The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on June 18, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on October 2, 2017, indicating he injured his left eye at work on September 29, 2017. The worker reported that he was playing squash. Thinking the play was dead, he turned around and the ball hit him in his left eye, coming straight off the face of the racquet. In the Employer's Accident Report, also filed October 2, 2017, the employer reported that "During a squash game with a fellow employee, [the worker] was hit in the left eye with a direct shot from a squash ball while he had his head turned." The worker was driven to the nearest hospital emergency department where he was diagnosed with a traumatic left eye injury with bleeding, and a detached retina was queried. The worker was then transferred to a larger hospital facility, to be seen by an ophthalmologist.

A WCB adjudicator discussed the worker's claim with the employer on October 3, 2017. The employer advised that the facility the worker was in when the incident occurred was for recreational use and that workers were not required to work out as part of their employment. The adjudicator also discussed the claim with the worker on October 3, 2017. The adjudicator noted that the worker confirmed the mechanism of injury, that playing squash was not one of his job duties, and that there were no hazards on the premises when the incident occurred.

On October 3, 2017, the WCB's Compensation Services advised the worker that his claim was not acceptable as his injury resulted from his personal activities and was not related to his employment duties.

On October 13, 2017, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that due to the isolated location of the worksite and the regimented lifestyle while onsite, the recreational activities provided and keeping active were "…essential for ones well-being both physically and mentally and…part of my day to day duties of employment," and his claim should therefore be accepted. On November 27, 2017, the employer provided a submission in support of Compensation Services' decision, noting that the worker was injured while participating in a recreational activity after normal working hours and chose not to wear appropriate safety equipment while doing so.

On December 14, 2017, Review Office determined that the worker's claim was not acceptable. Review Office acknowledged that the worker was using employer-controlled facilities at the time of the incident, but determined that the choice to use those facilities and engage in that recreational activity was a personal decision and was not directly related to his work duties or a requirement of his employment.

On February 6, 2020, the worker appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on June 18, 2020.

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) 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, provides general information on the meaning of the phrase "arising out of and in the course of employment," and states, in part, that:

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 44.05.20, General Premises (the "General Premises Policy") focuses on the interpretation of the term "in the course of employment" and specific sub-topics relating to "employer premises."

The General Premises Policy states, in part, as follows:

When determining whether an accident was in the course of employment, the WCB will consider:

i. What activity the worker was engaged in when injured in order to determine the connection with the employment (ie., did the injury result from a personal act, unrelated to the employment, or was there an employment connection).

ii. Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment.

iii. When the worker was engaged in the activity. This is also an important factor in determining whether the activity was "in the course of the employment" (ie., did the activity occur at a time reasonably connected to the work shift). 

…

6. Privately Owned Towns/Communities:

a. When a town or community is privately owned by the employer, all the land, buildings, and residential areas used for personal purposes are not the employer's premises.

b. In these cases, the employer's premises will be the areas designated specifically for the operation of the industry. Typically, this would be the actual work plant and associated parking lots.

7. Personal Hazards:

a. To be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (i.e., is connected in a causal sense).

b. The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

i. The injury was the result of a personal action by the worker and was not caused by a:

* a hazard of the premises; or 

* an occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.

Worker's Position

The worker was self-represented and provided a written submission in advance of the hearing. The worker made an oral submission at the hearing and responded to questions from the panel.

The worker's position was that he suffered an injury to his left eye in the course of his employment, and his claim is acceptable

The worker was employed by the employer at a remote work camp. The worker submitted that workers were under the control of the employer for periods of 21 days at a time, from the moment they showed up at the airport to go to the work camp until they returned home. The worker referred to the workers as "captive employees," who were under the care and control of the employer 24 hours a day, 7 days a week for the 21-day period when they were at the site. He said they were 100% confined to the camp, and not allowed to leave, even to go for a walk or to go fishing.

The worker submitted that the facility where the accident happened was controlled by the employer. He said the facility was provided by the company as something to do after hours to maintain some physical and psychological activity.

The worker stated that he would never have been playing squash if he had not been at the worksite. When he found the squash courts were there, he took advantage of them to stay active and psychologically fit for work. The worker said it was absurd to say that psychological and physical fitness was not a prerequisite for employment and for maintaining a job there. He submitted that despite what the employer stated, psychological and physical fitness is a requirement of any job. In his industry, people who are not psychologically and physically fit to do the work do not last. The worker said that playing squash kept him healthy psychologically; it was his escape and his excitement in the evening, and what he looked forward to after hours.

