WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110025
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker Representative, Employer, Employer Representative
DECISION WITHOUT A HEARING
ISSUE
The worker’s representative is objecting to the eligibility adjudicator’s (EA) decision of February 2, 2009 and reconsideration decisions of June 4, 2009 and December 7, 2010, which denied initial entitlement to a right ankle injury.
HOW THE ISSUE AROSE
On January 19, 2009, the worker fractured his right ankle while playing ice hockey on his lunch break. On that date the worker was 28 years of age and had been working for the employer as a police officer for almost 6 years.
After reviewing the information in the case file, on February 2, 2009 the EA determined that the worker’s injury by accident did not arise out of and in the course of his employment and denied the claim.
The worker’s representative made a further submission on May 12, 2009. After reviewing the submission on June 4, 2009, the EA reconsidered and upheld the original decision to deny the claim. The worker’s representative completed and submitted an Objection Form to the case file on November 3, 2009. The EA then referred the case file to the Appeals Branch (AB) for further review.
On July 6, 2010 the appeals resolution officer withdrew the claim from the AB as the worker’s representative was not prepared to pursue the objection.
The worker’s representative made a further submission on October 27, 2010. On December 7, 2010, the EA reconsidered and upheld the original decision to deny the claim.
On January 30, 2011, the worker’s representative completed and submitted another Objection Form to the case file. The EA then referred the claim to the AB for further review.
AUTHORITY
Section 13 of the Workplace Safety and Insurance Act (WSIA), 1997
Operational Policy Manual Documents:
11-01-01 – Adjudicative Process
15-02-02 – Accident in the Course of Employment
15-03-03 – On/Off Employers’ Premises
15-03-07 – Physical Fitness Programs
15-03-08 – Personal Activities/Removing Self From Employment
RESOLUTION METHOD AND PROCESS
The worker representative has chosen not to make any further submissions and has requested a final decision based on the information on file.
The employer has chosen to participate in the worker’s appeal. The employer’s representative has provided a submission dated October 31, 2011, which includes copies of pages 1, 3, 11 and 12 of a document entitled XXXX Regional Police Service General Order – 053.12 dated January 15, 2010, a copy of page 5 of an undated document entitled Uniform Collective Agreement 2006/2008 and an undated statement from Mr. XXXX entitled XXXX Police Hockey League.
ASSESSMENT OF THE EVIDENCE
In arriving at my decision, I reviewed and considered the information in the case file, the employer representative’s submission of October 31, 2011 and the applicable law and policies.
Operational policy 11-01-01 states in part:
Five point check system
All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."
An allowable claim must have the following five points
- an employer
- a worker
- personal work-related injury
- proof of accident, and
- compatibility of diagnosis to accident or disablement history.
There is no dispute concerning the facts and circumstances contained within the case file. There was an employer-worker relationship when the worker fractured his right ankle on January 19, 2009 as a result of a specific event type accident. The fracture is compatible with the accident history. The question to be determined is whether the worker’s personal injury was work-related. The answer to that question turns on the intent and interpretation of the legislation and policies noted above.
The relevant facts and circumstances of the worker’s claim are as follows:
- On January 19, 2009, the worker was given permission by his supervisor to consolidate his two 45-minute paid lunch breaks into one 90-minute paid lunch break so that he could play ice hockey during that period.
- The hockey league was a private, recreational one. It was open to members of police forces, correctional departments and emergency medical services. The league was not presented, promoted, run or funded by the employer.
- The worker drove his personal vehicle to the hockey arena. The hockey arena was not owned, leased or maintained in any way by the employer.
- The worker’s accident occurred while he was playing ice hockey at the arena on his supervisor-approved lunch break. He was not in his police uniform when the accident occurred. The worker was in a hockey uniform and using hockey equipment, which was not provided by the employer.
Operational policy 15-02-02, Accident in the Course of Employment, is the determinative document with respect to the worker’s claim. That policy states:
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.
Guidelines
In determining whether a personal injury by accident occurred in the course of employment, the decision-maker applies the criteria of place, time, and activity in the following way:
Place
If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment.
If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities.
Time
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 worker does not have fixed working hours or if the accident occurred outside the worker's fixed working hours, the criteria of place and activity are applied to determine whether the personal injury by accident occurred in the course of employment.
Activity
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 duration of the activity
- the nature of the activity, and
- the extent to which it deviated from the worker's regular employment activities.
In determining whether an activity was incidental to the employment, the decision-maker should take into consideration
- the nature of the work
- the nature of the work environment, and
- the customs and practices of the particular workplace.
Application of criteria
The importance of the three criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment.
If a worker with fixed working hours and a fixed workplace suffered a personal injury by accident at the workplace during working hours, the personal injury by accident generally will have occurred in the course of employment unless, at the time of the accident, the worker was engaged in a personal activity that was not incidental to the worker's employment.
The decision-maker examines the activity of the worker at the time of the accident to determine whether the worker's activity was of such a personal nature that it should not be considered work-related.
In all other circumstances, the time and place of the accident are less important. In these cases, the decision-maker focuses on the activity of the worker and examines all the surrounding circumstances to decide if the worker was in the course of employment at the time that the personal injury by accident occurred.
Time
The information on file shows that the worker injured himself at 1:30 PM on January 19, 2009 while playing ice hockey. He was taken by ambulance to St. Catharines General Hospital and reported the accident to his supervisor at 3:30 PM.
The worker was on an extended, paid, lunch break, which had been approved by his supervisor, when the accident occurred. These facts are not in dispute. Therefore, I find that the “time” criterion has been met with respect to the work-relatedness of the worker’s personal injury.
