The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The worker submits he was in the course of employment with the carrier when he was injured on December 23, 2005. Applicable provisions of The Workers Compensation Act (the Act) include subsection 1(1) which provides a definition of accident and worker, subsection 4(1) and subsection 4(5).

Worker’s Position

The worker attended the hearing with an advocate who made a presentation on behalf of the worker. The worker answered questions posed by his representative and the panel. The worker’s wife also attended and at the request of the panel assisted the worker in providing information.

The worker described the accident. He advised that on the afternoon of December 23, 2005 he had cleaned his work shop so that his grandchildren could play in the shop when visiting over the Christmas period. He then started a fire and burned garbage from the shop just outside the main door to the shop. While the fire was burning, the worker proceeded to inspect the tractor and trailer in preparation for his next trip which was scheduled for December 27, 2005. He decided to add antifreeze to the brake lines on the unit to prevent them from freezing over the weekend. He opened the partly filled container of antifreeze in the shop and as he walked out of the shop, past the fire, the antifreeze ignited, causing an explosion which resulted in the worker’s injuries. The worker advised that this occurred at approximately 5:00 PM.

The worker advised that the carrier which he contracts with has several divisions and that contracts with drivers vary. He advised there are three different types of contract, which he described:

1. Company driver – drive employer’s tractor and pull employer’s trailer, paid by mile
2. Owner/operator – drive own tractor and pull employer’s trailer, paid by mile
3. Owner/operator – drive own tractor and pull own trailer, paid a percentage of freight rate charged to customer

A copy of the worker’s contract with the carrier was attached to the worker’s file. The worker is an owner/operator. This worker fits the description of the third category. The worker’s representative referred to various provisions including the provision dealing with the owner/operator’s responsibility for maintenance and repair of equipment.

The worker advised that as an owner/operator he was responsible for all maintenance and repair work on his tractor and trailer. He could perform the repairs himself, use the employer’s repair facilities or take them to any shop of his choice. He advised that he performed some maintenance by himself, including work, such as the replacement of shocks.

In support of the position that the worker was performing employment duties, the worker’s representative submitted that the worker was performing an operator’s inspection required by law in preparation for picking up a load on December 27. She stated this is different than maintenance, although maintenance is required. She submitted that this is a duty of a driver.

Later the worker referred to the work he was performing with the antifreeze as performing a “preventative thing”. He stated “So you just do it as a regular maintenance.” He also said that the work was also related to a trip he completed earlier on December 23.

The worker’s representative submitted that the worker was advised by the employer that as an owner/operator he was covered by WCB and that it should not matter whether the activity was as an owner or operator. She also submitted that where the workplace is should not matter. She stated that “the workplace is wherever it needs to occur and he shouldn’t be penalized for having a shop in his own yard...”.

Employer’s Position

The employer did not participate in the hearing. The employer provided correspondence confirming that on December 23, 2005 the worker was under dispatch to pick-up a load on December 27, 2005.

Analysis

The issue before the panel was whether the worker’s claim was acceptable. For the appeal to be successful the panel must find that the worker was injured by accident which arose out of and in the course of his employment. In other words, the panel must find that the worker was injured while performing employment duties. The panel did not make this determination.

It is accepted by the panel that if the worker was performing employment duties which meet the requirements of the Act, the worker is provided coverage as a worker of the employer. WCB coverage in this industry is the responsibility of the carrier. The worker did not have and was not required to have separate WCB coverage.

File information notes that historically coverage for owner/operators in the long haul trucking industry has been limited to the period from when the owner/operator picks up the load to when the load is dropped-off. Accidents that occur outside this period are not considered to have arisen out of or in the course of employment. There does not appear to be a WCB Board policy on this issue, only this historic practice. This practice appears to be based upon the position that the covered employment activity is the operation of the tractor and trailer to pick-up and deliver freight.

Review Office has suggested that a rationale for such a practice is that the worker is not being paid by the employer for services until the worker’s unit is loaded with freight and the worker is hauling goods, hence the worker is not in the course of employment when performing other activities.

The panel understands that assessment for long distance drivers is based upon miles driven, regardless of who owns the equipment, which is consistent with the historic practice. The panel also understands the rationale for this historic practice and also recognizes that it is difficult to determine when an owner/operator is performing employment activities, as opposed to other obligations which arise from the contractural supply of the equipment to the employer which is not an employment activity. The panel believes there may be instances where a worker is performing employment duties yet is not in the process of loading, hauling or unloading freight. The panel also notes that some WCB policies such as general premises can, under appropriate circumstances, extend coverage beyond the period when a worker is in pay.

The facts of this case are that the worker was not in the process of hauling a load at the time of the accident but rather was performing maintenance on equipment that he owns. The question is whether the worker was performing employment activities when injured.

The panel notes that the contract between the owner/operator and the carrier provides that the worker will supply certain equipment and personnel to the employer. There is a duty to repair and maintain the equipment and keep it in a safe and roadworthy condition in compliance with government requirements. The panel finds that this duty exists regardless of whether the worker is personally driving the equipment or has hired a third party to drive.