The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 17, 2001, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being October 25, 2001.

Issue

Whether or not the worker's claim for compensation is barred pursuant to Section 6(3) of the Workers Compensation Act.

Decision

That the worker's claim for compensation is not barred pursuant to Section 6(3) of the Workers Compensation Act.

Background

The claimant filed an application for compensation benefits on June 9, 1999 for an accident that occurred on March 27, 1999. The claimant was employed as a Canadian Race Team Coordinator at the time of injury.

In his application for benefits, the claimant indicated that he fell from the rear of a snowmobile while race testing for his employer at an event in Calgary, Alberta. While race testing was not the primary employment activity for his employer "it was a condoned function when necessary as per my discretion." The claimant reported injuries to his left wrist, left lung and a fractured T-12 vertebra.

Information received from the employer indicated that the claimant initially filed a claim with the Workers' Compensation Board (WCB) in Alberta. His claim with the Alberta WCB was denied and the claimant then chose to file in Manitoba. The employer indicated that the claimant, in his capacity as a Racing Coordinator for Canada, was not expected to race as part of his regular duties. One of the aspects of the claimant's position was to drive high-performance snowmobiles. On March 27, 1999, the claimant was required to be at a particular race in Calgary as a "coach", but he decided at the last minute to enter the race and paid his own entry fee. His supervisor was not aware that the claimant was racing. The employer indicated that the claimant raced a snowmobile owned by one of their top racers, but who was not employed by the employer.

A copy of the claimant's file was obtained from the Alberta WCB. In a letter dated May 21, 1999, the Alberta WCB informed the claimant that no responsibility could be accepted for his back, left lung or left wrist injuries. It was the Alberta WCB's position that it did not accept claims for injuries sustained during competitive sports. "A competitive sport is defined as any physical activity that involves a contest, match or other test of skill or ability. Competitive sports include all sports played against another person or team."

On June 22, 1999, the claimant signed an election form to claim benefits in Manitoba.

On July 15, 1999, a Manitoba WCB adjudicator contacted the employer and spoke with the Vice President (VP) of Human Resources. The VP indicated that the claimant was required to be in attendance at the race in Calgary on March 27, 1999. The claimant was employed as a race co-ordinator and was responsible for tuning and preparing sleds. His job duties did not include entering and racing sleds in competition. The employer did not condone the claimant's entering the race on March 27, 1999. The company was aware that the claimant had entered a race last year and believed the worker was told afterwards that this was not part of his job duties. The employer said the company was aware that the claimant had entered a race in the earlier part of 1999 and that they had overlooked this indiscretion. The worker was never warned or disciplined for his actions.

On July 20, 1999, the claimant advised a WCB adjudicator that his job description did not include his being a pro racer. However, the claimant did not feel that what he was doing was outside of what he was paid to do. His job was to test sleds and to make required adjustments for his pro racers to win races. At no time was he told not to enter races. If his employer had told him that they did not want him racing then he would have stopped, as he would not want to jeopardize his job. The claimant was required to ride and test sleds on courses that were just the same as the racecourses. Testing sleds required going all out on the sled, over jumps and into turns. In the past, sleds had been tested between races in areas that potentially could be far more dangerous than on the man made course. An accident could have happened at any time while performing his job. The cause of the worker's accident was not related to other sleds in a race. The claimant fell off his sled and no other sleds were to blame. The claimant stated that his employer utilized another employee, who was paid to test sleds in pro races.

On July 27, 1999, the employer called the adjudicator to advise that a supervisor did speak with the claimant informing him that the employer did not want him entering races. The employer reiterated that part of the claimant's job was to evaluate sleds in all types of conditions. The employer could see how the claimant might have felt that the race was another type of condition in which to test the sled. The sleds did have to be tested and to be set up for specific elevation and temperature at each race. The employer did not oppose claim acceptance.

In a letter dated July 30, 1999, primary adjudication informed the claimant that his claim was denied based on the fact that when he entered the amateur race on March 27, 1999 he took himself out of the course of his employment.

