The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's low back injury that occurred on December 8, 2011 arose out of and in the course of his employment. A file review was held on August 16, 2012 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 a low back injury that occurred at work on December 8, 2011. The worker reported that when he leaned over to reach for his backpack with his left hand, he felt his low back shift and a pop.

On December 8, 2011, the accident employer's representative submitted that the accident described by the worker was based on his retrieval of personal property and therefore did not satisfy subsection 1(1) of The Workers Compensation Act (the "Act") which required that the incident arise both in the course of employment and out of the course of employment.

On December 13, 2011, the treating chiropractor reported that the worker had numbness and tingling in his left leg and severe pain and spasms in the low back with an antalgic gait. The diagnosis was spinal joint dysfunction associated with subluxation degenerative complex.

On December 16, 2011, the worker advised a WCB adjudicator that he had completed his shift and his inspection and was collecting his belongings (a backpack containing lunch and other personal belongings needed at work) when he felt an acute low back injury. He reported no prior injuries to his back and no recent issues before his shift.

In a decision dated December 16, 2011, the worker was advised that an accident had not been established and therefore the WCB was unable to accept responsibility for his back difficulties. The decision stated: "Given that you had completed your shift and sustained an injury as a result of actions taken to collect your personal belongings, we have been able to establish that your injury occurred "in the course of" your duties, however we have been unable to establish a link with regards to your injury "arising out of" your regular duties. Therefore we are unable to establish a relationship between your symptoms and accident at work as defined in Section 1(1)."

On December 21, 2011, the worker appealed the above decision to Review Office and an addendum to the submission was provided to Review Office by a union representative dated March 6, 2012. The submissions were then provided to the employer's representative and a rebuttal submission to Review Office was made on March 29, 2012.

On May 10, 2012, Review Office determined that the worker's claim for compensation was acceptable. Review Office outlined the opinion that the specific circumstances of a driver's employment should be taken into account. Drivers commonly work split shifts as the worker did on the day in question, resulting in them having to take any personal effects with them while changing vehicles or while on layovers. They do not report to and remain at a fixed location where they stay throughout the course of their shift.

Review Office held that an injury which occurs as a result of a driver retrieving or stowing his outdoor clothing or personal items when arriving at, or leaving the vehicle that he is assigned to was compensable. It was not considered that such an act would result in a worker removing himself from his employment as the action was reasonably necessitated by the circumstances of the employment. On May 5, 2012, the employer's representative appealed Review Office's decision to the Appeal Commission and a file review was held on August 16, 2012.

Prior to rendering a decision on the employer's appeal, the appeal panel asked the worker to provide them with a list of the contents that were in his backpack on December 8, 2011. The worker provided the panel with the requested information and a copy was forwarded to the interested parties for comment. On September 20, 2012, the panel met further to discuss the case and rendered its final decision.

Reasons

Chairperson Choy and Commissioner Walker:

Applicable Legislation

The Appeal Commission and its panels are bound by 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 his employment.”

WCB Policy 44.05, Adjudication and Compensation, 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 employer’s position:

The employer's submission set out the position that the worker injured his back, not while operating a vehicle for which he was hired, but rather while retrieving his personal property. As such, he was not entitled to compensation for his back injury. The "hazard" in this case was not created by the nature, condition or obligations of employment. The task of operating a vehicle for the employer did not require that an operator, including those on split shift, carry a backpack. It was solely based on personal preference. This case was no different than the average worker who brings their lunch and other belongings to work to be stowed at their desk and retrieved at lunch time. In the circumstances, the employer called upon the appeal panel to rescind the Review Office decision.

The worker’s position:

The worker was assisted by a union representative in the appeal. It was submitted that the worker's place of work was a moving vehicle and he did not have a specific location with the luxury of having a washroom handy, a water fountain to quench one's thirst, a locker or a desk at which to store one's belongings. The worker was required to carry whatever essentials he needed for both employment and personal needs throughout the day. The worker was at and in the course of his employment when he suffered an accident as a result of which he was injured. He was retrieving a backpack which contained information and essentials he required in order to perform his duties. It was therefore submitted that the appeal should be dismissed.

Analysis:

In order for the employer's appeal to be successful, the panel must find that the low back injury suffered by the worker did not arise out of and in the course of his employment. On a balance of probabilities, the majority is not able to make that finding.

In the majority's opinion, the action of bending over to pick up his backpack was an activity incidental to employment and had sufficient work connection that we find it was arising out of and in the course of employment. In coming to this decision, the majority relied on the following:

• Although the injury occurred at the end of the worker's first shift, he was still in the course of employment as he had just completed his inspection of the vehicle and had not yet signed off at dispatch;
• The nature of the worker's employment was such that he would not necessarily be assigned to the same vehicle for each shift and was therefore required to transport his personal property with him at all times;
• The operator manual provided to workers by the employer contemplated the need to carry a personal bag and had specific instruction on the type of bag to use, the items to be carried, and where to store the bag;
• While there was no employer requirement to carry a backpack, the majority finds that a backpack was reasonably necessary to enable the worker to carry out his duties. The worker's backpack contained the following items:
• Fleece gloves and an employer issued toque;
• Food;
• Loose change;
• Maps for distribution to passengers;
• Employer issued transfer punch;
• Eyeglasses, sunglasses and a cleaning cloth;
• Water bottle;
• Employer issued ice scraper;
• Hand sanitizer.

The majority finds that all these items were reasonably required by the worker to perform his duties for the benefit of the employer. Many of the items related to meeting the personal needs of the worker during the course of his shift but the maps, transfer punch and ice scraper were employer issued items carried solely for the purpose of advancing the employer's interests.

• The majority does not feel it is reasonable to expect the worker to have carried all of these items in his jacket or coat pocket.

As a result, the majority finds that the worker's low back injury arose out of and in the course of his employment and his claim is therefore acceptable. The employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 8th day of November, 2012

Commissioner's Dissent

Out of the entire contents list provided by the worker, the only items arguably arising out of the employment are the transfer punch and the ice scraper, of which the transfer punch can be attached to the worker's belt. This leaves the ice scraper and perhaps the maps as handheld items which the worker has chosen to toss into his backpack together with the transfer punch.

So, the question comes down to whether those small items are sufficient to change the characterization of the backpack from a personal item into a work-related item that led to the worker's injury.

I have considerable difficulty in reaching that conclusion. Without the personal items that the worker was carrying, he would have had a few small work-related items that he could carry in his hand. It was the long list of personal items of varying shapes and sizes that triggered the need for the backpack, leaving "no hands" available for those work-related items. My analysis would be the same if an office worker was carrying a backpack or purse to work and tossed his or her office keys, name tag and/or access pass into a backpack or a purse, and later injured themselves reaching for that carrying item. In both cases, I would conclude that the primary purpose of the backpack or purse was personal, and its character would not change to being incidental o the employment by the worker's decision to toss in those extra items. In this case, the worker was using the backpack primarily for personal items or personal activities, and using the wording of WCB Policy 44.05, the work-related items did not contribute substantially to the accident. I find, on a balance of probabilities, that the worker's reaching for his backpack was not related to the performance of his job duties.

Based on this analysis, I find that the worker's injury did not arise out of his employment, and thus a claim has not been established under the Act. I would accept the employer's appeal.

A. Finkel

Commissioner

Signed at Winnipeg, this 8^th day of November, 2012.