Decision #53/10 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which confirmed primary adjudication’s decision that the injuries suffered by the worker on January 17, 2009 were the result of a personal action and did not arise out of and in the course of her employment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. On May 4, 2010 a hearing was held to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In January 2009, the worker was employed as a flight attendant and was on a three day layover at a Caribbean destination. On January 17, 2009, she and some co-workers were coming back to their resort after eating at an off-site restaurant when they were involved in a serious motor vehicle accident. As a result of the accident, the worker suffered multiple injuries.
The employer’s accident report dated January 27, 2009, argued that the January 17, 2009 accident should be not be considered work-related as the worker was not performing any activity related to her job, the injury did not occur on property owned or rented by the employer and the vehicle was not owned, used or leased by the employer.
When speaking with a WCB adjudicator on February 4, 2009, the worker advised that the gentleman driving the car was taking eight flight attendant students back from the restaurant in the village to a castle sight-seeing. The worker understood they would be driving past the castle to see it lit up at night and then would go back to the resort. The worker was not sure whether or not it was a reasonably direct route or the same route that they would have traveled if they had been going straight back to the resort. The reason they decided to go to the restaurant off the resort site was because the resort only had one pizza place and it was their fourth time eating there.
On February 6, 2009, an employer representative advised the WCB adjudicator that he spoke with the worker on February 5, 2009. The worker told him that they were tired of the pizza selection so they went to a restaurant off the hotel premises. The employer indicated that crew hotels are based on selection and the employer pays for the meals at the hotel. He stated that the hotel provided more than pizza and that the employees were not confined to the hotel. The hotel provided a complimentary shuttle to the restaurant the worker dined at but they chose to contract out transportation.
On February 13, 2009, the employer advised the WCB that there were seven different restaurants on the resort grounds that the employees could choose from.
The WCB adjudicator spoke with the worker on February 17, 2009. The worker said she was heavily medicated due to her injuries when she spoke with the adjudicator on February 4 and was unable to recall everything that was said. The worker indicated that she was returning back to the hotel after eating out at a restaurant. She remembered discussing the sightseeing with the adjudicator. She said on the date of accident, it was rainy and late and they had to work the next day so they were not going sight-seeing but were returning to the resort.
On February 27, 2009, the WCB adjudicator documented a conversation she had with a co-worker who was in the car with the worker when the motor vehicle accident occurred. He said that after eating dinner at the village restaurant, they were going straight back to the resort as it was raining out and they did not want to do an activity due to the rain. He said the restaurant was 5 to 10 minutes away from the resort. They took the shuttle to the restaurant but got a ride back with a taxi as it was too late to take the shuttle back. They did not know the taxi driver. They ate at the closest restaurant to the resort. The co-worker knew of two restaurants at the resort, one was a buffet that only opened during breakfast and the second was the pizzeria. As they were tired of eating pizza, they went to the nearest restaurant off resort grounds.
On February 19, 2009, the employer advised the WCB that the worker did not hire a registered taxi but instead hired a local resident looking for a contract. The employer said he had information suggesting that the worker was going to a bar after eating at the restaurant as opposed to going back to the resort.
On March 6, 2009, the employer provided the WCB with menus from seven restaurants at the resort.
In a decision dated March 18, 2009, the worker was advised that the WCB was unable to accept responsibility for her claim. The adjudicator indicated that WCB coverage is extended for overnight accommodations for accidents that result from reasonable use of the hotel facility and for workers who dine out as long as the place they dine is within a reasonable distance from the hotel and they travel in a reasonably direct route back to the hotel. The adjudicator noted that there were 6 to 7 restaurants at the resort with a wide variety of food options and that it was not reasonable for the worker to go off the resort site to dine out. It was determined that the worker’s injury was the result of a personal action unrelated to her employment and did not arise out of and in the course of her employment.
On May 14, 2009, a worker advisor provided the WCB with additional information to support the position that the worker’s claim for compensation was acceptable. On May 22, 2009, primary adjudication confirmed the decision that the worker’s claim was not acceptable. The adjudicator stated,
“…WCB is still of the opinion that the worker had a variety (3 minimum) of dining options available to her within the resort site. These restaurants were in closer proximity than the restaurant that the worker attended prior (sic) the accident . When the worker went to the restaurant outside of the resort that was located farther away than these, she deviated from the most “reasonable and recognizable route”, thus removing herself from the course of employment. Therefore, it is the opinion of Rehabilitation and Compensation Services that the injury did not result from an accident “arising out of and in the course” of your employment. As such, no responsibility will be accepted for the claim.”
On July 31, 2009, the case was considered by Review Office based on an appeal submission by the worker advisor dated June 2, 2009. Review Office confirmed that the claim was not acceptable in accordance with WCB policy 44.05 Arising out of and in the Course of Employment and 44.10.50.50 Traveling on the Job. Review Office indicated:
· the worker’s transportation from the restaurant was a personal choice and was not part of or incidental to her employment and was not subject to the control of her employer;
· the employer had no control over the method of transportation;
· the worker was not performing any activity related to her job;
· the injury did not occur on property that was owned by the employer or rented by the employer;
· the vehicle was not owned, rented, used or leased by the employer;
· the employer was not responsible for any or all injuries occurring due to a worker’s personal activities or transportation to and from during the lay over.
On September 4, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
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 her employment.”
WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Policy”) provides guidance on determining this issue. It 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. 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 worker’s position:
The worker was represented by a worker advisor who submitted that the worker’s employment was such that while employees were on layover, they were still on company time for the full period of the layover. The traveling was a requirement of the employment and the worker should be covered from the time she arrived at work until the time she arrived back at her home base. While on layover, the worker remained to some degree under the control of the employer and she was paid a per diem for the time spent while on layover. Meals were also paid for by the employer. The period of layover should not be considered personal time as the employer still had control of its workers. The workers were also “on call” and had to be ready to be redeployed, if necessary. When the accident occurred, the worker was within a reasonable distance from the employer supplied hotel and she was traveling in a direct route back to the hotel. There was no evidence to support that the worker took herself out of the employer’s control at any time during the layover or at the time of the accident. It was submitted that the worker was in the course of her employment at the time of the accident, and her claim should be accepted.
The employer’s position:
A representative from the employer did not appear at the hearing.
Analysis:
In order for the worker’s appeal to be successful, the panel must find that the motor vehicle accident in which the worker was injured arose out of and in the course of her employment as a flight attendant. On a balance of probabilities, we are not able to make that finding.
At the hearing, the worker gave extensive evidence regarding the nature and requirements of her job as a flight attendant. She described flight pairings, which frequently required the flight crew to remain on a lay-over for several days. The worker considered herself to be “in the course of employment” from the time she left her home base of Winnipeg, until she returned. During the entire time she was away from Winnipeg, she was paid an hourly wage. For the period she was aboard an aircraft and servicing passengers, she received a higher hourly wage. During the time she was not servicing passengers on an aircraft, she was paid what her employer termed a “trip guarantee.” This meant that she was still paid an hourly amount for the time she was away from home, but this amount was far less than the hourly wage she was paid while servicing passengers. The trip guarantee amount varied according to where she was located. For example, when she was at an all-inclusive resort, the hourly trip guarantee amount was less than the amount she was paid while in this resort, which only included a breakfast buffet. The worker was not entirely clear on how the trip guarantee was calculated, but she indicated that she received money which was meant to reimburse her for living expenses and money to compensate her for her time away from home.
The worker described the resort where she stayed on her layover as one which catered mostly to airline staff and to retired richer old people. She said the resort was busy, but the worker was unable to give an estimate of how many people were staying there. She described the restaurants which were available. There was a breakfast buffet restaurant where they ate each morning and this meal was included with the accommodation. The buffet area was large, seating approximately 300, and there would be a steady stream of people. Sometimes they had to wait to get a table. For a few hours over the lunchtime, there was a grill-type of restaurant on the beach where food would be served. For dinner, the only option was the pizzeria which was located near the breakfast buffet. Although the material on the WCB file submitted by the employer suggested that there were a number of restaurants located on the resort, the worker indicated that she was unaware of these restaurants, except for the one located near the golf course. Her evidence was that when they tried to attend that restaurant one evening, they were turned away as they were told they needed memberships in order to dine at that facility.
On the evening of the motor vehicle accident, the worker testified that all six members of her flight crew went to the resort pizzeria at about 7:00 or 7:30 pm for dinner, but found that it was closed. The worker’s evidence was that everything shut down very early at the resort and there was no nightlife per se. It was not like other resorts which provide entertainment in the evenings. The group then decided to catch the 8:00 pm shuttle to the village to dine at a restaurant there. They asked the pilots if they cared to join them, but the pilots declined as they had an early flight the next day. The worker did not know where the pilots ate that evening. At 8:00 pm, the flight crew took the hotel shuttle to the village, and dined at a restaurant there. When it came time to return home, they phoned the shuttle, but it would not come as it was raining. They then made arrangements for taxi cabs. The first taxi took four members of the flight crew and transported them to a local night club. The worker’s evidence was that she did not know that they were going to a night club and that she assumed that they were returning straight to the resort. A second taxi cab came and the passengers were the worker, a co-worker from the flight crew, and two medical students. The worker stated that she was familiar with the medical students as she had seen them around the resort, and one of the students had been on the 8:00 pm shuttle with them. Although the medical students resided in the village, they wanted to go back to the resort to visit some friends who lived near the resort. They agreed to split the taxi fare four ways. It was during this taxi cab ride that the accident occurred.
In the panel’s opinion, the motor vehicle accident was an accident which arose out of purely personal sources over which the employer had no control. Although the panel acknowledges that the worker was on a layover at the resort because of her employment and was being paid a “trip guarantee,” this does not necessarily mean that she is entitled to WCB coverage for the entire period while she is there. On the facts of this case, the panel is of the opinion that the worker made a series of personal choices related to eating off-premises, which took her out of the scope of WCB coverage. The panel does not accept that the worker was forced to leave the premises to find food. Given the size, the rating, and the occupancy of the resort, it is inconceivable that there would be no food available. There was evidence on the WCB file of multiple restaurants located on or adjacent to the resort. The evidence that the pizzeria was closed only first came to light during the worker’s evidence at the hearing. There was never any previous report of the restaurant being closed, only that the flight crew “was getting tired of eating pizza.” We therefore do not accept that the flight crew had no choice but to go off resort to eat a meal.
In the panel’s opinion, resorts of that nature are designed to be self-contained and all the daily necessities which might have been required by the worker during the layover were available on the resort. While it may be understandable that the worker would choose to leave the resort to seek some variety or entertainment, anything beyond the resort became a personal activity choice by the worker and any injury resulting from such activity is not compensable.
For the foregoing reasons, we find that the claim is not acceptable. The worker’s appeal is therefore denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 22nd day of June, 2010