The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

On September 25, 2009, the worker sustained an injury to his neck while trying out a piece of exercise equipment that was used for zero gravity inversion. His claim for compensation was denied by primary adjudication and Review Office on the grounds that his injury did not arise out of and in the course of his employment but was the result of a personal act. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on March 7, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the Workers Compensation Board ("WCB") for a neck injury that occurred at work on September 25, 2009. The worker advised the WCB that he had been working a 12 hour shift. Near the end of his shift at around 5:30 p.m., he decided to go for a bathroom break. One of his co-workers had a personal exercise machine that was used for zero gravity inversion to relieve back pain and tension. The worker indicated that he decided to try the machine to see if it would help relieve his stiffness and tension. The foot pegs appeared to be securely locked in but were spring loaded and were not locked. When he flipped upside down his feet came out of the foot holders driving the back of his head into the floor with all his weight. The pain was severe but he finished his shift and told the shift superintendent. There were no witnesses in the room at the time of the incident.

The employer's accident report confirmed that the worker injured his neck on September 25, 2009 while attempting to use an inversion table to stretch his back. This piece of equipment had been brought in by another employee for their personal use without the knowledge or authorization of management.

In a decision dated October 20, 2009, the WCB advised the worker that his claim for compensation was not acceptable as it was felt that his September 25, 2009 neck injury was the result of a personal act.

The worker's claim for compensation was again considered by primary adjudication based on information received from the Worker Advisor Office that the employer may have been aware of the inversion table being on their premises.

In e-mail correspondence dated December 8, 2009, an employer representative provided the following information:

• the equipment was brought in by another shift worker for his own personal use and he was going to take it home following his shift. After using the equipment, the owner placed the device in a storage area outside of the normal exercise/meeting room because he did not want anyone else to use it. He did not take it home at the end of his shift because he forgot.

• sometime between the owner's shift and the time of the incident, someone other than the worker or owner moved the device into the exercise room. That person neglected to put it back after using it. It appeared that the worker discovered the device in the exercise room and assumed that it was for shift staff use.

• according to the owner, the device was on work premises for two days. At some point, the device was moved into the exercise/meeting room. This may have occurred between our daily meetings and might explain why it was not noticed. I can't verify this but it made sense.

• at no time did management know that the device was in the general use exercise room.

In a second letter dated January 20, 2010, the WCB confirmed that the worker's claim for compensation was not acceptable. Primary adjudication noted that the use of the room and the equipment supplied by the employer was optional and was not a necessary part of the work duties nor was it a requirement of the worker's employment. Primary adjudication was unable to establish that the incident arose "out of and in the course of" the worker's work duties. On February 12, 2010, the worker advisor appealed the decision to Review Office.

Review Office contacted the worker on March 15, 2010. The worker advised Review Office that at the time of his injury he was not on lunch or coffee. He stated that he and his co-workers ask each other to watch their stations while they exercise or take "breaks". The worker advised Review Office that he did not know who owned the inversion table. He noticed the inversion table in the meeting room and thought it would be interesting to try it. He had never used one before and thought he knew how the equipment worked. He did not recall seeing the table prior to the day he used it.

Review Office also contacted the employer on March 15, 2010. The employer indicated that if a worker brings in a piece of equipment, the employer must inspect it and ensure it was safe. The employer never had any knowledge of the inversion table being on their premises. It was indicated that staff had the option to use the equipment on their lunch/breaks and not during the remainder of the day and this was not a requirement of the job.

On March 18, 2010, Review Office determined that using the exercise equipment was a personal activity and was not caused by a hazard of the premises and was not under the control of the employer. The worker admitted that when he used the inversion table, "the foot pegs appeared to be locked in secure, when in fact they were spring loaded and were not locked." Review Office indicated that using the inversion table was not an activity which was incidental to the worker's employment. In applying Policy 44.05.20, General Premises, Review Office found that the worker's injury did not arise in the course of his employment. There was no causal link between the worker's employment duties and the September 25, 2009 injury.

The worker provided Review Office with a submission dated April 13, 2010. The worker advanced the position that the circumstances surrounding his accident were "reasonably incidental to employment."

