The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his slip and fall injury occurring on April 3, 2014 was not the result of an accident arising out of and in the course of his employment. A hearing was held on October 8, 2014 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 on April 3, 2014 when he slipped and fell after making a deposit at an ATM. The worker reported that at the time of the accident, he was heading out of town with his employer’s truck to make a delivery.

On April 7, 2014, the Employer's Accident Report indicated that the worker was about to leave the city to make a delivery but he stopped at a bank to do personal banking that had nothing to do with work.

On April 11, 2014, the worker advised the WCB that prior to leaving Winnipeg for a work trip, he stopped to deposit a company cheque to cover his road expenses when he slipped and fell on ice. The WCB file notes from that conversation indicate the worker said he had the option to use his credit card for road expenses but he was not able to do so and his employer issued him a cheque to cover his expenses for the trip. The worker has direct deposit for his payroll but not for expense cheques. The expense cheque was a manual cheque and it worked like an advance. If he used his credit card on a trip, the company would reimburse him when he returns. His employer does not direct him where to cash his cheques or where to bank. His truck was much like a semi trailer and he parked it in the shopping mall lot as it was easier to maneuver.

On April 16, 2014, the employer's representative advised the WCB that at the time of the accident, the worker was about to head out of town on a business trip driving a company truck. The worker had charged his expenses for a prior trip on his credit card and the company reimbursed him for this amount. The worker stopped off at the bank to cash his cheque to ensure there was room on his credit card for the trip. This was usual company protocol. She said the company did not send the worker to cash his cheque and that the worker was free to bank wherever and whenever he wished.

On April 17, 20014, the WCB advised the worker that his claim for compensation was denied on the grounds that a relationship could not be established between his work duties and his injury as banking was considered to be a personal act unrelated to his job duties.

On April 24, 2014, the worker appealed the above decision to Review Office. The worker contended that his depositing the cheque was a work-related task and if he hadn't cashed the cheque, he would not have been able to perform his job. For this reason, his slip and fall injury was the result of an accident arising out of and in the course of his employment.

On June 25, 2014, Review Office confirmed that the worker's claim was not acceptable, finding that it did not arise out of his employment.

On August 19, 2014, the worker filed a Worker Appeal of Claims Decision form with respect to the decision made by Review Office. An oral hearing to hear the matter was arranged for October 8, 2014.

Reasons

Chairperson Dyck and Commissioner Day:

The issue to determine is whether the claim is acceptable.

Applicable Legislation and Policy

In considering this appeal, the panel is 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.

A number of WCB policies are specifically relevant to this claim. WCB Policy 44.05, Arising Out of and in the Course of Employment, confirms that in order to be compensable, a workplace illness or injury 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. That policy notes that where travelling is a requirement of the worker’s employment and the employer has some control over the method of transportation, the worker is then considered to be in the course of employment while travelling for employment purposes. But that policy goes on to note that even if an accident occurs in the course of the worker’s employment, the resulting injury would not be compensable when a worker is engaged in personal activities not related to or required by his or her employment.

Further, WCB Policy 44.10.50.10, Transportation Controlled by Employer, sets out that:

When the worker deviates from a reasonable and recognizable route directly associated with the employment for personal or non-work related reasons, it will constitute removal from employment and any injury arising out of or in the course of such deviation will not be compensable.

WCB Policy 44.10.50.50, Travelling on the Job, repeats this provision from the Transportation Controlled by Employer policy and elaborates upon it in the Administrative Guidelines. Those guidelines state that workers who travel as an employment requirement will be deemed to be in the course of their employment during any work-related activities for which the employer is willing to reimburse the worker.

Worker’s Position

The worker’s position was set out in his oral submission to the panel as well as in a written submission dated August 3, 2014. The worker takes the position that the act of depositing the expense reimbursement cheque from his employer en route to his final work-related destination was a work-related activity. He notes that the expenses for which he was being reimbursed were necessary work-related expenses and suggests that as a result, the reimbursement of those expenses is also a work-related activity. In this case, he specifically notes that he did not deviate from a reasonable and recognizable route but stopped in a safe location near an ATM machine along his route. He further notes that his employer, in his letter dated July 20, 2014, agreed that this was an appropriate use of company time. For these reasons, the worker submits that his injury occurred arising out of and in the course of his employment and that the claim should therefore be accepted.

