The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On February 12, 2003, the worker suffered a serious amputation injury while working on a personal project after regular hours at his workplace. He applied for workers compensation benefits. The worker submits that in working on the project he was gaining knowledge and expertise in the operation of the employer's equipment which would benefit the employer and that using the equipment at the time of the injury was part of his duty to be familiar with the plant operations. The Workers Compensation Board (WCB), at the primary and review levels, determined that the worker was not in the course of his employment at the time of the injury and denied his claim for benefits. The worker appealed this decision.

An appeal panel hearing was held on June 7, 2006, at the request of legal counsel, acting on behalf of the worker. The panel discussed this appeal following the hearing on June 7, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

An Employer's Accident Report was filed with the WCB on February 13, 2003. The employer indicated that the worker had "punched out" and was working on a non-work related project for one of his children when his right fingers made contact with a table saw blade causing amputation of his right finger digits. It was therefore the employer's position that the worker's injury was not sustained in the course of his employment.

On February 20, 2003, the worker advised a WCB adjudicator that he had been working on a personal project and had clocked out at the time his injury had occurred.

In a decision dated April 15, 2003, it was confirmed to the worker that his claim for compensation had been denied as the injury to his right fingers did not arise out of or in the course of his employment.

On March 18, 2004, a solicitor acting on the worker's behalf appealed the decision of April 15, 2003. The solicitor stated,

"Mr. [the worker's] position is that his injuries did arise out of and in the course of his employment as a supervisor with [employer's name]. During his employment, Mr. [the worker] was asked by his immediate supervisor, [name], to train and inform himself with respect to the use of various machinery at [employer's name], including a mitre saw and table saw. It was during the use of the table saw that Mr. [the worker] sustained injuries to his right fingers.

It is our submission to the Board that the fact that Mr. [the worker] had 'punched out' or 'clocked out' and was working on a project for his children at the time are immaterial facts. Mr. [the worker] was paid a salary and was not paid on an hourly basis. Therefore, it did not matter as to whether or not he had punched out at the time of his injuries.

Secondly, it did not matter as to the work Mr. [the worker] was actually performing during his use of the saw. It was the fact that Mr. [the worker] was using the table saw that he was gaining both the knowledge and expertise of using the saw, which he had been ordered to do by his supervisor [name] as a requirement of Mr. [the worker's] employment."

In response to the solicitor dated March 22, 2004, the WCB adjudicator noted that the worker injured his fingers while performing personal activities outside of normal working hours on February 12, 2003. She indicated that the employer had been contacted and confirmed that employees were not authorized to use the machinery or tools for personal projects. Based on these factors, the adjudicator concluded that the worker's injury was the result of personal activities unrelated to his employment.

The case was considered by Review Office on January 14, 2005 based on an appeal submission by the worker's solicitor dated November 9, 2004.

Review Office indicated that according to the employer, the worker was not normally expected to use the table saw during the course of his regular duties as a supervisor. The worker had been asked to familiarize himself with the equipment in the area that he supervised. This familiarization would have constituted job shadowing workers operating the equipment or using the equipment himself while under the supervision of a trained and qualified operator. Review Office indicated that this familiarization period ended in September 2002. The employer also confirmed that the worker had been given permission to use the table saw on February 12, 2003 but noted that he had 'punched out' for over two hours at the time of the accident.

Review Office denied the solicitor's appeal as it concluded that the file evidence clearly showed that the worker was involved in an activity for personal gain with no direct linkage to his work at the time his accident occurred. On January 12, 2006, the solicitor disagreed with Review Office's decision and an oral hearing was arranged.

On May 31, 2006, the employer's solicitor provided the Appeal Commission with color photographs and indicated that it would refer to a document entitled "Training Program - [worker's name] during the format of the hearing.

Reasons

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 his 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." Section 1(c) of this policy refers to the following factors which should be considered in determining whether an accident was in the course of employment:

I. 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).

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).

Attendance at the Hearing

The worker attended the hearing with legal counsel who made a submission on his behalf. The worker answered questions posed by his counsel and the panel. The employer's counsel declined the opportunity to have questions posed to the worker.

The employer was represented by a staff person and legal counsel who made a presentation on the employer's behalf. The employer also called as a witness the former general manager (hereinafter referred to as the "manager") of the employer's facility. The manager answered questions posed by the employer's counsel, the worker's counsel and the panel.

Worker's Position

The worker testified at the hearing in support of his appeal.

The worker advised that he was hired as a supervisor at a plant which manufactures products from wood. He did not have any experience in this industry and expressed concern about his lack of experience to the manager. He advised that the manager responded that specific industry experience was irrelevant and that management skills were not industry specific.

The worker acknowledged that the manager gave him a document titled "Training Program - [worker's name]" (hereinafter referred to as the "training program"). The worker states he was given this document which he described as a list of objectives and was asked to learn them. He indicated that the manager did not ask him to participate in a job shadowing program or to use the buddy system.

The worker advised that he required more knowledge of the business and did not feel confident as a supervisor. He advised that as of the date of the accident he was continuing to familiarize himself with the areas of the business that he was responsible for.

