Decision #124/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on July 25, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On April 29, 2016, the worker bent down to pick up an item off the floor when she felt a spasm in her middle back. The accident was reported to her employer on the same day.

On May 24, 2016, the worker advised the WCB that while on a work break, she went to the locker room to get a sweater. The sweater was on a clothes hanger and it fell to the floor. When she bent down to pick the sweater up and came back up, she felt a spasm in her back. The worker said she reported the injury to the store manager and after taking some pain killers, she went back to work. Following her shift, she went home and rested at night. As her back was still sore by Saturday morning, she went to a hospital for treatment.

In a letter dated May 25, 2016, the worker was advised by Compensation Services that her claim for compensation was denied as retrieving her sweater during a break was a personal act unrelated to her employment. The activity was not related to fulfilling her work duties or any incidental activity related to her employment. There was no hazard of the premises and it was not caused by an occurrence under the control of the employer.

On October 25, 2016, a worker advisor appealed the adjudicator's decision to Review Office on the worker's behalf. The worker advisor submitted a bulletin from the worker's employer entitled Safety Champions and Safety Tip of the Week. Also submitted was a Floor/Exterior Maintenance Log. The worker advisor stated:

[Worker] says all employees are responsible to prevent hazards that may potentially harm other employees. [Worker] says the daily sweep log is filled out at each shift and employees are required to do a visually (sic) inspection of the floor for any potential hazard situation such as a spill or items dropped on the floor.

[Worker] says the staff locker room is upstairs and is a small area. [Worker] said when she dropped the coat hanger on the floor it became a hazard of the premises under the control of the employer. As an employee of…[worker] was required to pick the hanger up to ensure it did not become a potential trip hazard for another employee…It is our opinion picking up a coat hanger was thing that was done and the doing of which that resulted in an injury to [worker's] low back. It is also our opinion information supports that picking up a coat hanger was a hazard of the premises under the control of the Accident Employer. Therefore the claim should be accepted.

In a submission to Review Office dated December 12, 2016, the employer's representative stated that they supported the WCB decision to not accept responsibility for the claim as the worker was bending down to pick up a clothes hanger which is a personal act and is unrelated to her employment. The employer agreed with the decision based on the fact that this injury did not occur "out of and in the course of" her employment.

On January 4, 2017, Review Office determined that the worker's claim was not acceptable.

Review Office determined that the activity of picking up a clothes hanger, in the staff locker room, while on break, did not take place while fulfilling an employment responsibility for which the worker was hired, i.e. it did not arise out of and in the course of the worker's employment. Review Office did not agree with the proposal put forth by the worker that picking up the clothes hanger was related to her employment duties, i.e. reducing a safety hazard. Review Office found the activity was incidental to a personal act and the employer's Floor/Exterior Maintenance Log was interpreted out of context.

On February 22, 2017, the worker advisor appealed Review Office's decision to the Appeal Commission and a hearing was arranged for July 25, 2017.

On May 30, 2017, the Appeal Commission received a submission from the employer's advocate to support the position that the definition of accident had not been met and the worker's appeal should be dismissed.

Reasons

Applicable Legislation

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:

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.

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 

(c) an occupational disease, and as a result of which a worker is injured;

The WCB board of Directors enacted WCB Policy 44.05, Arising Out of and in the Course of Employment. This policy provides in part that: 

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…

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. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable. The worker is appealing the WCB Review Office decision that her claim is not acceptable.

Worker's Position

The worker was represented by a worker advisor. She answered questions from her representative and the panel.

The worker advisor submitted that the worker's:

…employer makes its employees very conscientious of being aware of any hazards, and they do this through education when employees begin with the company, as well as weekly bulletins and hourly logs.

So the staff members, in general, become very aware of the potential of hazards and it does become, it is an obligation of their employment, so we believe that part of the Act has been satisfied.

As far as in the course of employment, it was a paid employer break so we believe that portion has been satisfied as well.

With respect to it being a personal act versus an activity that’s incidental to employment, it’s our position on that portion of the Act that this was not personal, that although [worker] was responsible for the fallen hanger being on the floor, because she believes it was an obligation of her employment to ensure that it did not become a potential hazard, she felt it was her duty to pick it up.