The worker stated that after the accident, he went to see the emergency medical technicians onsite, but all they cared about was taking a picture of his eye. He said that if had not felt he was under the care and control of the employer, he would have left, but instead he rolled with the punches and accepted what the technicians said and did. The worker said it was a challenge to leave the site, but from the moment he reached the hospital forward, he received first class care.

The worker described many short-term and long-term effects the injury has had, and will continue to have, on his life. The worker suggested he has probably been his ophthalmologist's most challenging patient over the past couple of years. He has undergone three surgeries to his eye, and missed over 12 months of work. He said his eye is still struggling, he is permanently disfigured, his peripheral vision will never come back, and he is guaranteed to develop certain other conditions.

In conclusion, the worker submitted that his claim should be compensable as he was under the care and control of the employer when his injury occurred. He said that this was not a matter of legalities, but of what was right and wrong, and asked that the panel grant his appeal and accept his claim.

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 his employment. The panel is unable to make that finding.

Based on our review and consideration of all of the evidence which is before us, on file and as presented at the hearing, and of the submission of the worker, the panel is satisfied, on a balance of probabilities, that the worker's injury did not arise out of or in the course of his employment, but from a personal cause or hazard, and that the claim is therefore not acceptable.

The evidence shows that the worker worked a ten-hour day and was paid for his work on an hourly basis. The worker indicated that when he found the squash courts at the camp, he decided to take advantage of them in his off-work hours. As the worker stated in his evidence at the hearing, playing squash at night "…was the escape…that's what I looked forward to after hours. It wasn't supper. It wasn't watching a movie. Hey, man, let's go play squash…That was the excitement in the evening."

The panel finds that the activity of playing squash which the worker was involved in when he was injured was not causally related to his employment. The panel is satisfied that the worker's participation in playing squash was a personal choice and action on his part, which was not connected to his employment or controlled by his employer.

In arriving at this conclusion, the panel is satisfied that the evidence shows the worker was not required by the employer to play squash. The worker acknowledged at the hearing that he was "not on company time" when playing squash. He further acknowledged that the company did not order him to play squash, and that doing so "…was on my own accord."

The panel recognizes that the injury occurred at a remote work camp, in a facility which was provided by the employer. The worker indicated that the employer provided this and numerous other recreational facilities and activities which workers could participate in after work. The panel is satisfied that such facilities enabled workers to remain healthy and active and to entertain themselves in their off-work hours, when they were unable to leave the site. The panel finds, however, that the evidence does not support that the squash courts were provided or specifically designated for the operation of the employer's business or industry or that they fell within the meaning of "employer's premises" under section 6 of the General Premises Policy.

The panel further finds that the worker's injury resulted from a personal cause as contemplated under section 7 of the General Premises Policy, and not from his employment. In arriving at this conclusion, the panel is satisfied that the evidence indicates that the workers were not required to participate in, or take advantage of, such recreational activities or facilities. Rather, the decision to use such facilities or participate in such leisure activities was a personal choice of the worker, which was neither mandated by nor under the control of the employer.

Although the worker has argued that psychological and physical fitness was a requirement for employment and for maintaining his job, the panel is unable to find, based on the evidence, that the worker was required by the employer to meet or maintain a defined level of fitness. When asked about this at the hearing, the worker stated:

A. I am saying that living in camp, keeping physically fit in camp, keeping psychologically fit in camp is definitely a part of my job.

Q. In your mind, but not stated as part of the job description?

A. That's correct.

In response to questions from the panel, the worker further confirmed that there was no hazard of the premises or environmental hazard which caused his injury. The worker added that "…the only hazard would be the squash ball travelling at light speed…" which, in the panel's view, was a personal hazard resulting from the worker's decision to play squash, as opposed to a hazard of the premises.

As indicated above, the panel is satisfied that the incident which resulted in the worker's injury was not an occurrence which was under the control of the employer. The panel is further satisfied that the activity which resulted in the worker's injury was so remote from the worker's employment duties and functions that it cannot be characterized as incidental to his employment.

In conclusion, the panel recognizes that the worker has suffered a serious injury to his left eye, but is unable to find that his injury was causally related to his employment.

Based on the foregoing, 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 his employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 14th day of August, 2020