The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 5, 2001, at the request of the claimant.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On July 28, 1999, the claimant submitted an application for compensation benefits with respect to a back injury that occurred on July 5, 1999. In a letter attached with the application form, the claimant described his injury as follows:

"At the time of injury there were two guys at [employer's] camp hour north of Thompson. [Co-worker] and I were taking care of camp while the rest of the crew were on a four day weekend. I was checking out different locations of camp area on a dirt bike. I took a jump over a hill on the side of the road not realizing how steep the hill was, when I came down my body landed on the gas tank of the dirt bike. That's when I felt what seemed like I broke my back".

An employer's report of injury received by facsimile on August 2, 1999, indicated that this was not a work-related accident.

During a telephone conversation with the claimant on September 1, 1999, a Workers Compensation Board (WCB) adjudicator documented the following:

• The employer left a 4 wheeler at the camp and asked the claimant and co-worker to take care of the camp and to make sure nothing got broken or vandalized. The employer did not explain how he wanted this done. This was the first time that the claimant ever stayed at the camp.
• The claimant said that he had his truck and a dirt bike at the camp. He told his employer that he would use his dirt bike. The employer did not say that he couldn't use it. The claimant indicated that he did not want to use his personal truck for company work.
• The claimant indicated that he took a 4 foot jump over a hill instead of going around it. He said that if he went around it, he would have wiped out on sticks and logs. This location was on a hill on the side of the road, about 200 feet from camp.

On September 8, 1999, the claimant's foreman advised the WCB adjudicator assigned to the case of the following:

• He was not aware that the claimant had a dirt bike in the camp.
• The camp is on about an acre of land. The equipment was brought in from the work site for the weekend and you can monitor the camp on foot.
• The company pays two people to watch the camp. The duties include washing trucks and maintenance and to check to make sure nothing is vandalized. The foreman indicated that he did not authorize the use of the dirt bike at the camp and that he was only aware the dirt bike was there when he got back on Monday following the accident.
• The pit that they were working on was km. away from the camp. There was nothing in the pit. The pit was crown land and people are allowed to come and go as they please.

During a telephone conversation on September 8, 1999, the claimant told a WCB adjudicator that he was not in the gravel pits at the time of the accident. He had driven through them because he was watching the cars go in and out of the pit. He indicated that there was a sand pile on the side of the road and he thought he would just go over it. The hill was steeper than he thought and he ended up jumping over it. The claimant indicated that he told the foreman a week before that he was taking his bike to camp and the foreman didn't say anything about it.

In a letter of September 10, 1999, the claimant was advised by Short Term Disability Services that his July 5, 1999, injury was not one "arising out of and in the course of" his employment. Specifically, the use of the dirt bike for employment activities was an assumed risk/personal action, not authorized by his employer.

In a subsequent conversation with the WCB adjudicator, the claimant indicated that his employer was definitely aware that his dirt bike was at the camp site. The claimant stated that no vehicle was left for him to use and that his foreman had told him to use his own vehicle. The claimant did not use his truck because he had just bought it 2 or 3 weeks before; it was 23 years old and he did not know how reliable it would be and he did not want to be out in the bush and have the truck break down. The adjudicator advised the claimant that based on file information, i.e. two people denying that they knew the bike was there and that the accident did not happen while working, his claim was not acceptable.

On February 4, 1999, Review Office considered the case following receipt of an appeal from a worker advisor dated January 19, 2000. Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that consideration was given to whether the worker's accident on June 5, 1998, met the legislative requirements for an accident arising out of and in the course of his employment. Review Office was of the view that the worker's activities of riding his dirt bike and "jumping over a sand hill" did not meet the legislative requirements. The claimant's activities leading up to the injury were not seen as being for the purpose of his employment.

On September 14, 2000, the claimant appealed Review Office's decision and a non-oral file review took place on April 5, 2001. The Panel considered all file documentation including a letter from the claimant dated March 25, 2001.

Reasons

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

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

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

A review of the file reveals a considerable number of inconsistencies with respect to the facts surrounding the alleged compensable accident. After a thorough review of the evidence and the various statements on file, we find, on a balance of probabilities that the claimant had removed himself from the course of his employment when he took a ride on his dirt bike to the gravel pits. His employment responsibilities ceased at that moment in time. Therefore, the personal injuries sustained by the claimant, while riding his motorcycle, cannot be regarded as having arisen out of or in the course of his employment. Inasmuch as there was no compensable incident, which satisfies the statutory definition of accident, we find the claim not acceptable. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 17th day of April, 2001