The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 8, 2000, at the request of the claimant. The Panel discussed this appeal on November 8, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 13, 1999, an application for compensation benefits was filed by the claimant in which he reported an accident that occurred on or around March 27, 1999, during his employment activities as a truck driver. On his application for compensation, the claimant indicated that he was either assaulted or fell out of his truck on March 26-27, 1999, and that because of a head injury he did not remember what took place. The injury recorded by the claimant was a "spinal cord syndrome".

The Employer's Report of Injury or Occupational Disease form dated June 30, 1999, indicated that the claimant was leaving a hotel when a female prostitute approached the claimant at his truck. The claimant had a short conversation with the female and then proceeded to enter his truck. Another female came from behind and hit the claimant over the head. The claimant awoke in an ambulance. The claimant was considered off duty when the assault occurred.

On May 20, 1999, a Workers Compensation Board (WCB) adjudicator spoke with the claimant by phone and the following details were noted:

• The claimant commented that a police report said that he "fell out of the truck". The report also mentioned that his keys were still in the ignition. The claimant said that this was news to him, as he did not remember getting into the truck and that he usually carried the truck keys in his pocket.
• The claimant explained that drivers are required to rest for 8 hours after driving for 13. This was what the claimant had planned to do on the date of accident.

• The hotel/motel property where the accident occurred included a restaurant and 3 liquor lounges. It had a parking lot located at the back that was specifically designed for tractor trailer units. The claimant had parked his truck in the parking lot by a 3 foot high concrete divider running along the driver's side. The claimant had to step over this divider in order to reach the truck door when entering or exiting the truck cab. The claimant chose this spot because the concrete divider would keep other people or vehicles from coming too close to his truck. The claimant went to the restaurant for supper around 6:00 p.m. and between 6 and midnight, the claimant stated he consumed approximately 7 beers. Around midnight, he left the hotel and headed for his truck. When he got to the truck he remembered relieving himself against a tire. After this he was approached by a woman who appeared to be a prostitute. She then propositioned the claimant but he declined, stating that he did not want any company and that he did not have money for this kind of activity. This was the last thing that the claimant remembered. He thought that an unseen assailant struck him from behind. At the time when the accident occurred, the claimant claimed that he was planning to crawl into the sleeper of his truck until the next morning and that he had no plans to move the truck that night.

In a decision by Rehabilitation & Compensation Services dated August 27, 1999, the claimant was advised that his claim for compensation was not acceptable. The adjudicator indicated that when considering a claim it must be determined that a worker's injury was related to specific duties being done for the purpose of the employer's business. In this particular case, the adjudicator stated the following: "While the exact nature of what occurred in the late evening of March 27, 1999 is uncertain, the evidence, including the information you provided to the WCB and the police and the hospital reports, indicated that you were injured by an accident that was neither arising out of nor in the course of your employment."

On November 26, 1999, a solicitor appealed the above decision to Review Office. He presented argument that the claimant was injured in an accident arising out of and in the course of his employment and thus was entitled to benefits. On February 16, 2000, an advocate for the employer took the view that the claimant's injury was sustained outside of work hours while the claimant was off duty and that the claimant had been involved in personal leisure activities when he was injured and over which the employer had no direct control.

Prior to considering this case, Review Office obtained additional information which consisted of a statement from the claimant concerning the events of March 27 and 28, 1999 (which was transcribed and audiotaped), a police report dated March 30, 2000, along with medical information/lab tests regarding the claimant's level of intoxication at the time of injury and an opinion from a WCB medical advisor.

In a decision dated May 19, 2000, Review Office found that the weight of evidence supported a finding that the claimant's injury did not arise out of and in the course of the employment. WCB policy 44.10.30.10 concerning Drunkenness and Intoxication was also taken into consideration. After reviewing the case, Review Office was of the opinion that the injury had resulted from the claimant's advanced state of intoxication, and that there was no increased risk from anything associated with his employment.

On June 6, 2000, the claimant's solicitor appealed Review Office's decision and an oral hearing was convened.

Reasons

Chairperson MacNeil and Commissioner Finkel:

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

“Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections.”

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, “a chance event occasioned by a physical or natural cause; and includes

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease

and as a result of which a worker is injured.”

We find as a fact that the claimant’s injury was caused by an accident that arose out of his employment, but not in the course of his employment. In other words, the accident occurred during the period of time when the claimant was away on a work assignment, however, the accident did not occur while he was in the course of discharging his duties for the employer. Once a determination is made that the accident arose out of employment, then section 4(5) of the Act raises the presumption that the accident occurred in the course of employment.

“Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.”

It should be noted, however, that this presumption is rebuttable and if it can be established or demonstrated that the worker was not in the course of employment when the accident occurred, then by definition there has been no accident. Generally speaking, a worker will be considered to be in the course of his employment when he is doing work for his employer, or he is performing a duty for his employer, or he is doing something reasonably incidental to his employment.

The facts of this case are quite clear and are not in dispute. The claimant, a long distance truck driver, drove to Calgary, Alberta and delivered his trailer of goods late in the afternoon on the day in question. The next day he was scheduled to pick up a new load of product and then drive to Abbotsford, British Columbia. In the meantime, he had decided to spend the evening in Calgary and to sleep in the sleeper of his truck, which he had parked at the truck stop/truckers’ motel. He went for dinner at around 6:30 or 7:00 p.m. and then spent the next several hours in the bar before returning to his truck to retire. It was sometime after his returning to the truck that the injury occurred.

The medical evidence confirms that the claimant was extremely intoxicated at the time of his accident. We note in particular a WCB medical advisor’s comments, which are contained in a memo dated May 18^th, 2000:

“Based upon the evidence, the claimant was very intoxicated at the time the sample was taken. Extrapolating a few hours earlier: he would have been (also) very intoxicated. This advanced state of intoxication would have, on balance, rendered him very unstable in his gait and may well have even caused him to ‘pass out’, in my opinion.

17 mmol/l in Manitoba (1996) is the legal limit for driving. The claimant’s level even 4 hours after his alleged abstinence was 49, more than twice the legal limit. Toxic levels, incidentally are considered above 30 (which would apply here). The advanced state of intoxication would be inconsistent with the statement that he imbibed 4-5 beers earlier that previous evening.”

The WCB implemented in May 1973 policy 44.10.30.10, which deals with the subject of drunkenness and intoxication. The policy reads as follows:

“The Board will generally accept claims where a worker, who is drunk or intoxicated, suffers personal injury as a result of an accident arising out of and in the course of employment only where the accident represents a risk of employment which the worker was less able to avoid due to intoxication. However, where the accident is shown to be due solely to the drunkenness or intoxication of the worker, the claim is not accepted.” (Emphasis ours)

At the time of the accident, the claimant was not engaged in any activities that were even remotely related to long distance truck driving. His level of intoxication was such that he had virtually rendered himself incapable of performing his employment duties and he could not in any way be considered under the control and direction of the employer. We find that there was no causal link between the claimant’s accident and his employment and that there was no inherent risk or hazard associated with his employment at the time of injury. We are of the further view that the sole cause of the accident was the claimant’s high degree of intoxication. He was not in the course of his employment at the time of his injury and therefore by definition there has been no accident within the meaning of the Act. In addition, the worker’s claim does not satisfy the requirements of WCB policy 44.10.30.10. For these reasons, we do not find the claim to be acceptable. Accordingly, the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner 

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of December, 2000

Commissioner's Dissent

Commissioner Leake’s dissent:

The minority is of the opinion that the claim for compensation is acceptable.

The claimant, while employed with the accident employer, sustained a personal injury while on a layover in Calgary, Alberta at the request of the employer in order that a load could be picked up the following morning.

It was during this layover that the claimant was found unconscious outside of his truck with the keys still in the ignition. The truck was parked at the truck stop. The vehicle was equipped with a sleeper cab which the claimant used as his accommodations while on the road.

The minority is of the view, although the claimant is said to have been intoxicated at the time of the injury, that as the nature of his employment required layovers in various locations, that the claim for compensation should be accepted. In reaching this conclusion, I would reference the WCB’s policy 44.10.30.10 entitled “Drunkenness and Intoxication” where the following is stated:

“The Board will generally accept claims where a worker, who is drunk or intoxicated, suffers personal injury as a result of an accident arising out of and in the course of employment only where the accident represents a risk of employment which the worker was less able to avoid due to intoxication.”

I would also reference WCB policy 44.05 entitled “Arising out of and in the Course of Employment” which states the following in part:

“Workers who are on a special assignment including courses, conventions, and training exercises as well as work assignments shall be deemed to be in the course of their employment while directly or indirectly involved in activities under the control and direction of the employer.”

In this case, the claimant was under the direction of his employer and his activities were consistent with the nature of his employment which require occasional layover. Although the claimant may have had too much to drink, had he not been trying to climb in or out of his truck sleeper, he would not have fallen.

For the foregoing reasons, the minority feels that weight of evidence on a balance of probability supports a finding that the claim for compensation is acceptable.

B. Leake, Commissioner