The worker advised that the employer required workers to swipe in when they arrived at work and to swipe out when they finished work. He also advised that although he was required to swipe in and out, he did not get paid overtime. The worker advised that there were about 6 occasions when he swiped out and continued to work but acknowledged that for 21 of 22 days of the month, swiping out occurred at the end of his work day.

The worker advised that he obtained permission from the manager to work on a personal project after regular hours on February 12, 2003. He noted that the manager told him to swipe out first before working on the project. He estimates that after swiping out, he worked approximately 45 minutes to an hour "…to make sure everything was done for the day and ready for the next day before I started." He then commenced work on the personal project.

The worker described the accident. The worker was building a small garage for one of his children. He was using materials that he found in the workplace. The accident occurred when he was cutting a piece of plexi-glass with a table saw. He confirmed that the table saw was within his supervisory area of responsibility. When asked whether he had familiarized himself with the use of the table saw, he advised:

"No, I didn't. The familiarization that I had with the saw was it looked like a very simple machine. It had a switch and it had a blade, it had a fence. I had helped the operator before by holding up the long pieces as he pushed them through and I'd held them on the back."

The worker denied having operated the table saw before the accident.

When asked whether it was his belief that he had finished work for the day or was still working when he was using the table saw at the time of the accident, the worker responded:

"I was still working. I was still working. I didn't understand - I needed to understand how that worked. I wasn't about to start cutting production material because I wasn't trained."

The worker's counsel submitted that the worker's claim is acceptable. He reviewed the evidence and referred to the three factors set out in WCB Policy 44.05.20, General Premises.

Regarding the first factor, he noted the worker was using the employer's equipment on the employer's premises. He acknowledged that the worker was working on a personal project, but argued that the worker "….was instructed by [the manager], his direct supervisor, to familiarize himself with the use of the table saw. That was a requirement of his job as supervisor. It was something he had to do….The fact that he was using the table saw was giving [the worker] the skill he needed to fulfill his job…."

Regarding the second factor, the worker's counsel noted that the worker was clearly on the employer premises.

On the third factor dealing with when the worker was injured, the worker's counsel asked "…did the activity occur at a time reasonably connected to the work shift?" Counsel noted that the worker was a salaried employee and that it did not matter that he had swiped out. He said that the fact that he had swiped out does not go to whether the worker was actually injured or in the scope of his employment. He noted the accident occurred less than two hours after he had swiped out. Counsel concluded that the third aspect of the test was met.

The worker's counsel also referred to section 7 of the policy which deals with the relationship of the activity to the worker's employment. He argued there was no break in the employment connection and that in using the employer's premises and machinery the worker was learning to use the machinery that he was asked to familiarize himself with. Counsel submitted that "It's the knowledge that you gain from that, that's what's important." He concluded that in this case the worker had not moved outside the scope of an accident that arose in the course of the worker's employment.

Employer's Position

The employer's counsel advised that the employer is participating in the hearing to lay out the facts and to insure that the evidence dealing with the hiring of the worker and leading up to the injury are accurately described. Counsel expressed the view that anything that happened post injury is not relevant to the proceedings. Regarding how the facts are used by the Appeal Commission, counsel advised that "What the commission does with those facts, that's not our issue today."

The employer called the manager of the workplace to provide evidence on the issues before the panel. The manager advised that he was the manager at the workplace when the worker was hired and when the worker was injured. He advised that he is no longer employed by the employer.

The manager confirmed that he interviewed and hired the worker on behalf of the employer. He acknowledged that the worker came from the aerospace industry. He could not remember whether the worker expressed concern about not having woodworking experience. Regarding the need for woodworking experience the manager advised:

"My expectation was, going through the different areas, it wouldn't have been required. What I was looking for was more can this person - whatever candidate we found, we were looking for a candidate that could supervise people, schedule, get product out on time. The other industry-specific kind of things could be learned on the job."

The manager acknowledged that he had provided the worker with the training plan. He stated that he asked the worker to learn the basics of each area. In response to a question about the training program referring to familiarizing yourself with a piece of machinery, the manager advised that:

"For example, familiarize, which would have meant work with a guy on the floor to understand how to do the functions…"

The manager acknowledged that the worker was expected to familiarize himself with the mitre saw and the table saw.

The manager indicated that he saw the worker operating the mitre saw. He could not recall seeing the worker use the table saw.

The manager advised that the worker would have to assist with production work on occasion. He estimated that the worker worked on the mitre saw on more than 10 occasions but less than 50. He also said it would have been difficult to work in the mitre saw area without the use of the table saw.

When asked whether he would expect the worker to stay after hours to familiarize himself with a piece of machinery, the manager answered "No." He acknowledged that he expected the worker would work alongside the machinery operator to learn about the machinery.

The manager was asked if the worker discussed "… any training concerns he had, any technical aspects of the job that he was concerned about being unable to perform after - either during the evaluation period early on or subsequently?" The manager answered no in regard to the mitre or table saw.

When asked when the worker's training plan would have been done to his satisfaction the manager replied "I'm thinking three, four months after his hire."

