The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on March 17, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on March 17, 2003.

Issue

Whether or not the WCB should accept responsibility for the worker's left knee injury of November 17, 1999.

Decision

That the WCB should accept responsibility for the worker's left knee injury of November 17, 1999.

Background

The claimant is a police officer who, at the time of her accident, had five years service. Her initial injury occurred during the course of her employment, on March 2, 1999, as she was exiting a vehicle and slipped on ice causing her left knee to bend outward. The next day while training, her left knee again slipped outward. The claimant did not seek immediate medical attention as she thought her injury was not serious.

On March 4, 1999, the claimant attended a sports medicine physician and was diagnosed with a subluxation/hemarthrosis. An x-ray taken on the same day revealed a left knee joint effusion. No other abnormalities were identified.

Her claim for compensation was accepted and benefits were paid accordingly. She resumed her full pre-accident duties as of April 7, 1999.

On November 17, 1999, she aggravated the injury to her left knee. This happened while playing volleyball on the employer’s premises before her shift was to start. When she jumped up and came down the wrong way, her left knee popped out of place and she fell to the floor.

On March 16, 2000, primary adjudication informed the claimant that it was the opinion of a WCB medical advisor that her left knee flare up on November 17, 1999 was due to the nature of her activities on that date as opposed to the workplace injury of March 2, 1999. Hence, the WCB was unable to accept responsibility for any time loss that the claimant incurred between November 17 and 28, 1999. The claimant was advised that the WCB did not consider her to be in the course of her employment while playing volleyball on November 17^th and that a new claim could not be filed.

In reaching the above decision, the adjudicator commented that the claimant’s left knee condition had been stable, given that she had been capable of performing her pre-accident duties as of April 7, 1999 and given that she had been involved with other activities such as rollerblading, jogging, etc. prior to the volleyball incident on November 17, 1999.

On June 19, 2000, a union representative acting on behalf of the claimant, wrote to Review Office outlining his position that the claimant’s November 17^th injury was occasioned by an accident arising out of and in the course of her employment. He stated that the accident occurred on the employer’s premises and that the employer permitted and encouraged its employees to use the facility. Attached with the submission was an internal company policy entitled Criteria For Acceptance of Physical Fitness Program Related Injuries.

Upon reconsideration, Review Office determined that the WCB would not accept responsibility for the claimant’s volleyball injury which occurred on November 17, 1999.

Review Office considered the above-noted policy and expressed the opinion that the claimant’s participation in the volleyball game on the evening of November 17, 1999 would not be deemed an activity which was prescribed or approved by the fitness coordinator. It concluded that the circumstances surrounding the volleyball game did not arise out of and in the course of the claimant’s employment. As her shift was to start a couple of hours after the volleyball game, she was, of her own volition, participating in a recreational activity over which her employer had no control, and was on her own personal time.

On October 7, 2002, the claimant’s advocate appealed Review Office’s decision and an oral hearing was requested.

At the hearing held on March 17, 2003, the Appeal Panel requested:

• That the employer’s representative submit comments to the Panel in respect of specific case law submitted at the hearing by legal counsel representing the claimant.

• That the employer’s representative submit to the Panel any and all correspondence between the employer and the WCB pertinent to the employer’s internal policy entitled Criteria for Acceptance of Physical Fitness Program Related Injuries.

The Panel also requested information from the WCB’s legal services branch concerning the status of this policy, including comments on any written correspondence between the WCB and the employer.

The employer’s representative responded to the above request on March 31, 2003. On April 23, 2003, legal counsel for the claimant provided the Appeal Panel with his response in connection with the employer’s submission dated March 31, 2003.

On May 16, 2003, all interested parties were provided with the information that the Panel obtained from the WCB’s legal services branch and were invited to comment on the material. On June 10, 2003, the Panel met further to discuss the case and considered final submissions from the employer’s representative and legal counsel acting on behalf of the claimant.

Reasons

Chairperson Sargeant and Commissioner Day:

As noted above, the issue before the Panel was whether or not to accept responsibility for the injury incurred by the claimant on November 17, 1999, while playing volleyball.

There is no argument that this incident did not happen during the claimant's normal working hours. Thus, for the appeal to succeed, the Panel would have to determine that the activity of playing volleyball, at that time and at that venue, was reasonably incidental to her employment. We did make that determination.

We took particular note of the following statutory and board policy provisions:

• Subsection 4(1) of The Workers Compensation Act, which provides that compensation will be paid where a worker incurs "personal injury by accident arising out of and in the course of the employment";

• Board Policy 44.05, Arising out of and in the Course of Employment; and

• Board Policy 44.05.20, General Premises.

Of particular interest in this case is the above-noted document, exclusive to the police department, entitled Criteria for Acceptance of Physical Fitness Program Related Injuries. It provides as follows (in part):

Preamble

In order to promote fitness among the sworn members, the Police Department has entered into an agreement with the Workers Compensation Board to extend coverage to encompass injuries sustained while participating in an approved physical fitness program.

Eligibility

All police officer entering the department, on or after September 1, 1989, will be involved in the program on a compulsory basis. Serving members, hired prior to September 1, 1989, may volunteer to enter the program. Both compulsory and voluntary participants must maintain a level of fitness as prescribed by the Fitness Co-ordinator and attend for an annual fitness appraisal and program review with the Fitness Co-ordinator in order to continue their membership and maintain their eligibility for extended coverage. This coverage will lapse, without notification, if the member fails to appear for the fitness appraisal prior to the expiration of eighteen months from the date of the previous appraisal.

Scope

Members will be covered for injuries that are incurred while utilizing City owned recreational facilities to engage in activities specified in the approved physical fitness program. Program approval will be the sole prerogative of the Fitness Co-ordinator. Only while using those recreational facilities approved by the Fitness Co-ordinator will officers be eligible for the extended coverage. Coverage commences as soon as the member signs in at a City owned facility approved by the Fitness Co-ordinator and ceases upon the member leaving the said facility. No responsibility will be accepted for injuries incurred while en route to and from the approved facility.

Program Approval

…. Coverage will not be extended to include participation in any team activity.

Reporting of Injuries

If a program participant is injured … that injury must be reported immediately to the staff of the facility. ….

