DECISION NUMBER:

20230061

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

RESPONDENT:

WORKER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

CANDICE KISH, APPEALS RESOLUTION OFFICER

APRIL 30, 2023

ISSUES

The employer, through their representative, objects to the Eligibility Adjudicator’s decision dated March 25, 2022, and reconsideration dated April 25, 2022, allowing initial entitlement to benefits for multiple injuries sustained in a motor vehicle accident on March 1, 2022.

BACKGROUND

The worker is a personal support worker who was injured in a motor vehicle accident on March 1, 2022, when a deer ran in front of their vehicle following their last client visit. They were on their way to their daughter’s residence when the accident happened. The employer expressed concerns that the worker was not on a direct route to their personal residence when the accident occurred and submitted the worker was consequently not in the course of their employment.

The worker reported the accident to the employer on the day it happened and sought medical attention the day after. They returned to modified work after the accident without losing time. The Eligibility Adjudicator’s decision dated March 25, 2022, and reconsideration dated April 25, 2022, allowed for initial entitlement to benefits for sprain/strain injuries of the neck, upper back, bilateral shoulders, and lower back. The employer’s objection to this decision forms the basis of this appeal.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

15-03-05 Travelling

November 3, 2008

October 12, 2004

15-02-02 Accident in the Course of Employment

October 12, 2004

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I confirm that the worker’s accident occurred in the course of their employment, and initial entitlement to benefits is in order. My reasons follow.

Employer’s Position

The employer opines that whenever a worker decides to attend a location that is not their own residence after work, it is a distinct departure from their usual route. They submit that the employer cannot be held responsible for a worker travelling around town after work hours.

They also note that the Eligibility Adjudicator relied on the worker’s statement that they were staying at their daughter’s residence that evening. They submit that this statement made after the fact should hold little value unless it is a common practice for the worker to spend the night at their daughter’s residence. They question why the worker would do this when they live in the same town.

Finally, they question the worker’s reporting to the Eligibility Adjudicator that they had to change clothing at their daughter’s residence prior to then picking up a prescription at a pharmacy. They opine that this is doubtful, questioning why the worker would not change their clothing at their own residence. They also submit this is irrelevant, indicating that ultimately going anywhere but from a direct route from the last client to the worker’s own residence constitutes a distinct departure on a personal errand, and should result in the denial of initial entitlement to benefits.

Worker’s Position

The worker is not participating in the appeal and made no submissions regarding the issue in dispute.

Assessment of Evidence

Policy 11-01-01, Adjudicative Process applies to the issue of initial entitlement. This policy sets out five factors that must be present in order to allow a claim:

• Is there an employer?

• Is there a worker?

• Is there proof of accident?

• Was there a personal work-related injury?

• Is there compatibility of diagnosis to the accident or disablement history?

The employer and worker relationship is not in dispute. It is evident there is proof of an accident, noting the timely reporting of the accident to the employer and that medical attention was received within one day of the worker getting injured. The worker’s description of the accident is consistent across time.

Sprain/strain injuries of the neck, upper back, bilateral shoulders, and lower back, are compatible with the motor vehicle accident in this case where a deer impacted the front of their vehicle and side fender.

In my view, this case turns on whether the worker had a personal work-related injury arising in and out of the course of their employment. Policy 15-02-02, Accident in the Course of Employment, and Policy

15-03-05, Travelling, are applicable in assessing whether the worker was in the course of employment at the time of their accident in this case.

Policy 15-02-02 provides general guidance that a personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate the accident was work-related. Policy 15-03-05 offers guidance specific to determining whether a work is in the course of employment when travelling. It provides in part that when the conditions of a worker’s employment require them to travel away from the employer’s premises, the worker is considered to be in the course of

employment continuously except when a distinct departure on a personal errand is shown. The mode of travel may be by public transportation or by employer or worker vehicle if the employment requires the use of such a vehicle. However, the employment must obligate the worker to be travelling at the place and time the accident occurred.

Regarding travel to and from work, Policy 15-03-05 sets out that a worker is considered to be "in the course of employment" when the conditions of the employment require them to drive a vehicle to and from work for the purpose of that employment, except when a distinct departure on a personal errand takes place enroute.

The worker’s role as a personal support worker requires the use of a vehicle to serve their clients. The accident occurred after seeing their last client, so the timing of the accident is not an issue. Regarding the place and activity associated with the accident, the worker reported they were travelling to their daughter’s house where they were staying. They intended to get changed there and then go to the pharmacy to pick up a prescription. I do not consider that the worker intended to make a personal errand to the pharmacy after arriving at their daughter’s house to be in any way determinative of whether they were in the course of their employment on their way to their daughter’s home. It is evident they were on their way to a residence where they were staying when their accident occurred.

I acknowledge the employer’s argument that the fact the worker was on their way to their daughter’s house at the time of the accident, rather than to their personal residence, means they were not in the course of their employment; however, I respectfully disagree with this view. Policy 15-03-05 does not specify that a worker must be on the route directly to or from their own personal residence when travelling to and from work to be in the course of their employment. There is no evidence to suggest the worker falsified their statement that they were staying at their daughter’s home on the day that the accident occurred. I accept the worker’s report in this regard.

In my view, that the worker was staying at their daughter’s residence rather than their own residence on the day of the accident is not sufficient to break the employment nexus, again noting their need to travel as part of their job. The location of the worker’s daughter’s residence is in Peterborough, which is a reasonable distance from the location of the client they saw prior to getting injured, and to the worker’s own personal.

I do not view the worker’s trip to their daughter’s residence where I accept they were staying on the day of the accident as a personal errand. While I agree with the employer representative that an employer would not generally be held responsible for a worker travelling around town running personal errands after work, that is not what has occurred in the case before me. Here the worker was required to drive as a condition of their employment, and suffered an accident on the direct route back to the residence where they were staying on the day of the accident. With consideration of Policies 15-02-02 and 15-03-05, I find the worker was not on a personal errand when their accident occurred, and the time, place, and activity at the time of the accident put the worker in the course of their employment when travelling.

The worker’s sprain/strain injuries of the neck, upper back, bilateral shoulders, and lower back, consequently arose both in and out of their employment, so constitute personal work-related injuries. As all five factors to allow a claim have been met, I confirm that initial entitlement to benefits is in order.

CONCLUSION

The employer’s objection is denied. The worker has initial entitlement to benefits for sprain/strain injuries of the neck, upper back, bilateral shoulders, and lower back.

DATED April 30, 2023

Candice Kish

Appeals Resolution Officer Appeals Services Division