The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not in the course of his employment when his right shoulder injury occurred. A hearing was held on October 3, 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 April 9, 2012 when he slipped off a ladder and fell to the ground.

On April 13, 2012, the worker advised the WCB that he was at home in his shop when his injury occurred. He was standing on a ladder to fix a light on his truck. He slipped and fell 5 feet and landed standing up. He then fell over onto his right side with his arm outstretched. The worker stated that his next trip would have been the following morning.

The worker's employer stated on April 13, 2012 that the worker returned from a trip on April 7, 2012 at 9:15 a.m. While nothing was set, the worker made himself available to work beginning the morning of April 10, 2012. The worker was not being paid at the time of his accident or for his truck repairs.

On April 13, 2012, the worker was advised that his claim for compensation was not compensable as he was not working at the time of his injury and thus there was no relationship between his injuries and an accident arising out of and in the course of his employment.

On April 16, 2012, the worker submitted that his claim for compensation should have been accepted as he was required by his employer to maintain his truck for employment and this required him to do his truck repairs at home.

Further information was provided to the WCB by the worker's employer dated May 4, 2012. The employer stated: "[The worker] requested I send you sections of our contractor agreement that requires the truck under contract to be properly maintained and in safe condition…When a contractor makes themselves available for dispatch they are technically under dispatch, it is just a matter of departure information."

In a second decision dated May 7, 2012, the WCB advised the worker that the new information provided by his employer did not alter the previous decision of April 16, 2012.

On December 17, 2012, the Worker Advisor Office provided the WCB with a letter from the worker's employer dated November 26, 2012 to support that the worker's claim for compensation was acceptable. The worker advisor stated:

In [the worker's] case, he had made himself available for work several hours prior to his accident and, as [the employer's] letter notes, once under dispatch, it is just a matter of receiving departure information, which could occur at any time after the driver has made himself available. He was at a location he could reasonably be when his accident occurred because his employer confirmed that they preferred pre-trip inspections and repairs be completed at the contractors' homes due to potential safety risks were they to be performed in the employer's yard. We also submit the repairs/maintenance [the worker] performed resulted directly from his pre-trip inspection, which is a part of his work duties and an activity incidental to his employment.

Although [the worker] is not paid by his employer for the time spent while performing repairs on his truck, work time should not be defined solely by whether or not someone is paid. Were this to occur, it would mean that because [the worker] is compensated based on distance driven, even if [the worker] had been injured while performing an emergency repair on his truck while away on a trip, then his claim would not be acceptable.

WCB Policy 44.05.20 (General Premises) also notes: "In the course of employment" is not limited to the actual tasks or exact hours of work (emphasis mine).

In addition to the above, we note that [the worker] reported his April 9, 2012 workplace accident to his employer the following day, sought medical treatment on April 11, 2012, and has reported a consistent mechanism of injury throughout the file."

On December 21, 2012, the WCB case manager outlined the following position with respect to the worker's appeal:

The file evidence indicates that you, an owner/operator, were inspecting/repairing your truck on a day you were waiting for trip information, when you fell and sustained a right shoulder injury. When considering these circumstances, it is the opinion of Claims Services that this incident was not an "event arising out of, and in the course of, employment."

It is our position that the inspecting/repairing of the worker's truck to prepare it for the next trip/scheduled shift is not considered an employment duty. Claims Services finds that the task you performed on April 9, 2012 did not involve providing a direct service to the employer; rather it involved meeting your obligation to the employer by supplying suitable equipment. The fall which occurred on April 9, 2012 is considered to have been caused by the personal actions and not as a result of employment.

On January 11, 2013, the worker advisor appealed the above decision to Review Office. The worker advisor submitted that the worker's claim for compensation was acceptable based on the following rationale:

• the worker's employment agreement required that he ensure his truck was in full working order prior to leaving on a trip;
• the employer confirmed that he preferred his contract operators perform their pre-trip vehicle inspections and repairs well in advance of an expected departure, including in their own garages;
• the worker made himself available for work immediately and several hours prior to his accident. The employer advised that the worker could have been dispatched on a trip at any moment;
• sustaining an injury while performing necessary truck repairs which are required as part of a pre-trip vehicle inspection meets the definition of an accident arising out of and in the course of employment.

On March 12, 2013, Review Office confirmed that the worker's claim was not acceptable. Review Office accepted that the worker's injury arose out of employment as he was focused on getting his truck ready for work the next day which were the terms of his contractor agreement with his employer. Review Office found, however, that the worker's shoulder injury did not occur in the course of his employment. Review Office noted that the worker did not have coverage on his day off while performing the activities on April 9, 2012 that resulted in his injury. Review Office noted:

• The worker was not paid by his employer for April 9, 2012.
• The worker's scheduled day off was April 9, 2012.
• The worker had not been compensated for the time he spent repairing his truck on April 9, 2012.
• The employer did not pay for the repairs, the parts or the time to maintain or repair the worker's vehicle.
• The employer was not in control of the worker's actions that led to his injury.
• The accident was not caused by some hazard of the employer.