Claimant's evidence:

The claimant testified that she has been physically active all her life. In particular, since joining the police force in 1994, she has maintained a very active and broadly-based program of physical activity.

Since 1989, physical conditioning has become a condition of employment. The police force has developed a physical fitness standard, known as the Police Officer Physical Ability Test (POPAT). This is a very demanding test, described by the claimant as "four minutes of torture". A candidate for the police training academy must pass this test prior to acceptance. In order to graduate out of the academy, one must pass the test. Once on the force, it must be passed once a year. If not passed, the officer does not receive the step increment to proceed towards becoming a First Class Constable.

Passing the POPAT, on an annual basis, is necessary for receiving increments beyond First Class Constable, for entry into specialty units and for promotion. And, it must be passed in order to receive banked time off.

Furthermore, she told us that, in the division in which she works, she is involved in some form of physical altercation on every shift. Were she not fit, she could endanger her own life and that of her partner.

The police force provides a number of facilities at which officers may exercise. Most, if not all, district offices have workout facilities, including a weight room. In addition, the police academy, located in a former school, has a gymnasium, which, when not being used for recruit training is available to officers. It was at this facility that the claimant was playing volleyball, with a group of officers, at the time she incurred the injury, which is the subject of this appeal.

The claimant testified that all fitness training is done on the officer's own time. There are no opportunities for officers to exercise while on duty. This includes during lunch breaks when officers must remain in uniform and available to respond to an urgent call.

Among the sports in which police officers are encouraged to participate is volleyball. On the evening of November 17, 1999, she joined a group of officers, including a superior officer, at the academy gym at about 7.00 p.m. She was to go on shift that evening at 9.30 p.m. She played volleyball at this time on a fairly regular basis.

Counsel for the claimant asked the Panel to apply a test generally referred to as "reasonably incidental to employment." He argued that "the police employment situation is something that is completely unique when it comes to issues of physical fitness." He noted that not only are pay increments, promotions and even time off dependent on the officer's fitness, so is the life of the officer. Fitness "is the very fabric of their job."

In support of his argument, he presented the Panel with case law from Ontario, as well as a Review Office decision of the Manitoba Workers Compensation Board. Noting that the fact scenarios in these cases differed from the one before us, he asked us to consider the manner in which the decision-makers in these cases had applied the "reasonably incidental to employment" test.

From Decision No. 1234 00 [2002] of the Ontario Workplace Safety and Insurance Appeal Tribunal, counsel asked us to consider the following paragraphs, in particular:

[31] Regarding the criteria of “activity,” the policy indicates that an accident will generally have occurred in the course of employment if it occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to the employment. However, accidents occurring during personal activities may be considered to have occurred in the course of employment depending on the duration and nature of the activity and the extent to which the activity deviated from the worker’s regular employment activities. In determining whether an activity was incidental to the employment, an adjudicator is to consider the nature of the work, the nature of the work environment and the customs and practices of the particular workplace.

[33] In Tribunal Decision No. 1416/98, the Vice-Chair set out the following factors in determining whether an activity was reasonably incidental to employment:

- whether the worker was on the premises of the employer

- whether the activity involved something for the benefit of the employer

- whether the activity occurred in response to instructions from the employer

- whether the activity involved the use of equipment or materials supplied by the employer

- whether the risk to which the worker was exposed was the same as the risk to which he/she was normally exposed in the course of employment

- whether the activity occurred during a time period for which the worker was being paid.

[44] As noted above, the issue of work-relatedness requires an individualized approach, having regard to the real merits and justice of the case. Therefore, while the accident in question may not satisfy all of the criteria set out in the Board’s policy on “fitness programmes,” we nevertheless find that it meets the basic elements of the Workers’ Compensation Act and Board policy.

[58] We find that, at the time of the accident, the worker was engaged in an activity that was directly related to her employment, based on the circumstances that gave rise to her participation

in the soccer practice, the employer’s knowledge, approval and authorization of the activity, the benefit derived by the employer from the activity, and the control and supervision exercised by

the employer over the activity. The activity also involved risks relevant and potentially similar to those to which the worker was exposed as a police officer.

[64] In our view, the finding that the worker was in the course of her employment at the time of the accident is consistent with Tribunal jurisprudence in this area. We agree with the cases noted earlier that the issue of work-relatedness must be determined in all of the circumstances of the case and that certain factors will not necessarily defeat a worker’s claim (for example, the activity having been pursued voluntarily, there being minimal employer supervision, the accident having occurred off the employer’s premises or outside of the worker’s normal, paid working hours).

[65] As discussed, we find that the worker’s participation in the soccer practice was directly linked to her employment and that it was not merely a personal pursuit. While she may have become involved in the women’s soccer team on her own, both she and her employer understood this as furthering the important and mutually beneficial goal of improving her fitness level. The employer knew of and authorized the activity, both in general and in respect of the time and location of the practice. The employer did not exercise direct supervision, but nevertheless exercised significant control and supervision over the worker’s participation in this activity. The accident occurred off of the employer’s premises and outside of conventional police duties, but the location was fully known to and approved by the employer and the worker was injured during a paid lunch (or at a reasonable time between her lunch and her returning to the station).

We were also referred to the following passage from Ontario Decision No. 62/89 [1990]:

While the indicia of the necessary relationship are described in various ways, the critical question, in our view, is whether the activity that the worker was involved in at the time of his accident was reasonably incidental to the employment. Whether an activity is reasonably incidental must, of course, be determined on the facts of the particular work environment.

In Order No. 967/91, the Manitoba WCB Review Office found that a police constable who had injured himself while playing basketball during a paid lunch break should be compensated as his "activities were reasonably incidental to the employment and therefore the ensuing accident that occurred is considered to be one that arose out of and in the course of the employment."

The claimant's counsel argued, in closing, that by adopting the reasonably incidental test, we could accommodate his client. It was his position that the denial of coverage for participation in a team activity was not intended to cover the situation before us. He pointed out an anomaly in the criteria, in that a person could be practicing volleyball on her own and be covered, but that once you introduced five other persons, coverage evaporated, as it was now considered a team event.

Employer's evidence:

The representative of the employer argued that this injury was not compensable, as it had occurred while the claimant was "off duty, engaged in a game of volleyball with other co-workers, who were also off duty.