Employer's Position

The employer did not participate in the hearing.

Analysis

In order to find that this claim is acceptable, we must find that the injury occurred arising out of and in the course of employment. If the worker was outside the course of employment when the injury occurred, the claim cannot succeed.

The basic facts of this matter are not in dispute. The worker was traveling in his employer’s vehicle to make a delivery out of province. As he was heading out of Winnipeg, he stopped the vehicle in a safe location to make a deposit at an ATM. He deposited a cheque issued by his employer that day to reimburse him for work-related expenses that had already been incurred. In the course of returning to his vehicle, the worker slipped and fell, injuring himself. He quickly notified his employer he would be unable to continue with his trip, sought medical attention the same day and four days later, made his claim to WCB.

The question for us to determine is whether the worker, at the time of his injury, was engaged in activities that arose out of and in the course of his employment or was he engaged in activities that were of a personal nature, outside the course of his employment.

The worker explained that his job involves delivering product for his employer to dealers and consumers. He travels, typically, approximately six days at a time in making those deliveries across North America and returning to Winnipeg. When he travels, he incurs expenses on his personal credit card for equipment maintenance, fuel, hotel rooms and operating supplies. Occasionally, for example when he is training another driver, he may also incur group expenses.

The worker noted that from time to time, he also purchases goods on behalf of his employer during the delivery trips and these are also charged to his personal credit card. Once each month, he explained, he submits a claim for reimbursement of those expenses to his employer. Although he receives his pay by direct deposit, the worker receives reimbursement for expense claims by a cheque from the employer.

The worker confirmed that his employer does not control or direct when and where he deposits the expense reimbursement cheque. He noted that generally he does it as is convenient, whether on the way to or from work or during his workday while running errands for the company. While initially he had a company credit card to charge his expenses to, this was passed on to another employee and since that time, the worker has had to use his personal credit card.

We note that there are some minor discrepancies between the facts as set out in the initial Employer’s Accident Report and conversations between the WCB adjudicator and employer’s representative, and those set out in the worker’s submission with respect to whether the cheque deposited on the date of the incident was a payment in advance or a reimbursement. These are addressed by the letter from the employer dated July 20, 2014. The employer confirms that the

worker applies all travel expenses to his personal credit card and is later reimbursed by the company through an expense cheque. The employer goes on to state that: “Because these expenses are the direct result of employment, [the worker] is allowed company time to deposit his cheque….[The worker] was on company business at the time of the incident….”

Was the worker engaged in work related activities at the time of his injury? The WCB Policy Travelling on the Job sets out that where a travelling worker deviates from his route to engage in personal or non-work related activities, any injury that occurs will not arise out of and in the course of employment. The Administrative Guidelines to that policy go on to explain that workers who travel as an employment requirement will be deemed to be in the course of their employment during any work-related activities for which the employer is willing to reimburse the worker.

Here, the employer’s evidence, set out in the letter of July 20, 2014 supports the worker’s own position that he was engaged in an employment related activity at the time that the injury occurred. Further, the employer goes on to state that the worker is allowed to engage in this activity during company time. In other words, the worker is reimbursed for the time spent engaged in this activity during company time. As such, pursuant to the provisions of the WCB Travelling on the Job Policy, the worker would be deemed to be in the course of his employment at the time of this accident.

The WCB Policy, Arising Out of and in the Course of Employment, confirms that in order to be compensable, a workplace illness or injury 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 has asserted that because the expenses for which he was reimbursed were incurred as part of his employment activities, depositing the cheque received as reimbursement for those expenses was also a part of his employment activities. The employer’s letter of July 20, 2014 supports his assertion.

Based upon the evidence of the worker which is supported by the evidence of the employer, we find that in this circumstance, the injury occurred within the time of employment at a location where the worker had reasonably stopped to engage in an activity that was incidental to his employment. The worker was engaged in employment related, not personal activities when he stopped to deposit the reimbursement cheque en route to his delivery destination. We note that we have not concluded whether this activity would, in every case, be in the course of this worker’s current employment, but in these circumstances we are satisfied, on a balance of probabilities that the worker’s accident did arise out of and in the course of his employment.

