The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept the worker's claim for an accident occurring on May 31, 2012. A hearing was held on October 16, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On June 11, 2012, the worker filed a claim with the WCB for injury to his chest, right shoulder and ribs which occurred on May 31, 2012. The worker stated: "I dropped passenger off, proceeded to motorcycle parking - applied front brake, front wheel locked and it slid from underneath me. Est. speed 10 mph."

The employer's accident report stated that the worker was coming to work on May 31, 2012 when he lost control of his motorcycle on a gravel patch of the main concrete road. The employer also stated: "Please note that employee was doing doughnuts (driving recklessly) on the roadway at time of incident. Does WCB cover reckless driving?"

When speaking with a WCB adjudicator on June 11, 2012, the worker stated that he dropped off a co-worker by the security gate and then continued to drive his motorcycle to the motorcycle parking lot at about 10 miles per hour. This was the first time this year that he rode his bike to work. On his way to the parking lot he remembered that there was a muddy patch at the far end of the parking lot so he wanted to enter from the area closest to the security area. When he applied the brakes, the brakes locked up and the front wheel of his motorcycle slid to the left side and the bike fell over. He remained on the bike and was thrown into the handle bars and fell into the mirror of the bike causing his collar bone and ribs to break. There was small gravel on top of the pavement and this was what caused his bike to crash/fall. The worker indicated that he did not report the accident right away as he thought that his body would heal on its own. He went home and sat in one spot for about 12 hours.

On June 12, 2012, the employer advised the WCB that the worker was basically fooling around at the time of the accident. She was not sure how fast the worker was travelling at the time of the accident. She noted that an internal investigation was underway and that she would send the results to the WCB when completed. The employer provided the WCB with the names of the co-worker who rode in with the worker on the day of the accident and the name of the security guard at the gate.

The WCB adjudicator contacted the co-worker who came to work with the worker on May 31, 2012. He stated that he proceeded into the workplace after he was dropped off at the security gate. He did not see the accident occur and only heard about it through other co-workers. The adjudicator also spoke with the security guard who indicated that he did not see anything as he was in the change room changing out of his security uniform at the time of the accident.

The WCB adjudicator spoke with the employer again on June 14, 2012. The employer's representative stated that she did not actually see the worker doing doughnuts with his motorcycle but this is what she heard from another employee. She said that this witness was now saying that he did not see anything. She stated that the worker doing doughnuts in the parking lot was just hearsay. The adjudicator advised the employer that she was accepting the claim as the worker's injuries were consistent with the mechanism of injury and it seemed that the worker was making reasonable use of the parking lot.

By letter dated June 15, 2012, the adjudicator outlined her decision that based on a review of file information, the worker's injuries "arose out of and in the course of" employment and that the WCB was accepting responsibility for the claim which included wage loss and medical expenses.

The employer later provided the WCB with additional information which included a Supervisor Accident/Incident Investigation Report, signed statements from several co-workers, photographs of the motorcycle and accident site and other information to support that the worker's claim was not acceptable.

On June 29, 2012, the WCB adjudicator advised the employer that they provided no new evidence to warrant a change to her previous decision to accept the claim.

On August 17, 2012, the employer appealed the above decision to Review Office. The employer's position was:

• The worker operated a motorcycle in a reckless fashion and/or careless fashion on company property on May 31, 2012 according to the company's investigation.
• The accident was an intentional act of the worker.
• The accident did not arise in the course of the worker's employment.
• Co-worker M's eye witness testimony was an accurate account of what occurred in regards to the worker's incident and was free of coercion of any kind.

In a decision dated October 10, 2012, Review Office determined that the worker's claim for compensation was acceptable. Review Office stated in part that it did not find co-worker M's evidence to support that the worker was driving recklessly or that the worker's personal actions resulted in the accident. What it did confirm to Review Office was that the worker had an accident and it resulted in his injuries. Review Office noted that the security attendant confirmed that he helped the worker place the minor damaged motorcycle into the garage after the accident. Co-worker M said that he and the co-worker (the passenger of May 31) ran over to the worker after the accident event to assist him. Review Office noted that the worker and the co-worker both denied this. Review Office indicated that it failed to find any corroborating evidence to support co-worker M's statement. Review Office also indicated that it did not attach weight to the other workers' information as it was conveyed to a third party.

In Review Office's opinion, a hazard of the workplace contributed/caused and gave rise to the worker's injury. That was the "gravel patch on the main concrete road" which is part of the employer's premises. This met the "arising out of" portion of the definition of accident as the worker was proceeding on the employer's property to the workplace or in other words was performing the "obligations of the employment" per WCB policy and while doing this encountered a hazard of the employer's premises. Review Office concluded that an event occurred that arose out of and in the course of the worker's employment that resulted in an injury and therefore the claim was acceptable. In January 2013, the employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

This is an employer appeal. The employer is appealing the WCB decision to accept the worker's claim for injury.

Employer's Position

The employer was represented by legal counsel and its Human Resource Manager.

The employer's counsel advised that the employer disagrees with the October 10, 2012 Review Office decision. He said Review Office made errors in its decision, including the conclusion that there was "no evidence to support that the worker's own actions caused the accident or that it was caused by an intentional act of the worker." He submitted that Review Office did not question the credibility of the worker.