In response to the argument that she would qualify under the above-noted internal policy, he noted that the policy specifically excludes injuries resulting from participation in team sports. He further noted that "[t]his exclusion was specifically made in recognition of the potential for injury where there are multiple participants and intentional or unintentional body contact."

He argued that providing coverage in the situation of this claimant could equate 24 hour coverage, which is clearly not the intent of the criteria, or of the Act.

Other evidence:

At the request of the Panel the Physical Fitness Program Co-ordinator appeared before us to give testimony. The Panel was especially interested in obtaining information about the Criteria for Acceptance of Physical Fitness Program Related Injuries (the Criteria).

This document had its genesis in the 1988 collective bargaining agreement, which called for mandatory physical conditioning requirements for police officers. A protocol attached to that agreement included a provision to address the matter of compensation for injuries incurred while engaged in a fitness program or activity.

The witness noted that the document was developed over a couple of years, and that input was sought from the WCB.

In addressing some of the specific provisions, he informed us that, in practice, individual fitness programs are not approved. He has neither the time, nor the resources to act as a personal trainer for the approximately 850 persons in the program. During his annual individual assessments, he will discuss the officer's program, encouraging them to be as active as possible in whatever fitness regimes will best serve their own needs.

In order to meet the WCB requirement that the employer have some care and control of the fitness programs, he notes that the criteria limit coverage to city-owned facilities.

He responded to a query about the restriction against participation in a team activity by telling us that, in the initial drafts, team sports were included, but that this was removed by the deputy chief. The concern was that there are more, uncontrollable variables involved in team sports than in individual exercises.

He also noted, in response to the claimant's counsel, that he considered volleyball to be a team sport, as contemplated by the criteria.

The witness told us that he refers to the criteria as a "quasi-policy", as it has never been formally adopted by the Police Service. The Panel learned, subsequent to the hearing, that it has never been adopted as board policy, either.

Subsequent evidence:

Subsequent to the hearing, the Panel sought further information in respect of the Criteria. In addition, we offered the employer's representative an opportunity to provide comments in respect of the case law submitted by the claimant's counsel.

Case Law:

The employer's representative noted that the fact scenarios in each of the three cases in question was significantly different than that involving the claimant. Thus, in his view, these cases should not influence our decision.

In respect of WSIAT Decision No. 1234/00, he included a copy of Operational Policy 03-02-05, of the Ontario WCB, which is similar in its intent to the Criteria under consideration in this case. He noted that the claimant would not meet any of the four criteria included in the Ontario policy.

The claimant's counsel, in response, noted that the significant element in each of these cases was not the fact scenario, but the application of the "reasonably incidental to employment" test. He noted that, in WCAT Decision No. 62/89, it was stated: "Whether an activity is reasonably incidental must, of course, be determined on the facts of the particular work environment.

In respect of the Ontario policy, he noted that in addition to the four criteria, the policy states: "The Board will consider claims which do not fit these general guidelines on the basis of the merits and circumstances of each individual case."

Criteria for Acceptance of Physical Fitness Program Related Injuries:

At the hearing, we had asked the employer representative to provide copies of an exchange of letters, in 1991, between himself and the WCB of Manitoba, in respect of the above-noted document.

Of particular note, the Executive Director of the Benefits Division wrote:

1. In our opinion, coverage would not be discretionary in these instances as those participating in the program will, in fact, be "in the course of their employment" as this program could be viewed as a condition of employment.

2. The coverage conditions, in our view, comply with the concept that a worker must be subject to control and direction of the employer in order to be in the course of employment. …..

3. The program approval section seems entirely appropriate.

4. ….

In submitting this correspondence, the employer's representative commented that the board officer had erred in point #1 in concluding that the fitness program was a condition of employment and in point #2 in concluding that officers, while exercising, would be under the control and direction of the employer. In his view, point #3 reinforced the prohibition against team activities.

He added that he did not feel it necessary to correct these misinterpretations, as the employer had achieved what it wanted in providing expanded coverage for members under specific conditions.

The claimant's counsel responded by observing that, in his view, the board officer's interpretation was correct. He observed that, where a police officer's fitness is directly tied to promotion and pay increases, the officer would be "in the course of employment."

With respect to point #2, he believes that the board letter simply confirms "that coverage would be provided if the incident occurred at recreational facilities approved by the Fitness Co-ordinator, such as the Police Academy.

The Panel sought an opinion from the Legal Service branch of the Board as to what is the status of this document. Had it been adopted as Board policy, then, by statute, it would be binding on the Panel.

Of relevance to our consideration is the following summary:

1. The WCB and the Appeal Commission can consider the Criteria as evidence of what the parties consider work-related activities in this place of employment. The Criteria do not limit the Appeal Commission's jurisdiction to decide whether a particular claim is compensable.

2. The WCB's correspondence on the Criteria sets out the WCB's general position on the matter at the particular time. It is not an advance ruling, a Board Policy or an agreement between the WCB and the employer. The WCB's general position is not binding on the Appeal Commission in a particular case.

3. Matters of coverage are within the exclusive jurisdiction of the WCB and the Appeal Commission. Only the WCB and the Appeal Commission can decide whether a worker is in the course of employment and whether a particular injury arose out of and in the course of employment.

4. An employer cannot unilaterally or by agreement with its workers extend or limit workers compensation coverage. An agreement between workers and employers that purports to limit WCB benefits is void. To the extent that the Criteria purport to limit when coverage is available, they are void as between the worker and the employer. In any event, such an agreement is not binding on the WCB and the Appeal Commission.

Analysis:

The majority of the Panel is of the opinion that the Criteria are not binding upon us. It is arguable that, not only are they not binding, they may be irrelevant, in that they purport to limit coverage. Nonetheless, we are of the view that they are a helpful tool in achieving their primary intent, which is a physically fit police force.

The primary test that must be met in all claims is that of subsection 4(1) of The Workers Compensation Act, which provides for the payment of compensation for "personal injury by accident arising out of and in the course of the employment".

There are three routes that we can consider in analysing whether or not that test has been met. We will look at all three, along with provisions in the Act and Board Policies 44.05, Arising Out of and In the Course of Employment and 44.05.20, General Premises.

