Decision #122/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 24 and September 25, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on September 25, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

This case was previously the subject of an Appeal Panel hearing on May 17, 2001 to determine whether or not the worker’s claim for compensation was barred pursuant to Section 6(3) of The Workers Compensation Act (the Act). Complete details surrounding the history of the case can be found under Appeal Panel Decision No. 145/01 dated November 16, 2001, and will not be repeated in its entirety at this time.

In brief, the claimant filed an application for compensation benefits on June 9, 1999 for a spinal cord injury that occurred while competing in a snowmobile race held in Calgary, Alberta on March 27, 1999. The claimant was employed as a Canadian Race Team Coordinator at the time of injury. As the WCB made the determination that the claimant’s injuries were not sustained by an accident arising out of and in the course of his employment, the case was referred to Review Office for further consideration.

On May 26, 2000, Review Office rendered two decisions. Specifically, that the claimant had removed himself from the course of his employment and therefore his claim for compensation was not acceptable and that the claimant’s application for compensation in the Province of Manitoba should not have been accepted by virtue of Section 6(3) of the Act. Review Office’s decision was appealed to the Appeal Commission on December 8, 2000.

On February 21, 2001, all concerned parties were notified that an oral hearing would be held at the Appeal Commission to address only one issue, i.e. whether or not the claim was 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 to address the issue of whether or not the claim was acceptable.

An oral hearing was held at the Appeal Commission on May 17, 2001. On November 16, 2001, the Appeal Panel determined that the worker’s claim for compensation was not barred pursuant to Section 6(3) of the Act. In view of this decision, a second hearing was held at the Appeal Commission on September 24th and September 25, 2002, to determine whether or not the claim for compensation was acceptable.

Reasons

Section 4(1) of 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 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, and
  3. an occupational disease
and as a result of which a worker is injured.”

As the background notes indicate, the claimant (a covered worker under the Act) incurred a spinal cord injury while competing in a snowmobile race held in Calgary, Alberta. The employer (registered with the WCB) contends that at the time of the accident the claimant was not in the course of his employment duties and that the accident did not arise out of his employment responsibilities. The claimant, on the other hand, maintains that in his capacity as the employer’s Canadian Race Team Coordinator he entered the race on March 27th, 1999 specifically to test and fine tune a snowmobile for the employer’s racing team and as such he was carrying out his employment duties.

In arriving at our decision, we carefully considered the oral evidence of the claimant and the two employer witnesses as well as the written documents on file. Based on this wealth of information, we were able to draw the following conclusions and findings:
  • The claimant was hired full-time in September 1995 by the employer to manage and coordinate racing in Canada as well as coordinate promotional and marketing events such as trade and dealer shows.
  • Prior to September 1995 the claimant was a professional snowmobile racer.
  • The claimant’s job description included amongst other things: Work and assist the race department staff and crew on equipment for racing and Research and Development; Must have extensive snowmobile background; Must be able to comprehend and evaluate performance and features of all makes and models of snowmobiles; Must be able to communicate technical and informational data; Must be mechanically inclined and knowledgeable technically; Ability to ride and evaluate snowmobiles in all types of conditions; Coordinate sponsorship, driver recruitment, aftermarket/high-performance development and inquiries for the Canadian race program; Handle racing through a technical aspect: rules and regulations input, technical advice to racers on specifications and performance.
  • At the time of the claimant’s hiring, he was advised that he could continue racing for a period of time but that he would be expected to wind this activity down over the course of 3 to 4 years.
  • His supervisor specifically told the claimant that he was not permitted to race in 1996.
  • The claimant’s budget for the following 1996/1997 season, which was accepted and approved by the employer, included an allocation of monies for the claimant himself to race.
  • Every race that the claimant entered in 1997 was a pro race.
  • The claimant’s budget for the 1997/1998 season, which was accepted and approved by the employer, included an allocation of monies for the claimant himself to race.
  • Every race that the claimant entered in 1998 was a pro race.
  • Following a race in 1998 the claimant received a racer’s contingency payment from his supervisor for the results he achieved in that particular race.
  • In the spring of 1998, the employer’s Vice-President of Marketing gave the claimant a substantial raise and large bonus as the Company was very happy with the way the claimant had been performing his job duties.
  • In 1999, the claimant entered only three races, a mechanics’ race and two pro-vet class races and expanded his team to three drivers.
  • The claimant’s race team competed at elite levels in the United States, which is now known as the World Snowmobile Association. The objective was to win at this level because of the positive marketing and advertising benefits, which would obviously accrue, to the employer.

