WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090013
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: N/A
ISSUE
The worker is objecting to the denial of initial entitlement for a right knee injury. The relevant decisions are dated June 10, 2005 and April 11, 2008.
HOW THE ISSUE ARISES
On May 30, 2005 the worker slipped on water and twisted his right knee, resulting in right patellar dislocation. Initial entitlement was denied as the adjudicator concluded the worker was not in the course of his employment at the time of the incident. The worker objected and the matter is now before the appeals resolution officer (ARO) for further consideration.
AUTHORITY REFERENCE
Policy Document 15-02-02, Accident in the Course of Employment
RESOLUTION METHOD & PROCESS
The employer is not participating. There is no dispute that an incident occurred. The only issue is whether the worker was in the course of his employment at the time of the incident and resolution is based on my interpretation of the relevant policies. As such a hearing is not required.
ASSESSMENT OF THE EVIDENCE
The worker was employed as a server in a restaurant. According to the file evidence five minutes after he finished his shift and had “signed out” he was engaged in a conversation with another employer when he slipped on water and twisted his right knee. The conversation took place in the kitchen.
The adjudicator concluded that since the worker had signed out and the conversation was of a personal nature he was not in the course of his employment.
Policy document 15-02-02 states, in part,
“A personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related…
If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace will generally have occurred in the course of employment…
If a worker has fixed working hours, a personal injury by accident generally will have occurred in the course of employment if it occurred during those hours or during a reasonable period before starting or after finishing work…
If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.
If a worker was engaged in an activity to satisfy a personal need, the worker may have been engaged in an activity that was incidental to the employment. Similarly, engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment. In determining whether a personal activity occurred in the course of employment, the decision-maker should consider factors such as
the nature of the activity, and
the extent to which it deviated from the worker’s regular employment activities…”
ANALYSIS
The accident occurred on the employer’s premises. The accident occurred within five minutes of the worker ending his shift. Both employees were engaged in a brief interlude of personal activity that, in my view, did not take them out of the course of their employment. The accident in this case was completely preventable and it was the responsibility of the employer to ensure that such slipping hazards do not exist, especially in a kitchen. Given the weight of the evidence I must conclude that the right knee injury arose out of and in the course of the worker’s employment.
CONCLUSION
The worker’s objection is allowed.
DATED May 6, 2009
L. Lum Appeals Resolution Officer Appeals Branch