The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board (WCB) that he wasnot in the course of employment when he fell on January 28, 2015.  A hearing was held on October 7, 2015 toconsider the worker's appeal.

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 low back injury that occurred on January 28, 2015 when he slipped on an icy surface. The worker stated: "I was just walking to catch my work bus because we have employee buses that take us to work. As I was walking to the bus, my right foot gave out underneath me and I fell onto the right hand side of my lower back. It was about 3:52 am."

By e-mail correspondence dated January 28, 2015, the employer's representative outlined the following position:

• the worker was not considered at work when he fell as he was not being paid to travel to work. His shift did not start until 4:51.
• a work bus is a free bus for employees to use to travel to and from work. This saves them using their own vehicle or taking a cab. They are not paid to take the bus and are not considered on the pay roll if using the bus.
• if the worker fell on the road due to ice, the work bus was not there and he is still regarded as not being at work.
• the worker has had issues with his back in the past and this had aggravated it.

On February 4, 2015, the WCB adjudicator disallowed the worker's claim for his right low back difficulties on the basis that there was no evidence of a workplace injury. The adjudicator stated that the worker's injury occurred as a result of a personal act that was not "in the course of" his employment.

On March 4, 2015, the above decision was appealed by the worker's union representative to Review Office. The union representative referred to several WCB policies and the Manitoba Employment Standards Act and stated:

"When [the worker] sustained the injury while waiting for a "work bus", this is the form of transportation provided and owned by the employer. This bus is under the supervision and direction of the employer at all times. The employer could have provided a taxi cab, which would have picked him up at his house. The bus has set routes and employees wanting to use the bus must walk to certain locations to catch the bus."

A copy of the March 4, 2015 union's submission was provided to the employer's representative for comment and his response is on file dated March 25, 2015. On April 9, 2015, the union representative responded to the employer's submission.

On April 17, 2015, Review Office determined that the worker's claim did not support that an accident as outlined in the Act had occurred. Review Office placed weight on the following when reaching its decision:

• the worker was crossing a public street on his way to catch a bus to go to work. As the worker was on public property at the time of the injury, the worker had not yet established any direct work relationship. He was in the process of travelling to work but had not yet become active in his role as an employee.

• the worker's representative noted that he felt the worker was under the control of the employer as he was in the process of walking to the bus stop to catch a ride to his work location. This was an incorrect application of WCB board policy 44.10.50.10 according to Review Office.

In accordance with the policy, Review Office determined that the worker was not under the supervision of or being directed in any workplace activity by the employer at the time he fell. The worker was not an employee at that time and the fall was not a result of his employment.

Review Office stated in its decision that the union representative's arguments in his letters of March 5 and April 9, 2015 were not considered germane to the fundamental situation of a claim's acceptance as the worker had not yet begun his employment (i.e. he was not in a vehicle that was under the control of the employer).

On June 2, 2015, the union representative appealed Review Office's decision to the Appeal Commission and an oral 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.

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 established policies which include:

WCB Policy 44.05, Arising out of and In the Course of Employment, which provides general information on the meaning of arising out of and in the course of employment.

WCB Policy 44.05.20, General Premises, which deals with the determination of the "employer premises" regarding accidents that occur during the course of going to and from work.

WCB Policy 44.10.50.10, Transportation Controlled by Employer, provides that a worker is considered to be in the course of employment while in transit to and from the place of employment when the employer has direct control over the transportation.

This appeal deals with claim acceptance. The key issue to be determined by the panel is whether the worker’s slip and fall arose out of and in the course of his employment.

Worker's Position

The worker was represented by a union representative who made an oral submission on behalf of the worker. The worker's representative and the worker answered questions from the panel.

The worker's representative submitted that the worker was in the course of his employment when he slipped on an icy street, while on his way to catch an employer provided bus which would take him to his work premises to start his shift. In support of this position, the worker's representative noted:

• the employer pays for/provides a work bus to pick up employees
• the employer sets the time and place for the worker to catch the bus

The representative submitted that the bus is under the direct control of the employer, and as the worker is required to be at the place and time to catch the bus, the worker is under the direction of the employer which constitutes a direct relationship of the event arising out of and in the course of employment.

The worker representative also argued that having to be at the pick-up location where the worker fell is "a thing that is done and the doing of which arises out of and in the course of employment."

He also noted that the work bus is being provided by the employer for employees who work between 12:00 midnight and 6:00 AM, and that this service is required due to employment standards.

The worker representative submitted that Policy 44.05.20, General Premises, and Policy 44.10.50.10, Transportation Provided by Employer, are applicable to this case. He noted that under the latter policy:

The worker is considered to be in the course of employment while in transit to and from the place of employment when the employer has direct control over the transportation.

