The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On October 7, 2006, the worker sustained an injury to his back region while suffering from the effects of food poisoning during his shift. The claim for compensation was denied by primary adjudication on the grounds that the evidence did not establish that the worker sustained an accident in the workplace as defined under subsection 1(1) of The Workers Compensation Act (the “Act”). The decision was overturned by the Review Office on October 16, 2007. It found that the practice of eating group meals prepared in the kitchen on the employer’s premises was accepted and encouraged by the employer given the unique job demands placed upon the worker. It therefore determined that the worker’s back injury did result from an accident that arose out of and in the course of his employment. The employer disagreed and filed an application to appeal with the Appeal Commission. A file review was then held on March 18, 2008.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker reported that he was struck with food poisoning on October 7, 2006 which he related to the food that he ate at breakfast time with his co-workers during his work shift. He indicated that he was so violently ill that he threw out the muscles in his back. He noted that some of his co-workers also had symptoms but not to the same extent that he did.

During a telephone conversation with WCB staff on October 20, 2006, the worker advised that at his workplace, the employees participate in group meals. They pick up and pay for the groceries out of their own pocket, then cook the food while at work. He stated that this was a routine that they all followed for some time.

Information obtained from the employer dated October 24, 2006 indicated that participating in group meals at work was voluntary and not mandatory.

On October 31, 2006, primary adjudication advised the worker that the WCB would not be accepting his claim on the grounds that participation in group meals was voluntary and therefore any sickness resulting from it was viewed as being caused by a personal hazard. The worker was advised that the WCB could only accept accidents which arose out of and in the course of employment. Although the accident was in the course of the worker’s employment, it did not arise out of his employment. Since participation in the meal was on a voluntary and not mandatory basis, the claim was not acceptable. A formal written decision was sent to the worker on October 31, 2006.

In a submission to primary adjudication dated January 2, 2007, the worker’s union representative outlined the position that the ‘unique obligations or conditions of this employment’ did contribute substantially to the accident and that the activity in question was not merely ‘a personal activity not related to employment’. It was argued that:

• The worker’s employment required a constant state of readiness. While on shift, the worker had to be readily available to respond to alarms at all times. He did not have a set mealtime during which he was “off-duty” but was expected to eat “in house” and “on duty.”

• The activity of preparing a group meal and eating together was not merely a personal activity not related to employment but rather was a morale building and cultural tradition as well as a nutritional necessity. Since the worker worked 10 hour shifts, this implied that at least one full meal was warranted.

• The worker’s job duties required physical exertion and it would not be wise, advantageous or safe to perform his duties on an empty stomach or with low blood sugar levels.

• Overall, although the workers purchased groceries with their own money, the employer provided full kitchen facilities, promoted group preparation and participation in meals and required the workers to be readily available to respond to calls. As such, the digestive difficulties ought to be considered as arising out of and in the course of employment.

On February 16, 2007, primary adjudication determined that the information submitted by the union representative did not warrant a change to the decision reached on October 31, 2006. On July 27, 2007, the worker’s advocate appealed this decision to the Review Office. The worker’s advocate argued that the worker’s profession did not reflect the typical work setting. His job required him to remain available for calls which meant that he was unable to leave his employer’s premises for meal breaks. As the employer provided a kitchen for the preparation and serving of meals it became part of the regular routine and the workers considered meals to be part of their jobs. Meal preparation was an integral part of the worker’s duties and hazards associated with cooking and eating became a chance event arising out of the worker’s normal duties and routines, since the employer provided the kitchen, they were assuming the risk(s) that may be associated with the cooking and eating of food prepared in those kitchens.

On August 22, 2007, the employer’s representative provided a submission to Review Office in support of the adjudicator’s decision of October 31, 2006. The employer’s representative argued that the cause of the worker’s illness was the preparation of food, which he contributed to on a voluntary basis. This constituted a personal hazard and as such, the resultant illness could not be construed as one that arose out of and in the course of employment.

In response to inquiries by Review Office, the employer’s Deputy Chief of Operations provided the following information:

• As a general practice, group meals are prepared. Participation is voluntary and some workers choose to bring their own meal or not to participate.
• Persons partaking in the meal split the cost evenly.
• The workers paid hours include all meal and coffee breaks.
• There is no specific rotation for cooking the meal and generally the person cooking volunteers. It is not an assigned task.
• The workers are permitted to leave the station to pick up food to cook or take back to eat, but because they are “on duty” and expected to respond to an incident, it is impractical and unreasonable to dine out.
• Occasionally, workers may be excused from certain duties to allow for meal preparation. However, a majority of meal preparation is done after scheduled activities or training sessions.
• Meals are a cultural activity but are not described in any work list. Meal preparation is accepted and often encouraged, but not at the expense of the mandate to be prepared to respond to an emergency.

On October 16, 2007, Review Office determined that the claim for compensation was acceptable. The Review Office stated that the worker’s unique employment demands required him to eat and sleep on the employer’s premises while on shift and that these demands render their employment different when considering what actions arose out of and in the course of their employment. The Review Office indicated that there was no dispute that the worker’s back injury was caused by becoming ill after eating a meal prepared at his worksite. The practice of eating meals prepared in the at-work kitchen was accepted and encouraged by the employer given the unique job demands placed upon the worker. The Review Office did not consider this to be a personal and voluntary act. It considered that the worker’s back injury resulted from an accident that arose out of and in the course of the worker’s employment and that the claim was acceptable. On December 4, 2007, the employer’s representative appealed the decision to the Appeal Commission and a file review was arranged.