The employer's advocate wrote to Review Office on June 11, 2010. The advocate indicated that she agreed with the decision made by Review Office on March 18, 2010. It was pointed out that the employer had no knowledge that someone had brought the inversion table to work and had no control over its use. The employment connection was clearly broken. The worker's injury was due to a personal action, not under the control of the employer.

On June 22, 2010, the worker provided Review Office with a rebuttal submission to the advocate's submission of June 11, 2010.

In a decision dated August 12, 2010, Review Office confirmed its earlier decision that the claim for compensation was not acceptable. Review Office stated that some responsibility must be placed on the worker for using a piece of equipment that he was unfamiliar with, regardless of who owned it, given that the equipment was not required as part of his job duties. The worker was interested in using the equipment and chose to do so when he was returning from the washroom. Review Office believed that the use of the exercise equipment was a benefit provided by the employer for those who want to use it and not a job requirement.

Review Office was of the opinion that the worker was aware that this piece of equipment did not belong to the employer as he had used and was familiar with the two pieces purchased by the employer. The evidence in the opinion of Review Office did not support that the worker sustained an accident on September 25, 2009 as defined by The Workers Compensation Act (the "Act"). On September 7, 2010, the Worker Advisor Office appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested the following information from the employer:

• a copy of the accident investigation report and the risk assessment investigation report that were undertaken following the September 25, 2009 incident; and
• a copy of the minutes and any supporting material from the Workplace Health and Safety Committee concerning the September 25, 2009 incident.

A response from the employer was received and was forwarded to the interested parties for comment. On April 18, 2011, the panel met further to discuss the case and rendered its final decision.

Reasons

Chairperson Scramstad and Commissioner Anderson:

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

This appeal deals with claims acceptance. Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The Board of Directors of the WCB enacted WCB Policy No. 44.05.20, General Premises. The policy contains a framework for determining when workers are in the course of their employment and outlines criteria to be considered when making this determination. These are often referred to as the "what, where, when test."

Section 7 of the policy, titled “Personal Hazards” also distinguishes between activities incidental to the employment while on the premises (would qualify as an accident) and injuries resulting from personal causes (would not qualify as an accident).

The Policy Purpose section of this policy notes that the policy focuses on "in the course of employment." It also 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."

Worker's Position

The worker was represented by a worker advisor. The worker advisor made a submission on the worker's behalf. The worker answered questions regarding his workplace and injury.

The worker advisor submitted that the worker's claim is acceptable as the evidence supports a finding that the worker sustained a personal injury which arose out of and in the course of his employment. The worker advisor submitted that the use of the exercise equipment in the exercise room was not a personal activity which is outside the normal course of employment. She said there is no doubt a 12 hour shift with no break, after 10 and a half hours of work, would cause fatigue in muscles. She submitted that the worker's activity arose from his employment and is incidental to his employment.

She noted that the accident occurred during work hours and that the worker completed his shift after the accident. She noted that the equipment was not owned by the worker and was in a room provided by the employer. She stated that the employer is responsible for the health and welfare of its workers and that this includes the use of exercise equipment, whether supplied by the employer or other workers. She submitted that once on the premises, the equipment became a hazard of the premises.

The worker advisor stated "The main issue before the panel is whether the activity has its origin in the employment, and it remains our position that the activity does have its origins based on the work duties and the long shifts, which cause tense muscles and fatigue, and as a result the need to use the equipment in the exercise room."

Employer's Position

The employer was represented by an advocate and its WCB and Administrative Supervisor. The employer's representative made a submission on behalf of the employer and she and the supervisor answered questions from the panel.

The employer's representative submitted that the injury did not arise out of and in the course of employment. She identified two reasons why the employer takes this position. Firstly, that the injury was due to a personal act and secondly that it was not under the control of the employer.

She noted that the worker used his equipment while on the way to the bathroom. She submitted that the worker was not on a break, scheduled or not, and should not have used the exercise equipment. She noted that the worker knew this. She also noted that workers are to confirm with management that they are taking an exercise break.

She advised that it is acceptable to use the equipment on nights and weekend shifts, but only when activity level allows it. It is to be used during periods of reduced activity on the system to combat fatigue and remain alert while on shift work. The equipment is provided to keep workers alert and not as a general measure of promoting employee wellness. The employer representative referred to a study undertaken by the employer to provide recommendations to address fatigue experienced by night shift workers. She said that the equipment was never meant to be used during the busy daytime.