Condition of employment

In his letter to the city, in response to the proposed Criteria, the Executive Director of the WCB Benefits Division wrote that if the program were to be viewed as a condition of employment, then workers so-engaged would be in the course of their employment.

In considering whether or not this fitness program is a condition of employment, the majority considered the following:

• As a result of changes to the collective bargaining agreement, a standard of physical fitness became mandatory for those entering the force after September 1, 1989. It is voluntary for members in the force prior to that date.

• A prospective police office must meet this standard prior to entering the training academy, prior to graduation and, thereafter, on an annual basis.

• If the standard is not met annually, the officer does not receive the annual pay increment or additional time off in lieu of banked time; and will not be considered for promotion or for entry into specialty units.

• We took note of the employer's position that there are officers, under the mandatory requirements, who have consistently failed to meet the standard, but who have not been terminated.

Notwithstanding the last point, we are of the view that the fitness requirement does constitute a condition of employment. Any officer who wants to succeed in his or her career must meet the standard. As the claimant testified, any officer who does not wish to endanger her own life, that of her partner or that of citizens must be physically fit.

While there may be exceptions to the rule, the onus to meet the fitness standards is so great that it cannot but be considered a condition of employment.

Reasonably Incidental to Employment

The majority is also of the view that the claimant's counsel was correct in asking us to apply the reasonably incidental test to this case.

We note that the "reasonably incidental" test is one that is applied in decisions by the Manitoba WCB. Claimant's counsel referred us to a 1991 decision of the Review Office, in which the test was applied to grant compensation to a police officer injured while playing basketball during a paid lunch break.

It is worth noting that the only significant difference between that case and the one before us was that it occurred while on a paid break, whereas the claimant here was on her own time. In the 1991 case, the officer was attending a training course, during which participants were paid for lunch breaks; and allowed to engage in physical activity. Today, while on regular duty, officers are expressly prohibited from engaging in fitness training.

We found the reasoning behind WSIAT Decision No. 1234/00 to be helpful in our deliberations.

Following are some excerpts from that decision and our comments as to how they apply to this case:

• In determining whether an activity was incidental to the employment, an adjudicator is to consider the nature of the work, the nature of the work environment and the customs and practices of the particular workplace.

In considering the nature of the work, there is no argument that police work demands physical fitness. The nature of the workplace and its customs and practices are such that most officers engage in a regular, broadly-based fitness program. These programs are generally carried out in facilities provided by the police service, either in district stations or the academy gymnasium.

• Factors in determining whether an activity was reasonably incidental to employment:

- whether the worker was on the premises of the employer

- whether the activity involved something for the benefit of the employer

- whether the activity occurred in response to instructions from the employer

- whether the activity involved the use of equipment or materials supplied by the employer

- whether the risk to which the worker was exposed was the same as the risk to which he/she was normally exposed in the course of employment

- whether the activity occurred during a time period for which the worker was being paid.

The claimant here meets the first five of these factors. As noted above, under the regulations of this police service, such an activity will not occur during a paid period, while the officer is on regular duties. The only exceptions would be as noted above, where an officer is on a course.

We adopt the following language from this case:

"We find that, at the time of the accident, the worker was engaged in an activity that was directly related to her employment, based on the circumstances that gave rise to her participation …, the employer’s knowledge, approval and authorization of the activity, the benefit derived by the employer from the activity, and the control and supervision exercised by the employer over the activity. The activity also involved risks relevant and potentially similar to those to which the worker was exposed as a police officer.

"We agree … that the issue of work-relatedness must be determined in all of the circumstances of the case and that certain factors will not necessarily defeat a worker’s claim (for example, the activity having been pursued voluntarily, there being minimal employer supervision, … or outside of the worker’s normal, paid working hours).

"As discussed, we find that the worker’s participation … was directly linked to her employment and that it was not merely a personal pursuit. While she may have become involved in the women’s soccer team on her own, both she and her employer understood this as furthering the important and mutually beneficial goal of improving her fitness level. The employer knew of and authorized the activity, both in general and in respect of the time and location of the practice. The employer did not exercise direct supervision, but nevertheless exercised significant control and supervision over the worker’s participation in this activity."

The "What, Where, When" Test:

We also considered WCB Policy 44.05.20, General Premises. The premises are not really at issue in this case - there is no argument that the gymnasium was not a property controlled by the police force. Nonetheless, the test, set out in subsection 1.c. of this policy, sets out the consideration for determining "in the course of". It reads:

When determining whether an accident was in the course of employment, the WCB will consider:

i. What activity the worker was engaged in when injured in order to determine the connection with the employment (ie., did the injury result from a personal act, unrelated to the employment, or was there an employment connection).

ii. Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment.

iii. When the worker was engaged in the activity. This is also an important factor in determining whether the activity was "in the course of the employment" (ie., did the activity occur at a time reasonably connected to the work shift).

In the case at hand, there is no question in respect of the first two criteria - "what" and "where". The claimant was engaged in an activity that had a definite employment connection, which was carried out in a facility owned by the employer.

There might be some debate about the third point - "when". The claimant was to start her shift that evening at 9.30 p.m. The volleyball game started at about 7.00 p.m. Was this sufficiently close to the start of her shift to meet this test? The majority is of the view that it was. In this time, she played the game for an unspecified amount of time, showered, changed into her uniform and then drove halfway across the city to get to the police station, out of which she worked. We believe that two and one-half hours is not an unreasonably lengthy time to do this.

Conclusion:

The majority of the Panel, therefore, concludes, on a balance of probabilities, and having regard to all of the circumstances of the case, that subsection 4(1) of the Act has been satisfied in that the worker was in the course of her employment at the time of the accident.

In this case, all of the circumstances that led us to conclude that she was in the course of her employment include: that the fitness program is a condition of employment, that her participation in the volleyball game was reasonably incidental to her employment and that she meets the "what, where, when" test set out in board policy 44.05.20.

Thus, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of July, 2003

Commissioner's Dissent

Commissioner Finkel’s Dissent:

The claimant in this case is a police officer who injured her knee while playing volleyball with her co-workers in a police academy gym, while she was off-duty on November 17, 1999. Her claim for compensation for this injury was denied at the adjudicative and Review Office levels of the Workers Compensation Board, and she has appealed those decisions to the Appeal Commission.