Reasons

Chairperson Choy and Commissioner Ogonowski:

Applicable Legislation

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The key issue to be determined by the panel is the interpretation of the phrase “arising out of and in the course of employment” and whether the worker’s personal injury was caused by an accident which both arose “out of the employment” and “in the course of his employment.”

The following WCB policies are germane to the issues in this appeal:

• WCB Policy 44.05, which deals with the phrase “arising out of and in the course of employment”;
• WCB Policy 44.05.20, which focuses on interpretation of the term “in the course of employment” as it applies to employer premises. This policy also provides some guidance on the interpretation of the term “arising out of the employment” when there is an element of personal hazard involved; and
• WCB Policy 44.10.50.60 which deals with “Special Assignment Coverage” i.e. situations where workers are away from their regular place of work, for example, when attending courses and conventions.

The relevant portions of the WCB policies will be set out later below.

The employer’s position:

The employer’s representative provided a written submission. In the submission, it was argued that the worker’s injuries resulted from the consumption of foods and not the preparation of same. The acquisition and preparation of food was purely voluntary and was not subsidized by the employer. Eating meals is an activity of daily living and not one that arises out of one’s employment. The food which the worker consumed, and which ultimately resulted in his injury, was his own personal property and thus, constituted a personal hazard.

The worker’s position:

The worker was represented by an advocate who by letter confirmed reliance on the previously stated arguments and maintained that the food poisoning and resulting low back problems arose out of and in the course of the worker’s employment. It was argued that the additional information provided by the Deputy Chief of Operations confirmed their understanding of the situation.

Analysis:

The question for the panel in this appeal is whether the worker’s food poisoning was an accident arising out of and in the course of employment. It is the opinion of the majority that the food poisoning did arise out of and in the course of the worker’s employment.

There are two elements to the phrase “arising out of and in the course of employment.” Both elements must be present for a claim to be acceptable. The analysis of the issue is therefore twofold. First, we must ask: “did the accident arise out of the employment?” Secondly: “did the accident arise in the course of the employment?”

In the Course of Employment

According to WCB Policy 44.05: To have occurred “in the course of employment,” an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

The worker alleges that the violent vomiting which caused him to injure his back was a symptom of food poisoning he contracted from the group meal he ate at the workplace. There is nothing before the panel which would suggest that there was any other cause for his symptoms. Further, there is evidence on file which suggests that other co-workers also suffered gastrointestinal upset. The majority accepts that the worker’s symptoms resulted from participating in a group meal at work. As such, the injury occurred within the time of employment, at the place of employment and while performing an activity incidental to employment. The accident can therefore be said to have occurred “in the course of employment.”

Arising out of Employment

This is the less obvious element. WCB Policy 44.05 provides: Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment – that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment.

WCB Policy 44.05 also states: Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of the worker’s employment, where a worker is engaged in personal activities not related to or required by his/her employment the resultant injury would not be compensable. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.

The employer argues that eating the contaminated food was a personal hazard. On the question of what constitutes a personal hazard, guidance can be found in WCB Policy 44.05.20 which provides as follows:

7. Personal Hazards:

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:

· A hazard of the premises; or

· An occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.

In applying the forgoing policy direction to the facts of this case, the majority finds that even though participation in the group meals is voluntary, the practice of group meals is sufficiently ingrained in the unique nature of the worker’s workplace that it can be characterized as being reasonably incidental to the employment. We view participation in the group meals as an activity with its origins in the employment and not as a personal action on the part of the worker.

In coming to this conclusion, the majority relies on the evidence that:

• When the worker is on shift, he is required to be readily available to respond at all times. He does not have a set lunch hour when he is off duty; rather he is expected to eat “in house” and “on duty”. This creates a unique obligation or condition of employment;

• The length of shifts is generally 10 hours, which implies that at least one full meal is warranted;

• The concept of teamwork is one which is preached to employees from day one of training in all aspects of the job;

• Although not part of any described work list, group meal preparation is an ingrained cultural activity which is accepted and often encouraged by the supervisors.

Further, in the majority’s opinion, the situation is not unlike that which is addressed in WCB Policy 44.10.50.60 which deals with Special Assignment Coverage. At point 6, the Policy states:

Where the conditions of the special assignment require a worker to stay overnight in places such as hotels, entitlement under the Act shall extend to cover accidents which might result from the reasonable use of the hotel facilities (i.e., restaurant, washroom, etc.) Should the worker decide to dine at a restaurant within a reasonable distance of his hotel, the protection of the Act shall apply while the worker is so dining. Coverage would be limited to cover accidents which might result from the reasonable use of the restaurant facilities.

Thus, when a worker is required by an employer to be away from home, that worker is covered for injury arising from reasonable use of nearby restaurant facilities. This would include injury from food poisoning. In the opinion of the majority, it only stands to reason that this protection should also extend to the worker who is required by his employer to remain at the workplace and be immediately available to respond to emergency calls at all times during his shift.

We specifically distinguish the present situation from a situation where a worker brings contaminated food from home and consumes it at work while being required to remain at the employer’s premises. In such a case, we would have reservations in extending coverage. The difference between the two situations is that in the present case, the food was provided to the worker by co-workers in the context of a group meal, which is part of the morale building and cultural tradition of the worker’s job place. Although the worker contributed to the cost of the groceries, the food was prepared for the worker, by his co-workers, in facilities which were provided by the employer, while he was on shift and required to be readily available.

In the majority’s opinion, participation in the group meal was an activity which was reasonably incidental to his employment and was not the result of a personal hazard. We therefore find that the worker’s food poisoning did arise out of and in the course of his employment and his claim for benefits is acceptable. The employer’s appeal is denied.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 24th day of April, 2008

Commissioner's Dissent