The manager was asked whether at the end of three months he was satisfied that the worker was familiar with all areas that he was responsible for, the manager replied:

"A. Yes. That's a degree. I'll say, I'll answer that a little differently actually. Downstairs, this area, he's where he should have been. Some of the technical natures of the upstairs custom area, that just came with time. He was about where he needed to be.

Q. Okay. Now he had to be familiarized with the finishing area, which included the mitre saw and which included, in conjunction, the table saw. You didn't see him operate the table saw, or at least you don't recall?

A. Correct.

Q. How did you satisfy yourself that he was familiar with that?

A. The gentleman training him, [name], was a very good table saw operator and mitre saw operator. He had been doing it and has been doing it for probably now 15 years. [Name] would have shown him correctly how to use that table saw.

Like, as you said, I can't say that I remember an occasion where he used it. [Name] would not have put up with poor workmanship, so to speak."

The manager acknowledged that at the time of the worker's injury, the employer permitted workers to work on personal projects after hours. He acknowledged that the worker asked permission to work on the personal project on the day of the accident. The manager could not recall telling the worker to swipe out before working on the personal project. He commented that "It would have been implied that it's a personal project, it's on your own time."

With respect to the worker's injury, the manager advised that he was called to the workplace shortly after the injury occurred. He advised that a piece of plexi-glass was found on the saw. He confirmed that plexi-glass is not a material that is used in production at the workplace. He acknowledged that the plexi-glass might have been at the worksite in relation to the repair of the cover for an air make-up unit. He advised that the table saw used by the worker did not have a blade suitable for use in cutting plexi-glass.

The manager was asked whether he had any indication from the worker that working on the personal project would allow him to upgrade his personal skills. He responded that he had not received such an indication.

The employer's counsel submitted that the worker was clearly working on a personal project and not a project that the employer could use. She noted the worker was using a material which was not appropriate for the saw and was not in use in the normal course of the employer's operation.

Analysis

The panel found the manager to be a credible witness. His answers to questions posed by the parties and the panel were consistent, frank and not defensive. Where there is a conflict in the evidence between the manager and the worker, the panel prefers the evidence of the manager.

The panel has considered all the evidence including the evidence provided at the hearing and the arguments made at the hearing and finds, on a balance of probabilities, that the worker's claim is not acceptable. The panel finds that the requirements of the Act have not been satisfied and that at the time of the injury the worker was working on a personal project outside the course of his employment.

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

I. 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).

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).

With respect to the first factor, the worker's counsel argued that there is a work connection in that the worker was instructed to familiarize himself with the use of the table saw and that knowledge gained would benefit the employer.

The panel makes the following findings of fact regarding the "what" factor:

- the worker was building a toy garage which is not a product manufactured or sold by the employer and that building such a product would not be of benefit to the employer.

- the worker was building a toy garage which is not a product manufactured or sold by the employer and that building such a product would not be of benefit to the employer.

- the manager's expectation was that in familiarizing oneself in the use of machinery, the worker would work with the machine operator and would not learn to operate the equipment by himself, after hours.

- the worker did not advise the manager that he needed to upgrade his skills in using the table saw and did not identify this as the purpose for staying after regular hours to work on the personal project.

Given the above findings, the panel does not accept that the worker stayed after regular hours for the purpose of familiarizing himself with the table saw. The panel finds that that the worker was engaged in a personal act which was unrelated to his employment at the time of the injury.

The second factor is concerned "where" the worker was performing the activity. The panel notes there is no dispute that the worker was injured in the workplace using the employer's machinery.

The third factor deals with "when" factors, when was the worker engaged in the activity. The panel notes and accepts the worker's evidence that his regular shift was from 7:00AM to 3:30 p.m. There is no dispute that the injury occurred after the regular shift and that the worker swiped out at approximately 3:37 p.m., about two hours before the injury. The worker states that after swiping out, he worked for an additional 45 to 60 minutes. The panel finds that the injury occurred approximately 60 minutes after completing this additional work and almost two hours after swiping out. The panel finds that at the time of the injury, the worker's purpose for being on the premises was to work on the personal project and that the activity did not occur at a time reasonably connected to the work shift.

The panel also notes 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. The worker's counsel submitted that the worker was learning how to use the machinery and that the employment connection was not broken.

The panel finds the worker was not working on the personal project for the purpose of learning to use the employer's machinery. The panel finds that building a toy garage is remote from the worker's normal employment functions. The activity was not related to the worker's regular employment functions which was to supervise the various aspects of the employer's business. Building a toy garage and using a material which is not used commercially in the workplace cannot be characterized as reasonably incidental to his employment.

Applying Policy 44.05.20 the panel finds that the worker's injury did not arise in or out of his employment. There is no causal link between the worker's employment duties and the injury.

The panel therefore finds, on a balance of probabilities, and having regard for the circumstances of this case, that the requirements of the Act have not been satisfied, the worker has not suffered personal injury by accident arising out of and in the course of his employment.

The worker's appeal is declined.

Panel Members

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

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 1st day of August, 2006