For her claim to be acceptable, I would have to find on a balance of probabilities that the claimant’s injuries were work-related, that is, that they arose out and in the course of her employment as a police officer, as defined by Sections 1(1) and 4(1) of the Act, and the relevant Workers Compensation Board (WCB) policies. I was unable to make this finding, and my reasons follow.

Legislation and Policy

Sections 1(1) and 4(1) of The Workers Compensation Act (the Act) set out the general definitions of a work-related accident, and require that the injury “arise out of and in the course of” the worker’s employment.

Over time, it has been recognized that workers may suffer injuries while are not formally “on the job,” but where the proximity is such that there is a compelling argument for compensation; they may not be on the employer’s premises, they might be on a work break, or on travel, or travelling to or from the workplace before or after work, and where they are unpaid. In order to accommodate these situations, the WCB in Manitoba, as in other jurisdictions, has passed a series of policies that examine the notion of “ in the course of employment” and delineate the degree to which it is prepared to extend the coverage of the Act beyond a literal “on the job” interpretation, to include things “incidental” to the employment.

WCB has certainly contemplated that injuries may occur off the premises, off-hours, and in periods when the worker is not being paid, and has passed policies to delineate the degree to which it will extend coverage outside the workplace. Of particular relevance to the case at hand are WCB Policy 44.05 Arising Out of and in the Course of Employment, and Policy 44.05.20 General Premises.

While Ontario has passed a policy in respect of injuries arising out of a physical fitness program, there is no such policy enacted by the WCB in Manitoba.

Arguments

The claimant’s advocate argues that the claimant’s participation in a volleyball game off-hours in an employer-owned exercise facility is reasonably incidental to her employment, and thus her injury should be considered as being a work-related accident. The claimant’s advocate suggests that there are a number of ways in which the injury can be considered to be incidental to the employment.

The first argument advanced by the claimant’s advocate is that the maintenance of physical fitness was a condition of employment for the claimant, thus making her participation in the volleyball game reasonably incidental to her employment. The claimant’s evidence was that she had been employed as a police officer since 1994. Briefly, she states that physical conditioning had to be demonstrated when she was hired, and continues to be an integral component of her job. As well, she is required to maintain her physical fitness on her own time, without compensation from her employer. She noted the substantial physical training needed in order to qualify as a police officer. She then described her maintenance regime that she has sustained over the course of her employment. She noted, in particular, that access to promotions and bonuses in the form of additional time off requires proof of ongoing fitness, as established by an annual physical fitness test. In this particular case, the claimant had been maintaining her fitness levels, and thus would be eligible for the incentives offered under the collective agreement.

The employer’s position is that fitness standards must indeed be met in order for any candidate to be hired by the employer, but that a police officer will not be terminated if their physical fitness drops below the stated expectations; they simply will miss out on advancement opportunities. The claimant’s advocate provided no contrary evidence or argument to this description of the employment relationship between the claimant and the employer.

The claimant’s advocate also advanced the position that the location of the volleyball game (at the employer-operated police academy training facility), the timing (within a couple hours of the start of her next shift), and that she was playing only with other police officers, were factors that made it only reasonable to conclude that the injury was reasonably incidental to the employment and thus a work-related accident. The advocate noted that these factors differentiated this particular volleyball game from a beach volleyball game, which he noted might not qualify as reasonably incidental to the employment.

The employer’s position is that the claimant was not paid during this period, and that the game was well before the start of the claimant’s shift. They also note that the training facility was generally open to police officers, but unsupervised, and that the distance between the facility and the claimant’s job location was considerable.

There was also argument presented as to the status or weight to be given to an employer document titled, “Criteria for Acceptance of Physical Fitness Program Related Injuries” which had been developed as a byproduct of collective bargaining in 1989 between the employer and the police union. This particular document sets out circumstances in which the parties believed a police officer should be covered while participating in an off-duty fitness program, and was discussed in the context of the second argument.

Discussion

Is physical fitness a condition of employment?

The first argument focuses on the requirement that the claimant be physically fit, in order to be a police officer. The claimant’s advocate describes this as a “condition of employment,” thus making the participation in a physical fitness regimen reasonably incidental to her employment, and therefore compensable even though it did not take place during her working hours.

My view of the term “condition of employment” is that it deals with the fundamental contractual relationship between an employee and an employer. It establishes a common legal framework of expectations that each party expects of the other, and sets out, more specifically, the conditions under which a person is to be hired and as well the basis by which an employment can be terminated or disciplinary action taken, if those conditions are not met.

In this case, the uncontroverted evidence is that when the claimant applied to become a police officer, she was required to demonstrate a high level of physical fitness in order to be hired. If she failed to do so, she would not have been hired. This “snapshot” of physical fitness at the time of hiring, would, I conclude, qualify as a condition of employment.

The question remains though as to whether the maintenance of physical fitness is a condition of employment or something less. The employer’s position in this matter is summarized in their letter of June 6, 2003, and is consistent with the evidence heard at the hearing, stating:

“Participation in the physical fitness program, which entails an annual P.O.P.A.T. (Police Officer Physical Ability Test), is compulsory only, inasmuch as, it is required to qualify for promotions, increments, and 20 hours of Extra Duty Leave. However, failure to participate in the program simply negates entitlement to the aforementioned benefits but does not lead to dismissal. In fact, there are a number of officers that have not maintained their physical fitness level and thus, do not qualify for the benefits that accompany this achievement. Therefore, Mr. [WCB senior manager]’s conclusion that compulsory participation was “a condition of employment” is, we submit, inaccurate.”

In my view, the maintenance of physical fitness after hiring falls far short of a “condition of employment.” Maintaining fitness levels appears, on the evidence, to affect three matters only: access to promotions, salary increments and paid leave. There are no negative consequences that go to the core of the original employment contract relationship. Each of these incentives fails to meet the standard of “condition of employment” based on the analysis that follows.

Dealing firstly with access to promotions, I would note that the demonstration of ongoing physical fitness is simply one of many factors that can affect the career path of a duly qualified police officer, but does not threaten the officer’s ability to hold the job for which they were hired.