Following a telephone conversation with the claimant on October 29, 1999, a Manitoba WCB adjudication supervisor wrote to the employer on November 15, 1999. The letter stated, in part:

"[The claimant] insists that he entered the race on March 27, 1999, for the sole purpose of fine tuning a racer's sled, and has indicated that [the employer] knew about and condoned such activity. In support of his position, he has submitted details of a budget he prepared in 1998, a copy of the relevant page is attached for your information.

I need to determine if [the claimant] was in the course of his employment when injured. Please provide written details of [the claimant's] position and duties, as they relate to the performance of the racing sleds. Was he expected to test drive the sleds, was [the employer] aware of his entering races to perform his duties? Was [the claimant] ever told not to enter races for this purpose? Why, if aware, was he allowed to continue to do so?"

On December 16, 1999, the employer responded to the adjudicator's request. The 1997/1998 budget approved by the company did provide for the claimant to race in the 1997/1998 racing season. However, the approved budget for the 1998/1999 racing season did not include a budget for the claimant to race. The claimant's employment did require him to evaluate and ride snowmobiles in all types of conditions. While the claimant was expected to test drive sleds, he was not expected to race as a part of his job. The decision to enter the race on March 27, 1999 was his own personal decision. The employer acknowledged that the racing team may have indeed gained racing information beneficial to other members of the race team by the claimant's entering the race.

On February 16, 2000, the Manitoba WCB confirmed that the claim for compensation was denied. The claimant's job as a race coordinator included his being able to ride and evaluate snowmobiles in all types of conditions. He was expected to test drive sleds but not to race, and his employer has verified that there would be no need to test drive on the racecourse. The employer insisted that they were not aware of the claimant's entering the race on March 27, 1999 and would not have condoned such activity. The WCB determined therefore that the claimant's injuries were not sustained by an accident arising out of and in the course of his employment. On April 19, 2000, legal counsel for the claimant appealed this decision to Review Office.

In its decision of May 26, 2000, Review Office determined that the claimant had removed himself from the course of his employment and therefore his claim for compensable was not acceptable. Also the claimant's application for compensation in the Province of Manitoba should not have been accepted by virtue of Section 6(3) of the Workers Compensation Act (the Act).

Review Office referred to sections 4(1) and 1(1) of the Act in its decision and noted that the claimant's injuries occurred as a direct result of his participating in a race. It was the opinion of Review Office that testing and tuning sleds were part of the claimant's work duties but not racing. The claimant admitted that he raced infrequently in previous years and took part in only three races in 1999 including the race in which he was injured. The employer also stated that the claimant was not expected to race as part of his regular duties. Review Office noted that the claimant's counsel had argued that the presumption contained in section 4(5) of the Act applied to this case. "Assuming it applies, it has been rebutted by the evidence that the activity that caused the injury was not in the course of the claimant's employment."

Review Office indicated in its decision that the requirements of section 7(1) of the Act had not been met as the claimant "evidently entered this race of his own volition and not while under the control and direction of the employer or an officer of the employer."

Review Office also considered Section 6(3) of the Act and was of the view that the actual application for benefits in Manitoba should not have been accepted as another provincial jurisdiction had already ruled on the merits of the case. On December 8, 2000, the claimant's legal counsel appealed Review Office's decision to the Appeal Commission.

On February 21, 2001, all concerned parties were notified that the Appeal Panel assigned to hear the matter had determined that a hearing should be convened to address only one issue, i.e. whether the claim is barred under section 6(3) of the Act. If it was determined that section 6(3) did not bar the claim, then a second hearing would be convened later to address the issue of whether or not the claim was acceptable. If it was determined that section 6(3) was a bar to claim for compensation, then obviously it would not be necessary to convene the second hearing.

An oral hearing was held at the Appeal Commission on May 17, 2001. It was agreed to by all parties that legal counsel for the employer would obtain clarification from his client as to the claimant's working status in the Province of Alberta insofar as his being covered under the Alberta WCB legislation. Once this information was obtained, a copy would be distributed to the claimant's legal counsel for comment.

