Public Decisions | The Appeal Commission

Decision #73/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 29 to May 3, 2002, at the request of the appellant's legal counsel. The Panel discussed this appeal on May 3, 2002.

Issue

Whether or not the Plaintiff's right of action is removed by the provisions of the Workers Compensation Act.

Decision

That the Plaintiff's right of action is removed by the provisions of the Workers Compensation Act.

Decision: Unanimous

Background

On March 7, 1994, the plaintiff's husband, Greg S. and Ernie M., were cutting firewood with a chainsaw when Greg S. was struck by a falling tree. Greg S. died on March 8, 1994 as a result of his injuries.

A Statement of Claim was filed with the Queen's Bench (Suit No. CI 95 - [numbers]) against the owners (William F., Greg F. and Ron F.)-(the F. family) of the farm where the tree was cut and Ernie M. by the deceased's wife. It was alleged that both the deceased and Ernie M. were employees of the F. family and were acting in the course of their employment at the time when the plaintiff's husband was killed. The claim concerns allegations of negligence against Ernie M. and against the F. family as alleged employer(s).

In correspondence dated June 15, 1995, legal counsel for the F. family noted that a statement of defense was being formulated to file in the court. "Our pleading in defense will deny the existence of any employment relationship or any actions in the course of any employment with the [F. family] and will deny any responsibility or involvement whatsoever on their part in the fatality." It was alleged that Greg S. had a small business of some sort with Ernie M. whereby they cut and sold firewood on their own account and it was while in the course of that type of activity that Greg S. was killed.

Subsequent file information contained a sworn statement by Ernie M. dated July 27, 1995. Briefly, Ernie M. indicated that he was asked by William F. to cut some firewood on March 7, 1994. As William F. was too busy to help with loading the truck with wood, Ernie M. was instructed to get Greg S. to help. Later on in his statement, Ernie M. indicated that it was on the previous Thursday or Friday that William F. had asked him to cut some firewood on March 7, 1994. Greg S. was not asked by the F. family to do this. Ernie M. asked Greg S. to help him. He had no idea if Greg S. was to be paid for the work. Ernie M. also stated that he was on UIC when the accident happened and that he did not know whether Greg S. was on UIC or not.

In a memo dated July 27, 1995, a staff member of the Workers Compensation Board (WCB) documented a meeting with Greg S.'s widow and then with Greg F. The widow advised that her husband was working for the F. family at the time of his accident.

Greg F. indicated that Greg S. was not in their employment on the date of the accident. Greg S. had worked for them as a farm labourer driving farm equipment, etc. from the spring to fall.

In a September 5, 1995 decision, primary adjudication at the Workers Compensation Board (WCB) determined that the claim for compensation was not acceptable. Primary adjudication referred to Section 4(1) of the Workers Compensation Act (the Act) which provides for payment of compensation in respect of personal injury by accident arising "out of and in the course of" a worker's employment. Primary adjudication concluded that there was not enough information to substantiate whether the deceased was in fact employed as a "worker" at the time of his death. His widow was therefore not entitled to WCB benefits.

On November 30, 2001, legal counsel for the F. family submitted an appeal application to the Appeal Commission to adjudicate and make a determination on whether or not the right of action had been removed by the virtue of subsection 68(4) of the Act.

On April 12, 2002, legal counsel for Ernie M. submitted an appeal application to the Appeal Commission to adjudicate and make a determination on whether or not the right of action had been removed by the virtue of subsection 68(4) of the Act.

Between April 29th and May 3, 2002, an Appeal Panel hearing was convened at the Appeal Commission.

Reasons

Workers compensation was first introduced into Manitoba in 1916 as a disability scheme, which was devised to compensate workers who were injured as a result of workplace accidents. The system is based on no fault insurance principles designed to provide an expeditious remedy to an injured worker without resorting to litigation.

