The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") to accept the worker's claim for compensation. A hearing was held on October 18, 2016 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On April 10, 2015, the worker filed a claim with the WCB for a left thigh injury that occurred on April 9, 2015 while attending a union convention. The worker described the accident as follows:

I was walking across the boulevard with two co-workers. My co-worker…was handing me my phone and when I turned, I looked away and my left leg came down on the boulevard. My left leg collapsed as soon as my weight went on it. I fell to my side…We were on our way…to pick up some food.

On April 9, 2015, the worker was diagnosed with left quadriceps muscle pain.

On April 29, 2015, after contacting the worker and the employer to discuss what occurred on April 9, 2015, Compensation Services advised the worker that his claim for compensation was denied as they were of the opinion that an accident arising out of and in the course of his employment had not been established. The decision was based on findings that the worker had not yet attended the convention that day and had not planned to do so until 1:00 pm., and his accident occurred while walking from a restaurant to a grocery store. On May 16, 2015, the worker appealed the WCB's decision to Review Office.

On July 10, 2015, Review Office determined that the claim for compensation was acceptable as the evidence supported that an accident arising out of and in the course of employment had occurred on April 9, 2015. Review Office found that the worker's activity on the reported date of injury was reasonable and not of a nature that would have removed him from his union convention business. Review Office indicated that the decision to purchase a healthier food option was reasonable and the proposed destination was within a recognizable area close to the union convention site.

In May 2016, the employer's representative appealed the acceptance of the claim 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 WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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.

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides general information on the interpretation of the phrase arising out of and in the course of employment, and 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.

WCB Policy 44.10.50.60, Special Assignment Coverage, deals with coverage in situations where workers are away from their regular place of work on special assignments, such as attending courses or conventions. The Policy provides, in part:

1. Workers who are on special assignments, including courses and conventions as well as work assignments, and who are being paid regular wages, will be deemed to be in the course of their employment during such special assignments.
2. When special assignments are at a place other than the workers' usual and normal workplace, they will be deemed to be in the course of their employment while travelling to and from the place of the special assignment. This applies whether or not they are paid regular wages during that period so long as they follow a direct route without stops or deviations of a personal nature on the way.

…

6. When the conditions of the special assignment require a worker to stay overnight in places such as hotels, entitlement under the Act       will extend to cover accidents which might result from the reasonable use of the hotel facilities (i.e., restaurant, washroom, etc.).  Should the worker decide to dine at a restaurant within a reasonable distance of his hotel, the protection of the Act shall apply while the worker is so dining.  Coverage would be limited to cover accidents which might result from the reasonable use of the restaurant facilities.

WCB Policy 35.10.40, Compensation Coverage for Union Activities, describes when and how workers are covered for compensation when engaged in union activities, and states:

In a unionized workplace, union members and elected officials are periodically required to attend to union business. Subject to the terms of the collective agreement or other workplace arrangements, the employer may continue salary, continue salary with subsequent reimbursement by the union, or provide an unpaid leave of absence. In some cases the union may pay salary (or a salary equivalent) directly to the worker. In other cases the worker participates as an unpaid "volunteer".

…Once coverage under the Act is established, a claim for an accident which occurs while on union business will be adjudicated based on the Act and relevant WCB policies.

Policy 35.10.40 provides:

1. A worker who is on approved leave of absence to conduct union business continues to be covered under the regular employer's workers compensation registration when the regular employer continues to pay the worker's salary, regardless of whether the union subsequently reimburses the employer for such costs.
2. When the regular employer does not continue the worker's salary and the union pays the worker's salary directly, coverage will be under the union's workers compensation registration. The union must report and pay assessments on the salary paid to the worker. Payment of any non-taxable remuneration, such as token payments, daily allowances, or reimbursement of expenses, is not considered to be a payment of salary.
3. When the worker is not paid salary by either the regular employer or the union, the worker is considered to be a "volunteer" and would not be covered…

Employer's Position

The employer was represented by an advocate, as well as a senior administrator and a safety officer. The employer's position was that the claim was not acceptable.

The employer's advocate submitted that the facts did not support that the claim arose out of or in the course of employment. The worker was attending a union-related conference out of town when he fell and injured his leg. He was not performing his regular work duties or under the control and direction of the employer when his injury occurred. The injury was not caused by some hazard which resulted from the nature, conditions or obligations of his employment, nor did it occur at a location where he might reasonably have been while performing his work duties.

