The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker suffered personal injury by accident on May 1, 2012. A hearing was held on July 31, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right shoulder injury that occurred on May 1, 2012. The worker reported that his shoulder injury occurred while at his "work camp" when he slipped and fell in a bathtub while showering. The worker stated that the incident was reported to his employer on the same day it occurred.

The Employer's Accident Report stated: "Today we received a letter from WCB, this incident was never reported to us. We are aware that [the worker] hurt himself at home, but to our knowledge [the worker] was never hurt at work."

On May 18, 2012, the employer provided the following information to the WCB:

• the set-up was not a "work camp" but just an opportunity to rent a home for people who are coming to work from other locations.
• the employer owned the property and rent was deducted from a worker's paycheck.
• the worker was not required to seek housing in the available rental properties. There were other housing options that would have been available for workers to pursue individually.
• there was no requirement of employment that they stay in the housing.
• a total of 50 or more properties were rented by the employer over the entire location of business.

In a telephone conversation with the worker on May 18, 2012, the WCB adjudicator recorded the following:

• the worker said he slipped in the tub and fractured his shoulder. There was no shower mat.
• the incident was reported to the supervisor and the supervisor told the worker to go for treatment.
• the "work camp" was 0.5 miles from the work site. Although it was rented, this was a work camp environment. He was told to stay there and there was no option to go elsewhere. Accommodations were shared with two other workers.
• the rent was deducted from his paycheck.

The WCB adjudicator spoke with the worker's supervisor on May 23, 2012 who confirmed that the worker called him to report the accident. The supervisor said he then called head office to find out how to proceed and he was advised that since it was at home, there was no need to report. He said the area was not a work camp. It was a normal house that was offered to be rented out. There was no requirement to rent in the unit in order to work with the company. It was a courtesy extended to all workers. The location was in the main town and the work site was 1.5 miles away.

In a decision dated May 23, 2012, the worker was advised that his claim for compensation was denied based on the following rationale:

"Although the home where this incident took place was rented to you by your employer, the preponderance of evidence received indicates that it was not required of you to live at that location in order to maintain employment; the home rental was extended as an option for housing by your employer but not required in order for you to work with them. The totality of evidence in your claim suggests that your home is within the town of…which is a community where alternative housing is available and is not part of a 'work camp' in the traditional sense; your employer did not have complete care and control over the place where you were living and the activities that you were engaged in when not at work. Thus, we have decided to disallow your claim."

On January 9 and 14, 2013, a WCB review officer spoke with the worker regarding his claim for compensation.

On April 4, 2013, Review Office determined the worker's claim for compensation was acceptable. Review Office found the residence where the worker's injury took place was the employer's premises based on the following:

• the residence was owned by the employer.
• there were several coworkers living in the residence.
• the rental contract provided a no cost accommodation which was a significant inducement for a worker to stay in the residence.
• the worker's comments that he was not advised by the employer that he had a choice as to where to reside.
• the worker did not spend his days off at the residence.

Review Office determined that the wet bathtub without a bathmat (May 18, 2012 memorandum) was a hazard of the premises and it followed that the worker suffered a compensable injury by accident.

On April 9, 2013, the employer appealed Review Office's decision to accept the claim and an appeal panel hearing was held at the Appeal Commission on July 31, 2013.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.

The employer disagrees with Review Office's decision that the worker's claim is acceptable. The key issue to be determined by the panel deals with whether the worker’s injury arose out of and in the course of his employment.

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 WCB Board of Directors has enacted WCB Policy 44.05, Arising Out of and in the Course of Employment. This policy provides a general description of the concepts "arising out of" and "in the course of" employment.

The WCB Board of Directors also enacted WCB Policy 44.05.20, General Premises. This policy focuses on "in the course of employment" and specific sub-topics which fall under employer premises.

Employer's Position

The employer was represented by its Safety and Environment Director and its HSC Administrator.

The employer position was outlined by its Safety and Environment Director. He advised that:

• the employer rented the home from a third party.
• the home was about one and a half miles from the employer's worksite and the employer does not provide transportation to the worksite.
• the employer did not provide cleaning services or meals.
• the employee was not required to stay in the rental accommodation and could find his own accommodation.
• the fall happened at 5:30 AM and work begins around 7:00 AM.
• the employer is not aware of any legislation requiring that a shower/tub must have handles or anti-slip materials on the floor.
• the worker would be entitled to two months rent free, if he worked for the employer for 90 days.
• the rent charged to the worker was $500.00 per month.
• the worker signed a Rental Agreement dated May 23, 2012.

