The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that she was not in the course of her employment on March 19, 2010 when she became involved in an incident while leaving her place of employment. A hearing was held on July 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 WCB for symptoms associated with stress that she related to an incident that took place on March 19, 2010. The worker reported that she was leaving her place of employment (a neighborhood centre) that was located in a government housing complex. Her husband was coming to pick her up and he was waiting on the street. An elderly woman approached her on the walkway and said her niece had stabbed someone in the unit. The worker reported to the WCB that she called 911 on her cell phone from outside the housing unit and that she instructed the staff to lock down the neighborhood centre.

A doctor's first report noted that the worker attended for treatment on March 20, 2010 for a stabbing at her workplace on March 19, 2010. The diagnosis rendered was post traumatic stress.

On June 24, 2010, the worker's supervisor answered several questions pertinent to the March 2010 incident. He said the worker was leaving work at the end of the day to go home. There was no direct parking at the neighborhood centre. The place where the worker walked where the incident took place was part of the housing complex and was not on the employer's premises.

On July 2, 2010, Rehabilitation and Compensation Services ("RACS") denied the worker's claim for compensation on the basis that the incident witnessed by the worker did not occur on the employer's premises, and she was not in the course of her employment at the time. RACS noted that the worker had left her place of employment and was walking towards her husband's car when she became involved in an incident at the housing complex which was not a part of the employer's premises. The worker was not engaged in her work duties at the time of the incident.

On September 27, 2010, a union representative acting on the worker's behalf appealed the July 2, 2010 decision to Review Office. The union set out the position that the worker was in the course of her employment at the time of the March incident. He noted that the walkway was the only way in and out of the employer's premises, and it was submitted that the area where the worker was standing when approached by the distraught woman was a "captive road" and therefore considered part of the employer's premises as per WCB Policy 44.05.20, General Premises. He said the worker was in the course of her employment as she had to return to her work facility to instruct staff as part of her regular job duties to lock down the facility and usher children that were outside into the centre to safety.

A copy of the union's submission was forwarded to the employer's representative for comment. A rebuttal submission was received from the employer dated November 23, 2010. The employer's representative outlined the position that the walkway used by the worker was not under the control of the employer and could not be considered as a "captive road" as defined in WCB Policy 44.05.20. He noted that the worker's return to the neighborhood centre to instruct staff and to lock down the centre did not produce the medical condition associated with the claim. The incident which produced the medical condition was the interaction with the individual outside of the housing unit. The worker at that time was no longer in the course of her employment nor was she on the employer's premises.

On December 6, 2010, the worker's union representative noted that the three roads mentioned in the employer's submission all meet in the middle of the housing complex. There was no other access other than these three roads to get in and out of the worker's place of employment. He believed that the three roads would satisfy WCB policy 44.05.20. The union also contended that the worker was in the course of her employment as once she was aware of the safety concern for staff and patrons she had an obligation to lock down the centre and usher children that were outside into the centre for safety reasons.

On December 10, 2010, Review Office upheld the decision to deny the worker's claim. Review Office deemed that the incident which occurred at the housing complex had no relationship to the worker's duties inside the neighborhood centre and there would be no expectation that the employer would have any control over the events occurring at the housing unit. The incident occurred in society outside the premises of the employer and outside of the employer's jurisdiction. Review Office agreed that the medical condition associated with the claim was one arising out of the worker's interaction with individuals from the housing unit. At that time, the worker was not deemed to be in the course of her employment nor was she on the employer's premises. Review Office did not feel that the circumstances involved in the claim were such that policies involving "captive roads" would be implemented. In January 2011, the union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Chairperson Choy and Commissioner Walker:

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The issue before the panel is whether the worker has an acceptable claim. 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 general guidance on determining when an injury or illness can be said to be the result of an accident arising out of and in the course of the worker's employment. The Policy states:

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.

The concept of "arising out of and in the course of employment" is fundamental to the adjudication of claims. Claims for compensation are decided on their individual merits after all reasonable effort has been made to obtain all available evidence. A number of policies have been developed to address specific situations as they relate to compensability….

WCB Policy 44.05.20, General Premises (the “Premises Policy”) is one such policy. The Premises Policy focuses on interpretation of the term “in the course of employment” as it applies to employer premises.

