The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 18, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on May 18, 1999.

Issue

Whether the claim is acceptable.

Decision

That the claim is acceptable.

Background

On November 4, 1998, the claimant fractured a rib after descending from a transit bus. On his application form for compensation benefits, the claimant described the incident as follows:

“I had alighted from a bus at the location (Fort & Portage) where I was to start work. As I alighted I did not notice a concrete island due to people getting off ahead of me. As I alighted I turned to say good bye to the bus operator, I turned to walk away and tripped over this concrete block. I fell over the block not landing on the block but on the sidewalk on the opposite side. As I fell over the block, I had a leather bag which I carried my lunch & thermos in. As I fell I held onto the bag, and to avoid falling face first on the sidewalk I held the bag in my left hand and put out my right hand. As I fell the bag with my thermos (which was down by my waist) caught on the edge of the concrete block driving the thermos up into my chest cage, causing severe pain, loss of breath, and a loud crack. I fell to the pavement, I could not catch my breath, and when able I stood slowly. The bus that I had just gotten off of had not left yet, and called for assistance. I was taken to St. Boniface.”

On November 27, 1998, the employer’s representative opposed the acceptance of the claim. It was the employer’s representative’s opinion that the claimant was not in the course of his employment at the time of the accident nor was he under the direction and control of the employer.

The claimant’s union representative spoke with a Workers Compensation Board (WCB) adjudicator on December 4, 1998. The union representative stated that transit bus drivers were expected to be early at the stop where they would pick up their bus, ie. 10 or 15 minutes. It was standard procedure that they would take a bus to the stop where they were to pick up the bus. This was what the claimant was doing when he fell. The adjudicator spoke with the employer’s representative who stated his concern with the claim was that the claimant was on his way to work and not yet in the course of his duties. Transit drivers do not begin being paid until they actually start driving the bus that they are assigned to.

On December 15, 1998, Claims Services notified the claimant and the employer that the claim for compensation was not acceptable. Claims Services stated that compensation coverage only started when a worker arrived on the employer’s premises and ended when the premises were left. If travelling was a requirement of the worker’s job and the employer had some control over the transportation, then compensation coverage may be extended to include travelling to and from work. Claims Services was of the opinion the evidence established that the injury did not result from an accident which occurred on the employer’s premises, and that the claimant was not travelling in the course of employment. On January 26, 1999, the claimant’s union representative appealed this decision to the Review Office.

Following a review of the file documentation which included the union representative’s submission and one received from the employer’s representative, dated March 10, 1999, the Review Office determined that the claim for compensation was not acceptable. The Review Office noted that as a bus driver the claimant must travel to various locations within the city in order to assume control of the bus to which he or she had been assigned. The employer emphasized that bus drivers are not paid until such time as they actually assume control of their assigned buses.

The claimant had travelled by bus to a location where he was required to start his shift. When he disembarked from the bus, he apparently did not see a concrete block on the street and fell over it injuring his chest area. The Review Office concluded this accident did not arise out of or in the course of his employment. The fact that the worker was on a city street owned by the city did not necessarily make it “the employer’s premises”. The WCB’s policy on general premises provides that public or private land, buildings, roads or sidewalks used by the worker to travel to and from home and the employer’s premises are not considered a part of the employer’s premises.

On March 30, 1999, the union representative appealed the Review Office’s decision and an oral hearing took place on May 18, 1999.

Reasons

Chairperson MacNeil and Commissioner Frisken:

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 arisesout of, and in the course of, employment, and

(c) an occupational disease

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

On the day of the event in question, the claimant was alighting from a transit bus at the location where he was to begin his first shift of the day as a transit driver. The claimant testified at the hearing that it was his usual practice to arrive at his crew shift change destination at least 25 to 30 minutes ahead of schedule.

Q:

So it is your general practice that you arrive approximately 25 to 30

minutes prior to taking over a shift, whether it is the first shift or

otherwise?

A:

It doesn’t matter. You always get there early because you have

a problem with the bus breaking down, which they’ve been known

to do, and if you try getting there with the bus that would get you

there ahead of time, that bus too could go ahead and get caught up

in traffic or something. So you always want to make sure you get

maybe the second or even the third bus ahead of time to get down

to where you’re going to take over.

Q:

What happens, Mr. [the claimant], if you do not make arrival at

your appointed time to take over the shift?

A:

I lose my day’s pay.

Q:

Have you ever been, in your career, late for a shift?

A:

Yes

Q:

And you lost a day’s pay?

A:

Yes.

Q:

Has it happened more than once?

A:

In 20 years, I think it’s happened three times.

Q:

And was there any sanctions taken against you other than just loss of

pay?

A: I got reprimanded.

Q:

You got reprimanded?

A:

Oh, yes. I was informed that the next time it would happen, I could

get a week off, a week off pay.

Q:

Lose a week’s pay?

A:

Yes.

WCB policy 44.10.50.50 states in part, as follows: “Workers are generally considered to be in the course of employment from the time they arrive on the employer’s premises until they leave. Where travelling is a requirement of the worker’s employment, compensation coverage is extended to include travel during working assignments, as well as travelling to and from work assignments.” One of the adjudicative guidelines to this policy provides that a worker is considered to be in the course of employment when the worker is being paid for the time spent in transit, or is subject to the control and direction of the employer. (Emphasis ours)

Also of importance is WCB policy 44.05.20 which defines the meaning of premises. “The term ‘premises’ means the entire geographic area devoted by the employer to the industry in which the worker is employed. The employer’s premises may be defined as the buildings, plant, or location in which the worker is reasonably entitled to be during the specific course of or incidental to the employment.” (Emphasis ours). The policy also goes on to outline certain criteria that the WCB will consider 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 (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” (ie., did the activity occur at a time reasonably connected to the work shift).

