Public Decisions | The Appeal Commission

Decision #186/16 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on December 5, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On June 18, 2015, the worker filed a claim with the WCB for a right knee injury that occurred on November 30, 2014 while playing basketball. The worker reported that he underwent right knee surgery in December 2014.

The Employer's Accident Report dated June 24, 2015, confirmed that the worker injured his right knee while playing basketball on November 30, 2014 and that he was on paid time when the accident happened.

On July 6, 2015, a WCB adjudicator contacted the worker to discuss his claim. The worker stated that he had taken his client out on November 30, 2014. The client was interested in basketball so he told the client that he could watch him play. This was a regularly scheduled league game. When he moved to make a play during the basketball game, he felt immediate pain to his right knee. The worker advised that he did not always play in his league games when he has the client. Sometimes he would get a substitute. In this case, the client wanted to watch him play so he let him.

On July 15, 2015, the WCB adjudicator noted that she called the employer and the employer voiced concerns that the accident was not work-related as it was a personal act of the worker.

In a decision dated July 15, 2015, the worker was advised that his claim for right knee difficulties was not acceptable. The adjudicator stated:

…Although you were accompanied by a client…where you work and were on paid time, you were not exercising direct care and control of the client when your injury occurred. Instead you were participating in a personal activity of playing basketball while the youth watched. The employer confirms this would not be considered as part of your work responsibilities…In the opinion of the WCB, there is no evidence of a workplace accident. The injury occurred as a result of a personal act.

On February 2, 2016, a worker advisor submitted to Review Office that the worker's claim was acceptable because his right knee injury arose both out of and in the course of employment. The worker advisor stated, in part, that the WCB failed to obtain pertinent details about the nature of the worker's employment, as well as how he came to be playing basketball on the date of injury.

On March 17, 2016, the employer submitted to Review Office that the worker's injury did not arise out of and in the course of his employment but occurred on personal time, not employment time. A copy of the employer's submission was sent to the worker advisor for comment and his response is on file dated March 31, 2016.

On April 4, 2016, Review Office determined that the worker's claim for compensation did not meet the criteria for an accident as defined by subsection 1(1) of The Workers Compensation Act (the "Act"). Review Office noted the following:

The worker's employment contract was with the employer. The employer would govern the activities he could do with the client even if the client's family felt the activity was reasonable.
Review Office applied a test of reasonableness to determine if the activity the worker was engaged in was appropriate when compared to the expectations of the job he was hired to fulfil. In the worker's case, the activity of playing basketball at a senior level was unreasonable.
Although the client was in the same vicinity of the worker playing basketball, the activity in and of itself was a personal activity. The worker was playing in his regularly scheduled league basketball game. His actions of actively playing basketball on November 30, 2014 essentially removed himself from employment.

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

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB Board of Directors. 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.

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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 doing of which arises out of, and in the course of, employment, and

and as a result of which a worker is injured;

The worker is appealing the WCB decision that his claim is not acceptable.

Applicable
Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB Board of Directors. Subsection 4(1) of the Act provides:

What constitutes an accident is defined in subsection 1(1) of the Act, which provides as follows:

“accident” means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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 doing of which arises out of, and in the course of, employment, and

and as a result of which a worker is injured;

The worker is appealing the WCB decision that his claim is not acceptable.

Worker's Position

The worker was represented by a worker advisor. The worker's representative submitted that the evidence

…satisfies the legislative and policy requirements for an acceptable claim. Namely, the way in which the worker was injured on November 30, 2014 constitutes a "chance event occasioned by a physical or natural cause," as well as an event arising out of, and in the course of, employment.

The worker's representative summarized the facts as:

the worker had been employed as a casual respite worker for approximately 22 months
the youth in his care at the time of the accident was 13 years old and one with whom the worker had a positive long-standing relationship
to the worker's knowledge , this youth did not have any particular special needs or concerning behavior such that the youth had to be in worker's eye sight every moment they were together
the position description in effect at the time of the accident occurred explicitly stated that workers are to follow the direction and guidance of the foster parent when providing care, and to "plan appropriate recreational and other activities of interest for the child/youth." • the worker obtained the foster parent's approval in advance of this activity which was considered by the worker and foster parent to be an appropriate activity for the youth
the worker engaged the youth in one-on-one play during breaks at the basketball game
nowhere in the position description does it state workers must obtain pre-approval from the employer for client activities. In addition, the employer has acknowledged that respite workers are to check with direct supervisor "for an activity that is uncertain."

The worker's representative submitted that it was reasonable to conclude that the activity giving rise to his injury was an appropriate, work-related activity.

The worker's representative suggested that the worker's injury arose out of employment because the activity at the time he was engaged in, was causally connected to his employment. He also submitted that the worker's injury occurred within the time of the employment because he was scheduled to work and was paid for that time.