The Workers Compensation Act of Manitoba (the Act) establishes a social contract of insurance whereby workers have relinquished their right to sue in exchange for reasonable compensation regardless of fault and on the other side of the equation, whereby employers have received immunity from suit in exchange for their funding the costs of the scheme. The contractual entitlement to compensation in lieu of other rights is set out in section 13(1) of the Act:

"The right to compensation provided by this Part is in lieu of all rights and rights of action, statutory or otherwise, to which a worker, or his legal representative, or his dependents, are or may be entitled against the employer, for or by reason of personal injury to, or the death of, the worker occasioned by any accident which happens to him arising out of, and in the course of, his employment; and no action in any court of law against the employer in respect thereof thereafter lies." The contractual entitlement to immunity from suit is set out in section 9(7) of the Act:

"In any case within subsection (1), the worker, his or her legal personal representative and dependents, and the employer of the worker have no right of action in respect of the accident against an employer in an industry, or against a worker of such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer." According to section 9(1) of the Act a worker, who is injured in the course of his employment and who is entitled to compensation as a consequence thereof, has the right to claim compensation or to bring an action against some person other than his employer should the circumstances so warrant. However, as previously pointed out, section 9(7) restricts or limits this right as follows: a worker has "no right of action in respect of the accident against an employer in an industry, or against a worker of such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer."

As the background notes indicate, this case involves separate applications brought forward by the various defendants, named in Court of Queen's Bench Suit No. CI 95-[numbers], requesting that the Appeal Commission determine, pursuant to section 68(4) of the Act, whether or not the plaintiff's right of action against them has been removed by the provisions of the Act. Section 68(4) states as follows:

"Where an action in respect of an injury is brought against an employer or a worker of an employer by a worker or the legal personal representative or a dependant of the worker, the board has jurisdiction, on the application of a party to the action, to adjudicate and determine whether the right of action is removed by this Act; and the adjudication and determination is final and conclusive, and if the board determines that the right of action is removed by this Act, the action shall be forever stayed." The exclusive jurisdiction to make such a determination has been specifically conferred on the Appeal Commission by virtue of section 60.8(1)(b) of the Act. It is also significant to note that the Appeal Commission's decision and ruling with respect to such matters in question is final and conclusive. In addition, once it has been determined that the right of action has been removed by the Act, then the action or suit shall be forever stopped from going forward.

The factual circumstances giving rise to this application are most unfortunate and by and large, are not in dispute. On March 7th, 1994, Greg S. was assisting Ernie M. with the cutting of firewood for the owners (William F., Greg F., and Ron F.) of a large family farm operation. Greg S. was injured when a falling tree, which had been cut down by Ernie M, struck him. As a consequence of the injuries sustained, Greg S. died in hospital on the following day March 8th, 1994.

The evidence confirms that both William F. and Greg F. had maintained voluntary WCB coverage under a single registration since April 21, 1990 for their farm operations and as well Ron F. had secured coverage for his employees through his corporate entity. The WCB coverage extended, not only, to a majority of the principals of the family farm operation, but also, to any farm labourers in their employ.

Ron F. and Greg F. presented evidence at the hearing suggesting that both Greg S. and Ernie M. were hired on as seasonal employees, and only remained on the payroll from approximately the middle of April to the end of October in each calendar year. As such, there was no contractual relationship existing between any member of the F. family and Greg S. and Ernie M. at the time of the accident, which occurred in early March 1994. Alternatively, if it is determined that there was a contractual arrangement between the parties, then the F. family is a covered employer under the Act and section 13(1) would therefore apply.

In deciding whether or not the provisions of the Act have removed the Plaintiff's right of action against the defendants; it becomes necessary for us to make the following determinations:

Within the meaning of the Act, was Greg S. a worker acting in the course of his employment at the time of the accident?
Within the meaning of the Act, was Ernie M. a worker acting in the course of his employment at the time of the accident?
Within the meaning of the Act, were William F. and/or Greg F. and/or Ron F. employers of Greg S. and Ernie M. at the time of the accident?

