The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on February 7, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On January 20, 2023, the worker filed a Worker Incident Report with the WCB, reporting a psychological injury that occurred on January 17, 2023. The worker reported they were waiting at a public transit stop on their way into work when an individual came toward them, poured a soft drink on them then struck them with the soft drink bottle in the shoulder and neck area. The worker noted they asked the individual to stop and the individual then made racial and profane comments towards them. The worker advised their transit bus then arrived and they boarded it heading to their worksite. On the Report, the worker also noted after the incident, they were stressed out but completed their shift that day; however, they found they were unable to sleep that night and after the incident, their family noticed behavior changes in them. After meeting with their union regarding the incident, the worker advised they filed the WCB claim. The worker noted the belief they were singled out by the individual, in part, based on the employer's uniform they were wearing.

The employer submitted an Employer's Incident Report to the WCB on January 27, 2023, confirming the worker's reporting of an individual throwing a soft drink bottle at them, hitting them in the arm and neck area. It was noted the worker was not physically injured "…but reported feeling shaken up" by the incident. The worker sought medical treatment with their family physician on January 25, 2023 reporting flashbacks of the incident, poor concentration and constantly thinking about the incident. The physician recommended the worker seek treatment with a counsellor and the worker remain off work until January 29, 2023.

The WCB contacted the worker on February 14, 2023 to discuss their claim. The WCB advised the worker their description of the incident was set out clearly in their report and the employer's report, however, it was noted the incident took place an hour prior to their shift starting. The worker advised the WCB, they take public transit to work every day, while wearing the uniform given to them by the employer to wear while working. The worker noted their belief the individual singled them out because they were wearing the uniform and because of their ethnic background. The worker further noted the individual did not comment about their uniform, their comments were about the worker's ethnicity and race. When asked by the WCB, the worker responded the incident left them with feelings of vigilance when they are passing through the area when the incident occurred and left them unable to sleep due to thinking about the incident. The worker noted it had taken them time to seek out medical treatment for their difficulties as they were feeling "…really low, so I was having a hard time to get to the doctor." The worker went on to state they feel the individual targeted them because they were wearing a uniform, which represents authority.

The WCB contacted the employer on February 14, 2023 to gather further information. On March 1, 2023, the WCB spoke with a representative of the employer who advised workers were not paid to travel to and from work, and were not required to wear their uniforms prior to the start of their shifts but are required to wear them while on the employer's property. The WCB queried whether there is a specific time workers were expected to arrive in advance of the start of their shifts, with the employer advising there is no requirement for workers to start early, however, if they are even one minute late, they may lose their shift for that day.

On March 2, 2023, the WCB advised the worker their claim was not acceptable. The WCB noted that as the incident took place before the start of the worker's shift and the worker was not required to wear the employer's uniform prior to starting their shift, it had been determined the worker was not in the course of their employment when the incident occurred and as such, their claim was not acceptable. On March 17, 2023, the worker's representative requested reconsideration of the WCB's decision the worker's claim was not acceptable. The representative noted the employer's handbook references workers being expected to report for duty wearing the full uniform issued by the employer and noted disciplinary measures had been taken by the employer against other workers who did not meet that requirement. It was further noted that the worker would not have been on the employer's premises at the start of their shift and as such, there would not have been a place available for them to change into the employer's uniform prior to the start of their shift. Further, the representative noted the worker would not have been standing in the location they were when the incident occurred if it was not for them to go to work and therefore, their claim should be accepted. On May 2, 2023, the employer provided a submission in support of the WCB's decision, a copy of which was provided to the worker and their representative on May 3, 2023.

Review Office found on May 18, 2023, the worker's claim was not acceptable. Review Office accepted and agreed with the information provided by the employer that the worker was not in the course of their employment when the incident occurred. Review Office found the worker was on their personal time and made a personal decision to use the public transit system, while wearing the employer's uniform, to travel to the starting point for work. Review Office further found the employer had no influence over those decisions of the worker or control of the circumstances that led to the incident between the worker and the individual on January 17, 2023.

The worker's representative filed an appeal with the Appeal Commission on July 4, 2023 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act, and the policies established by the WCB's Board of Directors. The Act in effect on the date of the worker's claim of accident is applicable.

Section 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. The Act defines “accident” in Section 1(1) as follows:

"accident", subject to subsection (1.1), includes 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace, 

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event;

The WCB has established WCB Policy 44.05, Arising Out of and in the Course of Employment (the "Policy"). The Policy focuses on the reasoning process the WCB uses to determine whether an accident arose out of and in the course of employment.

