The Appeal CommissionThe Workers Compensation Act of Manitoba

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’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:

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 Policy also references a number of other policies which have been developed to address specific situations as they relate to compensability. These policies include WCB Policy 44.10.50.50, Travelling on the Job and WCB Policy 44.10.60.40, Accidents Occurring in Lunchrooms.

The worker’s position:

The worker was assisted by a union representative at the hearing. It was submitted that the worker's position was such that she did not have a static employment location. There was just a central office where she would go and pick up her list of clients, and the rest of the day was spent in the community seeing those clients. The place and time for bathroom and lunch/coffee breaks were at her discretion, at a time when she could fit it into her day surrounding care of her clients. As she travelled from client home to client home, she had to rely on public facilities to utilize bathrooms and meal breaks. It was a condition of her employment that she had to drive between these places and be exposed to environmental hazards that were the conditions of work. The location of her coffee or bathroom or meal breaks was never dictated by the employer so the location and time of the worker's use in this case was justifiable. The principles in WCB Policies 44.05, 44.10.50.50, 44.10.60.40 (Special Assignment Coverage) and 44.10.50.60 were cited. It was noted that the worker was not engaging in purely personal nature activities such as shopping, attending a movie, a social visit or a dinner engagement. She did not consider herself separate from the employer. She was only stopping to take her break, use a bathroom, and have her lunch and coffee break. Given that the worker was attending to her assignments and was required to use public facilities, it was submitted that her claim ought to be compensable.

The employer’s position:

An advocate appeared on behalf of the employer at the hearing. The employer did not dispute any of the facts surrounding the claim. The issue was whether or not the worker's fall was work-related under the Act and WCB policies. The employer's position was that it agreed with the WCB's previous decision. While the worker's accident occurred within the time of employment and at a place where she could reasonably be, she was not performing work duties or an activity incidental to her actual employment duties. It was submitted that the actual incident itself, that is, the slip and fall on the ice, was not causally connected to the employment. The appeal should therefore be denied.

Analysis:

In order for the appeal to be successful, the panel must find that the slip and fall injury suffered by the worker arose out of and in the course of her employment as a direct health service provider. On a balance of probabilities, we are able to make that finding.

The worker's evidence at the hearing was that she had been working since just before 8:00 a.m. that morning and had already seen nine clients. The time was approximately 11:30 a.m. and she decided to go to a nearby restaurant to have some lunch. She had not taken a break throughout the morning and planned to combine her coffee and lunch breaks. She was not meeting anyone at the restaurant and would be dining alone. The worker still had more clients to visit that day, but she planned to see those clients after her break.

At the hearing, the employer's advocate confirmed that the employer had no requirements or restrictions on where the employees chose to have their lunch. There was no expectation that employees return to the central office to eat. It was at the employee's own discretion.

In the panel's opinion, the present situation is largely addressed by WCB Policy 44.10.50.50, Travelling on the Job. This policy provides as follows:

Workers are generally considered to be in the course of employment from the time they arrive on the employer's premises until the time they leave. Where travelling is a requirement of the worker's employment, compensation coverage is extended to include travel during working assignments, as well as travelling to and from work assignments.

Any deviation from a reasonable and recognizable route, for personal or non-work related reasons, will constitute removal from employment and any injury arising out of or in the course of such deviation will not be compensable.

The administrative guidelines to WCB Policy 44.10.50.50 read:

1. Workers who are regularly required to use a vehicle in the course of their work are considered to be in the course of their employment from the time they enter the vehicle at home to the time they return, providing that they are on a route directly associated with their employment. This would include employees' such as salesmen and community or field workers, etc.

The panel also notes that WCB Policy 44.10.60.40, Accidents Occurring in Lunchrooms generally provides that injuries occurring during a lunch hour, coffee break or other similar period will be compensable, so long as the injury occurs while the worker is making reasonable use of the employer's facility and the injury does not arise from a personal hazard. While this Policy does not apply to the present fact scenario, it does provide general guidance as to the approach to be taken in these types of situations.