment).
- An injury arises out of employment if it is the result of an activity that has a link to, originates from, or is the result of a worker’s employment and would not have happened if not for a worker’s employment.
- An injury occurs in the course of employment when it happens in a time and place linked to employment and if the worker is performing a task which is part of their obligations and purpose of employment.
Serious and Wilful Misconduct – Of the Worker
- If it is determined that an injury arose out of and in the course of employment, the WCB will consider if the injury was the sole result of the serious and wilful misconduct of the worker.
- As per Section 30 of the Act, a worker is not eligible for benefits (e.g., medical or wage loss entitlement) if the injury is the sole result of their serious and wilful misconduct, unless the injury results in death or serious functional impairment.
- The WCB considers a worker’s injury to be the result of serious and wilful misconduct if it was the result of an action or omission by a worker, in the course of employment, which intentionally and/or unlawfully causes an injury.
Examples of serious and wilful misconduct include, but are not limited to:
- Intentional disregard for safety, which the worker should have reasonably recognized as having the potential of resulting in an injury.
- Breach of law (e.g., the worker is in a motor vehicle incident while impaired by alcohol or drugs during the course of employment).
- Fighting over personal matters during work.
This does not include intentionally self-inflicted injuries by a worker for the sole purpose of causing a work injury.
- To be consistent with the principle of no fault, injuries that are the result of an act of carelessness on the part of a worker, another worker or employer are not typically considered serious and wilful misconduct. These types of injuries are not considered the result of an intentional act and would be covered if the WCB determines they arose out of and in the course of employment.
An example includes a worker who is injured because they were not wearing proper safety equipment.
Serious and Wilful Misconduct – Not of the Worker
- A worker may be covered for an injury resulting from the serious and wilful misconduct of another person, if it is determined that they were a non-participant (i.e., an innocent bystander) in the misconduct and were in the course of employment at the time of injury. These injuries meet the definition of injury under the Act and Section 30 does not apply.
Intentional Self-Inflicted Injuries
- Injuries that are intentionally self-inflicted by a worker for the sole purpose of causing a work injury to receive benefits are not considered serious and wilful misconduct.
- These injuries do not meet the definition of injury under the Act because they are not considered to have arisen out of and in the course of employment. In these cases, the injury claim will be denied and the worker will not be entitled to any benefits, regardless of the extent of the injury.
- The WCB may provide cost relief to an employer in the following situations (POL 03/2021, Second Injury and Re-Employment Reserve):
- If the WCB issues benefits on a claim because the serious and wilful misconduct of a worker resulted in their death or serious functional impairment.
- If a worker’s injury was the result of the serious and wilful misconduct of another worker and they were a non-participant (i.e., innocent bystander).
(1) POL and PRO 13/2011, Serious and Wilful Misconduct (effective December 1, 2011 to August 31, 2017).