The employer is considered to have direct control over the transportation when,

a) a vehicle is essential to employment and the employer provides a worker with a vehicle for that purpose, or

b) a vehicle is essential to the employment and a worker furnishes his or her own vehicle in order to fulfill those obligations of employment, or

c) the journey to and from work is made in the employer’s vehicle, is under the supervision of the employer or is directed by the employer, or

d) the employer pays for the expense of the transportation to and from work.

And I just want to add that in our opinion and in our belief c) and d) are very important for us. Having said that, we would like to point out that [the worker] had to be at a given place at a given time set by the employer to make use of the transportation provided by the employer. And had he not had to be there, this accident would not have taken place.

In answer to a question about where he fell, the worker replied that:

I was crossing to go wait in the shelter because it was cold out that morning, and as I stepped up onto the bus platform where the shelter was, with the conditions, I just fell right on my back.

The worker added that he landed on the street.

The worker confirmed that he did not have to use the work bus. He also acknowledged that he could catch the bus at a different stop, albeit he was catching it at the stop closest to his residence. The worker also chose his own route and means of transportation to the bus stop.

Employer

The employer was represented by its compensation coordinator.

Regarding WCB Policies relied upon by the worker, the employer representative submitted that Policy 44.05.20, General Premises, has no application to this case as the policy provides that an accident on a public roadway or walkway is not considered to be in the course of employment. He also said that Policy 44.10.50.10, Transportation Provided by Employer, does not apply because the worker was not "in transit" as he had not reached the vehicle provided by the employer.

The employer representative noted that:

• at the time of the accident the worker was not being paid by the employer
• the worker was not considered at work
• the worker was not being paid to travel to work
• the work bus is free for employees to use to travel to and from work
• the worker is not paid to take the bus
• regular passengers can use the bus but must pay
• the worker fell on a public street

The employer representative submitted that provincial legislation dealing with Employment Standards does not apply and cannot override the provisions of the Act.

The employer representative submitted that the circumstances surrounding the worker's fall do not satisfy the prerequisites of section 1(1) of the Act.

Analysis

The worker is seeking compensation for an injury that occurred while he was travelling to work. For the worker's appeal to be approved the panel must find that the worker sustained an injury arising out of and in the course of his employment. The panel was not able to make this finding. The worker's claim is not acceptable.

In arriving at this decision, the panel makes the following findings, based on the evidence in the file and presented at the hearing:

· the employer provides a work bus to pick-up and drop-off workers who work late/early shifts

· the work bus is provided free of charge to workers

· the morning work bus will pick up workers and members of the public (who must pay a fare)

· the worker is not required to use the work bus and may get to work by other means if he chooses

· at the time of the injury, approximately 3:52 am, the worker was walking to a bus stop to catch the morning work bus

· the worker went to a bus shelter across the street from the bus stop where he was to be picked up to await the arrival of the bus.

· the worker slipped while stepping on to the bus platform and fell back onto the street, across from the designated pick-up stop

· the worker sustained an injury

The panel has considered the findings and concludes that the worker was not in the course of his employment when he fell onto the street. The panel also finds that the worker was not on the employer's premises but on public property at the time of the injury. The worker selected his own means of transportation to get to the bus stop. The bus platform/street where the worker slipped was not his workplace. He was not under the control of the employer at the time. The worker was not required to use the work bus.

The worker's representative argued that Policy 44.05.20, General Premises, and Policy 44.10.50.10, Transportation Provided by Employer are applicable to this claim. The panel finds that the policies are not applicable.

With respect to Policy 44.05.20, General Premises, the panel finds that, in this case, the bus platform/street was not the employer's premises for the purposes of this accident. While the term premises can have a broad meaning, this policy limits the term by providing that:

b. The employer's premises do not include:

1. The public or private land, buildings, roads or sidewalk used by the worker to travel to and from his home and the employer's premises.

Accordingly, given the facts of this case, the panel finds the policy is not applicable.

The worker's representative also argued that Policy 44.10.50.10, Transportation Provided by Employer, is applicable. He said that the policy states that a worker is considered to be in the course of employment while in transit to and from the place of employment when the employer has direct control over the transportation.

The panel finds that this policy is not applicable to this case. The fact of this case are that the worker was injured before he boarded the employer's work bus. The accident did not occur while the worker was on the bus, in transit to his workplace. The employer did not have control over the worker at the time of the accident.

The panel does not find that the legislated duty of employers to provide certain workers with transportation to and from their work has any bearing on the issue before it.

The worker'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 16th day of November, 2015