It was submitted that Policy 44.10.50.60 did not apply in this situation, as the worker was not on a special assignment from the employer. The employer's position, supported by a legal opinion which had been provided previously and was on file, was that the worker was on a leave of absence from his employer to attend a union function. The leave of absence form indicated that the union was to be billed for the worker's missed hours from work. The advocate noted that the worker's job description did not include being part of or participating in union-related activities. It was submitted that the employer supported this activity as a personal choice, which was negotiated with the union through a collective agreement. Attendance at union conventions could therefore not reasonably be considered part of the expected activities of the worker or an extension of his employment, and was more accurately described as "personal leave" as opposed to "special leave."

The advocate stated that the employer agreed that Policy 35.10.40 applied to this case, but did not believe that it had been properly applied. The advocate argued that although salary was continued during the unpaid leave, the fact that the union reimbursed the employer for salary and all employment related benefits, including WCB premiums, equated the situation to an unpaid leave of absence. Under Policy 35.10.40, any requirement on the employer to continue a worker's salary was subject to the provisions of the collective agreement, and the union was required under the collective agreement to reimburse the employer for the monies paid out not only for wages but also for benefits. This supported that for all intents and purposes, the worker was an employee of the union for the time spent attending the union activity, and union activities were not ancillary to his regular duties. The continuation of pay by the regular employer appeared to be a matter of administrative function only, and did not support the employer's acceptance of the activities or the risks associated with them.

The advocate further submitted that Section A.1 of Policy 35.10.40 was inconsistent with both the general intent of the policy as a whole and the Act. It was submitted that the provisions of the Act and policies which apply in this situation must be read in their entirety and interpreted broadly so that decisions are made in accordance with the real justice and merits of the case as required by section 60(4) of the Act. Assigning responsibility for the claim to the employer on the basis of an administration function alone was inconsistent with the intent of the Act, and an application of the Policy which would result in the claim being accepted, but under the union's workers compensation registration, would be in keeping with the Act and the general objective of the policy which is to determine who "the employer" is under these circumstances.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the employer's appeal to be successful, the panel must find that the worker's injury was not caused by an accident which arose out of and in the course of his employment. The panel is unable to make that finding.

The panel is satisfied, based on the evidence before us, that the worker's attendance at the union convention was connected to and arose out of his employment. There was no dispute that the leave of absence to attend the union convention was approved by the employer. While this was described by the employer as an unpaid leave of absence, there was no dispute that the leave was for union business, and was related to the worker's additional responsibilities as a shop steward and therefore incidental to his employment.

The panel is further satisfied that the worker's injury occurred as a result of an accident which occurred in the course of his employment. The employer's advocate stated at the hearing that they were not arguing that the accident did not happen. Rather, their focus was on policy, and their position that Policy 44.10.50.60 did not apply.

To the contrary, the panel is satisfied that Policy 44.10.50.60 does apply in the circumstances of this case. The panel notes that the Policy does not state that it only has application where a worker is on special assignment "from the employer" or contain other wording which limits its application as the employer suggests.

In applying Policy 44.10.50.60, the panel notes that while the worker had not yet attended the convention that day, the evidence on file shows that he had arranged to meet and was meeting with other representatives to discuss pending union matters. The evidence indicates that when he fell and was injured, the worker was on his way to purchase food based on his special dietary requirements, prior to going back to the convention. When asked whether there was any disagreement that this was the case, the employer's representative stated that they had no direct knowledge of this, and were not in a position to dispute it one way or the other.

The panel notes that a drawing on file shows that the hotel, the restaurant where the worker met up with other representatives, the store he was headed for and the spot where he fell were in close proximity to one another. Based on the evidence, the panel finds that the worker's activities prior to and at the time of his accident were incidental to and consistent with his convention business, and did not take him outside the course of his employment.

In the course of the hearing, the employer's representatives indicated that their first priority was to ensure that the employer was not responsible to cover entitlement to benefits. The employer raised significant arguments with respect to responsibility for benefit or compensation coverage, and whether such coverage should be assessed to the employer or the union under Policy 35.10.40. These arguments focused in particular on the issue of wage payments and reimbursement and the associated allocation of compensation coverage. The panel declined to consider this issue for several reasons, including that there was no Assessment Committee decision in front of the panel on this point. As well, the union, as a party with a direct interest in this issue, was not informed of the issue and was not involved in the hearing.

Based on the foregoing, the panel finds that the worker's left thigh injury was caused by an accident which arose out of and in the course of his employment. The panel therefore finds that the claim is acceptable.

The panel specifically notes, however, that we have not made a decision regarding who the employer of record is in this case.

The employer's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of December, 2016