An efficient mass transit system must by its very nature be a slave to schedules and as well must maintain direction and control over its drivers, otherwise it would operate in complete chaos. We find that the facts surrounding the claimant’s accident fall squarely within the scope of the foregoing policies. In our view, the events surrounding the claimant’s accident can reasonably be connected to his employment. There is no question that the injury occurred at a time reasonably incidental to the claimant’s work shift and at a time when he was subject to the direction and control of his employer. Had the claimant not been available for his shift change, then he would have most probably been subjected to various disciplinary sanctions and penalties imposed by the employer. Therefore, based on the evidence and the policies of the WCB, we find that the claimant was in the course of his employment at the time of the accident and, therefore, the claim is acceptable.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 18th day of June, 1999

Commissioner's Dissent

Commissioner Finkel’s Dissent:

The claimant is seeking to establish that his fall over a planter at a bus stop prior to the start of a work shift as a transit driver is an “accident arising out of and in the course of employment” under subsection 4(1) of the Workers Compensation Act (the Act). This would entitle the claimant to benefits for the consequences of the injuries sustained by him, as allowed under the Act.

After reviewing all evidence on file and presented at the hearing, and the submissions made on behalf of the claimant and the employer, I find on a balance of probabilities that while an accident occurred, it was not “arising out of and in the course of employment.” As such, I would deny claimant’s appeal in this instance.

In support of these findings, I note the following evidence:

• All drivers are expected to be at their relief location in time for the start of their shifts, with significant penalties attached if they are not at the location in time;

• All drivers are given complete discretion on how to get to their relief location, which includes but is not limited to the use of their own vehicles, walking, cycling, use of a city bus, and parking at a central garage and catching a bus;

• There is no job stipulation as to when a relief driver is to arrive at a bus stop prior to his or her shift, nor are there any job responsibilities assigned to a driver prior to the start of a shift, at a bus stop or elsewhere, outside of ensuring that they are appropriately dressed for the commencement of their duties and that while in uniform they behave with decorum;

• Drivers are not paid for the period prior to the start of their shift;

• Drivers are free to do whatever they like once they arrive in the vicinity of their relief location, up to the time the bus arrives that they are expected to drive. This includes shopping, walking, and attendance to personal business;

• The claimant arrived at the relief point at approximately 11:54 a.m. on the date of accident, nearly half an hour prior to the start of his work shift;

• The evidence at the hearing was that the claimant chose his means of arriving at the relief point, choosing to park at the central garage, and take a bus to the general area. The claimant’s evidence was that rather than take a single bus and walk a few blocks, he chose to take an additional bus transfer at an intermediate location which dropped him off right at the relief location, rather than nearby;

• The claimant had arrived at the bus stop early enough that he had the opportunity to undertake other activities had he so chosen. The claimant’s evidence at the hearing in this regard was, “When I was getting off the bus, I was just going to go ahead and probably sit around and chat with the guys that were going by anyways, because that’s what I always do, sit outside and wait and maybe have a cigarette and everything is fine and dandy, and take over my bus. That’s it.”

The submissions of the representatives for the claimant and employer at the hearing centered around whether arrival at the bus stop placed the claimant “in the course of employment,” with references to WCB Policy 44.05.20 – General Premises, with the union representative asserting that a bus stop was part of the employer’s premises and that the claimant had arrived at the premises early and was thus covered.

In reviewing the policies and the evidence, I find that this is not an appropriate interpretation of the policy or the legislation. I note that the preamble of WCB Policy 44.05.20 correctly 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. …This policy services as a framework for claims where the “premises” issue must be addressed.”

Based on the evidence noted above and presented at the hearing, I find the following provisions of WCB Policy 44.05.20 to be of assistance in determining whether the claimant was on the employer’s premises.

A. Policy

1. The Meaning of “Premises” and “Arising In the Course of Employment

b. The employer’s premise does not include:

i. The public or private land, buildings, roads or sidewalks by the worker to travel to and from home and the employer’s premises.

4. Multi-Storey Buildings/Shopping Malls:

Shopping Malls:

b. A worker is not normally considered in the course of employment while in shared areas wholly used by the general public which are in no way controlled by the employer. The determination is based upon whether the worker is subject to increased quantity of risk than the general public.

In assessing the evidence against the policies, I have reached the following determinations and conclusions:

• The bus stop is owned by the municipal authority, which also operates a public transit service. Section 1(b) of the WCB policy stated above clearly indicates that employer’s premises does not include public land, roads or sidewalks, which would include bus stops.

• A bus stop is at best a “shared area” that is used in a like manner by members of the public and by municipal employees. When the claimant, as a relief driver, steps off a bus and walks across a bus stop, he is in no way subject to an increased quantity of risk than any member of the general public.

• All drivers are required to develop their own strategies to arrive at the start of their shift. These strategies are completely out of the control of, or indeed the interest of, the employer.

• The strategy utilized by the claimant to bring him to the vicinity of the start of his shift coincidentally dropped him off at the exact location where his shift was to start, well before the start of his shift.

• The claimant had no responsibilities to the employer on arrival at that location, and was free to leave or to do anything he wished in the remaining 25-plus minutes prior to the commencement of his shift. The employer in no way exercised control over the claimant, either in dictating his mode of arrival, the time of arrival, extra pay to cover an early arrival, or by placing any expected duties on a driver at a bus stop prior to arrival of the scheduled bus.

Accordingly, I find that the evidence supports, on a balance of probabilities, a finding that there was no accident “arising out of and in the course of employment” as required by Subsection 4(1) of the Act. The minority would thus deny the claimant’s appeal regarding the acceptability of his claim.

A. Finkel, Appeal Commissioner