We were very impressed with the claimant’s deportment and demeanour throughout the hearing process. We found him to be an extremely credible and forthright witness and accordingly we attached considerable weight to his testimony. This was especially so when he responded to questions dealing with his operation of a snowmobile.

Q. Now were you required as part of your job to ride snowmobiles yourself?

A. Yes.

Q. Tell us about that?

A. I guess I rode the snowmobiles to do the - - well, there’s basically three aspects, you know, to having good performance. You have your suspension, you have your clutching, which is your power train, and your carburation. I would do the hands on riding of the vehicle to make sure that I felt it was tuned and would be performing at its best capabilities. You know, if one of the racers gave me some feedback that he thought it was weak in a certain area, I would ride it and try it and make changes and, you know, talk to him about the changes and go try it some more.

Q. Did you do testing of snowmobiles otherwise?

A. Yes. During the week at home, we had a snow cross track that, you know, we would test and practice on.

Q. Now I want to deal specifically with I think what is the main issue here today and that is the issue of you actually racing snowmobiles during some of these racing events. Can you tell us first of all, in general, what was your purpose in doing that? And we know that you did do it in certain times during your career.

A. Right. Well, the main purpose, like you know, in competing myself on them was you’d get the most accurate and real feeling for the exact performance. Like you can go out by yourself, you know, outside my shop and, you know, do an acceleration test and feel it and feel it’s very strong, but there’s, you know, nothing as final as, you know, lining up with a bunch of other people that have done their best job too, and then you find out if really what you thought was a good set up is a good set up. You know, if your sled is competitive and it accelerates, you know, with or ahead of the competition, then you’ve done a good job and, if it doesn’t, then you know you need to do more work. In the suspension area, it’s just sometimes hard to push yourself to that level where you’re really exploring the final, you know, exploring the real race conditions basically. I mean it’s hard to duplicate race conditions on a test track. I mean you can simulate it, but you can never totally reproduce it. So when I would race, you know, I would know, you know, really how effective the sled was.

Q. And I take it then that the reason that you didn’t have a sled to race on [in 1995/1996] would have been because Mr.[claimant’s supervisor] was opposed to your racing during the season?

A. Correct.

Q. And did that change your ability to race?

A. Yes.

Q. Tell us how that happened?

A. Well, I mean certainly I was not - - I did not keep quit on, you know, not being allowed to race. I kept raising it. In the spring of 1996, [company executive] told me that, you know - -

Q. This is the same [company executive] that had hired you?

A. Person that hired me, yes. He did my initial interview up in Winnipeg. He said that, you know, it was straightened out and that what we had talked about when I was hired would be honoured and I’d be allowed to race, you know, but still under the same expectations that I would slowly wind it down and we would, you know, basically see how it went. I mean I think part of their, part of [supervisor’s] fear was that my racing from a personal perspective might interfere with my ability to do my job.

Q. Yes, that it would be a conflict?

A. Yes. And you know, if not done properly, it’s probably a valid concern. But I know that my racing was instrumental in my doing my job properly because it just gave me such a better perspective of the, of how the vehicle was working.