The employer's representative advised that management was not aware that the inversion table was on the premises. This was because the exercise/meeting room was not used on the day of the accident as management was involved in meetings offsite. She advised that the employer never authorized the employee to bring the equipment on site and that the equipment was not a hazard of the premises and was not under the control of the employer. She noted that the employer had specifically prohibited the use of unauthorized equipment on past occasions.

Findings of Fact:

For the purpose of this decision we make the following findings of fact:

The Meeting Room:

• served as a meeting room and office space during the day from 8:00 AM to 4:30 PM
• was used as an exercise facility during night shift and weekend shifts
• included two pieces of cardiovascular equipment supplied by the employer to be used by night shift staff to assist with combating fatigue
• was adjacent to the control room where the worker's workstation was located
• had no signs indicating restrictions on the use of the exercise equipment
• employer representative was not aware of any worker having been disciplined for using exercise equipment in the meeting during the day (note: she had not made a specific inquiry)

The Zero Gravity Inversion Table:

• was not owned by the employer
• was owned by an employee who brought it to work for personal use without management's knowledge or approval and contrary to the employer's policy
• was removed the day following the accident

The Control Room:

• worksite of worker and co-workers
• restricted access area
• on September 25, 2009 workloads for staff in this room were heavy
• employer is aware of the demands on workers who work twelve hour shifts in the control room, both day shift and night shift and have provided information on stretching and exercise

Worker's Duties and Working Conditions:

• system operator performing significant duties monitoring electronic displays and taking appropriate action with serious consequences if not properly performed
• high stress
• works rotating shifts
• no scheduled breaks, eat lunch at desk
• takes breaks when others in the control room can cover for desk/duties
• worker and his co-workers do not take one-half hour exercise breaks during the day shift

Worker's Activities on September 25, 2009:

• on September 25, 2009 the worker's desk was very busy
• worker worked ten and one half hours of his twelve hour shift without a break
• worker had a stiff back and shoulders as a result of the busy day and being confined to his desk
• at approximately 5:30 PM worker completed his paperwork and left control room to go to washroom
• after using the washroom facility, the worker entered the meeting room which was not in use, with the intention of using the inversion table for five minutes to relieve stiffness in his back and shoulders
• worker did not operate the inversion table properly resulting in the workplace injury
• worker was not aware that the inversion table was not the property of the employer
• worker was not disciplined for using the equipment
• worker completed his shift after the accident
• worker did not change into gym clothes when he went to the room to stretch

Analysis

For the worker's appeal to be successful, we must find that the worker sustained an injury arising out of and in the course of his employment. We were able to make this finding.

We considered WCB Policy No. 44.05.20, General Premises. We note that Paragraph 1. (c.) provides the WCB will consider 3 questions when determining whether an accident was "in the course of employment":

1. What activity the worker was engaged in when injured in order to determine the connection with the employment (i.e., did the injury result from a personal act, unrelated to the employment, or was there an employment connection).

2. Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment.

3. 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).

With respect to the "where" and "when" questions, the answer is that the worker was on the employer's premises during his regular hours of employment when he was injured. These two tests are satisfied.

With respect to the first question dealing with "what" activity the worker was engaged in, we find, on a balance of probabilities, that the worker's use of the inversion table to relieve his stiff back and shoulders arose out of his employment. We find there was a clear connection between the injury and the worker's employment.

We considered and applied Paragraph 7 of the Policy. This paragraph provides that, to be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to employment which includes performing work duties or doing something incidental to employment.

We find on a balance of probabilities that the worker was engaged in an activity which was incidental to his employment. The activity, stretching his back and shoulder, has its origins in the worker's employment. In reaching this conclusion we rely on the following facts:

• the special nature of the worker's employment and related working conditions, specifically that the worker is employed in a high stress job working 12 hour shifts in a restricted access control room without scheduled breaks
• the worker had completed ten and one half hours of his twelve hour shift without a break
• the control room and the worker's desk had been especially busy on that day
• the worker had a stiff back and shoulders due to work
• the worker left his work station to attend the bathroom and while on this break, entered the meeting room and to use the inversion table that he had noticed earlier in the day, for the purpose of stretching his stiff back and shoulders
• the worker intended to stretch for five minutes and did not enter the meeting room to exercise or work out.