On the basis of these findings, we determine that the worker’s claim is acceptable.

Panel Members

K. Dyck, Presiding Officer
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 17th day of November, 2014

Commissioner's Dissent

Commissioner Finkel's dissent:

The worker sustained a fall on ice after depositing an expense cheque at an ATM in the middle of a workday. He is appealing the WCB's decision that denied his claim. For the worker to succeed on his appeal, I would have to find that the worker's injury arose out of and in the course of his employment. I am not able to make this finding, for the reasons that follow.

The facts in this case are not in dispute, and I concur with the provisions of the Act and WCB Policy that are cited in the majority decision. The relevant facts are:

• As part of his job duties, the worker drove a large truck on long distance trips to deliver vehicles, approximately four times a month. He was a salaried employee who, over a two week period, was expected to work 80 hours. He did not receive overtime. He balanced his driving time, his prep time, hours in the plant performing other duties and days off to achieve his hours.
• The worker was paid his salary biweekly, by direct deposit to his bank account.
• Travel expenses for his trips were also reimbursed by the employer. This covered fuel costs, maintenance and repair costs, and other associated expenses. As well, the worker would on occasion pay for small parts purchases in Winnipeg with his personal credit card while doing local deliveries for the employer.
• The employer and the worker had used various ways of paying for those expenses incurred by the worker, over the years. At times, the worker had received advances on his travel expenses from the employer. At one point, the worker had been given a company credit card to use for those expenses. With his concurrence, the company credit card was transferred to another driver who did not have a personal credit card, and the worker agreed to use his personal credit card for those expenses which were then reimbursed by his employer. This was the current arrangement between the worker and employer at the time of the accident.
• Under this arrangement, the worker used his credit card while on the road to cover work-related expenses. The worker routinely submitted his expenses to his employer, on a monthly basis. The employer would usually issue a manually prepared cheque to the worker within about 7 days. The worker's evidence was that there was no correlation in terms of timing between the number of trips taken and when he submitted his expenses. The established pattern was that the worker prepared and submitted a monthly expense sheet regardless of the number of trips taken, and the employer then provided a monthly reimbursement.
• The evidence at the hearing establishes that there was no clear pattern as to when the worker deposited those cheques. Sometimes they were deposited in the middle of the work day while running errands for the company and at other times, they were deposited by the worker on personal time that was completely removed from the workplace. Once the cheques were issued, the employer never asked about the status of the cheques or when and where they were deposited. The worker advised that if he deposited the cheque during work hours, he did not have to account directly for the time when he made the deposit. Similarly, he was not paid overtime or compensatory time when he deposited the expense cheque outside of his work hours.
• The employer did not direct the worker and was generally not aware of where and when the worker deposited his expense cheque. The employer was not aware of how the worker generally used his credit card, what the worker's credit card limit or balance was at any given point in time, or of the due dates on his credit card statements.

In this case, on April 3, 2014, the worker pulled off a highway and stopped to deposit his expense cheque at a mall ATM, as he was leaving on a long trip. He attributed his need to do so on a delay by his employer's accounting department in processing the cheque which, in turn, affected his ability to pay down his personal credit card which he planned to use on his trip. It was at that point where he injured himself, and where the question of work-relatedness of the worker's action in depositing that cheque must be considered. The Policy dealing with travelling on the job states that "Any deviation from a reasonable and recognizable route, for personal or non-work-related reasons, will constitute removal from employment and any injury arising of or in the course of such deviation will not be compensable." The central issue turns on how to characterize the financial transaction/relationship between the worker and the employer: Is the deposit of an expense cheque a personal or a work-related activity?

The worker's position is stated in his letter of August 3, 2014 which accompanied his Notice of Appeal (and was repeated in the hearing): "Due to the fact that this cheque covered work related expenses, activities related to this are also work related - if the expense wasn't incurred, there would be no cheque to deposit as remuneration is accomplished by direct deposit..."