The notion of a career path or access to a potential promotion speaks to the reality of any workplace -- that many employees, once hired, will stay in the positions for which they are hired, while many others will move from position to position within an organization over time, and on occasion be promoted to other positions. Whether a given employee will in fact be promoted will depend on a number of factors that cannot be predicted at the time of their hiring, by either the new employee or their new employer. Factors will include: Exemplary (as compared to expected) performance on the job; how the employee’s skills and experience evolve and grow on the job; demonstration of the skills and attributes needed for the next position; how the employer perceives its needs, in defining the requirements for the promotion position; how the employer perceives the employee as meeting those needs; whether the employee is satisfied to stay in the position for which they are hired or chooses to seek advancement and increased responsibility; the timing of advancement opportunities; who they are competing with for the new positions; how well they interview; and changing organizational needs and job requirements.

Access to promotions may be casual or well-organized, and the selection criteria may be set by the practices of management or through collective agreements, or a combination thereof. The factors leading to promotion for specific jobs will vary from workplace to workplace and might include merit, seniority, education, and even physical fitness, and will change from time to time (and over time), and from position to position, within the organization.

Many of these factors lie within the control of the employee, and many of these factors are within the control of the employer. Access to a career path is part of a complex reward system that somehow combines the unique attributes of an employee with the needs of an employer, and reflects the organizational culture at a given point in time.

In this case, there is no evidence presented that a promotion was at any point guaranteed to the claimant either at the time of hiring or at any point subsequent to that time. The claimant was managing one of the factors that she could control (her physical fitness), but this is only one factor in this complex process. In assessing the matter of access to promotions, I conclude that the opportunity for future promotion represents, in this case, an optional, non-guaranteed and discretionary opportunity available to all police officers hired at the same time as the claimant that falls far short of a true condition of employment.

Dealing next with access to salary increments and paid leave, the claimant’s advocate argues, in his letter of April 23, 2003, that these are also conditions of employment. In support of this position, he referred to an April 8, 1991 letter that was written by a WCB senior manager to the employer, around the time of a collective agreement, when the employer and union were attempting to define, between themselves, the extension of coverage for injuries incurred in a fitness program. The letter speaks positively about the joint recognition of the parties to the importance of physical fitness in police work and describes it as a “condition of employment”, in a broader discussion of whether injuries in a physical fitness program would be covered. (This is discussed further, below). The advocate argues that “Mr. [WCB senior manager] firstly took the correct view that the program would be ‘in the course of employment.’ This is particularly evident where a police officer’s fitness is directly tied to promotion and pay raises.”

I have difficulty with this argument for a number of reasons. Again, the evidence suggests that access to salary increments and paid leave are also both optional in nature; they are left to the discretion of the employee to pursue, and do not go to the heart of the employment relationship between the claimant and the employer. Certainly, the employer has much to gain (as does the employee) by having fit officers, but these are nonetheless goals or performance targets, and not matters that are core to the employment contract. Again, the evidence does not disclose any provisions in the collective agreement (or evidence of such practice in the actual workplace) that a police officer would suffer a reprimand or termination through failure to meet the P.O.P.A.T. standard on an annual basis, after he or she is hired.

In a broader context, the claimant’s advocate is essentially arguing that any worker-initiated activities outside the workplace in pursuit of a merit increase will qualify as “incidental” to the employment. In my view, this argument proposes a dangerous extension of the term “in the course of employment” to include activities well away from the workplace, and far out of the control of the employer.

Many collective agreements note, for example, that salary levels are dependent on the educational level of a worker. A particular collective agreement for nurses, for example, has a pay scale for registered nurses, and will pay an extra $50 per month for nurses who have a Bachelors of Nursing degree, and an additional increment for those with Masters degrees. In theory then, evening courses taken by a nurse seeking her B.N. (at their own behest and at their own cost) have the same status as a physical fitness program for a police officer, as they both lead to salary increases. But does it mean that these activities (although of great benefit to the nurse and hospital) would qualify as a “condition of employment?” Was this really intended to be a natural interpretation of the statutory requirement that the injury “arise out of and in the course of employment?”

By accepting the advocate’s position, it is my view that the landscape of acceptable claims would change dramatically from what has been the usual interpretation of a workplace injury -- nurses or indeed any worker choosing to upgrade their education by attending evening courses could claim for injuries sustained while on their courses or on the campus, or in typing their papers, or in the library, as it affects their access to a pay benefit or even a promotion under the collective agreement. Similarly, employees who are reading a work-related journal or book at home which drops on their foot causing injury could initiate a claim, also claiming that it was incidental to activities in the course of their employment, as it affects their access to productivity pay increases or perhaps to a promotion.

There is no difference, in my opinion, from these examples to the current case, where instead of off-hours education, we have an off-hours physical fitness activity. If this is indeed a condition of employment, the consequences would again be far reaching; the evidence is that police officers are not constrained as to where they can train or what activities they can do, to stay fit. Again, if we accept the position of the claimant’s advocate -- that the maintenance of physical fitness is a condition of employment – this also leads to an astonishing extension of the types of incidents and resulting injuries that would have to be accepted by the Board as “incidental” to the employment. On this basis, there would be no reason to distinguish between an injury caused during this particular police gym-based volleyball game and a beach volleyball game, or a karate or aerobics class, a weightlifting session, chopping wood, or training for a marathon or a triathlon. All are laudable fitness activities, all would maintain or enhance an officer’s physical fitness, all would benefit the employer and the community… and all would thus qualify as accidents “arising out and in the course of employment,” under the advocate’s argument.

In my view, this position goes far beyond and is not consistent with how the WCB has generally interpreted the “reach” of its compensation scheme, as reflected by the few areas in which WCB has in fact extended its definition of “in the course of employment” to activities outside the traditional workplace, under the Act or its policies.

The wording of section 4(1) of the Act, requiring that the injuries “arise out and the course of employment” strongly suggests that there be a clear nexus to the workplace. Over time, there has been recognition that a too-technical interpretation of this wording – for example limiting it to “paid time” only or to the factory floor only or to the details of a job description – can skew Manitoba’s worker compensation scheme away from the intent of the legislators.