We have considered the argument accepted by the Review Office and advanced at the hearing by the employer that the use of the exercise equipment was a personal act. We cannot conclude that the worker was engaged in a personal act or that the injury resulted from a personal hazard. We note the policy provides that "the injury will 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." We find that the worker's actions were not remote from the employment function. The worker's undisputed evidence establishes that the worker's need to stretch his back and shoulders resulted from his work activity. He was near the end of a long shift in a stressful and busy job where he had limited opportunity to leave his work station. We do not find the act of using the inversion table to try to relieve the stiffness in his back and shoulders to be so remote that it removes the worker from his employment.

There was discussion at the hearing regarding whether the use of the meeting room was unauthorized and was contrary to the purpose for which the room and exercise equipment were established. The evidence shows that the room and two pieces of cardiovascular equipment were provided for workers to use during night and weekend shifts and was established for the purpose of combating fatigue and related issues that are present during the night shift. However, the evidence does not establish that there was a ban on using the meeting room and equipment during the day shift. We note that there is no sign in the meeting room restricting the use of the equipment during specific hours. In this regard we note that the worker's supervisor advised Review Office on August 10, 2009 that because there are often meetings during the day, there is little to no exercising opportunities during this time but on weekends, staff can come in and use the equipment as there are no meetings scheduled for weekends. It is clear that the meeting room is not generally available during the hours of 8:00 AM and 4:30 PM. We find, however; that the worker did not attend the meeting room for the purpose of exercising. The worker's evidence is that he entered the room for five minutes to stretch his stiff back and shoulders. While it was not the usual practice, the evidence does not establish that the use of the meeting room for stretching was unauthorized.

Several cases arising from Appeal Commission decisions were referenced by the parties as precedents. Pursuant to subsection 60(4) of the Act, decisions of the Appeal Commission are made on the real merits and justice of the case and we are not bound to follow precedent. Notwithstanding this, we note that the employer referenced Appeal Commission Decision 76/05, which dealt with an injury sustained by a worker who was washing her coffee cup. In this case the Appeal Commission found that the act of washing the coffee cup was not incidental to the worker's employment. We find this case to be very different from the present case where the worker's need to stretch his back and shoulders arose directly from his employment duties.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 6th day of June, 2011

Commissioner's Dissent

Commissioner Finkel's dissent:

This appeal deals with a worker who injured his neck while trying out a zero gravity inversion machine at the workplace, on September 25, 2009. The worker is seeking to have his claim accepted as a workplace accident.

I concur with the applicable legislation and WCB policies that are described in the majority reasons in this decision, as well as the legal test that is set out. However, after a full review of the evidence and of the submissions made at the hearing and subsequently, I have come to a different conclusion based on the facts of this case, and I have found that the worker's claim is not acceptable.

My conclusion is based on the following facts and findings:

• In my view, the meeting room had two discrete functions at different periods of the week. It was a meeting room during regular working hours, and it was a specifically purposed circadian rhythm facility with specific protocols for its use during night shifts. The worker was aware of (and had participated in) the voting process that had preceded the selection of the two aerobic machines. This had happened exactly one time, many years ago. There was no indication by the employer of changes in any of the practices or protocols or the purpose of that facility, including its possible expansion into a general fitness facility or of any decisions regarding th0e purchase of new equipment. The worker had gone well beyond the purpose of the facility. His use of the machine was not incidental to his employment but rather, in my opinion, a (regrettable) matter of personal curiosity that was not connected to his employment or to the performance of his job duties. The worker's actions were out of time, out of place, and out of purpose.

For these reasons, I find that the worker's use of the zero gravity inversion equipment on September 25, 2009 was not incidental to his employment, and that while the incident and consequent injury arose during the course of his employment, it did not arise out of his employment. Accordingly, I have concluded on a balance of probabilities that the worker did not suffer an accident as defined under the Act and WCB policies, and would deny the worker's appeal on that basis.

A. Finkel

Commissioner

Signed at Winnipeg, this 6th day of June, 2011.