With respect to Greg S. we find that he was more than just a seasonal worker for the members of the F. family. There is no question that Greg S. worked for an hourly rate throughout the period of April to October for Greg F. Although during the winter months he did not receive a salary per se, he nevertheless received compensation for the services that he provided. We heard evidence of how he fed the cattle, bedded the pigs and received instructions to haul hay bales and wood. In consideration for the provision of these services to Ron F.'s operation, Greg S. and his wife received rent-free and utility-free housing from Ron F. Greg S.'s widow testified that her husband would receive phone calls at various times throughout the winter months from William F. and Ron F. instructing him to perform certain chores and tasks. The widow further testified that she and her husband were led to believe that they could stay in the house owned by Ron F. at no charge for as long as the F. family employed her husband. Greg S. did not work for anybody else other than the F. family.

Although Greg S. was shown to be on Greg F.'s payroll, the evidence confirms, however, that William F. often issued instructions from time to time to Greg S. on behalf of his son Greg F. There is no question that William F. was perceived to be "a boss" by Greg S. According to Ernie M.'s evidence, when he was engaged to cut wood for the F. family in March of 1994, William F. instructed Ernie M. on March 7th, 1994 to get Greg S. to help load the cord wood onto the truck.

Clearly Greg S. did what the F. family told him to do. He was more than just a seasonal employee. He was a full time year round employee, who received remuneration consisting of cash as well as non-cash benefits. We find therefore that Greg S. was a worker within the meaning of the Act and that he was performing duties while in the course of his employment for the F. family at the time of his accident.

As to the status of Ernie M., the evidence establishes that in addition to his being a self-employed farmer he was a part-time worker for William F. and Greg F. on what can best be described as when the need arose. This fact is reflected in the payroll records of 1992 through to 1994, which were produced in evidence at the hearing. The separation slips confirmed that Ernie M.'s employers were William F. and Greg F. Ernie M. testified at the hearing that he took instructions from both William F. and Greg F. at various times. Ernie M. performed periodic tasks such as fieldwork, application of fertilizer, haying, combining and cutting firewood. Ernie M. usually cut a supply of firewood in the late fall. The F. family required this firewood to facilitate their commercial farming operation. The supply of wood was used in the kitchen stove where the workers were fed and also in the furnace that heated the sow barns.

At the end of the fall season in 1993, Ernie M. cut and supplied 6 cords of wood to the F. family. He testified that he was paid on an hourly basis for the job and that other than for his own personal needs he only cut wood for the F. family. His further evidence was that sometime in early March 1994 William F. approached him and asked if he would cut and supply more firewood. Although the evidence was not entirely clear as to the reason for this request, the suggestion was that supplies were running low and that there might not be enough wood to last until spring. Ernie M. agreed to do the job and assumed that he would be paid at his usual hourly rate.

Ernie M. also testified to the fact that he had never cut wood with Greg S. prior to the date of the accident and that the only reason he went to get Greg S. to help him out was because that was what the boss told him to do.

We note that there was no evidence introduced to suggest that Ernie M. had at any time worked for the F. family without remuneration or that he was under any contract for services (independent contractor). The evidence confirms that whenever he worked for the F. family his time was recorded and all of the appropriate government deductions were taken. We accept Ernie M.'s evidence that when he was asked to provide wood for the F.'s commercial enterprise in March of 1994, he did so promptly with the reasonable expectation that he would be paid for his work on an hourly basis. This expectation is, in our view, also consistent with the manner in which he had previously been paid for the cutting and delivery of wood. Accordingly, we find that an implied employment service contract existed between Ernie M. and William F. and Greg F. at the time of the accident. The statutory definitions of 'employer' and 'worker' in the Act both recognize an express as well as an implied contractual relationship. "Employer includes a person who has in service under a contract for hiring or apprenticeship, written or oral, expressed or implied, a person engaged in work in or about an industry". "Worker includes a person, whether or not under the age of 18 years, who enters into or works under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour or otherwise".

Inasmuch as we have found both Ernie M. and Greg S. to be workers as defined by the Act and as well that William F., Greg F. and Ron F. were covered employers, it necessarily follows therefore that the plaintiff's right of action against all of the defendants has been removed by the provisions of the Act. The F. family through their testimony opted to acquire WCB coverage for the very purpose of providing coverage to their workers in the event of an accident and in return they would obtain immunity from civil suit.

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 21st day of June, 2002

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