As a result, the WCB has passed, from time to time, a number of policies which carefully extend the reach of the term “in the course of employment” beyond the direct performance of job duties. This includes WCB Policy 44.05 Arising Out of and in the Course of Employment, Policy 35.10.40 Compensation Coverage for Union Activities, Policy 44.10.50, Transportation Controlled by Employer, Policy 44.10.50.50, Travelling on the Job, Policy 44.10.50.60, Special Assignment Coverage, Policy 44.10.60.40, Accidents Occurring in Lunch Rooms, Policy 44.10.60.50, Public Interest Emergency Actions, and Policy 44.05.20, General Premises.

In assessing this group of policies, it is important to note that each deals with situations where the worker is clearly at work (or involved in work-related activities) or very near the start or end of their shift. It is equally clear that the policies are restrictive in nature, rather than permissive. For example, travelling to and from work is, to the lay person, incidental to the employment, but for the purposes of workers compensation, travel coverage does not start until they enter the employer’s premises (which is itself given a broader interpretation to include parking lots and common areas). The list of activities that are covered by these policies is also finite, suggesting that careful and considerable thought has been giving to constraining the extension of coverage to these areas only. While Ontario’s workers compensation system has chosen to enact a policy that offers coverage to police officers and fire fighters for fitness program injuries under limited circumstances outside the workplace and normal work hours, it is important to note that an equivalent policy has not been enacted in Manitoba.

I conclude that to go where the claimant’s advocate suggests – that areas such as physical fitness programs or education programs away from the workplace and during unpaid time are “incidental,” as they could lead to a pay increase -- is an unjustified stretch of how the WCB has traditionally interpreted the term “activities incidental to the employment.”

For these reasons, I have determined that the claimant’s maintenance of a physical fitness program is not a condition of her employment.

Is the participation in this particular volleyball game an activity incidental to the employment?

The claimant’s advocate also argues that there are issues of “proximity” between her employment and the specific activities leading to the injury that would allow her claim to be acceptable. This argument deals with the timing, location, and circumstances of the volleyball game, and an employer document titled, “Criteria for Acceptance of Physical Fitness Program Related Injuries” which had been developed in 1989 as a byproduct of collective bargaining between the employer and the police union. As well, a number of cases were introduced by both advocates, in which various injuries caused by recreational or fitness activities were or were not covered by Canadian worker compensation schemes.

Both parties cite WCB Policy 44.05.20 General Premises, as a means of providing guidelines to this panel on how to treat the claimant’s activities. I would note that the often-cited Policy Purpose (noted below) must be read in the context of the area under discussion (employer premises), which deals only with the definition of employer premises.

POLICY PURPOSE

Workers are eligible for compensation if they suffer a personal injury "arising out of and in the course of employment". "Arising out of the employment" is mostly concerned with whether the activity giving rise to the injury is causally connected to the employment. "In the course of employment" refers to an injury which occurs within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment. Put simply, "arising out of the employment" generally refers to what caused the injury. "In the course of employment" generally relates to "in the doing of".

This policy focuses on "in the course of employment" and specific sub-topics which fall under "employer premises". This policy only deals with the determination of the "employer premises" regarding accidents which occur during the course of going to and from work.

"In the course of employment" is not limited to the actual tasks or exact hours of work. At the same time, it is generally agreed that workers compensation was not intended to cover the worker during travel between home and the workplace. Between these two extremes, a balanced principle on the subject of going to and from work has developed in the workers compensation arena. Namely, going to and from work is covered on the employer's premises.

No hard and fast rules can be maintained when considering the broad issue of "arising out of and in the course of employment". Each claim is considered on its individual merits. However, it is reasonable and necessary from a practical perspective to develop a framework to interpret the intent of the Workers Compensation Act as it applies to certain situations. This policy serves as a framework for claims where the "premises" issue must be addressed.” [emphasis added]

This policy also enunciates a series of tests from this policy, in particular:

A.1 The Meaning of “Premises” and “Arising In the Course of Employment:

c. When determining whether an accident was in the course of employment, the WCB will consider:

i. What activity the worker was engaged in when injured in order to determine the connection with the employment (ie. Did the injury result from a personal act, unrelated to the employment, or was there a causal connection).

ii. Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment.

iii. When the worker was engaged in the activity. This is also an important factor in determining whether the activity was “in the course of the employment” (ie., did the activity occur at a time reasonably connected to the workshift.

d. Generally, a worker is in the course of the employment upon entering or departing the employer’s premises, at a time reasonably close to the beginning or end of work, and using an accepted means of entering and leaving the employer’s premises, all in relation to performing activities for the purposes of the employer’s business.

WCB Policy 44.05 Arising Out of and in the Course of Employment is the broader policy document on this point, and is also relevant. The General Information section notes, in part:

“While workers are on the employer’s premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises.

Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of employment, where a worker is engaged in personal activities not related to or required by his/her employment the resultant injury would not be compensable. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.

The parties also cite an employer document titled, “Criteria for Acceptance of Physical Fitness Program Related Injuries” which had been developed in 1989 as a byproduct of collective bargaining between the employer and the police union. The preamble purports that the employer had entered into an agreement with the WCB “to expand coverage to encompass injuries sustained with participating in an approved physical fitness coverage.”

I note that both WCB and the employer were contacted by this panel about the status of this document vis-à-vis extension of coverage, and there is no evidence that an agreement was in fact made or that there is a WCB policy arising out of this document. It is trite law that matters of coverage are within the exclusive jurisdiction of the WCB and the Appeal Commission, and that third parties do not have the capacity to unilaterally extend or limit WCB coverage (even where the employer, as in this case, is self-insured and pays the full costs of its claims).

The parties nonetheless speak to the criteria referred to in the document as perhaps being of assistance to this panel, in the absence of a specific WCB policy on this type of situation. They refer in particular to the two following sections:

SCOPE

Members will be covered for injuries that are incurred while utilizing City owned recreational facilities to engage in activities specified in the approved physical fitness program. Program approval will be he sole prerogative of the Fitness Co-ordinator. Only while using those recreational facilities approved by the Fitness Co-ordinator will officers be eligible for the extended coverage. Coverage commences as soon as the member signs in at a City owned facility approved by the Fitness Co-ordinator and ceases upon the member leaving the said facility. No responsibility will be accepted for injuries incurred while en route to and from the approved facility.

