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's claim for compensation was compensable for an assault thatoccurred on October 23, 2014.  A hearing was held on July 21, 2015 toconsider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB for an assault that occurred on October 23, 2014 while waiting for a bus at the end of his shift. The worker reported that he was pushed in the face and on his right side and was kicked in his right leg. The worker reported that the incident happened at 9:00 a.m. and he made a police report. On file is an Assault Emergency report submitted by the employer regarding the October 23, 2014 incident.

On November 13, 2014, the employer's representative submitted that the worker was not in the course of his employment at the time of the incident and that the claim should be adjudicated under WCB Policy 44.05.20.

On November 17, 2014, the worker advised the WCB that he was working the following three piece schedule on October 23, 2014:

6:52 a.m. to 8:47 a.m.

10:47 a.m. to 12:56 p.m.

14:56 p.m. to 18:49 p.m.

At 8:55 a.m., he walked out of the garage to take a bus downtown when he was involved in the altercation. The worker said he was not paid travel time by his employer.

In a decision dated November 24, 2014, the WCB determined that no responsibility could be accepted for the October 23, 2014 incident. The adjudicator's position was that the assault occurred as a result of a personal act that was not in the course of the worker's employment as he was travelling to a destination on unpaid time and under his own volition.

On November 27, 2014, the worker's union representative submitted to Review Office that the worker's claim for compensation was acceptable based on the following rationale:

"...[the worker] was in fact traveling from one point to another as part of his employment. He is also being paid by [his employer]; he is paid a spread premium. He is also required to be at that specific location, as he just eight minutes earlier finished his first piece of work and was waiting for the first bus to travel to his next starting point. I would also point out that riding the bus is free for [the worker] as it is part of his earnings. Getting a Spread Premium and being provided free transportation is part of the compensation [the worker] is provided with, by the employer."

On December 2, 2014, the union representative provided Review Office with specific WCB policies to support his position that the worker was entitled to full compensation benefits.

On January 5, 2015, the employer submitted to Review Office that the decision of November 24, 2014 accurately reflected the application of relevant WCB legislation and policies. The employer stated, in part, the worker completed his shift at 8:39 am. and that workers are paid an additional eight minutes for completion of any paperwork when their shift ends. This would explain the 8:47 a.m. shift end. The worker exited the employer's premises and was waiting to catch a bus in front of the garage when he was assaulted at approximately 8:55 a.m. The worker ceased to be paid an hourly wage effective 8:48 a.m. and would not have been in receipt of his hourly wage until he next took possession of his assigned vehicle at 10:47 a.m. The assault in question did not occur on the employer's premises.

On January 30, 2015, Review Office considered the file information and concluded that the worker's claim for compensation was acceptable. Review Office referred to the employer's incident report dated October 23 and the union's submission of January 7, 2015. Review Office concluded that the worker was struck by a male which constituted a willful and intentional act, not the act of the worker, that arose out of the worker's employment. Had the worker not been wearing his uniform, it was unlikely that the worker would have been assaulted.

Review Office referred to WCB policy 44.05.20, General Premises and found that the worker was "working" at the time he was injured. Review Office further stated:

"We find the evidence falls short of proving the worker was not in the course of his employment at the time he was injured. Given our earlier conclusion that the worker was injured by a willful and intentional act related to the wearing of his uniform (and therefore is arising out of his employment), he is presumed to have been in the course of his employment at the time he was injured. The Act's definition of accident has therefore been satisfied."

On March 4, 2015, the employer's representative appealed Review Office's decision to the Appeal Commission and an oral hearing was held on July 21, 2015.

Following the hearing, the appeal panel requested further submissions from the employer's representative and the worker's representative regarding "the matter of coverage for accidents that occur to uniformed workers who are found to be targeted due to their positions while not directly performing their work duties".

On November 4, 2015, the appeal panel provided the employer's representative and the worker's representative with research material for comment dealing with assaults of uniformed employees while off duty.

On December 1 and 16, 2015, the appeal panel met further to discuss the case and rendered its decision on the issue under appeal.