The worker’s position:

The worker was accompanied by a union representative at the hearing. It was submitted that as the worker was the supervisor of the facility and was always on call if situations arose at the facility, she had to immediately react to the situation on behalf of the employer. In fact, after she was approached, she proceeded to call 911 on her cell phone and instructed the centre staff to lock down the facility. She also had to usher some children who were outside the centre inside to safety. It was contended that as soon as the worker was approached by the woman indicating an emergency situation, her responsibility to her employer to react to the safety sensitive situation was immediately triggered and as such she was in the course of her employment the instant the woman approached her to make her aware of the stabbing. She could not have ignored the woman's pleas for help as she had an immediate responsibility to the employer to safeguard the premises and for the safety of the patrons using the facility.

It was also submitted that the road where the worker was standing when approached by the distraught woman was directly adjacent to her workplace and was the only means of entering and leaving the employer's premises. It was submitted that the area satisfied the Premises Policy as a "captive road". The worker's claim for wage loss benefits and medical aid should therefore be accepted as the worker was in the course of her employment at the time the March 19, 2010 incident took place.

At the hearing, the worker described the events as follows. She was leaving the site with a co-worker and they were both approached by a distraught woman. The co-worker continued to leave and the worker spoke with the distraught woman. The woman indicated that her niece had stabbed someone in the housing unit. The worker then heard sirens and thought that someone else had already called 911. She then used her cell phone to call her staff and instructed them to call property management to get the gate unlocked so the emergency vehicles could enter the complex. Although the fire truck stopped momentarily, it then moved on. The worker was unsure as to whether or not it was responding to this incident. Another woman then ran out of the housing unit (the perpetrator). She was agitated and shouting about gang involvement. She then ran back into the housing unit. The worker walked back towards the neighborhood centre and escorted children who were playing outside into the facility. During this time, the worker received a call from her staff who told her they did not have a key to the gates and that the property manager was not answering. The worker then instructed her staff to lock down the building and advised that she was going to call 911. Next, the worker called 911 and remained on the line with the operator. A woman who was bleeding from the head came out of the housing unit and the worker asked her to sit down on the concrete, near the doorway to the housing unit. Various individuals were coming in and out of the housing unit, including the perpetrator. In a short time, the police arrived on the scene and the perpetrator was apprehended. Meanwhile, the worker's spouse had walked over from their vehicle parked on the street and said that they should leave. The 911 operator asked the worker to stay at the scene, but she did not want to do so. She and her spouse went and sat in their vehicle. While in the vehicle, the worker used her husband's cell phone to call her staff to advise that an ambulance had arrived but not to unlock the doors until she told them they could do so. The staff were anxious to know what was happening as the grand-daughter of one of the parties was in the neighborhood centre and was asking about what was happening. When the police informed the worker that the situation was over, she called her staff again and told them that the lock down could end. Although the police wanted the worker to stay to give a statement, she wanted to leave and she advised the police that they could call her at home if they needed to speak with her (which they did the next day). The worker then left the area and went home. That evening, the worker was called by a member of her staff to discuss the incident report which the employer required to be submitted within 24 hours of an event. Although the staff completed the incident report, as supervisor, the worker had to be aware of what the staff was submitting.

The employer’s position:

The employer's compensation coordinator appeared at the hearing. The submission on behalf of the employer was that the incident did not occur during the course of the worker's employment. The walkway where the worker was approached was not used exclusively by the neighborhood centre and in fact it was a common pathway used by residents of the surrounding housing units and for children attending the adjoining school. There were also numerous other exits from the complex which could be used by persons departing the neighborhood centre.

It was submitted that the incident which produced the psychological problems in the worker's case was that which she encountered outside the housing unit on March 19, 2010. At that particular time, the worker had completed her shift, had left the employer's premises and was no longer in the course of her employment. It was noted that the worker simply called the neighborhood centre to initiate lock down procedures but did not physically return to the centre as she stayed with the victim and called 911. It was also noted that the worker was accompanied by a co-worker at the time she was approached, but that the latter chose not to get involved.