Regarding the question of whether the worker's participation was a personal act, the worker's representative submitted that:

If this panel is of the view that the worker's injury resulted from a personal act, we submit his claim should still be acceptable on the basis that it was caused by a hazard of the employer's premises.

The worker's representative noted that the term premises is defined in WCB Policy 44.05.20, General Premises:

The term "premises" means the entire geographic area devoted by the employer to the industry in which the worker is employed. The employer's premises may be defined as the buildings, plant, or location in which the worker is reasonably entitled to be during the specific course of or incidental to the employment. Subject to the individual merits of each claim and specific exceptions noted in this policy, the employer's premises may include any land or buildings owned, leased, rented, controlled, or used (solely or shared) for the purposes of carrying out the employer's business.

The worker's representative submitted that the gym where the worker was injured constituted part of the employer's premises as the worker engaged with the youth in the broader community and therefore the basketball court was part of the geographic area devoted by the employer to the industry in which the worker was employed and was a building used by the worker to carry out the employer's business. The worker's injury was caused by a hazard of the premises, specifically engaging in a recreational activity.

The worker's representative also submitted that:

The activity the worker was engaged in was not so remote from the normal functions such that the employment connection was broken.

The worker advised that the youth asked to go to the game and to watch the worker play basketball. The worker also advised that the foster parent approved of this activity. The worker advised that he had never been contacted by the employer about an activity.

Regarding his relationship with the employer, the worker advised that he did not know his direct supervisor's name and that he did not have an emergency number of the employer. He said that no one at the employer's works weekends. The worker did not report the injury until a staff member of the employer advised him to report any work injuries.

Regarding the status of the league he was playing in, the worker acknowledged that it is an established league with referees and that it was a scheduled game. He said that the youth sat with him on the bench and shot baskets with him at half-time.

The worker listed other activities in which he and the youth participated together:

skating and playing hockey
shooting baskets and playing basketball
throwing a football
computer games

The worker said that generally he tried to keep the youth involved in physical activity. He said that it's his job to immerse the youth "in everyday life."

He noted that he drops the youth off at a youth group while on his shift, and reports this in his activity log. He said he is not present at the youth group but was near the youth even when he was playing basketball.

Employer's Position

The employer was represented by a human resource advisor who was accompanied by another human resource advisor.

She noted that the worker did not contact the employer about a work injury until months after the injury occurred.

The employer's representative noted that the employer did not direct the worker to play basketball and did not approve his decision to play basketball.

Regarding the status of the foster parent, she advised that foster parents are not employed or paid by the employer. The employer has no supervisory authority over the foster parent.

The employer representative submitted that the worker should have contacted his supervisor about the proposed activity and noted that the employer would not have approved such activity.

Analysis

The worker appealed the WCB decision that his claim for injury was not acceptable. For the worker's appeal to be approved, the panel must find that the worker was injured by accident arising out of and in the course of his employment. The panel was not able to make this finding.

The panel finds that in participating in a scheduled league basketball game during his shift as a respite worker, the worker removed himself from the course of his employment as a respite worker and accordingly was not covered under the Act when he sustained an injury while playing on the basketball court. The panel finds that the time during which the worker was on the court playing basketball he was not performing his employment duties.

The worker's representative submitted that the General Premises Policy applied to this case, and that the gym where the worker was playing basketball was the employer's premises because it was part of the geographic area devoted by the employer to the industry in which the worker was employed and was a building used by the worker to carry out the employer's business. The panel is not able to accept this position.

The General Premises Policy provides that:

This policy only deals with the determination of the "employer premises" regarding accidents that occur during the course of going to and from work.

The policy provides further that:

Subject to the individual merits of each claim and specific exceptions noted in this policy, the employer's premises may include any land or buildings owned, leased, rented, controlled, or used (solely or shared) for the purposes of carrying out the employer's business.

The panel finds that the policy is designed to provide a reasonable limit on what constitutes the employer premises. It finds that the policy cannot be interpreted so broadly as to designate any place a worker is located as the employer's premises. The panel finds that the General Premises policy does not apply.

The panel notes WCB Policy 44.05, Arising Out of and in the Course of Employment, which provides, in part:

Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of the worker's employment, when a worker is engaged in personal activities not related to or required by his or her employment the resulting injury would not be compensable.

The panel finds that this policy is applicable to the facts of this case. In conclusion, the panel finds that the worker's participation in a scheduled league basketball game, was not related to his employment. The panel further finds that the conditions of the worker's employment did not contribute substantially to the accident or the resultant injury. The panel finds that while on the court playing basketball, the worker was not performing the duties of a respite worker and had removed himself from his employment. The panel concludes that worker's accident did not arise out of and in the course of his employment.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of December, 2016

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