Written on behalf of Peter McSherry
In a recent Quebec decision, an employer appealed a decision deeming an employee’s injury, sustained during a ping pong game, a compensable workplace injury.
Definition of Workplace Injury in Quebec
In Quebec, a workplace injury is called an “industrial accident”. Under s. 2 of the Act respecting industrial accidents and occupational diseases it is defined as:
“industrial accident” means a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him;
Section 28 creates a presumption in favour of workers, stating:
28. An injury that happens at the workplace while the worker is at work is presumed to be an employment injury.
Workplace Injuries in Ontario
In Ontario, an insurable workplace injury is discussed in a similar manner in s. 13 of the Workplace Safety and Insurance Act as follows:
13 (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.
(2) If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.
An accident is defined in s. 2 as:
2 (1) In this Act,
(a) a wilful and intentional act, not being the act of the worker,
(b) a chance event occasioned by a physical or natural cause, and
(c) disablement arising out of and in the course of employment;
Employee Injured At Work While Playing Ping Pong
The employee had worked as a digital strategy specialist with the employer as of April 4, 2019.
One month later, on May 3, 2019, during the afternoon break, the employee was injured while playing table tennis with a co-worker. The table was located in the recreation/dining room made available to workers.
The employee was subsequently diagnosed with a dislocated right shoulder.
The employee had dislocated his right shoulder the year before during a ski accident, but he maintained that the injury had healed completely since that time.
Employee’s Claim for Workers’ Compensation Denied, Then Allowed
The employee filed a complaint with the Quebec Commission des normes, de l’énergie, de la santé et de la sécurité du travail (the “Commission”) seeking workers’ compensation for his shoulder injury.
On September 9, 2019, the Commission issued a decision denying his claim.
The employee asked for a review of the decision. Upon further review, in November 2019, the Commission overturned the initial determination, finding that the employee had in fact suffered a work-related accident.
Employer Appeals Decision
The employer appealed the decision to the Tribunal administratif du travail (the “Tribunal”).
It argued that that the injury was not work-related. First, it submitted that the employee’s injury was already present as the result of the ski accident. Secondly, it argued that the injury occurred during an activity that was not connected to the employee’s work. As such, the employer submitted that the injury was a personal injury that manifested itself during a personal activity, that of playing table tennis.
Tribunal Rules That Injury Was Not Work-Related
While the Tribunal acknowledged that workers cannot be expected to perform eight hours of work per day and are thus entitled to breaks, it explained that conduct during such breaks will not automatically be deemed work-related, stating:
“The case law recognizes that the break may be considered, depending on the context of each case, as being useful to the employer, since it is provided for and is generally part of the working conditions. In such a context, we recognize its usefulness and a certain connection with work.
However, this does not mean that all activities that take place during the break are part of the professional sphere. A worker can choose to go about a personal occupation during his break. In such a case, one could consider that he left the professional sphere to enter a personal sphere, which is no longer related to work.”
The Tribunal then explained that where a worker is injured using recreational equipment provided by the employer, the injury could be considered work-related, depending on the context.
In the present case, however, the Tribunal held that the underlying cause of the injury could not be attributed to the game of table tennis, but rather to the employee’s previous injury during a ski accident. As such, the Tribunal held that the injury was, in fact, a recurrence of a previous dislocation that could not be attributed to the workplace.
Thus, the Tribunal ultimately concluded that the accident was not related to the employee’s work, stating:
“Other than the movement made by the worker while playing table tennis, there was no particular event that caused this new episode of dislocation. However, the diagnosis is that of recurrent dislocation of the right shoulder. In the circumstances, the Tribunal is of the view that the accident is related more to factors intrinsic to the worker, including the existence of a previous dislocation, rather than to his work or to the conditions thereof.”
In the result, the Tribunal therefore quashed the Commission’s decision and declared that the employee’s injury was not work-related.
If you have questions about workplace injuries or other employment issues, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly advise employees on their rights in the workplace. Contact us online or by phone at 519-821-5465 to schedule a consultation.