The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy:

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

The key issue to be determined by the panel deals with causation and whether the worker’s left wrist injury arose out of and in the course of his employment. In this regard, 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)

WCB Policy 44.05, Arising Out of and in the Course of Employment states in part:

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 worker’s position:

The worker was self-represented at the hearing, and was accompanied by his wife and his son both of whom assisted in his presentation and with translation where required. The worker submitted that he was preparing his truck on a day off for his next scheduled trip which was to be the next day. He had no time available while working to do the necessary safety work on the truck. As to the particulars of the work being performed, he advised that a window seal on the top side of the vehicle had broken on his prior trip. He had ordered the replacement parts and arranged for the repairs to be done on his day off after he completed the trip. He drove the truck on October 26 to a mechanic shop where a window repair technician replaced the seal under the guidance of his mechanic. While on the mechanic shop premises, the worker climbed up a ladder to complete the repair when he fell and injured his wrist.

In response to questions from the panel, the worker advised that he had worked as a driver for another owner-operator with his current employer for a number of years. Approximately two years before his injury, he bought his own truck and established an owner/operator relationship directly with the employer. This involved a written contract with the employer, which among other things, indicated that he (and not his employer) was responsible for repairs and maintenance of his truck and for the payment of any tickets for moving or safety or defective vehicle violations while driving for the employer. It was the worker's responsibility to provide a safe and operational vehicle under the contract for any trip on behalf of the employer. The employer did not inspect the vehicle; rather, the worker was required to provide documentation every six months that his truck had been "safetied." It was open for the worker to use any mechanic for the repair or safety inspection of the vehicle, and the worker in fact tended to use an external mechanic for those purposes. The worker paid any repair or maintenance or regulatory requirements (the safety inspection, licensing, insurance) by himself. The employer was not billed for and did not pay for any repairs or maintenance on the worker's truck.

The worker's position was that he had finished a trip on October 25, and was next scheduled to drive on October 27. The only time that he could do the repairs was on his day off of October 26, which he was required to take off in any event due to legislative requirements of a mandated 36 hour non-driving break. The worker indicated that the work on his truck was directly related to his job, as he had to have a safe truck to drive the next day. He was not working on a personal vehicle. It was his position that the claim should therefore be accepted.

The employer’s position:

The employer did not participate in the appeal.

Analysis:

The issue before the panel is claim acceptability and whether the worker’s left wrist injury arose out of and in the course of his employment. This is the terminology used in the Act. In order for the appeal to be successful, the panel must find that both tests in the Act are met, namely that the worker’s injury was caused by an accident that arose out of AND in the course of his employment. On a balance of probabilities, we are not able to make that finding. In particular, the panel finds that one of the tests -- "in the course of employment" -- has not been met, based on the following considerations.

The panel notes that the worker's activities at the time of his injury were focused on his getting his truck ready for use at work the next day. These activities might well be characterized as "arising out of the employment" which is one of the two tests that must be met for there to be a compensable accident under the Act. The worker's injury was "caused by some hazard which results from the nature, conditions or obligations of the employment," which is the criteria for "arising out of the employment" as set out in the WCB Policy.

If this was the only requirement under the Act, then the worker would have an accepted claim. However, the Act also requires that the injury occur "in the course of the employment." The panel finds that the evidence does not support this finding. The WCB Policy states that the injury must have occurred "within the time of the employment" as one of the mandatory requirements of "in the course of employment." The evidence in this case is that the worker was on a day off and in the middle of his 36 hour mandatory rest break. He had worked the day before and was scheduled to work the next day. He was not paid for his day off, nor was he paid for or in any other way compensated for the time he spent on the repair and maintenance of his truck.

The panel notes that WCB Policy 44.05 is the starting point for the consideration of what constitutes "within the time of the employment" and it lists a number of other policies which provide for some flexibility in consideration of what qualifies as being in the course of employment. These range from policies on general premises, transportation controlled by the employer, travelling on the job, and accidents occurring in lunchrooms, among others. The panel has considered these policies as well, and finds that they do not provide additional guidance that would assist us in extending coverage to the activities performed by the worker on his day off on October 26, 2011. Accordingly, the panel finds that the worker's left wrist injury did not occur in the course of his employment.

The panel notes that the worker's Notice of Appeal referenced the presumption clause which is set out in subsection 4(5) of the Act as a possible basis for our acceptance of his appeal. This provision states that where the accident arises out of employment, it shall be presumed the accident occurred in the course of employment unless the contrary is proven; and where the accident occurs in the course of employment, it shall be presumed that the accident arose out of the employment unless the contrary is proven. The panel finds that this provision of the Act does not apply in this case; there is ample evidence available to the panel for its consideration of both the "arising out of" and "in the course of" employment issues, and the panel is able to make findings, on the evidence, on both matters.