Decision #42/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on January 29, 1999, at the request of a union representative, acting on behalf of the claimant.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On August 31, 1998, the claimant, a transit driver, was walking to catch a "work bus" when he stepped off the curb and into a rut causing his left ankle to twist. On the same day, the claimant sought medical treatment and was diagnosed with a sprained left ankle.

In a letter dated September 4, 1998, an employer representative opposed the acceptance of the claim indicating that the claimant was not in the course of his employment at the time of the injury as he was on his way to work.

On September 11, 1998, Claims Services denied the claim based on the following rationale:

    "Generally, compensation coverage starts when a worker arrives on the employer's premises and ends when the premises are left. If traveling is a requirement of the worker's job and the employer has some control of the transportation, then compensation coverage may be extended to include traveling to and from work.

    In the opinion of the Benefits Division, the evidence established that the injury did not result from an accident which occurred on the employer's premises, and does not indicate that the claimant was traveling in the course of their employment.Therefore the claim has been denied."

On October 21, 1998, a union representative appealed the WCB's decision not to accept responsibility for the claimant's injury as a result of an accident. In making his submission, the union representative referred to a section of the Manitoba Employment Standards Act and to WCB policy 44.10.50.10. Based on these references, the union representative contended that the claimant was making his journey to work in the employer's vehicle, that the vehicle was under the supervisor and direction of the employer, and that the employer was paying for the claimant's expense of transportation to and from the work site.

On November 27, 1998, the Review Office determined that the claim was not acceptable. The Review Office was the opinion that the section of the Manitoba Employment Standards Act quoted by the union representative did not have any bearing on the adjudication of the case. With regard to WCB policy 44.10.50.10, the Review Office found that this was not applicable as the worker had not met the criteria set out in the policy. The Review Office was of the opinion that while the worker was making his way to the bus stop, any injuries would not be considered to be arising out of and in the course of the worker's employment and therefore the claim was not acceptable.

On January 29, 1999, a non-oral file review was held at the request of the union representative. At the time of the review, the Appeal Panel took into consideration all file documentation which included submissions from both the union and employer representatives.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

    (a) A wilful and intentional act that is not the act of the worker,

    (b) any

      (i) event arising out of, and in the course of, employment, or,

      (ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

    (c) an occupational disease

and as a result of which a worker is injured."

We find, as a fact, that the claimant's ankle injury did not arise out of or in the course of his employment and therefore cannot be considered compensable within the meaning of the Act. Accordingly, the appeal is hereby denied.

The employer's representative has suggested to the Panel that the worker's appeal is frivolous and that a financial penalty pursuant to the provisions of Section 60.8(7) of the Act be assessed against the worker and/or his union representative. We do not agree with this assertion. We believe the union representative simply misinterpreted WCB policy 44.10.50.10, upon which he relied to support his argument for claim acceptance and in doing so, misapplied it.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of March, 1999

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