The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on June 27, 2006, at the request of a worker advisor, acting on behalf of the worker. The panel discussed this appeal following the hearing on June 27, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On August 31, 2005, the worker reported that she was struck by lightning when she "walked outside the front entrance of the building, put my umbrella up and tilted it to light my cigarette."

The accident employer's report stated that the worker had exited the building and was proceeding to a smoking area when a loud crack of thunder was overheard. She was observed to drop her umbrella and kneel to the ground. She then rose, ran back to the building and stated that she had been struck by lightning. She collapsed and an ambulance attended the scene and transported the worker to hospital.

The Workers Compensation Board (WCB) approved the worker's claim for compensation on September 14, 2005. The adjudicator determined that the worker had made reasonable and proper use of the facility provided by the employer, and that she had not created her own personal hazard. She was therefore entitled to compensation for an injury arising "out of and in the course of" her employment pursuant to subsection 4(1) of The Workers Compensation Act (the Act).

On September 19, 2005, the employer appealed the acceptance of the claim and provided information suggesting that the lightning had not struck the employee, but had "touched down on the opposite side of the building approximately 300 feet away."

The WCB case manager contacted two employees who had also been working on August 31, 2005. One, who had been with the worker at the time of the incident, recalled a flash accompanied instantaneously by a loud boom. He reported that everyone had ducked and the worker dropped her umbrella, crouched down and covered her ears. A moment later she turned and ran to the building. The co-worker indicated that he believed fork lightning had hit the building which was located about ten feet away from them. The other employee had been eating in the cafeteria on the opposite side of the building when the incident occurred. He stated that the lightning had sounded like a "bomb going off" and had hit the grass approximately ten feet from the building. He did not see any kind of mark on the ground following the incident.

On October 11, 2005, the worker was advised that the WCB was reversing the acceptance of her claim as "…there has been no physical evidence found to support that you were either struck by lightning or that lightning struck near your position. It is noted that when a flash of lightning occurred in the area accompanied by a crash of thunder, you were startled by this. Unfortunately, as you did not suffer an injury, this does not meet our definition of accident…"

A worker advisor, acting on the worker's behalf, appealed the decision to deny the claim. In a letter dated February 10, 2006, the worker advisor submitted that whether or not the worker was struck by lightning was not the determining factor. His position was that the worker was injured as a result of the events of August 31, 2005 and he submitted a medical report containing a diagnosis of post-traumatic stress disorder.

On February 24, 2006, Review Office concluded that the worker was not struck by lightning on August 31, 2005 based on an absence of any objective medical evidence of physical injuries having been sustained. Furthermore, Review Office determined that the diagnosed condition of post-traumatic stress disorder did not arise out of and in the course of the worker's employment, given that it was the worker's "personal choice to smoke a cigarette outside during a lightning storm which introduced the potential risk of injury." On March 1, 2006, the decision of Review Office was appealed by the worker advisor and an oral hearing was arranged.

Reasons

The issue before this panel was whether or not the claim was acceptable. Having considered all of the evidence and the applicable law and policies, we are satisfied that the worker sustained a personal injury and that it arose out of and in the course of her employment. We find that proceeding to a designated smoking area in the circumstances of this case was reasonably incidental to her employment.

A worker is entitled to compensation benefits pursuant to subsection 4(1) of the Act where personal injury by accident arising out of and in the course of the employment is caused to a worker. The employer's position on this appeal was essentially two fold: firstly that the worker had not sustained a personal injury, and secondly that if she was injured, the accident had not arisen out of and in the course of her employment. With respect to the first ground the employer submitted that the worker was not struck by lightning, and argued that the lightning had touched down on the opposite side of the building approximately 300 feet away from where the worker was at the time of the incident. The employer's safety officer gave evidence that he had conducted an external check of the premises and was unable to confirm that there had been a lightning strike. He also physically examined the worker and had been unable to identify any lightning entry or exit points. In contrast, there were statements from several witnesses presented at the hearing who asserted that there had in fact been a lightning strike in the immediate vicinity of the building. The safety officer conceded upon questioning from the panel that those witnesses "probably saw lightning." Indeed the safety officer himself stated that the thunder which was heard at the time was loud and that it "basically shook me inside the building."

