Nova Scotia Court of Appeal upholds decision to award benefits in case that shows sometimes an employer can be held responsible for an injury that occurs before the worker punches in
The Nova Scotia Court of Appeal has upheld a decision by the province’s workers’ compensation board to award benefits to a snow plow driver who was injured on his way to work.
William Puddicombe was called in to work early on April 29, 2002, because of a severe snowstorm. On his way in, his car slid off the road. He was injured and claimed workers’ compensation benefits.
It is generally accepted that workers travelling to and from work are not “in the course of their employment” and therefore an injury on the way to work would not normally be eligible for WCB benefits because it would not arise “out of and in the course of” employment.
But in this case a benefits officer, a hearing officer and the Workers’ Compensation Appeals Tribunal all decided Puddicombe’s injury did arise out of and in the course of employment.
What happened on April 29
As a snow plow operator, Puddicombe was an hourly paid employee whose paid employment began when he arrived at work and punched in. Getting to work and paying the costs of doing so were his own responsibility.
During the winter season he was on call 24 hours a day. But on the date relevant in this case — April 29 — the winter season was over. Outside the winter season, if he were needed at work before the beginning of his shift, he would be called in on the basis of seniority.
He was not required to go in early if called, but if he chose to accept the early start he had to be at work within 30 minutes and was paid overtime from the time he punched in.
As a result of an unexpected snowstorm, he was called in to work at 5 a.m. on April 29, about two hours before his regularly scheduled start time.
On his way into work, as he was driving down a hill at about 25 kilometres per hour, his car slid off the road due to the slippery conditions. He was injured and filed a claim for WCB benefits.
What the WCB said
Puddicombe’s claim was denied at first by a board benefits advisor. She decided that his work day did not start until he reached the work site and, therefore, an injury on the way to work before the day started was not an injury arising out of and in the course of his employment.
But the benefits administrator reconsidered the decision and reversed it. She said Puddicombe had been injured “in the course of action taken (in) response to instructions from the employer” and because of the need for him to start work early because of the unpredicted snowstorm.
These factors provided sufficient evidence to warrant a finding that his injury arose out of and in the course of employment.
The employer appealed the decision to a hearing officer. The hearing officer acknowledged that it is generally accepted that workers traveling to and from work are not in the course of their employment. But she reviewed some authorities that set out exceptions and qualifications to this general rule.
She concluded that Puddicombe’s case fell within the exception for workers responding to an emergency situation: it was urgent that the roads be cleared and the storm had not been predicted. This, she found, met the definition of an emergency because the storm was a “sudden juncture demanding immediate action.”
The employer appealed this decision to the Workers’ Compensation Appeals Tribunal (WCAT). The appeal commissioner rejected the appeal, agreeing with the earlier decisions that the injury was job-related because:
•there was a close connection between Puddicombe’s work and the risk of injury in a motor vehicle accident resulting from poor road conditions; and
•the snowstorm constituted an emergency or a situation of urgency, and Puddicombe and other workers were called in to work early because the existing snow removal capacity was not sufficient to ensure safe roads by the start of the work day.
The appeal commissioner summed up his conclusions this way:
“(Puddicombe) was called to work outside his normal work hours to address the urgent situation of a snowstorm in progress. (He) was obligated to reach his place of employment within a half hour. It is fair to infer (Puddicombe) faced risks not faced by the general public, given that he was called to work at about 5 a.m. before snow removal would have been fully underway. Moreover, the employer asked (him) to work early precisely because a snowstorm was in progress — driving in such a snowstorm exposed the worker to a particular hazard. In the light of all the various circumstances, it is fairly clearcut that (Puddicombe’s) motor vehicle accident on April 29, 2002, while proceeding to work constituted a compensable incident.”
The employer appealed the WCAT’s decision to the Nova Scotia Court of Appeal. The court agreed with the WCAT and dismissed the employer’s appeal.
“In essence, WCAT reasoned that Mr. Puddicombe was on his way to work outside his assigned hours because he accepted his employer’s request to come into work to deal with an urgent situation,” said the court. “That situation was the poor road conditions and he was injured in an accident caused by those same poor road conditions. While it could not be said that he was performing his duties at the time of his injury, it could reasonably be said that he was doing something which was a natural incident or directly related to them. It could also be reasonably said that the risk which his call in to work was directed to alleviate — the snow and the slush on the road — was causally linked to his injury.”
