In an unusual case, a construction site superintendent has won
entitlement to workers compensation benefits after persuading an
appeals tribunal that he was assaulted by his employer's health
and safety officer and was not an active participant in the
The worker testified that on the day in question, as he entered
a construction site office he was asked by the health and safety
officer why he had stopped trades people from throwing garbage from
the third floor. He replied that he had been asked by the
employer to move the garbage container to another location, at
which time the health and safety officer said he had no authority
to do that and got so upset that he grabbed him and threw him to
the ground. The worker sought treatment and was diagnosed with
ligament strain. The health and safety officer was dismissed
The worker applied for WSIB benefits, but the employer opposed
the request. The WSIB assigned an investigator who found that the
worker was an active participant in the altercation. The WSIB
case manager denied him entitlement to WSIB benefits.
The employer did not participate in the worker's appeal to
the Workplace Safety and Insurance Appeals Tribunal. The WSIAT
looked at earlier statements given by the worker, the health and
safety officer and the employer. The WSIAT determined that
the worker was not the aggressor, and that the health and safety
officer's statement was "less than credible" because
he did not even acknowledge that he had grabbed the worker and
thrown him to the ground. The fact that the worker pushed the
health and safety officer away did not make him a participant in a
fight; instead, it was a normal act of self-defence.
Interestingly, the WSIAT noted that there was no evidence that
the worker had a history of being physically violent, while there
was evidence that the health and safety officer was involved in at
least one prior physical altercation.
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