The representative said that the employer is not responsible for workers while they are at home and should not be responsible for workers while in rented accommodation. He questioned how far the employer's obligations extend.

The representative advised that the worker participated in training/orientation and spent one day working in the field before he had the accident.

The representative advised that the employer is federally regulated and referred to the Canada Labour Code regarding the employer's responsibilities. He said that the rented house did not meet the definition of "field accommodation" provided under COHSR Regulation 9.

Worker's Position

The worker was self-represented. He said that he did everything that was directed by the company. "When I was hired, I was driven over to the house and told that this is where I’m staying. The house was substandard. There was no lighting going upstairs … and the windows were nailed shut."

He said that when he fell in the morning, he contacted the supervisor who refused to assist him and told him to go to the hospital in Brandon. The worker said that he decided to drive back to Winnipeg because that's where he lived. He said it was difficult to drive with his injury.

In answer to questions, the worker advised that the employer did not tell him the amount he would be paid or the amount of the rent to be charged. He learned about the job through a friend who also told him about the wages. The worker advised that he thought he would live in the house on a temporary basis and understood that the employer was putting up a work camp for its employees.

Analysis

The issue before the panel is whether the worker's injury claim of May 1, 2012 is acceptable. For the employer's appeal to be accepted, the panel must find that the worker's injury did not arise out of or in the course of his employment. In this case, the panel must determine whether the rented accommodation constituted employer premises and whether the activity was connected to the employment. The panel finds that the rented accommodation was not the employer's premises, the activity of showering was not connected to the worker's employment, and the claim is not acceptable.

In reaching its decision the panel makes the following finding of facts:

• the worker was hired by the employer to work as a truck driver.
• the worker was told that the employer had accommodations for him.
• the worker was taken to the house by his supervisor and told that he was to live in the house.
• the worker understood that he would reside in the house on a temporary basis, pending construction of a work camp.
• the worker did not ask the employer whether alternate accommodation was available.
• the worker expected that he would pay rent for the accommodation, although he states that he was not told the amount, however, the worker signed the employer's Rental Agreement which provided that the worker would pay $500.00 per month rent which included utilities.
• no meals or other services were provided to the worker.
• the employer rented the house from a third party to provide accommodation for up to 3 staff; the owner also resided in the house.
• the house was in a nearby town, and was not located on the employer's land.
• the evidence does not establish whether or not other accommodation was available in the surrounding area.
• the worker was responsible for getting to and from the employer's worksite.
• the worker slipped in the shower in the house while preparing to go to work at approximately 5:20 AM on May 1, 2012.
• the worker notified the employer on May 1, 2012 and drove to Winnipeg for medical treatment.

The panel has considered the WCB's General Premises Policy in deciding this appeal. The policy focuses on "in the course of employment" and specific sub topics which fall under "employer premises." The policy does not deal specifically with the status of residential accommodations provided by an employer directly (employer owned accommodations) or indirectly (employer rented accommodations) but provides some guidance in dealing with such situations.

The panel notes Section 6 of the Policy deals with employer-owned towns and communities. It provides that an employer's premises will be the areas designated specifically for the operation of the industry, typically the actual work area and related parking lots. Under this provision employer premises do not include residential areas used for personal purposes. A finding that rented accommodation in a public community constitutes employer premises would not be consistent with the exclusion of an employer owned residence in an employer owned town under section 6.

The panel found that the house in which the worker was injured is not the employer's premises for the purpose of the Policy. The evidence did not establish that the employer exercised care and control over the house and the worker's use of the house. Several factors led the panel to conclude that the employer did not exercise care and control over the house:

• the employer was not the owner of the house.
• the employer provided no services, such as cleaning or cooking services or transportation, to the residents of the house.
• the owner was a resident in the house.
• the worker was taken to the house by the supervisor and advised that this was his assigned accommodation, notwithstanding that the worker did not inquire about other accommodation or look for other accommodation in the area.

The panel finds that the worker was not forced to reside in the assigned accommodation and had the ability to look for other accommodation or refuse the offer of employment. The panel recognizes that accepting the assigned accommodation was likely a matter of convenience and practicality given the worker's unfamiliarity with the area, but was not a necessity.

In finding that the residence was not the employer's premises, the panel also finds there is no connection between the accident and the worker's employment activity. The act of showering before work in premises that are not employer premises is not an employment function and is not connected to employment.

The employer referred to a regulation under the Canada Labour Code regarding "field accommodation." The panel finds that this regulation is not relevant to the issue before it and was not applied in its decision.

In conclusion, the panel finds the worker's injury did not arise out of or in the course of this employment. The employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 11th day of September, 2013