Reasons

Chairperson Scramstad and Commissioner Finkel:

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB's 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 a number of policies relevant to this appeal including:

Section 40, 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.

Section 40, 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.

Section 40, 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.

Section 40, Policy 44.10.50.50, Travelling on the Job, provides that "Workers are generally considered to be in the course of their employment from the time they arrive on the employer's premises until the time they leave."

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

Employer's Position

The employer was represented by its compensation coordinator.

The employer representative advised that the employer does not question the fact that the worker was assaulted on October 23, 2014; however, it is the employer's position that the incident (assault) did not satisfy the prerequisites of subsection 1(1) of the Act as it did not arise out of and in the course of the worker's employment.

The employer representative submitted there is no credible evidence to suggest that the worker and his co-workers were attacked simply because they were employees of the department. He submitted that the derogatory comments did not make reference to the worker's employment positions. He said based on the derogatory comments, the assailant had an issue with people that were obese. The employer's representative noted that the other two workers, involved in the incident, would also be considered obese under current health standards.

The employer representative noted that the employer has a large workforce and that it has not received any claims for assaults on off-duty workers wearing the department uniform.

The employer representative said that WCB Policy 44.05.20, General Premises is not applicable to this case because the assault occurred on public property. He noted that subsection A.1.b. of this policy states the employer's premises do not include the public or private land, buildings, roads, or sidewalks used by the worker to travel to and from home and the employer's premises.

The employer representative argued that the worker was not in the course of his employment when he was attacked, noting that:

·

the worker, at the time of the assault, was no longer working or being paid an hourly wage, and was on public property at the time.

·

the worker was not scheduled to work again until 10:47 a.m., and therefore was free to do whatever he so chose for the ensuing two hours.

·

the worker's next scheduled shift was to commence at a different location.

·

the department provides a lounge in a different area for employees who choose to make use of same; however, this is not compulsory and the workers are free to do whatever they so wish during the gap between shifts.

The employer representative reviewed the facts surrounding the assault to the worker. He submitted that travelling to the lounge is tantamount to travelling to work for which there would be no compensation coverage. The employer representative also submitted that while the worker was in uniform and was apparently heading downtown to utilize the lounge facilities, he was not in the course of his employment. The employer also submitted that the uniform was not implicated in the worker sustaining an injury and is not considered a hazard of employment.

In response to the information which the panel obtained after the hearing dealing with injuries to workers in uniform, the employer representative submitted that Decision 472/11 of the Workplace Safety and Insurance Appeals Tribunal ("WSIAT") of Ontario was more reflective of the circumstances of the present case. He noted that the WSIAT panel found that the worker, a bus driver, was not in the course of his employment when assaulted while waiting at a bus stop after his shift had concluded.

Worker's Position

The worker was represented by a union representative. The representative outlined the worker's position. The worker answered questions from the appeal panel.

The worker's representative submitted that there is general agreement that the incident and the injuries occurred on the 23rd, and as to how they occurred and where they occurred. He said the question to be answered is "why should the worker be covered by WCB?" He referred to Policy 44.10.50.50, Travelling on the Job, which states:

Workers are generally considered to be in the course of their employment from the time they arrive on the employer's premises until the time they leave. When travelling is a requirement of the worker's employment, compensation coverage is extended to include travel during working assignments as well as travelling to and from work assignments.

Any deviation from a reasonable, recognizable route for personal or non-work related reasons will constitute removal from employment, and any injury arising out of or in the course of such deviation will not be compensated.

The worker's representative submitted that the worker had already reported for work at 6:52 a.m. so he had already travelled to work. He said that the worker had 3 different work assignments to cover and was travelling from one point to another point for his next work assignment when he was assaulted. The worker representative also noted that the worker is provided free transportation as part of his negotiated benefits under the negotiated collective agreement and that it forms the basis of part of his wages because that is something that has been negotiated. He submitted that in lieu of wages workers are provided with free transportation. He added that:

"I'd also like to point out, as far as the uniforms go, the [department] has a policy, and in their policy operators have the responsibility to act professionally when in uniform whether on duty or off duty...

