DECISION:

20230072

OBJECTING PARTY:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE.

RESPONDENT:

WORKER (NOT PARTICIPATING)

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

M. RODRIGUES, APPEALS RESOLUTION OFFICER

MARCH 15, 2023

ISSUE

The employer, through their representative, is objecting to the eligibility adjudicator’s decision of August 23, 2022. This decision allowed initial entitlement to health care and loss of earnings (LOE) benefits for a right ankle sprain and left knee contusion.

BACKGROUND

On July 24, 2022, this flight attendant was on a layover in Country A, where they were staying in a hotel paid for by the employer. The worker was going to meet crew members for dinner and was walking down the stairs in the hotel, when they missed a step between floors. This caused them to twist their right ankle and fall forward onto their left knee. The worker reported the incident to the employer and sought health care. They began losing time from work from July 25, 2022.

In a decision letter of August 23, 2022, the eligibility adjudicator allowed initial entitlement for health care and LOE benefits for a right ankle sprain and left knee contusion. The decision was reconsidered on October 13, 2022, but the original decision was upheld.

The employer objects to the decision dated August 23, 2022 and the issue was referred to the Appeals Services Division for further consideration.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

November 3, 2008

11-02-02 Lost Time Claims

April 9, 2021

15-02-01 Definition of an Accident

October 12, 2004

15-02-02 Accident in the Course of Employment

October 12, 2004

15-03-05 Travelling

October 12, 2004

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find initial entitlement to health care and LOE benefits to a right ankle sprain and left knee contusion are in order. The employer’s objection is denied.

Employer position

In the Intent to Object Form of October 4, 2022, the employer representative argued the worker was performing a personal activity while on break. They did not find the activity was work-related, opining a causal relationship could not be established. The representative stated the worker did not want to file a WSIB claim and instead wanted to pursue a claim with a third party insurer. They stated there were no witnesses to the incident and indicated the allowance decision was not well founded.

Worker position

The worker did not to participate in this appeal, nor provide any submissions for my review.

Policy

Policy 11-01-01 (Adjudicative Process) sets out what is necessary for a worker to establish an initial entitlement to benefits. The policy states that all decision-makers use the same criteria for ruling on initial entitlement to benefits, namely, the "five point check system." An allowable claim must have an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident or disablement history.

The policy goes on to note that decision-makers may consider the following when examining proof of accident:

• Does an accident or disablement situation exist?

• Are there any witnesses?

• Are there discrepancies in the date of accident and the date the worker stopped working?

• Was there any delay in the onset of symptoms or in seeking health care attention?

A personal work-related injury is an injury that occurs due to an accident that is arising out of and in the course of employment. The injury itself is not an accident.

A worker may be entitled to benefits or services if they suffer a work-related injury or disease and lose time from work, has a loss of wages or earnings, or has a permanent disability or impairment. This is outlined in policy 11-02-02 (Lost Time Claims). The policy states the WSIB reviews the information on file to determine a worker's entitlement to benefits. Clinical evidence on file must show that the inability to work is due to the work-related injury/disease. If the worker does not have clinical authorization to be off work, wage loss benefits or loss of earnings benefits cannot be paid.

Policy 15-02-01 (Definition of an Accident) defines an accident as

• a willful and intentional act, not being the act of the worker

• a chance event occasioned by a physical or natural cause, and

• a disablement arising out of and in the course of employment.

This type of accident results from an identifiable physical or natural cause. There is an unintended event that causes the person injury while they are in their workplace and/or actively engaged in work tasks and duties.

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. This is explained in policy 15-02-02 (Accident in the Course of Employment). The 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. The importance of the three criteria varies depending on the circumstances of each case.

As a general rule, a worker is considered to be in the course of the employment when the person reaches the employer's premises or place of work, such as a construction work site, and is not in the course of employment when the person leaves the premises or place of work. This is outlined in policy 15-03-05 (Travelling). The policy states, in part, entitlement under the Workplace Safety and Insurance Act or the Workers' Compensation Act (the Act) extends to persons travelling in the course of employment to and from various places. There is no entitlement if the worker is injured while visiting a movie theatre or cocktail lounge or engaging in some other personal activity.