In a letter dated June 13, 2001 legal counsel for the employer clarified that only the company's sales staff were insured persons under the Alberta WCB Plan at the time of the claimant's accident. The claimant was not an insured person in the Province of Alberta. The letter was forwarded to the claimant's solicitor for comment.

On July 10, 2001, the Panel met again to discuss the case and it determined that additional information was required from the WCB of Alberta. Specifically, the Panel requested a copy of Regulation No. 427/81 and any subsequent amendments. The Panel was also interested in obtaining any policies/regulations that dealt with the definition of a worker and the process one takes when applying for compensation benefits. On October 5, 2001, all interested parties were provided with copies of the information that was received from the Alberta WCB and were asked to provide comment. On October 25, 2001 the Panel met to render a decision after taking into consideration a submission from the claimant's legal counsel dated October 12, 2001.

Reasons

As the background notes indicate, the claimant, following his injury, filed a formal application for workers' compensation in the Province of Alberta. The Alberta Workers Compensation Board rejected the claimant's application on the basis that it did not accept claims for injuries sustained during competitive sports. It would appear that the adjudicator in arriving at this decision was relying on section 3(1)(c) of the Alberta Workers' Compensation Regulation 427/81, which reads as follows:

"The Workers' Compensation Act does not apply to: workers while they are participating in competitive sports in the course of their employment".

In light of this decision, the worker then filed an application for compensation in the Province of Manitoba. Claims Services refused to accept responsibility for the claim, because in its view the worker had, by his very conduct, taken himself out of the course of his employment and as such he therefore did not qualify for compensation under section 4(1) of the Workers Compensation Act of Manitoba. This decision was subsequently appealed to Review Office.

Review Office, in its decision, also agreed that the claim for compensation was not acceptable because the worker had indeed removed himself from the course of his employment. Review Office went on further to conclude, however, that the worker's claim for compensation should have been rejected pursuant to section 6(3) of the Workers' Compensation Act of Manitoba. This section states, as follows:

"Where a person who would, except for this section, be entitled to claim compensation under this Part in respect of an injury or a death arising out of an accident, makes an application for, or claims, or elects to claim, compensation in respect of the injury or death under the law of another country or province, or is presumed under subsection (2) to have elected not to claim compensation under this part in respect of the injury or death, he is no longer entitled to claim or receive compensation under this Part in respect of the injury or death."

Review Office determined that inasmuch as the worker had filed for compensation in the Province of Alberta, he was now barred from making a claim in Manitoba.

Before the Appeal Panel could address the issue of whether or not the worker's claim for compensation was acceptable, we firstly needed to decide as to whether or not the operation of section 6 and specifically section 6(3) of the Workers Compensation Act of Manitoba operated as a bar to his claim. The determination of this preliminary question became the primary issue before us.

Prior to hearing argument from counsel, it was brought to our attention that new and relevant information from the Alberta Workers Compensation Board had just recently come to the attention of the parties. The new information disclosed that the Alberta Board's initial decision had been appealed to a secondary level of adjudication. This second entity in turn reached the conclusion that the claimant was not an insured employee, who was entitled to make a claim in the first place under the Alberta compensation scheme. To quote counsel for the employer, "In other words, they entertained his initial application without the jurisdiction to do so. He was not an insured employee."

Evidence was introduced, which clearly confirmed the facts that it was only the employers' sales staff, who were insured persons under the Alberta compensation scheme and that the claimant was definitely not an insured person in the Province of Alberta.

We agree with counsel for the claimant that section 6 of the Manitoba Act, by its very wording, necessarily presupposes that an injured worker does actually have an entitlement to compensation under the legislation of another jurisdiction. We find based on a preponderance of evidence that this right or entitlement did not exist in favour of the claimant. The claimant's filing of an application for compensation in the Province of Alberta was in our view a nullity, that is, it was an act or proceeding which had absolutely no legal force or effect.

In conclusion, we find that section 6(3) of the Workers Compensation Act of Manitoba does not bar the claimant from filing an application for compensation in this jurisdiction. Accordingly, this file will be referred back to the Registrar to make the necessary arrangements for the scheduling of a hearing to deal with the issue of claim acceptability.

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 16th day of November, 2001