On April 18, 2013, the worker 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.

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 question to be determined is whether the worker’s personal injury was caused by an accident which arose both “out of” and “in the course of” the worker's employment. WCB Policy 44.05, Adjudication and Compensation, Arising Out of and in the Course of Employment (the “Policy”) provides guidance on the issue and states, in part, as follows:

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 assisted by a worker advisor at the hearing. It was submitted that the worker's claim was acceptable because he injured his right shoulder as a result of an accident on April 9, 2012 which arose both out of and in the course of his employment. The accident arose out of the employment because it was caused by a hazard which resulted from the obligations of his employment, that is, the worker was injured while repairing a light on his truck which he discovered during his pre-trip vehicle inspection. The worker's contractor agreement provided that the worker was responsible to ensure that his truck was properly functioning and compliant with all government regulations.

It was further submitted that the accident arose in the course of employment because it occurred at a period reasonably connected to the worker's anticipated upcoming work shift the following morning. In addition, the employer exercised some control over the worker's actions at the time of his injury by virtue of their work expectations, including expecting that pre-trip vehicle inspections be performed well in advance of an expected departure which the worker anticipated would be early in the morning on April 10, 2012.

The employer’s position:

The employer was represented by its safety director. The employer was supportive of the worker's position. It was noted that contract drivers for the employer were substantially different from the employer's company drivers. It was the employer's position that the contract agreement obligated the contract operator to inspect and repair his equipment. The employer did not pay a contract operator a separate component of the contract to inspect the vehicle. Instead, it was all-inclusive in the mileage rate that the operators fulfill the obligations of the contract in making sure that their vehicle was safe and in working condition at all times. When an operator contacted the dispatcher to make their truck available, they were required to do so only when they were ready to go so that there would not be any delays. In the worker's situation, the worker made himself available, which meant that from the time he made the communication to the operations department, he could be dispatched at any time. The employer felt that if the worker was washing or polishing his truck, it would be a totally different situation, but to prepare the truck mechanically so that it complied with the laws was a different scenario. The employer supported coverage for the worker's injury.

Analysis:

In order for the worker's appeal to succeed, the panel must find that the injury suffered by the worker when he fell off the ladder arose out of and in the course of his employment. On a balance of probabilities, we are not able to make that finding.

As outlined in the Policy, there are two parts to the test which must be met to find that a compensable accident has occurred. The accident must have “arisen out of employment” and it must also have occurred “in the course of employment.”

In the present case, the panel accepts that the accident arose out of employment. At the time of the injury, the worker was readying his truck for his next assignment, as he was required to do under the terms of his contractor agreement with the employer. We accept that this activity was causally connected to the nature, conditions or obligations of the worker's employment.

The difficulty in this case relates to whether or not the worker was in the course of his employment when he suffered the fall. We find that he was not. When performing his pre-trip inspection and readying his truck for the next assignment, the worker was not paid or otherwise specifically compensated for his time spent doing this. It was submitted at the hearing that the pre-trip inspection was included in the mileage rate, but the panel does not accept this characterization. The worker would be paid the same mileage rate for any trip he was assigned, regardless if the pre-trip inspection took him five minutes or five hours. We do not find that there was a direct association between the time spent inspecting and repairing the equipment and the amount paid by the employer to the worker. While the worker was obligated by the contract agreement to have his equipment in good working order, the employer did not exercise any care or control over how this might be achieved.

The panel also notes that government regulations require that drivers keep a logbook of all of their hours spent working, but at the hearing, the worker acknowledged that the pre-trip inspection was not included in that time.

The worker further submitted that because he had contacted the employer and made himself available, the time period was reasonably connected with his upcoming work shift. The panel feels this is not sufficient to find that the worker was in the course of his employment. In our view, being put in the queue for being assigned a job is not the same as being dispatched. We do not find that work had started. There was no stand-by rate paid to drivers. The worker had only made himself available to receive work and this does not equate to being in the course of employment. While the worker's choice of activities may have been restricted during this time due to the possibility that he could be dispatched at any time, we see this as being a function of his role as an independent businessperson/owner-operator, and not a form of control exercised by the employer over the worker's actions.

Based on the foregoing, the panel finds on a balance of probabilities that the worker's injury did not occur in the course of his employment. As such, the requirements for finding a compensable accident under subsection 4(1) of the Act have not been met.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 3rd day of December, 2013