The Appeal CommissionThe Workers Compensation Act of Manitoba

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)

To determine the issue, the panel must consider the question of causation and decide whether or not the worker’s ankle injury resulted from an accident arising out of and in the course of employment.

WCB Policy 44.05 is relevant to the appeal and provides, in part, as follows:

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. 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.

…

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’s position:

The employer was represented by an advocate at the hearing. It was admitted by the employer’s advocate that on the day in question the worker did perform volunteer duties for her employer, and that while she was engaged in these duties, an employment relationship existed. It was submitted, however, that there were specifically assigned duties which the worker was asked to perform, which duties were listed in an email. The duties were manning checkpoints for the poker derby, setting up and clearing up, barbecuing and shuttle driving. Supervising children was not part of the volunteer activities. When the worker injured herself, it was not part of the volunteering duties. Instead, the worker at that time had finished her volunteer activities and she was playing on her own time as the Family Fun Day was closing up. The employment nexus was clearly broken when, at her own volition and for her own enjoyment, she played on the inflatable structure.

The worker’s position:

The worker appeared on her own behalf at the hearing. The worker’s position was that she had agreed to volunteer for the event at the request of a supervisor and that: “when a volunteer gets hurt … the person who you’re volunteering for should have to take care of you, and in this instance it’s my employer and my employer’s way of taking care of me is through Workers Compensation.”

The worker testified that a little over two weeks before the event, during a telephone conversation with a supervisor, the supervisor asked if she would attend the Family Fun Day on his behalf to help out with the following: the walk, the barbecue and the entertaining of the kids. She said that the supervisor (who was not the worker’s supervisor) had seen her volunteering at a community club event a few weeks prior and he asked her to do the same thing at the Family Fun Day. At the community club event, the worker had been the person responsible for playing with the kids. The worker agreed to help at the employer’s event.

The worker acknowledged subsequently receiving a series of emails which outlined the volunteer duties. It was her understanding that her duties were to include setting up, barbecuing, shuttle driving and supervising kids. She would also be responsible for taking an employer vehicle to the event site. She was asked to be there for set up by 9:30-10:00 am. She testified that no specific ending time was discussed. She was told: “when things wrap up, they wrap up.”

On the day of the event, the worker drove her car to the employer’s work location, parked it there, then took the employer’s van to the event. She helped with the tasks listed in the employer’s email, namely manning check points for the poker derby, setting/cleaning up, barbecuing and shuttle driving. It was near the end of the day when the worker suffered her injury. There were two play structures rented by the employer for the event. One was a large Velcro wall. People could don Velcro suits then throw themselves against the wall. Another employee was helping kids on this structure. The other structure was an inflatable “Bounce-a-Roo” which was a 50 foot long obstacle course. It was on this inflatable structure that the worker was supervising the kids. She had previously been through the structure about four times that day, assisting four other families with children who needed help navigating the obstacle course. At the time of her injury, she was assisting a three year old girl, whose mother was going through with the girl’s six year old brother. The worker stated that she did not ever go through the structure on her own without assisting a child. It was while she was in the structure that she injured her ankle.

The worker testified that from her point of view, the event was not at an end until she returned to the employer’s work site where her car was parked. The employer’s van which she had driven to the event had been exchanged during the day by a co-worker for an employer owned truck which carried a portable electrical generator. The worker was responsible for taking the truck and the company generator back to the employer’s premises at the end of the day. Following her injury, while being loaded into an ambulance, the worker made arrangements with another employee to take care of the truck. The panel was provided with a signed statement from the co-worker confirming that the worker was responsible for return of the truck and generator at the end of the event.

Analysis:

The issue before the panel is whether or not the claim for benefits is acceptable. In order for the employer’s appeal to be successful, the panel must find that the worker’s ankle injury did not result from an accident arising out of and in the course of employment. We are unable to make that finding.

At the hearing, it was acknowledged by the employer’s advocate that to the extent that the worker remained engaged in volunteer activity, there existed an employment connection. Examples given were that if the worker had burned her hand barbecuing or had gotten into an accident while shuttle driving, one could argue that the injury happened in the course of employment as the worker was there volunteering for the benefit of the employer. The advocate’s position, however, was that at the time of the injury, the volunteering activities had ended and accordingly, there was no longer an employment nexus.

In the panel’s opinion, the employment relationship continued to exist at the time of the worker’s injury. In coming to our decision, the panel accepts and relies upon the following evidence given at the hearing:

• The worker had been asked by a supervisor to assist at the employer sponsored event on his behalf;
• The worker was asked by the supervisor to perform the same types of duties as she performed at the community club event, which included supervision of children;
• The play structures provided by the employer for the event were large and required some adult supervision;
• At the time of her injury, the worker was assisting a family with small children to navigate the inflatable structure;
• The worker did not, at any time throughout the day, race other adults through the inflatable structure;
• The worker was responsible for return of the employer’s truck and generator at the end of the day.

Based on the foregoing, the panel finds that the worker’s actions in navigating the inflatable structure were a continuation of her volunteer activities performed for the benefit of the employer. Although the Family Fun Day was drawing to a close, the worker still had duties to perform before her volunteer commitment was at an end, most notably, responsibility for ensuring that the truck with the company generator was returned back to the employer’s work site. We do not accept that there was a break in the employment relationship during the time when the worker was on the inflatable structure. In the panel’s view, although supervision of children was not a specifically assigned duty, the scope of the worker’s volunteer commitment did reasonably include this activity. It was one of the many various types of tasks which a volunteer may perform in order to enable a successful event. As such, the panel finds that the accident was causally connected to her employment and did not arise out of purely personal sources. We therefore find that the claim is acceptable. The employer’s appeal is denied.