Because they're in uniform, the question of the uniform comes up, the question of the uniform is important. It is what created the hazard which is the main thing we want to point out."

The worker's representative acknowledged that going to work before and going home after a worker finishes a full shift is not covered, but in between the shift pieces, working and going to assignments, is covered, "or it should be covered."

The worker's representative submitted that the worker and his co-workers were only identified as employees of the department because they were in uniform. He noted that the person who assaulted the workers refers to them as, "you fat ass and all you do is sit around and drink pop and coffee and that kind of stuff." He said that the assault had nothing to do with the size or obesity of the workers. "It is only totally because of the uniform. Had they not been in uniform, I am sure that person would have just walked right past them."

He also noted that the accident location was adjacent and proximal in regards to both location, time and the end of the first leg of the worker's shift. It happened close to the employer's property. He also noted that the time from the finish of his shift which was 8:47 a.m. to the time when the assault took place was only five minutes later.

Neither the worker nor his representative responded to the additional information which the panel obtained after the hearing regarding other decisions from other jurisdictions dealing with injuries to workers in uniform.

Analysis

This is an employer appeal. The employer is appealing the WCB Review Office decision that the worker's claim is acceptable. For the employer's appeal to be approved, the panel must find that the worker's accident did not arise out of and in the course of his employment. The majority of the panel found that the worker's accident did not arise out of and in the course of employment and as a result, that the worker's claim is not acceptable.

In making this decision, the majority relies upon the following findings of fact:

• the worker works a split shift, with a 2 hour gap between the end of the first portion and the commencement of the second portion
• the worker completed the first portion of his work shift at approximately 8:47 a.m. on October 23, 2014
• the worker was not scheduled to work again until 10:47 a.m.
• the worker was free to do whatever he chose for the ensuing two hours.
• the next portion of the scheduled shift was to commence at a different location.
• the department provides a waiting facility at a central location for employees who have the option to use the facility
• use of the facility is not compulsory
• at the time of the assault, the worker was waiting with two co-workers for a bus at or adjacent to a bus stop
• the worker was on public property at the time of the assault
• the worker was intending to go to the waiting facility to wait for the commencement of the second portion of his shift
• the worker, at the time of the assault, was not working nor being paid an hourly wage, but was in receipt of a shift premium
• the assault occurred adjacent and proximal in regards to both location and time to the end of the first portion of the worker's split shift
• the worker was in uniform and on a direct route from one employer controlled property to another (the waiting facility)
• the worker was assaulted by an unidentified individual
• the individual plowed into the worker and 2 co-workers and called them "do nothings", "fat fucks", and accused them of drinking pop all day. He then assaulted the worker.

The panel notes that for a claim to be acceptable it must both arise out of and in the course of employment. The panel finds that the evidence establishes that the worker's injury did not arise out of and in the course of his employment.

The majority is not able to find that the worker was in his course of employment at the time he was assaulted by the unidentified individual. He had completed the first portion of his split shift and was no longer under the control of the employer. He was on his own time. He had no employment obligation at that time, but was simply required to report at a different location to complete the second portion of his split shift. The worker made the personal decision to take employer provided transportation to the employer-provided lounge. He was not on the employer provided transportation at the time of the assault nor was he on the employer's premises, in the sense required for the purposes of the Act; rather he was on a public sidewalk adjacent to a bus stop.

The majority has considered WCB policies which deal with travel to and from work:

WCB Policy 44.05, Arising out of and In the Course of Employment, notes that for an injury "To be compensable, it must have been the result of an accident arising out of and in the course of the worker's employment." It provides that:

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 majority has considered this Policy explanation and finds, on the facts of this case, that the worker's injury did not arise out of employment as the activity giving rise to the injury was not caused by some hazard which results from the nature, conditions or obligations of the employment. The worker was simply waiting on public property for a bus to transport him to another location. With respect to the injury arising in the course of the worker's employment, the majority finds that the worker was not in the course of his employment at the time of the assault. The worker had completed the first portion of his shift and was not working or performing employment duties at the time.