PROGRAM APPROVAL

In order to be entitled to extended Workers Compensation coverage, participants must be involved in a program of physical fitness approved by the Fitness Co-ordinator. Coverage will not be extended to include the participation in any team activity.

The evidence shows that the volleyball game took place approximately 2.5 hours before the claimant’s work shift, at a police training facility several miles away from the claimant’s usual workplace at a district police station. The employer condoned the unsupervised use of the facility by police officers, and made a key available for that purpose to whomever was organizing an activity. The site was unsupervised at the time of the game, none of the officers were on duty, none were being paid, and the game itself was a “pick up” game. I also note that the claimant was not on a supervised physical fitness regimen; she meets briefly on an annual basis with the employer’s Physical Fitness Coordinator with whom she would have general discussions about her fitness activities. There is no requirement that police officers use that facility, nor is a log kept of their use of the facility.

The issue to be determined within this argument turns on the wording used in Policy 44.05: Was this an accident arising out of purely personal sources over which the employer has no control? Or was it sufficiently proximate to qualify under the General Premises Policy (44.05.20)?

In my earlier discussion, I have already addressed the matter of whether the claimant’s fitness activities were a condition of her employment, and found that it was not so. Those activities thus fall into the realm of general recreational activities, the kinds of things that are generally condoned and encouraged for general health, quality of life, and for prevention of workplace accidents. An injury that is incurred off-hours from one of those activities thus becomes “an accident arising out of a purely personal source.”

There is, however, case law demonstrating that injuries incurred during recreational activities have been covered, where either the employer has had some control or where the injuries happened on the employer premises.

Dealing firstly with the location (premises) issue, I note that the police training facility was owned and operated by the employer and available to the claimant. However, it was not her primary workplace, nor was her attendance or presence at that location expected or required by her employer, while she was on duty or during off-hours, either generally or on the specific day in question. As such, I find that the police academy was not a natural extension of the claimant’s regular workplace, nor was the employer in any way exercising any control, as contemplated under WCB Policies 44.05 and 44.05.20.

Dealing with the matter of timing, I note that the claimant was off-duty and unpaid. While it was argued that a game starting 2.5 hours before a shift is “reasonably close” to the start of the shift once the game is over, a shower is taken, and a drive to her workplace finished, I find that this is no different than many workers who choose, for example, to schedule a 6:00 a.m. workout before starting their 8:30 a.m. workday. This is a much different situation than a scenario where a game takes place at some point during the actual work day, or right at the workplace itself. The General Premises policy also clearly states that travel to and from work is not covered; this particular volleyball game occurs before that travel time, and as such, I find that there is no “time” nexus to the claimant’s workplace. As such, her injuries cannot be considered to be proximate to the employment on that basis.

A number of cases were cited in which coverage was granted to injuries incurred during recreational activities. We are required to consider each case on its merits, and we are not bound by decisions of other jurisdictions. Nonetheless, the reasoning used in other cases can be of assistance in establishing a framework to consider the case before us.

Ontario WCAT Decision 62/89 granted coverage to a worker who suffered an ankle injury on the employer’s premises during an unpaid lunch hour. Participation was voluntary. In finding for the worker, the tribunal noted that the activity was condoned by the employer, and that it occurred on the premises in a remote location. It applied the “reasonably incidental activity” test and determined that the accident arose out of the employment. I note that the facts of the case at hand differ substantially: the claimant’s injury did not occur during a work break but well before the start of a shift at a different location; it was not within the specific knowledge or control of the employer; and it did not occur at the employee’s regular worksite.

Ontario WSIAT Decision 1234/00 granted coverage to a worker who was injured during a soccer practice for a police women’s soccer team. The tribunal found that the worker was in the course of employment; unlike the case at hand, the officer was on a paid lunch, was available for duty, the activity was known to the employer, and was under the control and supervision of the employer.

Reference was also made to WCB Review Office Decision No. 967/91 in which coverage was granted to a police officer who was injured using the same police academy training facility as the claimant in this case. However, the facts of that case are again significantly different from the case at hand: the officer was on in-service training at that facility (and thus expected and known by the employer to be there), and he was on a paid lunch hour during the course of his regular work period, when the injury occurred.

Each of these cases demonstrates a much greater proximity to the workplace than is apparent in the case at hand, and I find that they do not assist in the extension of coverage that the claimant is seeking.

While the “Criteria” document offers up a hoped-for extension for coverage for fitness injuries, I find that it has not been enshrined in WCB policy. As such, it is interesting but not binding. Certainly, it goes well beyond the frameworks contemplated by the policies already discussed, and as such, I am reluctant to use it, or the criteria it suggests, as the basis for acceptance of this worker’s claim.

I note, though, that the claimant would fail, even under these criteria: there is a specific exclusion of coverage for injuries caused through the participation in any team activity. This presumably reflects the inherent risks associated in team sports (as compared to individual activities), such as planned or inadvertent contact, and unusual or awkward movements or falls or overuse injuries caused by the competitive demands of the moment. The claimant in this case hurt herself playing volleyball. For her to be successful, I would not only have to accept all the criteria stated in this document, but also excuse the exception that the Criteria document lays out. As I noted earlier, the WCB has indeed passed, from time to time, a number of policies which carefully extend the reach of the term “in the course of employment” beyond the direct performance of job duties. However, this is a finite list with carefully proscribed extensions, and I do not feel that this type of extension can be warranted in the current circumstances.

Conclusion

Based on the evidence presented and on file, and after consideration of the submissions by the parties, I find that the claimant’s knee injury on November 17, 1999 arose out of a personal activity and does not satisfy the “reasonably incidental test” to the statutory requirement that the accident must “arise out of and in the course of her employment.” The volleyball game was not a condition of her employment, did not occur at a time or location proximate to her regular duties, was well outside work hours, and the claimant was not paid at that time. Although the injury took place at a different premises owned by the employer, the employer exercised no control over the claimant in her use of the facility and had no knowledge of the claimant’s specific use of the facility.

For these reasons, I find on a balance of probabilities that while the claimant suffered an unfortunate injury, it does not qualify as an accident as defined in Sections 1(1) and 4(1) of the Act and relevant WCB policy on point. As such, I would respectfully deny the claimant’s appeal.

A. Finkel, Commissioner