The worker described the approach to safety taken in her workplace. She said:

I’ve worked for [name] now for ten years, I work in the meat, seafood department, full service. And I’m a production clerk, I produce steaks, I also write orders and lots of duties.

One of the duties that I am responsible for as an employee, is we have to make sure that the place of business is safe for customers and employees alike, it’s our responsibility. So there is a floor log that we have to fill out every hour, and it is our responsibility to take action and remove any hazards or take action, inform my supervisor if there is something that needs more help than I can give. 

So there is a floor log that we have to fill out every hour, and it is our responsibility to take action and remove any hazards or take action, inform my supervisor if there is something that needs more help than I can give. 

Regarding the incident the worker explained that:

it was my first break in the morning, a paid break, and I went upstairs to the locker room to retrieve a sweater, because I like to go outside, I’m an outside person, I like to spend as much time outside as I can. So I went to get my sweater and I grabbed it off the hanger and the hanger flew on the floor, in the middle of the locker room.

She said that when she bent over, she bent down and grabbed the hanger, and went to go back up and got a severe spasm in her back, and pain.

The worker provided a detailed description of the locker room where the incident occurred to assist with the panel's understanding of the hazard which the hanger posed to staff.

In answer to a question from the panel the worker advised that the floor, exterior maintenance log and daily sweep record did not include the locker room. She also confirmed that she did not fill-in any report regarding the hanger on the floor. However she did advise that:

If there was something more serious that was a potential hazard, I would mention it to my superior or to somebody…

In her closing comments the worker stressed the importance of safety at her workplace and the safety culture.

Employer's Position

The employer was represented by an employer advocate who provided a written submission for consideration of the panel.

The employer representative submitted that the event of April 29, 2016 fails to satisfy:

• the definition of an accident as stated in Section 1(1) of the Act

• the application of Policy 44.05 

The employer's representative submitted that the evidence does not establish that the worker's action was related to her duties as a production clerk. She submitted that: 

The activity in which the worker was engaged as described above, had no relationship to, or for the job for which she was hired. It did not arise out of her employment, but rather was an activity incidental to a personal act. The "hazard" as suggested by the Worker Advisor also arose out of a personal act, with no relationship to the employment duties.

The employer representative submitted that the claim must be denied.

Analysis

The worker is appealing the WCB decision that her claim is not acceptable. For the worker's appeal to be approved, the panel must find that the worker sustained an injury by accident arising out of and in the course of her employment. Both tests must be met for there to be an accident under subsection 4(1) of the Act. The panel is unable to make that finding.

The panel accepts that the April 29, 2016 incident occurred in the course of the worker's employment. The worker was already at work on a scheduled work day, was on a paid break and on the employer's premises. The panel finds that the first test has been met.

The panel is unable to find on a balance of probabilities that the worker's injury arose out of her job duties or employment.

The panel considered the worker's arguments in support of her position that her claim was acceptable:

• that she was on a paid break at the time of the incident and was on the employer premises, therefore she was in the course of her employment

• that there is a strong safety culture at the workplace which the employer promotes and expects, therefore in picking up the hanger she was performing her duty to keep the workplace safe and free from hazards, therefore in picking up the hanger she was in the course of her employment.

Regarding the first argument, the panel finds that the worker was engaged in the personal act of picking up a coat hanger that she had dropped on the floor while putting on her sweater. The panel finds this act was not related to or required by her employment, that the employer did not have control over the act and that the personal activity was not related to or required by job duties. The panel finds that this situation falls in to the exclusion from coverage provided in Policy 44.05, specifically:

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

Regarding the argument that the worker was performing a duty of her employment to remove hazards and keep the premises safe when she bent down to pick up the hanger, the panel does not find that the act of picking up the hanger arose out of her duty to keep the premises safe. The panel notes that the locker room is not included in the areas where employees have specific cleaning and reporting obligations. The manual which the worker described does not include the locker room and there is not a duty to record a coat hanger on the floor in the locker room as a hazard. The panel further finds that the workers actions were not obligations or conditions of that employment.

Based on the foregoing, the panel finds that the worker did not sustain an injury by accident arising out of and in the course of her employment, and her claim is therefore unacceptable.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Payette, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 31st day of August, 2017

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