The Policy states that because the workers compensation system is designed to compensate workers for workplace injuries, not all injuries, it is necessary for there to be a connection between the worker's accident and their employment before compensation is payable.

The Policy explains that a worker's accident arises in the course of their employment when it occurs at or during work, and that a worker's accident arises out of their employment when employment related activities or exposures cause the accident.

If the evidence establishes that the worker’s accident not only arose out of their employment but also arose in the course of employment, then the test of “arising out of and in course of employment” is met. If, however, there is insufficient evidence to establish that the worker’s accident arose out of their employment and insufficient evidence to say it arose in the course of their employment then the test is not met and the accident is not related to their employment.

If the evidence establishes that the accident arose out of the worker’s employment, but there is insufficient evidence to establish that it arose in the course of their employment or vice versa, the WCB must apply the presumption found at section 4(5) of the Act.

Section 4(5) of the Act states as follows:

4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

The WCB's Board of Directors has also established Policy 44.05.30, Adjudication of Psychological Injuries, the stated purpose of which is to explain the way that claims for psychological injuries are to be adjudicated, and the reason that some types of psychological injuries will not give rise to a compensable claim.

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Pre-existing Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker's Position

The worker represented himself at the hearing and was also represented and supported by a union representative. The worker relied on a written submission which was provided in advance of the hearing and made an oral presentation to the panel in further support of his position. The worker also provided testimony in the hearing through answers to questions posed by members of the appeal panel.

The worker’s position was that the incident was an accident in the course of employment as he was going to work and was required to commute to work early as a result of the bussing schedule. The worker’s evidence was that there was no other reason (other than for his employment) for him to be where he was when the incident occurred. Alternatively, the worker’s position was that the accident arose out of his employment as wearing a uniform is an obligation and expectation of employment. The worker’s position was that he was injured because he was in uniform. The worker relied on the fact that there have been numerous other incidents directed towards people wearing uniforms. The worker was of ethnic origin but stated that there were other ethnic people at the same location that were not injured and that therefore the fact that he was wearing a uniform was the only distinguishing factor.

Employer's Position

The employer was represented by its Workers Compensation Coordinator, who provided documents he would be relying on in advance of the hearing.

The employer’s position was that the incident did not arise out of or in the course of employment. The employer submits that the suggestion that the incident occurred because the worker was in uniform is speculative and is not supported by any evidence.

Several of the factors that the employer referenced in support of its position were:

• the worker was not working at the time of the incident; 

• the incident occurred approximately one hour before the worker was to commence his shift; 

• the worker was not on the employer’s premises at the time of the incident; 

• the worker was not required to use the provided transportation to get to work. 

• the worker was not being paid and was not “on the clock” at the time of the incident;

The employer’s position was that the claim is not acceptable and asks that the panel uphold the prior decisions of the WCB.

Analysis

This appeal arises from the WCB’s decision that the worker’s claim is not acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker was injured as a result of an accident arising out of and in the course of employment. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the worker’s appeal is not granted.

The panel was not able to find that the worker was in the course of his employment at the time he was assaulted by an unidentified individual. The evidence is that the worker had not yet arrived at work for his shift. He was not being paid and was not under the control of the employer. He was in uniform and was waiting on the street to take employer provided transportation.

The panel acknowledges that in the circumstances it was practical for the worker to wear his uniform to and from work. The panel, however, does not have evidence before it that the uniform was the cause, on a balance of probabilities, of the injury. There is no evidence to show that the individual that attacked the worker did so because of his uniform. The worker asserts this was the case but there was no mention of the uniform or the worker’s employment made by the individual. The individual did, however, make racial slurs and therefore the evidence suggests that the basis for the attack was likely and unfortunately racially motivated.

The panel also acknowledges that taking the employer provided transportation may have also been the most practical option for the worker. However, based on the evidence, the panel cannot find that the worker was required to utilize the employer provided transportation. The worker had other options and alternatives to get to and from work. The panel further finds that the worker riding the employer provided transportation prior to his work does not constitute an employment related activity.

The evidence before the panel is insufficient to establish that the worker’s accident arose out of their employment and insufficient to establish that the accident arose in the course of employment. Based on a balance of probabilities, the panel finds that the accident is not related to the worker’s employment and the worker's claim is therefore not acceptable.

Based on the aforementioned finding, the panel does not need to address the Adjudication of Psychological Injuries Policy or the Pre-existing Policy.

The worker's appeal is dismissed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of April, 2024