Findings

In reviewing the elements of the five point check for initial entitlement, I find the criteria of employer and worker have been satisfied in this claim. However, I need to establish whether there is a personal work- related injury by accident arising out of and in the course of employment, including if proof of accident and compatibility are met by assessing the accident history. It is not enough that an injury occur in the course of employment. Based on the details of the mechanism of injury, the possible accident type is a chance event.

The employer representative argued the worker was performing a personal activity while on break, the activity was not work-related and that a causal relationship cannot be established. However, after reviewing the available evidence in the case record, I did not come to the same conclusion. I will first address the issue of initial entitlement to health care benefits for the right ankle and left knee injuries. Then I will turn to the issue of entitlement to LOE benefits.

I accept the worker’s account of the accident history of July 24, 2022, when they missed a step between the second and third floor, causing them to twist their right ankle and fall forward onto their left knee. This is supported by the accident history description provided in the Worker’s Report of Injury/Disease (Form 6), Employer’s Report of Injury/Disease (Form 7) and Health Professional’s Report (Form 8). This also includes the worker’s conversation with the eligibility adjudicator on August 23, 2022.

I find a personal work-related injury by accident arose out of and in the course of employment. I find coverage extends to accidents occurring in such places as hotels when the employer is paying the worker's expenses. I find the available evidence supports the worker was travelling for work and the employer covered the cost of the hotel during the layover in Country A. I find it reasonable the worker suffered an injury by accident in the hotel while meeting with the crew for dinner.

Policy 15-03-05 (Travelling) states when the conditions of the employment require the worker to travel away from the employer's premises, the worker is considered to be in the course of the employment continuously except when a distinct departure on a personal errand is shown. Coverage also extends to accidents occurring in such places as hotels when the employer is paying the worker's expenses. The

worker is covered should he suffer injury by accident at any time while in the hotel engaged in reasonable acts such as dining in the restaurant and using washroom facilities. If the worker chooses to dine in a restaurant other than in the hotel but within a reasonable distance of it, coverage is extended during this activity.

I do not find the worker removed themselves from employment by meeting up with the crew in the hotel for dinner. I find the worker’s actions remained reasonably incidental to employment. I do not find available evidence demonstrates there was a distinct departure on a personal errand. I am satisfied the worker sustained an injury by accident when they were meeting up with fellow crew members for dinner. The worker missed the last step between floors, causing them to twist their right ankle and fall forward onto their left knee. As such, I am satisfied the worker was covered when they suffered an injury by accident while in the hotel, given they were engaged in a reasonable act such as meeting up with the crew for dinner.

In addition, I find the criteria of place, time, and activity have been met in policy 15-02-02 (Accident in the Course of Employment). The policy states if a worker does not have fixed working hours or if the accident occurred outside their 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. Of note, in this claim, the worker was injured at the hotel, while on a layover in Country A.

For the criterion of place, 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.

In my view, there is no dispute that the right ankle and left knee injuries occurred away from the employer’s premises. In this claim, I find the available evidence supports the worker is normally expected to work away from a fixed workplace, given they are a flight attendant. Of note, I previously found that entitlement to coverage is in order, given the worker suffered an injury by accident while in the hotel. In my view, they were engaged in a reasonable act, such as meeting up with the crew for dinner when they got injured.

I am satisfied a personal injury by accident occurred in the course of employment. I find it reasonable the worker would need to leave their hotel room in order to eat a meal. In doing so, I noted the worker was in the hotel and missed the last step between floors, twisting their right ankle and falling forward on their left knee. Therefore, I am satisfied the place criterion is met.

In regards to the activity criterion, the policy states 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. If a worker was engaged in an activity to satisfy a personal need, they 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.

