Decision #124/06 - Type: Workers Compensation

Preamble

The issue in this case was whether the appellant was a worker at the time that he was injured. The employer provided information in support of its position that the appellant was a volunteer and was not a worker at the time of injury. The appellant provided information in support of his position that he was a worker. The Workers Compensation Board (WCB) determined that appellant was not a worker. The appellant appealed.

An appeal panel hearing was held on May 30, 2006, at the request of a worker advisor, acting on the appellant's behalf. The panel discussed this appeal following the hearing on May 30, 2006 and again on July 4, 2006.

Issue

Whether or not the appellant was a worker as defined by the Act at the time of the August 29, 2002 accident.

Decision

That the appellant was not a worker as defined by the Act at the time of the August 29, 2002 accident.

Decision: Unanimous

Background

The appellant injured his lower back and right shoulder on August 29, 2002 while assisting to load a stove.

On September 29, 2002, the appellant advised a WCB staff representative that he was volunteering his services when the accident occurred. He stated that he was advised by his employer that he had no coverage. The appellant noted that he would sometimes receive a bonus from his employer but had not received any wages.

On June 17, 2004, the appellant advised the WCB that he was having ongoing problems with his 2002 injury and wanted his physiotherapy treatments covered. The appellant indicated that he was fired by his employer because of his injury.

In a decision dated July 7, 2004, a WCB adjudicator denied responsibility for the appellant's August 29, 2002 back and shoulder injury as it was found that he had no coverage through his employer. It was therefore determined that any previous, current or future problems related to the workplace injury would not be the WCB's responsibility.

In a further letter dated October 19, 2004, the appellant was advised that the WCB could not accept any responsibility for injuries resulting from his accident while he was volunteering. As volunteers were not formally on payroll and do not receive T4 slips for their services at year end, they are not covered by the WCB.

On August 31, 2005, a worker advisor, acting on the appellant's behalf, provided the WCB with a copy of a cheque stub in the amount of $213.22 made out to the appellant dated September 5, 2002. The appellant indicated that this cheque was payment for the time period including August 29, 2002. It was the appellant's position that this evidence, along with copies of other submitted information, proved that he qualified as a paid employee during the time of his August 29, 2002 accident and that his claim for compensation should be accepted.

Primary adjudication contacted the employer to gather additional information concerning the appellant's status with the employer. On October 19, 2005, the appellant was advised of the WCB's position that he was not a payroll employee at the time of his August 29, 2002 injury based on the following factors:
  • the appellant was not a payroll employee for the two weeks prior to September 5, 2002 and there were no time sheets completed or submitted by the appellant. Payroll employees were paid via direct deposit.

  • the cheque issued to the appellant on September 5, 2002 represented $50 for a volunteer honorarium and a $163.22 for a bonus that was paid to volunteers when the employer exceeded its target sales. This amount was not included on the appellant's T4 earnings as it was considered to be part of the volunteer honorarium.
On October 28, 2005, the worker advisor appealed the above decision on the appellant's behalf and the case was forwarded to the WCB's Assessment Committee for consideration.

In its decision rendered on January 18, 2006, the Assessment Committee confirmed that the appellant was a volunteer on August 29, 2002 and was therefore not entitled to benefits. The decision was based on Chapter W200, subsection 60(2) of The Workers Compensation Act (the Act). On January 25, 2006, the worker advisor appealed this decision to the Appeal Commission and an oral hearing was held on May 30, 2006.

Following the hearing, the appeal panel requested additional information from the employer's representative. On June 15, 2006, all interested parties were provided with the information that was supplied by the employer's representative and were asked to provide comment. On July 4, 2006, the panel met to discuss the case and considered a submission from the worker advisor dated June 21, 2006.

Reasons

Applicable Legislation

The Act provides a scheme of benefits and services for workers who are injured in the course of their employment. A prerequisite to entitlement to compensation benefits and services is that the injured person be a worker as defined by the Act. Subsection 1(1) defines worker as including:
  1. a person, whether or not under the age of 18 years, who enters into or works under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour or otherwise,
  2. a learner,
  3. a casual emergency worker as defined in subsection (4),
  4. a person deemed to be a worker under section 60(2.1),
  5. an employer who is admitted by the board as being within the scope of Part I under subsection 74(3),
  6. an independent contractor who is admitted by the board as being within the scope of Part I under section 75,
  7. a director of a corporation who is admitted by the board as being within the scope of Part I under subsection 74(3),
  8. a member of the family of an employer or of a director of a corporation that is the employer in respect of whom an application is made and approved under subsection 74(4),
  9. a person or a member of a class of persons declared to be a worker under section 77, and
  10. a person who is employed for more than 24 hours a week by the same employer
    1. in domestic service,
    2. as a sitter or companion to attend primarily to the needs of a child who is a member of the household, or
    3. as a companion to attend primarily to the needs of an aged, infirm or ill member of the household.
The appellant must fall within this definition to be eligible for compensation benefits and services.

Appellant's Position

The appellant attended the hearing with a worker advisor and his former case worker who acted as his representatives. The appellant answered questions posed by the worker advisor and the panel. The case worker made a submission on the appellant's behalf.

The appellant advised that to his knowledge on the date he was injured, he was providing services as an employee. He indicated that he was scheduled to work an eight hour shift but did not complete the shift because he was injured.

The appellant advised that each day he reported to the store, he completed time sheets. He did this whether he was working or volunteering. He stated that employees were paid wages and bonus but that volunteers were only paid a bonus.