Q. And is that the reason you were doing it?

A. Yes.

Q. Okay. Taking us back now to, you say that you continued to raise the issue of being allowed to race yourself.

A. In the first year, yes.

Q. And you were given the go ahead?

A. H’mn, h’mn.

Q. Who gave you that go ahead?

A. Well, basically it was the company, but the first time I was told it was by [company executive].

Q. And that would have been in, what, the spring of 1996?

A. Yes, I think in March at a show in Winnipeg, if I remember correctly. And it was nothing formal. He just said, you know, “I talked to [Vice President Marketing] and”, you know, he said,”if he told you could race, well, we’re going to honour that”,and, you know, I just went forward.

Q. What’s the nature of the risk associated with being on a test track versus on a racing track? Are there less vehicles on the test track at any given time?

A. It’s probably - - well, I mean the same risks are there. On a race track during a race, your risks are probably less because there’s only, you know, a set number of people there, you know, eight or ten, whatever’s in that particular heat. Plus there’s all along it course marshals, you know, monitoring activity. The test area is sometimes, you might be the only one out there or there might be 20 people out there and there’s certainly no one being a lifeguard, so to speak.

As previously mentioned, in addition to the claimant’s evidence, two of the employer’s corporate executives also gave oral testimony. We paid particular attention to the responses given to several questions that were directed to these two gentlemen:

Q. Did Mr. [the claimant’s supervisor] ever come to you before Mr. [the claimant] was injured and say to you, you know, “I’m having a really hard time getting this employee to follow my directions about not racing”?

A. No, but he - - well, no, he didn’t.

Q. And, in fact, it’s true that Mr. [the claimant], despite what was claimed by Mr. [the claimant’s supervisor], was never disciplined or given any written directive to cease the racing activities that he was carrying on from time to time?

A. Right, I’m not aware of any.

Q. Mr. [the claimant’s supervisor], I understand that you are currently employed as racing manager for, or, sorry, that you were in 1999 employed as racing manager for [corporate name of employer], is that correct

A. Correct.

Q. And that you held that position from 1987 to 1999?

A. Correct.

Q. And I take it then one of your - - Mr. [the claimant] would have been one of your subordinates who had to report to you, is that correct?

A. Correct.

Q. Now what, if anything, did racing snowmobiles have to do with Mr. [the claimant’s] job, as of 1999?

A. [The claimant’s] position was to coordinate our race program, our race effort in Canada, and handle the sales of [corporate name] snowmobiles to racers, see that they got their programs, their sponsorship packages. He was to relay technical information to the racers to see that [corporate name’s] riders, racers could be as competitive on our product as they could be.

Q. Do you remember what, if anything, was discussed about his [the claimant’s] racing?

A. That in my eyes it would have been - - again he wasn’t hired to race. It would be a, in my eyes it would be a conflict of interest of him still racing and trying to be the race coordinator, the coach of the team.

Q. When Mr. [the claimant] or other members of his team would be testing those snowmobiles, they would be driving them faster than 60 miles per hour, wouldn’t they?

A. If they did a straight shot on a smooth packed surface, yes, they could go 70, 80 miles per hour. They could go up to 100 if set up for that.

Q. Okay. My understanding, Mr. [the claimant’s supervisor], of your evidence as a whole concerning the issue of [the claimant’s] racing was that throughout the time period that we are talking about, which is I guess the 1996 model year right up until his accident, you knew that [the claimant] was driving in races on occasion, correct?

A. Correct.

Q. And, in fact, some of those years, to my understanding, he drove as many as six or seven times in the year or maybe more?

A. Correct.

Q. So you knew that you were approving budgets that contained some budget allocation to cover his expenses while racing?

A. Correct.

Q. And you approved that?

A. Yes.

Q. And so clearly the purpose for his racing in this year, as well as the previous year, was for him to, as he says, learn and develop accurate set up and to gain technical information, correct?

A. Yes, that’s what he explained, yes.

Q. So he was, in actual fact, racing entirely to benefit the team?

A. Yes.

Prior to the conclusion of the hearing, we invited the claimant to make any comments on his own behalf that he felt were important and perhaps had not been previously discussed in any great detail. The following is an excerpt of some of his comments that we felt were both relevant and compelling.

