The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 3, 2004, at the request of a union representative, acting on behalf of the claimant. Following receipt of additional information from the claimant and the employer, the Panel met again to discuss the case on June 28, 2004.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On July 2, 2003, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report right shoulder, wrist, elbow and rib injuries that occurred while biking to work on June 28, 2003. The claimant described the accident as follows:

"I was biking to work and I got my pant leg stuck in the bike causing me to miss seeing that the gate was closed. I got my pant leg unstuck and then I saw the fence and I tried to brake really hard and I ended up going over my handle bars injuring my right shoulder/wrist/elbow and ribs."

In a memo on file dated July 3, 2003, a WCB adjudicator noted that she had contacted the claimant to obtain more information about the mechanism of injury. The information provided by the claimant was as follows:

• he was biking to work on his own bike. This was how he usually got to work.
  
  
• the claimant was on a direct route to work and he usually goes through the front gates. He was working overtime as scheduled on the date of accident (Saturday, June 28, 2003).
  
  
• as it was Saturday, the gates at the front of the building which belonged to the accident employer were closed. The claimant said he was sleepy and tired and he did not notice that the gates were closed until the last minute. He was going fast and when he realized the gate was closed he started to brake fast and hard and was thrown over the bike handles. The claimant said he never hit the gate but landed a couple of feet away from it. The claimant felt that his accident occurred because the gate was closed.

In a memo on file dated July 9, 2003, the WCB adjudicator stated that she contacted the employer. The employer's position was that the June 28, 2003 accident was not a workplace injury as the accident did not occur on company premises.

In a decision letter dated August 20, 2003, the claimant was advised by primary adjudication that his claim for compensation had been denied. Primary adjudication stated that compensation coverage started when a worker arrived on the employer's premises and ended when the premises were left. If traveling was a requirement of the worker's job and the employer had some control of the transportation, then compensable coverage may be extended to include traveling to and from work. Primary adjudication was of the opinion that the evidence did not establish that the injury resulted from an accident which occurred on the employer's premises and did not indicate that the claimant was traveling in the course of his employment. On September 18, 2003, the claimant appealed the decision to Review Office.

On October 3, 2003, the Review Office upheld the decision that the claim was unacceptable for the following reasons:

"It is the opinion of the Review Office that it is irrelevant whether or not the accident occurred on company premises. Clearly the accident would not have happened if the worker had not been riding his bike to work on June 28, 2003. Review Office confirms that compensation is not generally payable while a worker is traveling to work. In this case the worker's injury was precipitated by the hazards inherent in riding a bicycle, and cannot be construed as being caused by his employment, or a hazard of the employer's premises.

Thus, it is the opinion of Review Office that the accident occurred due to the personal actions of the worker, and as such, is not compensable."

In January 2004, a union representative, acting on behalf of the claimant, appealed Review Office's decision to the Appeal Commission and on May 3, 2004 a non-oral file review took place.

Following discussion of the case, the Appeal Panel requested and obtained information from both the claimant and the employer with respect to the accident location. They responded as follows:

a) The employer confirmed that it owns the road leading to the west gate, where the accident occurred, and is responsible for its maintenance.

b) The claimant advised that the accident occurred within 2 feet of the employer's gate at 6:25 a.m., 5 minutes before the start of his 6:30 a.m. shift.

On June 10, 2004, all interested parties were provided with copies of the information that the Panel received and were asked to provide final comment. The employer responded, noting that the claimant reported his accident to them as occurring at 6:55 a.m. on June 28, 2003, 25 minutes after the start of his scheduled 6:30 a.m. shift.

On June 28, 2004, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The claimant was travelling to work by bicycle early Saturday, June 28, 2003, when, on the employer's property, his pant leg was caught in the chain of his bicycle and he fell, suffering personal injury. The issue in this case is whether such an accident is a compensable one as having arisen "out of and in the course of employment" as required by s. 4(1) of The Workers Compensation Act.

WCB policy 44.05.20, "General Premises" notes that, although travelling to and from work is generally not covered by workers compensation, the employee is covered once he or she arrives at the employer's premises. The policy goes on to define "premises" as "the entire geographic area devoted by the employer to the industry in which the worker is employed."

Simply being on the employer's premises is not sufficient, however. The injury must occur "in the course of employment." Paragraph 1(c) of Policy 44.05.20 outlines the relevant factors to be considered in 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.)

In this case the worker was

WHAT: riding his bicycle to work, having arrived at work, when his pant leg became caught, leading to a fall;

WHERE: on the employer's general premises as the road where the accident occurred is a "captive road", being owned and maintained by the employer;

WHEN: arriving at a time reasonably close to the beginning of his scheduled 6:30 a.m. shift.

The panel considered whether this accident was the result of personal causes and not from employment. Policy 44.05.20 addresses this point as well. If an injury occurs on the employer's premises, it is considered to arise out of employment unless it was "the result of a personal action by the worker and was not caused by a hazard of the premises or an occurrence under the control of the employer" or "the worker was engaged in an activity not incidental to the employment." The question, then, is did the claimant "break the employment connection" in some manner? The panel found that he did not. As noted above, going to and from work is covered on the employer's premises. The claimant went to work by bicycle and had arrived on the employer's premises at a time reasonably close to the start of his shift. Nothing in the timing of his arrival or his operation of the bicycle are sufficient, in the panel's opinion, to break the connection that "going to work" has with his employment.

The panel finds that the claim is compensable and the claimant's appeal is hereby allowed.

Panel Members

C. Harapiak, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

C. Harapiak - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of July, 2004