The evidence of the worker was that she experienced a sensation of being crushed to the ground and felt that she had been hit by lightning. She initially dropped her umbrella and fell to the ground. She then staggered back to the building and collapsed at the building entrance. She informed the safety officer that she had been struck by lightning, and he immediately called for an ambulance and proceeded to check her vital signs. One witness to the incident reported that the worker was shaking throughout, and that the safety officer had stated that she was in shock. The safety officer confirmed to this panel that he had made that diagnosis at the time. The worker was transported to the hospital for assessment. While she sustained no physical injuries she subsequently experienced severe headaches, anxiety, muscle twitches and sleep deprivation, all of which, as opined by a WCB medical advisor on September 12, 2005 are consistent with injuries sustained by lightning strike survivors. Whether lightning struck the ground ten feet from the cafeteria on the opposite side of the building as was asserted by the employer, or hit the building ten feet from where the worker was situated, or hit the worker herself, the panel is satisfied that a lightning strike occurred on August 31, 2005 within the immediate vicinity of the worker, while she was on the employer's premises and that she sustained a personal injury as a result.

With respect to the second ground the employer argued that the worker had been on a break at the time of the incident and that any injury resulted from the personal action of the employee who had left the building to smoke a cigarette.

The term "accident" is specifically defined in subsection 1(1) of the Act as meaning:

"a chance event occasioned by a physical or natural cause, and includes

(a) a willful 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."

Without doubt a lightning strike is a chance event occasioned by a natural cause. Is it, however, in the circumstances of this case where the worker sustained an injury during a break, an event arising out of and in the course of employment. Policy 44.05.20 "General Premises" provides the panel with some assistance in that regard. It states that:

(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 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" (i.e. did the activity occur at a time reasonably connected to the work shift).

In this case the worker was proceeding to a designated smoking area on the employer's premises, at the direction of her employer, at the time designated by her employer for her to do so. The employer argued that because the worker was on a break, any injury that she may have sustained resulted from a personal cause rather than her employment. In this regard, Paragraph 7 of Policy 44.05.20 provides clarification:

(a) In order to be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (ie., is connected in a causal sense. )

(b) The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

(i) The injury 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. (emphasis added)

Policy 44.10.60.40 "Accidents Occurring in Lunchrooms" provides some further context:

Where a worker sustains an injury during a lunch hour, coffee break, or other similar period, that injury will be considered to have arisen out of and in the course of employment provided:

(a) The injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, and

(b) The injury arises from a hazard of the facility, and not a personal hazard.

The employer in this case had a policy which prohibited smoking in the building. It designated a number of locations on the exterior of the building where employees could smoke during a lunch or coffee break. The employer provided picnic benches and garbage cans at those locations for the benefit of the employees. On the day in question, the safety officer specifically directed the worker and the others that she was with not to linger close to the building under an overhang which protected them from the rain. He instructed them to proceed to the designated smoking area. It was as the group proceeded to that area that the lightning struck and the worker fell to the ground.

In the circumstances we are satisfied that at the time that the worker sustained her injuries she was engaged in an activity that was incidental to her employment. If the worker wished to smoke while on a break, she was under the direct control of her employer, who required that she be physically situated in a designated location. Accordingly the injury sustained by the worker arose out of, and in the course of, her employment for which she is entitled to compensation benefits pursuant to subsection 4(1) of the Act. The appeal is therefore allowed.

Panel Members

K. Dangerfield, Presiding Officer
M. Day, Commissioner
J. MacKay, Commissioner

Recording Secretary, B. Miller

K. Dangerfield - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of July, 2006