Respectfully, I find that this interpretation is inconsistent with the Policy and with the intended scope of the Act. In this regard, I note that:

 

• The definition of a "worker" in subsection 1(1) of the Act includes a person who "works under a contract of service" which is consistent with the evidence regarding the employment relationship between the worker and his employer in this case.
• The terms of the specific employment relationship here were not unusual, especially for workers who perform their job duties away from the workplace: There was a mutual understanding that the worker had job duties to perform in a prescribed number of hours. It provided for the payment of wages and, as well, for reimbursement for various work-related expenses that were incurred by the worker while on the job. The evidence discloses that many of the most common ways of expense reimbursement were present in this case: at various times, advances were provided, an employer credit card was provided, or the expenses were paid by the worker and later reimbursed by the employer. These arrangements were modified from time to time by mutual agreement between the worker and the employer. Similarly, the worker was paid his wages by the employer in a manner (timing and method) that was mutually agreeable.
• As such, the totality of the financial arrangements between the worker and the employer (wages and coverage of expenses) represented an agreed upon flow or performance of services in one direction and remuneration and reimbursement in the other, in a manner that was satisfactory to the needs and expectations of both the worker and employer.
• There are two elements to any contract of service. On the one hand, a worker has obligations regarding the performance of his job duties, with activities both central and incidental to the performance of those duties. And on the other hand, the employer will have obligations to pay for the performance of those duties, which will engender some activities on the part of the worker as a consequence of those payments.
• In terms of what the Act is intended to cover, these are two very different things. In my view, the Act, in broad terms, is intended only to cover injuries suffered in the performance of a worker's job duties (including some activities incidental thereto as described in the WCB Policies cited in this decision), and not to all activities associated with the whole "contract of service." The second part of the contract of service (the payments from the employer to the worker) and anything associated or incidental to those payments are a consequence of and separate from the performance of a worker's job duties. They are not incidental to the employment or to the job duties. Under this interpretation, the Act and Policies in my view, would not extend coverage for a worker's activities associated with cashing, depositing or in any other way managing the financial aspects of their employment. Simply stated, these types of activities are generally not considered to be part of a worker's job duties.
• Discussions and questions during the hearing focused on whether there was anything particularly unusual in the circumstances of this case (that is, the last minute need by the worker to pay down his credit card because the employer's delayed processing of the previous month's expenses) that would lead to this particular transaction being treated as incidental to the performance of his job duties. In this regard, the worker was asked if he would consider a bank deposit on a day off (and a slip and fall on that day) to be part of his job duties or a workplace accident, and he indicated that it wouldn't be a work-related injury. This response accords with my view of the scope of the Act when it comes to consideration of the financial transactions which every worker has, as a consequence of their employment. Those deposits or withdrawals are a consequence of the employment and not a job duty assigned by an employer. This is their essential character or their fundamental nature. I view the other asserted differences that attempt to bring banking into the scope of employment (whether it be payment of wages vs. expenses, direct deposit vs. manual cheque, biweekly wages vs. monthly expense sheets/reimbursement, the decision to cash a cheque during work hours vs non-work hours, how the worker manages or doesn't manage his credit card balances) as being minor considerations that do not change the fundamental character of the activity.

   

 

As such, I would, on a balance of probabilities, characterize the worker's actions surrounding the cashing of his cheque on his work hours not as an action incidental to his job duties, but rather as a personal matter and a non-work-related matter. Further, the evidence discloses that the worker did in fact deviate from a reasonable and recognizable route (leaving a highway route to enter a mall) during his work day, for that personal matter. Accordingly, I find that the worker's injury occurred within the circumstances described by the Policy as a deviation from the reasonable and recognizable route for personal or non-work-related reasons. The Policy states that this will "constitute removal from employment and any injury arising out of or in the course of such deviation will not be compensable." In the framework of the Act, the definition of an "accident" under the Act -- that the injury must arise both out of and in the course of employment -- is not met; the worker's injury did not arise out of and in the course of his employment.

Accordingly, I find that the worker's claim is not acceptable, and I would deny the appeal.

A. Finkel

Commissioner