The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on April 14, 2005, at the worker's request.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

At her place of employment on October 13, 2004, the worker was drying the inside of her coffee cup when the handle broke and she sliced her left ring finger. Medical attention was immediately sought and the worker was diagnosed with a lacerated left ring finger.

On October 21, 2004, the worker advised the Workers Compensation Board (WCB) that she was washing a mug that she brought from home. It was not supplied by the employer. She stated that she was just washing the one cup and no one else's.

In a decision dated October 21, 2004, the WCB denied responsibility for the claim as it was determined that the worker's injury was a result of a personal action which was not work related. The WCB was unable to establish that an accident had arisen out of and in the course of her employment.

On November 5, 2004, the worker appealed the above decision to Review Office. The worker argued that the accident occurred at work while performing the normal daily routine of her employment.

Prior to considering the worker's appeal, Review Office contacted the office manager in connection with the worker's claim. The office manager later provided Review Office with a copy of a staff bulletin entitled "Extra Duties".

On November 18, 2004, Review Office confirmed that the claim was not acceptable. Review Office commented that the worker's injury occurred when she was washing out her own coffee cup in the lunch room. Review Office did not find the premises owned by the employer to have caused the hazard, but, rather that the worker created her own hazard by the washing of her own personal coffee cup which broke, causing the injury. Review Office pointed out that the employer's bulletin entitled 'Extra Duties' stated that all staff members were responsible for cleaning up after themselves. However, Review Office did not consider that the washing of one's own cup was an activity that was under the control and direction of the employer. Review Office found the worker's injury did not arise out of her employment. On February 14, 2005, the worker appealed Review Office's decision and a non-oral file review was held on April 14, 2005.

Reasons

As noted in the background the WCB determined that the worker's injury claim was not acceptable. The worker 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 worker and the appropriate law and policy.

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

Applicable Law and Policy

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

Generally, "arising out of employment" is concerned with whether the activity which gave rise to the injury is causally connected to the worker's employment. "In the course of employment" is concerned with the time, location and activity. Subject to the statutory presumption set out in subsection 4(5), both requirements must be met for the worker's claim to be accepted.

To assist with the application of subsection 4(1) of the Act the Board of Directors has made Policy 44.05.20 "General Premises". 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."

Worker's Submission

The worker provided a written submission. She noted that she was at work when the accident occurred and was within the normal daily routine of her employment. She provided a copy of the employer's "Extra Duties" notice which provides "Staff is responsible for cleaning up after themselves and keeping their assigned area clean and tidy each day". She suggested that this responsibility included cleaning her coffee cup after use.

Analysis

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 (i.e., 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).

Although the answer to questions II and III support an employment relationship, the answer to the first question does not. The worker was washing her coffee cup when she was injured. The staff had been assigned "extra duties" by the employer, but the worker was not assigned responsibility for washing dishes. This was not part of her employment duties. She was not directed by her employer to perform this function. We do not consider that washing the coffee cup was an activity under the control of the employer.

We find that washing the coffee cup was a personal activity and was not caused by a hazard of the premises and not under the control of the employer.

We also note that Paragraph 7 of this Policy provides that to be compensable, an injury must arise from an activity related to employment or be incidental to the employment. We find that washing the coffee cup was not an activity which was incidental to her employment.

Applying Policy 44.05.20 we find that the worker's injury did not arise in the course of her employment. We also find that her injury did not arise out of her employment. Thus there is no causal link between her employment duties and the injury.

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 not been satisfied. The worker'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 19th day of May, 2005