I find the worker was engaged in an activity that was reasonably incidental to their employment because they were meeting up with the crew for dinner. As I stated previously, I am satisfied the worker is normally expected to be away from their fixed workplace because they are a flight attendant. I accept that while on a layover, going for a meal, such as dinner, is a normal part of the workday. I am also satisfied that, depending on the circumstances, it is reasonable for the worker to leave their hotel room in order to meet up with the crew for a meal or pick up food, while on a layover.

In addition, there is insufficient available evidence to support that while on a layover, employees must only order room service, eat food in their hotel room and stay in the room for the duration of the layover. I find the employer representative has not provided any information to persuade me that meeting up with crew members for dinner is a deviation from the normal customs and practices of the employer’s workplace. Thus, I am satisfied the activity criterion is met.

I am satisfied entitlement to coverage also extended to accidents occurring in such places as hotels when the employer is paying the worker's expenses, as supported by policy 15-03-05 (Travelling). I find a personal injury by accident occurred in the course of employment because the surrounding circumstances relating to time, place and activity show the accident was work-related, as supported by policy 15-02-02 (Accident in the Course of Employment). I find the activity of meeting up with the crew for dinner is reasonably incidental to the worker’s employment. As such, I find the personal work-related injury criterion is met.

I find proof of accident is met, as a chance event situation exists. Proof of accident is an essential component of an allowable claim. The timing of when health care is sought, along with the onset of symptoms following an accident, helps to establish whether an injury was caused by the event in question. While there were no witnesses to the workplace accident, in the Form 6, the worker indicated they told two of their co-workers about the incident.

Furthermore, the worker reported their injuries to the flight director and mid-air company (that looks after employees when overseas) following the incident. This is supported by the information in the Forms 6 and 7 and the conversation of August 23, 2022 with the eligibility adjudicator. In addition, there were no discrepancies with respect to the date of injury, when the worker sought health care and when they began losing time from work. I do not find there were any delays in reporting, seeking medical attention or lost time. Thus, I am satisfied the proof of accident criterion is met.

I find the diagnoses of right ankle sprain and left knee contusion are compatible with the accident history. I accept the worker’s right ankle and left knee injuries occurred when they missed a step between the second and third floor, causing them to twist their right ankle and fall forward on their left knee. This is supported by the diagnoses of right ankle sprain in the Form 8 of July 28, 2022 and left knee contusion in the musculoskeletal program of care report of August 24, 2022. As such, I find the compatibility criterion is met.

Noting policy 11-01-01 (Adjudicative Process), I find the five-point check has been met. I am satisfied the worker’s right ankle and left knee injuries arose out of and in the course of employment. I find the criterion for proof of accident is met, as a chance event exists and there was no delay in seeking medical attention or for the onset of pain. I find compatibility exists between the accident history and diagnoses of right ankle sprain and left knee contusion.

Noting policy 15-02-01 (Definition of an Accident), I find the worker is reporting a chance event type accident on July 24, 2022, when they missed the last step between floors. This caused them to twist their right ankle and fall forward onto their left knee. Thus, I find initial entitlement for health care benefits to a right ankle sprain and left knee contusion are allowed in this claim.

I will now address the issue of entitlement to LOE benefits. Noting policy 11-02-02 (Lost Time Claims), I find the worker had the clinical authorization to be off work noting the doctor’s recommendation in the Form 8 of July 28, 2022. The doctor indicated the worker could resume regular duties by August 15, 2022. I noted that in the Health Professional’s Progress Report (Form 26) of August 15, 2022, the doctor indicated the worker was capable of returning to work with restrictions at that time. As such, I find the

clinical authorization supports the worker was totally impaired and unable to return to work in any capacity following the workplace accident. Thus, I find entitlement to LOE benefits is in order following the workplace accident.

CONCLUSION

Initial entitlement to health care and LOE benefits to a right ankle sprain and left knee contusion is allowed.

The employer’s objection is denied.

DATED March 15, 2023

Ms. M. Rodrigues

Appeals Resolution Officer Appeals Services Division