“[The claimant’s supervisor] also mentioned that no other manufacturer had a person like me that raced and was managing racers, and I agree with him, I believe that to be true.

I also believe that that was my strength and that led to, you know, the success that we had. I possessed a really good heightened ability to ride a vehicle, evaluate its performance and then make the necessary changes and, you know, my racing helped me with that and my testing helped me with that.

You know, I think part of what you need to understand, like we’ve said things, you know, that I’m racing for [the corporate employer’s] benefit and I don’t know that it’s ever been clearly explained like what that benefit is, but certainly, you know, they hired me to run that race team to, you know, bring brand awareness basically to them and to expose their brands.

In those two years, 1998 and 1999 model years, which seem to be the most talked about ones, you know, I went to the WSA, which is the World Snowmobile Association, and that’s, you know, the most elite form of racing in the world. There’s racers from Japan and Sweden and Norway and Finland and Iceland and primarily Canada and the United States, but it is a true world organization.

The championships you run there are designated world championships and they’re recognized worldwide as being, you know, a world champion.

In 1998 the WSA had six events and in that year there was three pro classes that my racers would race, and that would, you know, give you a total of 18 races in 1998 at the world level, with three world championships.

And in 1999, the schedule expanded to eight events, still with three pro classes, which would give you a total of 24 individual races and again three world championships.

Of those 42 races over the two years, [the corporate employer] won 32 of them. My team won 31 of those 32. And of the six available world championships, [the corporate employer] won five of those six, and all five of them being won by my team. (Emphasis ours)

All of these events are televised on ESPN and ESPN 2, and certainly almost, you know, certainly the majority of [the corporate employer’s] advertising is advertising, you know, the winning of those events, because it’s, in the snowmobile world it’s the most recognized events.”

The corporate employer clearly knew and supported through its budgetary process and otherwise that the claimant was racing on occasion for the stated purpose of obtaining technical information, which would enhance the success rate of the team as a whole. There is no question that what the claimant was doing by his occasional racing greatly benefited his racing team and ultimately his employer. Through his hands on testing and assessment, the claimant was able to enhance the performance of his elite team’s machines during the 1998 and 1999 racing seasons. The claimant’s racing team was “wildly successful” and he was financially rewarded for his achievements.

At the time of the claimant’s hiring, it was understood and agreed by the employer that the claimant would be allowed to continue racing for a period of time before winding it down. There was no direct evidence presented, which contradicted the claimant’s understanding when he was hired with respect to this arrangement that he had reached with one of the employer’s Vice Presidents. The claimant’s racing pattern did in fact change over time, which was consistent with the accommodation that was settled with the company’s Vice President. Originally the claimant was a sponsored rider, but this arrangement disappeared in time. The employer knew and was aware of the claimant’s conduct in regards to his racing and we note that no reprimand or any disciplinary action was ever discussed or administered by the employer.

The claimant may have done things differently from others in his profession, but nevertheless his employer benefited dramatically by the results that he and his racing team were able to achieve. On many occasion, a particular clutch or carburation problem occurring as a consequence of an altitude or temperature change would necessitate a correction in order to optimize the performance of the snowmobiles on each specific course. The claimant’s extensive experience as a professional snowmobile racer convinced him that the best and most efficient way to properly attain and preserve the snowmobiles’ competitive edge was to race them himself. The claimant sincerely felt it was in the employer’s best interest as well as his race team’s that it was necessary for him to race on the actual race course on chosen days in order to calibrate and maintain properly the employer’s racing team’s snowmobiles.

After having considered all of the evidence together with the arguments advanced by counsel for the parties, we have no hesitation in concluding on a balance of probabilities that the claimant’s accident arose out of and in the course of his employment. His entering the particular amateur race event on the day in which he was injured was reasonably incidental to his employment responsibilities. We find the claim to be acceptable and accordingly the claimant’s appeal is hereby allowed.

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 8th day of November, 2002

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