Counsel submitted that the worker's May 31, 2012 accident does not meet the statutory definition of accident. He said that the question to be answered is whether the worker through his careless/ reckless act caused his injury and in doing so removed himself from his employment. He advised that the employer relies upon WCB policies: 44.05 Arising Out of and In the Course of Employment, 44.05.20 General Premises, 44.10.30.30 Serious and Willful Misconduct. The employer's primary position is that the worker removed himself from his employment. The secondary position is that the worker's action was serious and willful misconduct under subsection 4(3) of the Act.

Counsel submitted that credibility is an issue in this claim. He said that the employer does not dispute that the accident occurred on its premises while the worker was going to work. He said that if the worker is truthful, the claim is acceptable. The employer submits that the worker is not truthful and that the accident description provided by the worker is not correct. He said the worker was injured as a result of his intentional act, not an accident; specifically the act of doing a burnout with his motorcycle on the employer's property. Counsel said that the evidence of co-worker M, who is the only person to have witnessed the accident, should be preferred to that of the worker. He noted that co-worker M risked being condemned by other co-workers for giving evidence that was contrary to the worker.

Counsel referred to several diagrams (sketches) and photographs in his analysis of the accident and concluded that the worker's description of the cause of the accident was inconsistent with the results of the accident and the injuries sustained. He noted that the injury was on the right side which he said is inconsistent with turning right. He also said that the severity of the injuries is inconsistent with the loss of control of the vehicle moving at the speed alleged by the worker.

Counsel questioned the worker's explanation regarding the incident including the worker's assertion that he was turning right to get to a parking spot along the fence on the right side of the main road. He asked why the bike was on the left side of the road if he was turning right. He noted that the worker did not address the issue of revving his bike when he initially explained what happened. He also questioned why the worker would need to brake to turn right if he was only travelling at 10 kilometers or miles per hour.

Worker's Position

The worker participated in the hearing by teleconference. He answered questions posed by the panel and by the employer's counsel.

The worker described the events of May 31, 2012:

• arrived by motorcycle at workplace near 5:15 AM
• dropped passenger (co-worker) by the security building at the entrance to the workplace
• stopped at the stop sign beside security building
• continued to head forward down the road to the motorcycle parking area
• decided to turn right to drive along the land at the side to the road which he described as firmly packed
• travelled at approximately 10 miles per hour on the road then braked (front brake) to turn right
• the brakes stuck and the bike skidded on gravel which was on top of the road
• lost control of the bike which slid to the left and then forward
• the bike crashed, damaging the right side of the bike

The worked acknowledged that he revved the engine and explained this was because the motorcycle was not running smoothly. It was his first ride of the season and there was "old" gas residue in the system.

The worker acknowledged that co-worker M provided a statement that he saw the worker doing a burnout and lost control of his motorcycle. The worker denied that he was doing a burnout with his motorcycle.

The worker acknowledged that he was disciplined for his actions and did not grieve the discipline. The worker said he did not grieve the discipline decision because he just wanted to have the matter settled.

Analysis

For the employer's appeal to be successful, the panel must find, on a balance of probabilities, that the worker was not injured by accident arising out of and in the course of his employment. In other words, the panel must find that the May 31, 2012 incident occurred as a result of a personal act unrelated to the worker's employment. The panel is not able to make this finding.

In reaching this decision the panel makes the following preliminary findings of fact:

• the accident occurred on a road on the employer's property (this was agreed to by the employer)
• the worker rode his motorcycle to work and stopped near the security building to drop off a passenger
• the worker dropped off the passenger
• the accident occurred on the road a few feet after the stop sign and the walkway as noted in a diagram marked "accident diagram as per worker"
• the road was paved and there was loose gravel on the surface

The panel was provided with two different versions of events that occurred after the worker dropped off the passenger.

The worker's version: His evidence is that he started to proceed to the area where he parks his motorcycle. While proceeding to the parking area, he changed his mind about which route to take. Instead of going straight he chose to turn right, and he lost control of the bike resulting in the bike crashing to the ground and the worker being injured. He said that he applied the front brake, the front wheel locked and the bike slid out from under him.

The worker's evidence is contained in his accident report, information given to the employer as part of a safety investigation, conversations with the WCB case manager, information given to the employer in a meeting on July 2, 2012 and in correspondence on file. The panel finds the worker's version of events has been internally consistent since the date of the accident.

The employer's version: The worker was doing a burnout with his motorcycle on the road in front of the security building. The worker was holding the burnout for a while, letting the rear tire smoke, then tried to travel while continuing to do the burnout, the rear tire was smoking, probably doing 100 mph but the bike was only going about 10 mph, the worker travelled about 5 feet while doing the burnout and the bike hit loose gravel on the pavement, the bike started to buck one way and then the other way, the worker lost control of the bike and was launched off the bike and skidded on the road for about 5 feet.

Co-worker M's evidence is contained in a point form note dated June 8, 2012 which is signed by the Superintendant. The evidence is repeated in that memo of a conversation between co-worker M and a WCB adjudicator dated June 20, 2012. Co-worker M's version of events has been consistent as recorded.

