The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Worker's Compensation Board ("WCB") that his claim for a lower back injury occurring on December 29, 2015 was not acceptable. A hearing was held on June 14, 2016 to consider 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 lower back injury that occurred on December 29, 2015. The worker reported that he was checking the fuel levels in his truck and when he climbed out of the truck and, while doing so, that he must of mis-stepped and slipped on one of the steps causing him to almost fall but caught himself with his left arm on the mirror. He felt a snap in his lower back and immediately began to experience spasms. The happened around 4:30 p.m.

The Employer Injury Report stated that on December 29, 2015, the worker was cleaning out his vehicle on a day when he was not scheduled to work and slipped when coming out of his truck. The file information contains memorandums authored by a WCB adjudicator regarding her telephone conversations with the worker, the employer and a co-worker identified by the worker, concerning the events that occurred December 29, 2015.

On January 18, 2016, the worker was advised that his claim was denied based on the following rationale:

…On January 12, 2016, you indicated that you were not on duty on December 29, 2015 and went to your place of employment to get your paycheck. While you were there, you checked the fuel levels on the truck so you would not have to do it in the morning. When you were getting out of your truck, you slipped on one of the steps and you fell but you caught yourself with your left arm on the mirror and injured your lower back.

Your employer confirmed that you were not scheduled to work on December 29, 2015 as the truck was getting service work done and you were not suppose be (sic) in the truck. They indicated that you were putting something in or taking something out of the truck. Your employer stated that you did not report that you went to the truck to check the fuel level, checking fuel was not an expectation on a day off and you had not done this previously.

…

Given you were not scheduled to work, you stated that you were going to your place of employment to pick up your cheque and your employer indicated that you did not report you were checking fuel in the truck, Compensation Services is unable to confirm that an accident occurred "arising out of and in the course of employment.

On January 26, 2016, the worker appealed the January 18, 2016 decision to Review Office. The worker stated, in part:

On December 29^th, 2015, I received a text message from my supervisor at …telling me the truck was ready for me to resume my duties with. At the time of receiving this message, I was already on my way to the office to retrieve my paycheque. Upon hearing that the truck was back and that there were pick-ups already scheduled for the next morning, I immediately headed for the truck to make sure there was sufficient fuel/oil, etc. to start the next morning. As outlined in the agreement, this was MY responsibility, and mine alone.

On February 24, 2016, Review Office determined that the claim was not acceptable.

Review Office noted that the worker and the employer both confirm that the worker was not scheduled to work on the day in question and that the reason for being in the office on his day off was to collect his paycheque. This was a personal act in the opinion of Review Office and was not considered an action that satisfied the Act's reference to an event that "arose out of" the worker's employment. If the worker did glance at the fuel level of the truck when he entered it, this would only be incidental to personal events and therefore not an action tied to employment purposes. Review Office concluded that the worker's claim was not acceptable as the evidence failed to support that an "accident" as defined by the Act occurred on December 29, 2015.

On April 4, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged and was heard on June 14, 2016.

Reasons

Applicable Legislation

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

In this regard, subsection 1(1) of the Act provides that:

"accident" means 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,

and as a result of which a worker is injured;

Further, 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)

WCB Policy 44.05, Arising Out of and in the Course of Employment states in part:

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.

Worker's Position

The worker was represented by a worker advisor, who put forth the position "it is reasonable, given the type of work he was doing, to conclude [the worker] was in the course of his employment at the time of the accident, even though he was not technically scheduled to be on shift."

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability and whether the worker’s lower back injury arose out of and in the course of his employment.

In order for the appeal to be successful, the panel must find that both tests in the Act are met, namely that the worker’s injury was caused by an accident that arose out of and in the course of his employment. On a balance of probabilities, the panel is not able to make that finding. In particular, the panel finds that one of the tests -- "in the course of employment" -- has not been met.

The panel notes that at the time of his injury, the worker was not scheduled to work on that particular day. Rather, the reason he was going to his place of employment was to collect his paycheque. This fact was supported by the evidence given by the worker and by the file which included the worker’s cellphone texts between himself and his employer. It was while the worker was at his place of employment, without any direction from his employer, that the worker decided to attend to the truck which he was scheduled to use the next day.

Arguably, this latter activity may be viewed as "arising out of the employment" which is one of the two tests that must be met for there to be a compensable accident under the Act. If this was the only requirement under the Act, then the worker would possibly have an accepted claim. However, the Act also requires that the injury occur "in the course of the employment." In that regard, the worker's injury must have been "caused by some hazard which results from the nature, conditions or obligations of the employment", which is the criteria for "arising out of the employment" as set out in the WCB Policy. The panel finds that the evidence does not support this finding.

The panel further notes that WCB Policy 44.05 is the starting point for the consideration of what constitutes "within the time of the employment" and it lists a number of other policies which provide for some flexibility in consideration of what qualifies as being in the course of employment. These range from policies on general premises, transportation controlled by the employer, travelling on the job, and accidents occurring in lunchrooms, among others. The panel has considered these policies as well, and finds that they do not provide additional guidance that would assist us in extending coverage to the activities performed by the worker on his day off.

The WCB Policy states that the injury must have occurred "within the time of the employment" as one of the mandatory requirements of "in the course of employment." As noted above, the evidence before the panel is that the worker was on a day off. While he was scheduled to work the next day, he did not need to be at his place of employment. Indeed, he was not paid for his day off, nor was he paid for or, in any other way compensated for, the time he decided to spend on the purported maintenance and preparation of the truck for his shift the next day. In fact, the panel notes that the worker’s employment contract clearly stipulated these were his contractual responsibilities and they did not form part of his employment duties. As noted by the worker, this was his responsibility and his alone.

Based on our review of the evidence, the panel finds, on a balance of probabilities, that the worker's injury did not occur in the course of his employment. This means that the requirements, being the two part test, for compensable accidents as set out in subsection 4(1) of the Act have not been met. The worker's appeal is therefore denied.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 22nd day of July, 2016