The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim is not acceptable. A hearing was held on February 19, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On July 25, 2019, the worker reported to the WCB that she injured her right elbow and right shoulder on July 18, 2019 when she fell in the lunchroom at work. The worker reported that after carrying her dirty dishes to the counter, which was about 25 feet away from where she had been sitting, she "…turned around and walked 2 or 3 feet and that's where I fell. Had no symptoms – no warning that I was going to fall. Purely accidental." The employer reported that "…[the worker] finished eating, went to put coffee mug away. Doesn't remember falling, only she couldn't get up and people trying to help her up."

The worker was taken to a local hospital emergency department, where it was noted that her blood pressure was high and she was diagnosed with "Syncope in the absence of cardiac risk factors." The worker was monitored overnight and released the following day. The discharge diagnosis was syncope, and it was recommended that the worker follow-up with her family physician. The worker saw a family physician at her regular clinic on July 19, 2019, who diagnosed her with a right shoulder strain and a soft tissue injury to her right arm, and recommended she remain off work for one week.

On July 22, 2019, the worker attended an initial physiotherapy appointment. She reported to the physiotherapist that she fell on her right arm, possibly after fainting, and that she had pain in her right shoulder/arm area with any movement, lifting or overhead reaching, strength limited by pain, and difficulty sleeping due to pain. The physiotherapist diagnosed the worker with an arm contusion, strain/sprain of her elbow/shoulder, and queried whether she had a rotator cuff injury. It was noted that the worker would likely be able to return to modified, sedentary duties after one week.

The worker discussed her claim with the WCB on July 25, 2019. She confirmed that she was at work, finishing her supper break, and walked to the counter to put her dirty dishes away. She put her dishes down and turned to walk back to the table, walked approximately 2 or 3 feet and fell. The worker advised that security guards who were present when she fell checked the floor and did not find any hazard that might have caused her fall. She further advised that she was wearing the flat shoes she normally wore to work.

On July 31, 2019, the WCB's Compensation Services advised the worker that her claim was not acceptable. Compensation Services advised that as the worker's injury did not occur from a hazard of the employer's facility, the WCB was unable to accept responsibility for any time loss or medical costs associated with her injuries.

On September 20, 2019, the worker submitted further documentation, including an August 27, 2019 note from her family physician which indicated that the worker "…sustained an injury at work & is under the care of physiotherapist since then." The worker also submitted information from her physiotherapist, including receipts, and requested that Review Office reconsider Compensation Services' decision.

On October 9, 2019, Review Office determined that the worker's claim was not acceptable. Review Office noted that according to the file information, the worker did not know what caused her to fall and her co-workers could not find a hazard of the employer's premises that could have contributed to her fall. Review Office further noted that after the worker was assessed at the hospital, it was determined that she had a syncope, or fainting episode, which occurs when there is decreased blood flow to the brain. Review Office concluded that as they were unable to find a work-related cause or hazard for the worker falling, the criteria for an accident had not been met and the injuries the worker sustained at the time of her fall would not be compensable.

On November 17, 2019, the worker appealed the Review Office decision 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.

Subsections 1(1) (the definition of "accident") 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 a personal injury by accident arising 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.

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.

WCB Policy 44.10.60.40, Accidents Occuring in Lunchrooms (the "Lunchroom Policy"), specifically addresses incidents or accidents in lunchrooms, and provides as follows:

When an employer provides a lunchroom, accidents occurring in it are considered to be compensable, provided the worker has not created his or her own hazard.

When a worker sustains an injury during a lunch hour, coffee break, or other similar period, that injury will be considered to have arisen out of and in the course of employment provided:

a) The injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, and

b) The injury arises from a hazard of the facility, and not a personal hazard.

Worker's Position

The worker was self-represented on the appeal. The worker provided a written submission in advance of the hearing, and made an oral presentation to the panel.

The worker's position was that her claim is acceptable as she suffered a right shoulder injury on July 18, 2019 as a result of a workplace incident.

The worker referred to the workplace incident as an unusual or freak accident. She described the incident at the hearing, noting that it happened in the lunchroom on the employer's premises during her paid lunch break. The worker stated that the WCB denied her claim because it occurred while she was on an unpaid break, but submitted that this was not correct, as she was in fact on a paid lunch break at the time.

The worker submitted that she has worked for the employer for almost 14 years and is a good employee. She has always received good reviews, has received performance rewards, and has had almost perfect attendance throughout her employment, as evidenced in the documentation she provided in advance of the hearing.

The worker indicated that she is still suffering from her workplace incident and injury, both physically and financially. She is still working for the employer, but is unable to do all her regular duties and has to ask a co-worker to help her at times with certain tasks. She said that her physiotherapist has told her she sustained a tear, which she believes will probably always be there.

In conclusion, the worker submitted that her claim is legitimate and is covered by the Act, and that it should be accepted and benefits paid.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment, as defined in the Act. The panel is unable to make that finding.

The panel notes that in response to questions at the hearing, the worker acknowledged that she felt good when she went to work on July 18, 2019, that it was a regular work day, where she was performing her normal job duties, and that nothing unusual had happened in the course of her work prior to her lunch break.

The panel accepts that the incident occurred in the lunchroom at work, while the worker was on her lunch break. The panel further accepts that this was a paid lunch break. The panel found the worker to be credible and forthright in providing her evidence. The panel notes that the worker's description of the incident, on file and at the hearing, was generally consistent throughout. The question remains, however, as to whether the incident as described falls within the definition of an accident under the Act and WCB policies.

As indicated above, to be acceptable under the Act, a workplace incident must have been the result of an accident "arising out of and in the course of employment." The panel notes that a number of WCB policies have been developed to clarify these terms.

In particular, with respect to this case, the Lunchroom Policy provides that when a worker sustains an injury during a lunch hour, coffee break or other similar period, the injury will be considered to have arisen out of and in the course of employment provided that:

a) The injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, and

b) The injury arises from a hazard of the facility, and not a personal hazard.

Both of the above criteria under the Lunchroom Policy must be satisfied for such an injury to be considered compensable.

With respect to the first criterion, that the injury occurs while the worker is making reasonable and proper use of a facility provided by the employer, the panel is satisfied that the worker was making reasonable and proper use of the lunchroom on July 18, 2019. The panel therefore finds that the first criterion under the Lunchroom Policy has been met.

The panel is unable to find, however, that the second criterion, that the injury arises from a hazard of the facility and not a personal hazard, has been met in the circumstances of this case.

The worker's evidence was that she fell when she was returning to the table where she had eaten her lunch, after placing her dirty dishes on a counter. The panel is satisfied that these activities, as described, are personal activities which people normally do for themselves.

The evidence further indicates that the worker's fall or injury was not caused by a problem with, or hazard of, the lunchroom facility. File evidence showed, and the worker confirmed at the hearing, that security guards, some of whom were present in the lunchroom and attended to the worker immediately after she fell, looked to see if there were any tripping or slipping hazards, and no one could see anything. In response to a question as to whether there was anything at all, the worker added:

No, nothing there, there's no water, there's no hazard, and they checked everything there, around there, and there's nothing there. Just like an accident, I don’t know what happened there.

Based on the foregoing, the panel finds that the worker's injury did not arise from a hazard of the facility. The panel further finds that the second criterion or requirement of the Lunchroom Policy is therefore not satisfied, and as such, the injury cannot be considered to have arisen out of and in the course of the worker's employment.

As a result, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of her employment as defined in the Act. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. MacKay, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of April, 2020