The employer stressed that the events did not occur on the premises of the employer, that the worker was no longer working at that particular time, and that the precipitating factor of the incident was the exposure to the woman in distress, which had nothing to do with the worker's employment. It was submitted that the worker had taken it upon herself to become involved, and while she could be called a good citizen or a good Samaritan, it did not create a situation arising in or out of her employment.

The employer also submitted that the WCB policies referenced by the union representative were not applicable and did not lend support to the appeal. The panel was called upon to confirm the decision of the WCB.

Analysis:

The question for the panel in this appeal is whether or not the claim is acceptable. In order for the appeal to succeed, the panel must determine that the worker's involvement in the events of March 19, 2010 constituted an accident arising out of and in the course of her employment, as per subsection 4(1) of the Act.

In the majority's opinion, there was a sufficient element of "work-relatedness" in the worker's involvement in the events that we are satisfied on a balance of probabilities that there was an accident arising out of and in the course of her employment. The majority relies specifically on the following evidence that was given at the hearing:

• Although the worker had finished her shift for the day, she had only just exited her place of work and was using the common route of entrance and egress from the neighborhood centre.
• Although the premises owned by the employer was limited to the neighborhood centre itself and an adjoining playground and wading pool, the neighborhood centre formed part of a larger community which included the residents of the surrounding housing units. The neighborhood centre, the housing units, and a public school formed part of a larger residential complex which was connected by walkways and closed off to vehicular traffic. The worker was familiar with many of the residents in the area as part of the "clientele" of the neighborhood centre. In fact, one of the children who was sequestered in the centre that afternoon was related to the parties involved in the assault.
• The worker's job position was supervisor of the neighborhood centre. As supervisor, she was the first contact on the Emergency Call Out list. The employer's procedure guidelines filed at the hearing indicated that: "In case of a lock down refer to the Emergency Call Out sheet. Call your supervisor ASAP." The Close Down Procedures provided: "Confirmation with supervisor must always take place when this procedure is utilized." The worker confirmed that in the event of a lockdown, she, as supervisor, would always have to be called and informed of the incident.
• The worker's evidence was that as supervisor, she also had to be available to take calls from staff at all times. She was provided with a cell phone by her employer and she indicated that she did receive work related phone calls after her regular work hours. As compensation, she was provided with flex time.
• When the woman in distress first approached the worker, the worker was standing and talking to a co-worker. The co-worker was an instructor for some programming offered by the neighborhood centre and did not regularly work in that building. She was employed by a different program and the worker was not her supervisor. The majority accepts that while the co-worker was at liberty to choose to exit the situation, the worker had the responsibility to see the situation through to a resolution. As supervisor, she would reasonably be expected to become involved and it would not have been appropriate for her to simply walk away.
• The event must also be viewed in the larger context of a community of social services which work together to serve the residents of the housing complex. The worker indicated that the various agencies which worked the area adopted a community integrated team approach to providing services to this population. Realistically, the worker could not have ignored the situation without the risk of straining community relations.

Overall, the majority feels that even if the worker had already left the neighborhood centre for the day, she was brought back into the sphere of her employment duties by the incident in question. As supervisor of the neighborhood centre, she had the obligation to become involved in the events once she was approached by the woman in distress, and her actions in calling 911, calling in the lock down, ushering children into the centre and remaining in the vicinity until the end of the lock down all arose out of and in the course of her employment.

Submissions were made by both the worker and the employer on the applicability of the Premises Policy and whether or not the area where the worker was approached was a captive road. In the panel's opinion, the provisions in the Premises Policy regarding "captive road" are not applicable to this situation. We agree with Review Office's analysis that the general premise of the "captive road" scenario is one of isolation and most often refers to rural areas, and in particular, northern bush camps. In our opinion, an urban walkway used by residents of the housing complex and the general public cannot be considered to be a captive road.

For the foregoing reasons, the majority finds that the claim is acceptable. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 2nd day of September, 2011

Commissioner's Dissent

The worker was not in an employment relationship at the time of the stabbing incident; the incident did not occur on the employer’s premises and any action taken as a result of the incident was performed in a helping capacity and as such any injury suffered as a result of that humanitarian gesture did not arise out of and in the course of employment and therefore the claim is not acceptable.

B. Simoneau

Commissioner

Signed at Winnipeg, this 2^nd day of September, 2011.