In response to a question about being terminated from his employment with the store in February 2002, the appellant indicated that he did not receive a Record of Employment (ROE) until the following year. He stated that he was later asked to return to work at the store in August 2002 because experienced staff was needed. He stated that he was to return to the store as if nothing had happened in February and he would "…pick up where I left off, so that's -- I figured wages and everything." He stated that he would not have returned had he known he was returning as a volunteer.

The appellant's representative submitted that the employer's evidence to support that the September 5, 2002 cheque was for a bonus and honorarium and not for wages was not proven. She noted that the appellant did not generally receive pay stubs for wages and that the bookkeeping was inconsistent. She noted that the time sheet completed by the appellant for August 2002 was not available. She also noted that a colleague who was with the appellant on August 29, 2002 provided a letter indicating his belief that the appellant and he were working on that day.

The representative noted that there is no definitive proof that the appellant was working or was volunteering on the day of the injury.

In a written submission, the worker advisor noted that volunteers must work a minimum number of hours to qualify for an honorarium and bonus. The worker advisor submitted that the appellant performed 54 hours of service in August 2002, fulfilling a contract of service with the employer.

Employer's Position

The employer was represented by a staff person. The representative advised that the employer is a not-for-profit agency which operates a store. He advised that:

"Our policy and practice historically has been wherever possible to hire people who have wrestled with one form of mental health problem or the other."

…

"The policy is wherever possible to provide training, employment, volunteer opportunities. Sometimes it's as basic as providing some people a place to be and to have something to do, because that's positive for them at that stage of where they are, rather than have them sitting alone in an apartment.

So it's our intention and it's our effort to provide a way for people to engage in a work or a work-like situation as they move on."

The employer representative advised that the workplace uses separate time sheets for hourly employees and for volunteers. Subsequent to the hearing the employer representative provided copies of sign-in sheets bearing the name of the appellant for the months of August and September. The sheets are labeled "Volunteer Time Sheet". The August sign-in sheet indicates the appellant signed in commencing on August 14 on ten days for periods ranging from 2.5 hours to 8.5 hours. The September sign-in sheet indicate that the appellant signed in on three days for periods ranging from 3 hours to 7 hours.

Subsequent to the hearing, the employer representative also provided a copy of a "Record of Employment" (ROE) bearing the appellant's name. The ROE indicates the appellant's last date of employment was January 29, 2002. According to the employer's submission, the ROE was mailed to the appellant within five working days of his dismissal.

The employer representative submitted that the appellant was dismissed in early 2002 because of aggressive behaviour and threats and was allowed to return only in the capacity of a volunteer as an opportunity to have a work experience which might lead to a positive reference for him to take to another situation if he were seeking employment. The employer's representative advised that there was no written agreement or case plan dealing with the appellant's return to the workplace.

Regarding payments to volunteers, the representative advised that volunteers are paid an honorarium provided they provide a minimum of 40 hours of volunteer service in a month. Employees are not eligible for honorariums. Bonuses are paid when the store exceeds its sales target. Employees and volunteers who have qualified for an honorarium are eligible for a bonus. The appellant was paid an honorarium and bonus for August 2002.

Regarding the obligation of volunteers to report at the store, the employer representative advised that "…while we certainly can't and don't require people to come, it is helpful to know people will be coming in tomorrow…"

Analysis

The appellant asserts that at the time of the injury, he was a worker employed by the employer. For the appellant to succeed with this appeal the panel must find that the appellant was a worker as defined by subsection 1(1) of the Act. The panel is not able to make this finding.

The panel makes the following findings of fact upon which it relies in making its decision:
  • the store was operated by an agency which deals with persons with mental health issues. Through its volunteer program, the store provides opportunities for clients to experience workplace environments.

  • the appellant was employed by the employer in January 2002 but was terminated from this employment on January 29, 2002 and was issued an ROE by the employer on February 4, 2002. No other ROE was issued with respect to income from employment in August 2002.

  • the appellant was permitted to return to the workplace in the capacity as a volunteer in August 2002 to provide an opportunity for the appellant to have work experience which might lead to a positive reference for him to use if he were to seek employment in the future.

  • the appellant completed sign-in sheets for August and September 2002 which were labeled Volunteer Time Sheet.

  • in August 2002 the appellant was not required to report to the store for work on any particular day or at a particular time and was not given a work schedule. To be eligible to receive a volunteer's honorarium and bonus, the appellant was required to volunteer for a minimum amount of time. In August 2002 the appellant volunteered for 54 hours and qualified to receive an honorarium and bonus.

  • the appellant was paid an honorarium of $50.00 for his services in August 2002 and received a bonus. The appellant was not paid a salary and deductions were not made from the payments.

  • when contacted by the WCB in September 2002, the appellant advised WCB staff that he volunteers at the store and was volunteering when he was hurt.
The panel therefore finds on a balance of probabilities, that at the time of the injury the appellant was a volunteer.

The panel finds that in providing the volunteer opportunity to the appellant, the employer was not employing the appellant as a worker but rather permitting the appellant the opportunity to gain experience in a work environment. The panel finds that the evidence does not establish a contract of service, express or implied, between the appellant and the employer. The appellant was not required to attend the premises at any particular time. There was no argument to pay wages in exchange for services. The panel therefore finds that the appellant was not a worker as defined in the Act.

The 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 11th day of August, 2006

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