Decision #93/04 - Type: Workers Compensation

Preamble

A non-oral file review was held on June 30, 2004, at the request of an advocate, acting on behalf of the employer.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On June 13, 2003, the worker injured his left knee while shooting a basketball on the employer's parking lot during a coffee break.

In a memo dated October 8, 2003, an adjudicator with the Workers Compensation Board (WCB) obtained the following information from the employer's representative:
  • coffee breaks are paid by the employer.

  • the nets were set up and the employer did not condone the activity of playing basketball on breaks --- no one said the workers could not use it.

  • although playing basketball was not part of the worker's job or part of any physical conditioning to perform the job, it was part of a wellness atmosphere that was promoted by the company.
On December 8, 2003, the WCB advised the employer that the claim was accepted in accordance with Sections 4(1) and 1(1) of The Workers Compensation Act (the Act). The WCB sector supervisor stated, "…it was noted that the employer was aware of this sporting activity occurring during coffee breaks and did not advise staff that they could not play. The employer also stated that they encouraged their staff to maintain a level of fitness through their "wellness atmosphere". Therefore, as the worker was making reasonable use of the facilities provided by the employer, the claim is acceptable."

In a submission to Review Office dated March 4, 2004, an advocate for the employer appealed the WCB's decision to accept the claim. It was the employer's position that the claim should not have been accepted as the worker was not engaged in a work activity which was responsible for the injury but a personal activity, not due to a hazard of the employer's premises.

On March 12, 2004, Review Office confirmed that the claim was acceptable based on the following rationale:
  1. "It is a paid coffee break.

  2. The employer has admitted that staff was not told they cannot participate in the basketball activity on their breaks.

  3. File evidence indicates that the employer was encouraging staff to be involved in what was deemed a "wellness atmosphere".

  4. The employer played a role in the purchasing of the basketball equipment.

  5. It is felt that the claimant's use of the facilities on his coffee break was reasonable and not a behavior that the WCB would deem would remove him from the scope of compensable coverage."
On April 16, 2004, the employer's advocate disagreed with Review Office's decision stating that the claim did not meet the requirements of WCB policy or the Act. On June 30, 2004, a non-oral file review was held to consider the advocate's appeal.

Reasons

As noted in the background the WCB determined that the worker's injury was acceptable. The employer disagreed with this decision and asked the Appeal Commission to review the decision. In arriving at our decision we reviewed the claim file and considered the submissions made by the employer's advocate and the appropriate law and policy.

The issue before us was whether or not the claim was acceptable. For the employer's appeal to be successful, we must determine that the worker's personal injury did not arise out of and in the course of his employment. We were not able to make that determination. Having considered all the evidence and the applicable law and policy, we are satisfied that the worker's personal injury arose out of and in the course of his employment. We find that playing basketball in the circumstances of this case was reasonably incidental to the worker's employment.

Employer's Position:

The employer's position was succinctly stated by the employer's advocate in a submission to Review Office dated March 4, 2004:
"It is the employer's position that the claim should not have been accepted as the claimant was not engaged in a work activity which was responsible for the injury but a personal activity, not due to a hazard of the Employer's premises."
In a subsequent submission to the Appeal Commission the employer's advocate states:
"The claimant's decision to engage in the leisure activity of basketball was a matter of personal choice and action, unrelated to performing activities for the purposes of the employer's business and not a requirement of his employment."
In support of this position the advocate refers to WCB Policy 44.10.60.30 "Accidents in Employer Parking Lots" and WCB Policy 44.05.20 "General Premises". He also refers to a General Information sheet included in the WCB Policy Manual under Section 44.05 "Arising Out of and in the Course of Employment." He submits that acceptance of the claim does not meet the requirements of WCB legislation and policy.

Law and Policy

For the worker's claim to be accepted by the WCB, the worker must have had an accident as provided in section 1(1) of the Act. Further, the accident must have arisen out of and in the course of his employment as provided in section 4(1) of the Act.

To assist with the application of section 4(1) of the Act the Board of Directors has made Policy 44.05.20 "General Premises". [Note this policy has replaced Policy 44.10.60.30 referred to in the employer's submission.] The Policy Purpose section of this policy notes that the policy focuses on "in the course of employment". It also notes that "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."

In addition to the Act and policy, there is case law from Manitoba and other jurisdictions dealing with similar incidents. While we are not bound by precedent and must determine each case on its individual merits, we find the case law provides useful guidance on how the "arising out of and in the course of employment" requirement is generally applied in cases involving recreational activities.

We note the following cases:
  • Manitoba Appeal Commission decision No. 079/2003 which accepted the claim of a police officer who was injured while playing volleyball outside work hours.

  • Manitoba WCB Review office decision No. 967/91 which found that a police officer who was injured while playing basketball during a paid lunch break should be compensated as his activities were reasonably incidental to his employment and therefore arose out of and in the course of employment.

  • Ontario WCAT decision No. 62/89 which accepted the claim of a worker who was injured playing volleyball on the employer's premises during an unpaid lunch period.

  • Ontario WCAT decision No. 794/90 which found that a worker was in the course of employment when injured during a ball hockey game which occurred during an assembly line shutdown.

  • Ontario WSIB decision No. 1234/00 which accepted the claim of a police officer who was injured during a soccer practice for a police women's soccer team.
Analysis

There is no dispute that the worker suffered personal injury by accident as required by subsection 1(1) of the Act. Nor is there any dispute regarding the other substantive facts of this claim. The worker was injured:
  1. while playing basketball;
  2. during a paid coffee break;
  3. on the employer's premises; and
  4. using basketball equipment which the employer helped purchase.
It is also clear that the employer did not prohibit workers from playing basketball on its premises and generally promoted involvement in physical activity as part of a "wellness atmosphere". We find the employer facilitated and did not prevent the activity which led to the worker's injury.

We considered WCB Policy No. 44.05.20 "General Premises". While the premises are not at issue in this case we note that Paragraph 1.(c.) provides the WCB will consider 3 questions when determining whether an accident was "in the course of employment":
  1. 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).

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

  3. 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).
We find the answer to each of these questions supports acceptance of the claim.

With respect to the first question dealing with "what " activity the worker was involved in, the worker was playing basketball at the time of the injury. He was using equipment which the employer helped to purchase. The worker's activity was consistent with the employer's promotion of a "wellness atmosphere". As noted previously, we find the employer facilitated and did not prevent workers from engaging in this activity. There was a clear connection to employment.

With respect to "where" the worker was engaged in the activity, the evidence is that the activity took place on the employer's premises. The specific location of the activity (on a portion of the parking lot) is not relevant.

Regarding "when" the activity took place, the worker was on a paid coffee break.

We also note that under Paragraph 7. of this Policy, to be compensable, an injury must arise from an activity related to employment or be incidental to the employment.

We find that the worker was engaged in an activity which was incidental to his employment. The previously noted facts confirm there was no break in the employment connection. The worker was playing basketball during a paid coffee break on the employer's premises with equipment which the employer helped to purchase. While the worker's activity was not directly related to the employer's production, it was consistent with the wellness atmosphere which was promoted by the employer and was facilitated by the employer through a contribution towards purchase of the basketball equipment and the use of the employer's premises.

We therefore find on a balance of probabilities and having regard for the circumstances of this case, that subsection 4(1) of the Act has been satisfied. The employer's appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of July, 2004

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