The employer had asked the Appeal Commission prior to the hearing to subpoena co-worker M to give evidence at the hearing. The employer's counsel advised that the witness would not attend the hearing voluntarily. The panel considered the employer's request both before the hearing convened and after the hearing had adjourned. The panel finds there is sufficient independent evidence to determine the matter and declined the request to exercise its discretionary authority.

The panel carefully considered each version of the events. In determining, on a balance of probabilities, which version is more likely, the panel considered secondary evidence on file, acquired at or near the time of the accident. In relying on the written record, the panel finds there is sufficient evidence to determine the issue on a balance of probabilities as required by the Act.

The panel finds that the evidence on file is more consistent with the worker's version than the employer's version of events.

The panel notes that the evidence is consistent that the worker revved the motor prior to the accident, including the written statement of co-worker M. The panel notes that the central factual issues relate to the degree of revving and the manner of proceeding to the parking space. In this regard, the panel has carefully assessed at face value the evidence of co-worker M, as it represents the best case of the employer.

Our analysis of the evidence includes the following:

• no reference to smoke or the smell of burning rubber from a burnout was noted in the evidence of other witnesses - the panel finds that it is likely that smoke or a burning smell from the tire would be evident if the worker was doing an extended burnout.
• no reference to skid marks was found in the evidence of other witnesses - the panel finds that it is likely that a skid mark would be evident if the worker was doing a burnout.
• the worker's passenger claimed that he was not present at the accident and did not assist the worker after the accident. This conflicts with the evidence of co-worker M that the passenger was there and rendered assistance.
• the security attendant's claim that he assisted the worker after the accident is contrary to the evidence of co-worker M who identified a different person as present. The plant security staff witness could not recall whether co-worker M was present at that time.

Based on our analysis of the various statements, the panel finds that the other statements taken together with the worker's evidence provide a more probable version of the mechanism of injury.

The employer's counsel made several references to the motorcycle landing in the ditch on the left side of the road. The panel finds no direct evidence of this allegation and concludes that the motorcycle was not in the ditch but was on the road as indicated in the sketch on the file marked "accident diagram as per worker."

The employer's counsel submitted that the injury to the worker's right side and damage to the motorcycle's right side is not consistent with the worker's description of the accident. The panel does not accept this as evidence that the accident occurred as alleged by the employer. In this regard, the panel notes that the motorcycle slid to the left and then fell on the right, and that the worker's injury to his right ribs and the damage to the right mirror is consistent with an 800 lb. motorcycle landing on the right and turning into and contacting the worker's body.

The panel notes the information in the employer's "Supervisor Accident/Incident Investigation Report", including the following:

Contributing conditions that apply: - faulty walking or working surface

Contributing Acts that apply: - driving errors

                                                  - equipment operator error

Root cause analysis - contributing errors: - eyes not on task

                                                                        - loss of balance/traction/grip

Based on the evidence on file, the panel finds that this is an accurate analysis of the cause of the accident and injury. The panel finds that all the noted factors were involved in the accident.

The panel concludes, on a balance of probabilities, that the worker sustained an accident arising out of and in the course of his employment as defined in subsections 1(1) and 4(1) of the Act. The panel finds that the worker was on the employer's premises for the purpose of his employment at the time of the injury. The panel is satisfied that the worker's claim meets the requirements of WCB Policies 44.05, Arising Out of and in the Course of Employment which provides, in part, that:

"While workers are on employer's premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises…

Accidents arising out of purely personal sources over which the employer has no control are generally not 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 panel is satisfied the worker's attendance at the workplace and parking his motorcycle are causally connected to his employment and arise out of the employment. The panel is also satisfied the worker's claim meets the requirements of WCB Policy 44.05.20 which provides, in part, that injuries on employer owned premises are generally covered unless the accident results from a personal hazard. The test for coverage is "whether the activity has its origins in the employment (i.e. is connected in a causal sense)."

Applying the policies and specifically Section 7 of Policy 44.05.20, the panel finds that the worker's activity at the time of the accident of parking his vehicle which was on the employer's premises, was incidental to his employment. It was very close in time to the start of the worker's shift and thus was in the course of his employment. The panel also finds that the accident was due in part to a hazard of the premises, being loose gravel on pavement. The panel finds that the worker did not deviate from his employment to the point of breaking a nexus to his employment or to the act of parking his vehicle, and that the act of parking his motorcycle was not a personal act. The panel acknowledges that human error was a significant factor in the accident; however, the Act provides for a no-fault system which contemplates human error. The worker's actions here, as noted earlier, were within the realm of human error, but fall short of the type of act that would qualify as a personal act removing the worker from his employment.

With regards to whether the worker's conduct amounted to serious and willful misconduct as referenced in subsection 4(3) of the Act and in WCB Policy 44.10.30.30, Serious and Willful Misconduct, the panel finds that this issue is not before it. The issue before the panel is whether the worker's claim is acceptable. Subsection 4(3) deals only with the payment of benefits after a claim has been accepted.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 31st day of October, 2013