Decision #107/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on August 22, 2002, at the employer's request. The Panel discussed this appeal on August 22, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 5, 2002, the claimant reported injuries to his right knee and left hamstring region when the following event occurred, ".I walked across to the meridian and I stepped off the meridian and when my right foot hit the cement my knee popped out and I fell and rolled toward my [vehicle] as I did not want to get hit by traffic."

In a letter dated January 11, 2002, the employer opposed the acceptance of the claim as it was felt that the claimant temporarily removed himself from the course of his employment when he left his vehicle and crossed the street to visit his wife at a hairdressing salon. His injuries occurred while he was en route to his vehicle after visiting his wife. The employer commented that the claimant was utilizing the washroom facilities at the hair dressing salon. The closest sanctioned rest stop was just less than one minute away prior to disembarking to visit his wife.

On January 15, 2002, an adjudicator with the Workers Compensation Board (WCB) called the claimant to discuss the employer's letter. The claimant advised that he had stopped to use the hairdressing salon washroom which was where his wife had her hair done. He and his wife knew the owner of the salon for years and the claimant said he had been stopping to use that bathroom for about 15 years when he is on that route and has the time to stop. When he stops to use the washroom, the owner would give him a cup of coffee and sometimes a cookie. According to the claimant, this arrangement had never been a problem all this time and he never hid it from his employer.

In a telephone conversation with the claimant's supervisor on January 16, 2002, the adjudicator recorded that the supervisor was not aware of the claimant's arrangement with the hair salon and that he had been the claimant's supervisor for the past 6 or 7 years.

On January 29, 2002, primary adjudication determined that the claimant removed himself from the course of his employment by deciding to stop at the hair salon for a restroom break, rather than using the designated restroom facility which he had passed on his route. If the claimant had stopped at the designated restroom stop, there would not have been any requirement for him to cross a traffic meridian. On February 18, 2002, a union representative appealed this decision to Review Office.

On May 10, 2002, Review Office considered all file information which included an additional submission by the employer dated April 5, 2002 as well as information that was provided by the union representative. Review Office decided that the claim was acceptable based on the following factors:
  • the claimant planned on using the designated facility which he had passed three minutes earlier but was distracted and missed the opportunity. As the salon contained the next available washroom and would take less time to use than the next designated facility, the claimant decided to use the salon facility. The claimant used both the salon and the employer designated facilities for the past 7 to 8 years and was never told not to use the salon facilities.

  • it was confirmed by the employer that the claimant was not reprimanded for using the salon facility. There was no evidence to support that the worker was directed to use only the washroom facility identified in the employer's operator's manual.

  • a WCB orthopaedic consultant confirmed that the claimant's actions were consistent with the injuries he sustained.
In June 2002, the employer's representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 4 (1) of the Workers Compensation Act (the Act) provides for 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 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 keeping 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. An accident is defined as,
    "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,
    3. an occupational disease
    and as a result of which a worker is injured."
As the background notes indicate, the claimant injured himself when he stepped off the meridian curb of a major thoroughfare and his right knee gave way resulting in his falling onto the pavement. The claimant had been using the washroom facilities in a hair salon just prior to his injury. The employer's representative presented argument suggesting that the claimant was visiting his wife in the hair salon rather than his needing to use the washroom facilities. The claimant had chosen not use an employer designated washroom facility and as such, he had taken himself out of the course of his employment at the time of the injury. Therefore the claim should not be accepted by the WCB as being compensable.

The evidence confirms that the claimant had used the washroom facilities in this particular hair salon on several occasions in the past. In addition, the evidence on file also corroborates the fact that the claimant had indeed used the washroom facilities just prior to his injury on the day in question. We further note the employer has no established policy mandating its employees to use only those washroom facilities that it has designated.

We find based on the weight of evidence that the claimant's injury did arise out of and in the course of his employment. Accordingly, this incident satisfies the requirements of an accident as defined by the Act. Therefore the claim is acceptable and the employer'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 25th day of September, 2002

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