Place
With respect to this issue, operational policy 15-03-03, On/Off Employers’ Premises, states in part:
Without limitation to the following, the WSIB will consider entitlement in claims where a worker is injured when
- going to or from work in transport under the control and supervision of, or chartered by, the employer
- obtaining pay or depositing tools, etc., on the employer's premises after actual work hours
- participating in a work-related sports activity, for example, school teachers and camp counselors, when the employer condones these activities by making the premises available and/or exercising a form of supervision and control
- attending compulsory evening courses
- travelling on company business, by the most direct and uninterrupted route, under the supervision and control of the employer
- travelling to or from a convention and/or participating in convention activities, and
- on a lunch, break, or other non-work period (period of leisure) by ordinary hazards of the employer's premises.
As a police officer, the worker did not have a fixed workplace. He was required to travel from place to place as part of his job duties. Therefore, the worker’s accident did not occur in an unusual location when one looks at the requirements of his employment duties as a police officer.
The worker injured himself at an ice hockey arena. As noted above, the arena was not under the control of the employer in any way. However, the evidence contained within the case record shows that the worker sought and received approval to play ice hockey during a consolidated 90-minute lunch break. Therefore, the supervisor knew, or ought to have known, the exact location the worker could be found during his 90-minute lunch break. Under these circumstances, I find that the employer exercised an indirect form of supervision and control while the worker played ice hockey.
The worker was participating in a sports activity at the time of his accident. The issue of whether it was work-related is to be determined under the “activity” criterion under operational policy 15-02-02. However, by seeking and obtaining approval from his supervisor to play ice hockey during a 90-minute extended lunch break, the worker fully informed his employer of his whereabouts and activities during his paid lunch break. The supervisor knew where the worker was and could reach him, if he needed to, during his extended lunch break. Therefore, I find that the “place” criterion has been met with respect to the work-relatedness of the worker’s personal injury.
Activity
The worker was involved in a sports activity when his accident occurred. In order to determine if the activity was work-related, the circumstances of the claim dictate that we must first look at operational policy 15-03-07, Physical Fitness Programs, which states:
Claims for firefighters and police officers who are injured while participating in physical fitness programs will be accepted as arising out of and occurring in the course of employment where:
- the firefighter or police officer is on paid duty and the accident occurs during normal working hours,
- the physical fitness program has been authorized by the fire chief or police chief,
- the physical fitness activity is under the direct supervision and control of the responsible officer on duty, and
- the physical fitness program takes place at the fire station or police station or at other locations authorized by the fire chief or police chief and is supervised by the responsible officer on duty.
The worker was on paid duty when the accident occurred. As noted above, I have found that the location of the accident met the threshold required to establish work-relatedness. However, I find that the ice hockey game the worker was participating in was not a formal work-related physical fitness program as it was not authorized by the police chief and was not under the direct supervision and control of the worker’s superior. Therefore, the criteria for entitlement under operational policy 15-03-07 have not been met.
The question that remains, therefore, is whether the participation in the ice hockey game was incidental to the worker’s duties as a police officer. Having had regard for all of the evidence contained within the case record, I have concluded that it was not.
The worker took 90 minutes of his 720-minute work shift to play ice hockey. In other words, the activity of playing ice hockey took up 12.50% of his work time on January 19, 2009. This is a significant period of time away from his essential duties. Therefore, I cannot reasonably accept that the worker was involved in a brief interlude of personal activity when the accident occurred.
The playing of ice hockey is a significant departure from the worker’s essential duties as a police officer. In order to play the game, he had to get out of uniform, store his service pistol, get in his personal car, drive to the hockey arena, and change into his hockey uniform and gear, including ice skates. The worker was fundamentally unable to exercise his duties as a police officer while playing the game, suited up in ice hockey equipment.
The hockey league was recreational in nature and was privately organized, run and populated by fellow police officers and colleagues in the emergency services field. The information on file does not show that the employer provided the uniform or equipment that the worker required in order to play ice hockey. Mr. XXXX’s statement shows that the employer had no involvement in the league or, by extension, the game the worker was playing in when he injured himself.
There is no evidence on file to support that the employer in any way encouraged, instructed or required the worker to join and participate in the hockey league. The decision to play ice hockey in the XXXX Police Hockey League was made by the worker at his sole discretion. In addition, the evidence on file does not support, nor has the worker made the argument, that he played ice hockey for the benefit of the employer.
I find that the worker played in the league for recreational purposes in order to pursue personal enjoyment and satisfaction. The evidence does not show a substantive connection between the worker playing ice hockey and his work-related obligations. The employer did not obtain any direct benefit from the worker’s personal pursuit. The supervisor’s decision to allow the worker to combine his lunch breaks so that he could play ice hockey does not alter this fact.
Operational policy 15-03-08 states in part:
Compensation benefits are not payable to a worker who is voluntarily out of the course of the employment. Such situations may include
- doing something outside the worker's normal duties, such as transacting personal business, or
- going places having nothing to do with the worker's employment or doing something not reasonably expected of the worker.
I find that the facts and circumstances contained within the case record show that the worker’s activity at the time of his accident was not work-related. He was voluntarily performing a personal activity outside of his normal duties that was not reasonably expected as part of his employment obligations. Therefore, the worker was not in the course of his employment at the time and place his accident occurred and initial entitlement is not in order.
CONCLUSION
The worker’s objection is denied. Initial entitlement to a right ankle injury is not in order.
DATED December 13, 2011
C. da Cunha
Acting Appeals Resolution Officer
Appeals Branch