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. The majority finds that the employer did not have control over the worker's transportation. The worker was free to use whatever means of transportation he wished. In this case, he had elected to use the employer provided transportation, but was not on the transportation at the time of the incident.

WCB Policy 44.10.50.50, Travelling on the Job, provides that "Workers are generally considered to be in the course of their employment from the time they arrive on the employer's premises until the time they leave." The majority finds that this policy is not applicable. The facts of this case do not satisfy the requirements of the policy and administrative guidelines. The worker was not on the employer's premises, was not being paid for the time in transit and was not subject to the direction of the employer. The majority finds that the worker's travel at the end of the first portion of his shift is akin to travel at the end of the work day.

WCB Policy 44.05.20, General Premises, deals with the determination of the "employer premises" regarding accidents that occur during the course of going to and from work. It provides that the employer premises do not include the public land, buildings, roads, or sidewalks used by the worker to travel to and from home and the employer's premises. The majority finds that the worker was on public land at the time of the incident and is not covered under this policy.

The worker's representative argued that the assault was due to the worker and co-worker wearing their uniforms. He said "It is only totally because of the uniform. Had they not been in uniform, I am sure that person would have just walked right past them."

After considering all the evidence, the panel was not able to reach this conclusion. The evidence does not indicate that the worker and co-workers were attacked because they wore uniforms identifying that they were employed by the department. No reference was made to their employment or occupations. The evidence suggests that the basis for the attack was likely the individual's contempt for the worker's physical appearance.

The majority also notes that the employer representative's evidence that the employer had never received a claim involving an assault of an off-duty uniformed employee of the department until this claim was received. The majority concludes there is insufficient evidence to establish a link between the wearing of the department uniform by the worker and the assault. The majority is unable to find that the worker was at an increased risk because he was wearing his uniform or that the assault was reasonably incidental to the worker's employment. Accordingly, the majority finds, on a balance of probabilities, that there was no connection between the assault, the wearing of the department uniform, and the worker's employment.

The panel is aware of instances where the concept of "in the course of employment" has been extended to cover workers who were assaulted after work hours by persons who they dealt with during the course of their employment, essentially that the injuries arose out of things that happened in the course of employment. The evidence in this case is that the worker did not know the assailant. There is no evidence of prior history between the worker and the assailant and accordingly the claim cannot be accepted on this basis.

The majority allows the employer's appeal.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 12th day of January, 2016

Commissioner's Dissent

I have read the decision of the majority and I am of the view the worker's appeal should be allowed.

Subsection 4(1) of the Act provides for payment of compensation benefits to a worker where personal injury by accident arising out of and in the course of employment occurs.

“Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of 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.”

In accordance with subsection 4(1), the panel must initially be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act. That is, “a chance event occasioned by a physical or natural cause and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

I have reviewed Policy 44.05.20, General Premises, and am of the view that it is not applicable to this appeal.

In this case, the worker is employed as a bus driver and at the time of injury, he was awaiting transportation to take him to a location for a lay-over prior to commencing the second part of a split-shift. The worker was waiting along with other co-workers when an individual approached the worker and assaulted him.

The requirement to work a split-shift is a matter that is under the direct control of the employer. The employer determines where each part of the split-shift is to begin and end. Although the worker was not "being paid" during the period between the split-shift, it is my opinion that the worker was still in the course of his employment at the time of the assault. The worker was not engaging in personal activities, but rather, was awaiting transportation to take him to a lay-over location.

In my opinion, as it is the employer who controls when and where the worker commences the split-shifts, travel between the shifts is integral to the employer's operations. Therefore, any accident that occurs during the time between the shifts would arise out of and in the course of the worker's employment.

In my view, the circumstances of this case are unique and distinguishable from those cases involving travel to and from work at the beginning of their shifts which have historically been considered to be non-working time.

I am therefore satisfied that the worker's injury arose out of and in the course of his employment and his claim for compensation benefits should be accepted.

M. Kernaghan

Commissioner

Signed at Winnipeg, this 12th day of January, 2016.