Therefore, the court said the WCAT had a reasonable basis for concluding Puddicombe’s injury arose out of and in the course of his employment, even though not everyone may find its reasoning completely persuasive.
For more information see:
• Nova Scotia (Department of Tranportation & Public Works) v. Nova Scotia (Workers' Compensation Appeal Tribunal), 2005 CarswellNS 154, 2005 NSCA 62 (N.S. C.A.)
William Puddicombe was called in to work early on April 29, 2002, because of a severe snowstorm. On his way in, his car slid off the road. He was injured and claimed workers’ compensation benefits.
It is generally accepted that workers travelling to and from work are not “in the course of their employment” and therefore an injury on the way to work would not normally be eligible for WCB benefits because it would not arise “out of and in the course of” employment.
But in this case a benefits officer, a hearing officer and the Workers’ Compensation Appeals Tribunal all decided Puddicombe’s injury did arise out of and in the course of employment.
What happened on April 29
As a snow plow operator, Puddicombe was an hourly paid employee whose paid employment began when he arrived at work and punched in. Getting to work and paying the costs of doing so were his own responsibility.
During the winter season he was on call 24 hours a day. But on the date relevant in this case — April 29 — the winter season was over. Outside the winter season, if he were needed at work before the beginning of his shift, he would be called in on the basis of seniority.
He was not required to go in early if called, but if he chose to accept the early start he had to be at work within 30 minutes and was paid overtime from the time he punched in.
As a result of an unexpected snowstorm, he was called in to work at 5 a.m. on April 29, about two hours before his regularly scheduled start time.
On his way into work, as he was driving down a hill at about 25 kilometres per hour, his car slid off the road due to the slippery conditions. He was injured and filed a claim for WCB benefits.
What the WCB said
Puddicombe’s claim was denied at first by a board benefits advisor. She decided that his work day did not start until he reached the work site and, therefore, an injury on the way to work before the day started was not an injury arising out of and in the course of his employment.
But the benefits administrator reconsidered the decision and reversed it. She said Puddicombe had been injured “in the course of action taken (in) response to instructions from the employer” and because of the need for him to start work early because of the unpredicted snowstorm.
These factors provided sufficient evidence to warrant a finding that his injury arose out of and in the course of employment.
The employer appealed the decision to a hearing officer. The hearing officer acknowledged that it is generally accepted that workers traveling to and from work are not in the course of their employment. But she reviewed some authorities that set out exceptions and qualifications to this general rule.
She concluded that Puddicombe’s case fell within the exception for workers responding to an emergency situation: it was urgent that the roads be cleared and the storm had not been predicted. This, she found, met the definition of an emergency because the storm was a “sudden juncture demanding immediate action.”
The employer appealed this decision to the Workers’ Compensation Appeals Tribunal (WCAT). The appeal commissioner rejected the appeal, agreeing with the earlier decisions that the injury was job-related because:
•there was a close connection between Puddicombe’s work and the risk of injury in a motor vehicle accident resulting from poor road conditions; and
•the snowstorm constituted an emergency or a situation of urgency, and Puddicombe and other workers were called in to work early because the existing snow removal capacity was not sufficient to ensure safe roads by the start of the work day.
The appeal commissioner summed up his conclusions this way:
“(Puddicombe) was called to work outside his normal work hours to address the urgent situation of a snowstorm in progress. (He) was obligated to reach his place of employment within a half hour. It is fair to infer (Puddicombe) faced risks not faced by the general public, given that he was called to work at about 5 a.m. before snow removal would have been fully underway. Moreover, the employer asked (him) to work early precisely because a snowstorm was in progress — driving in such a snowstorm exposed the worker to a particular hazard. In the light of all the various circumstances, it is fairly clearcut that (Puddicombe’s) motor vehicle accident on April 29, 2002, while proceeding to work constituted a compensable incident.”
The employer appealed the WCAT’s decision to the Nova Scotia Court of Appeal. The court agreed with the WCAT and dismissed the employer’s appeal.
“In essence, WCAT reasoned that Mr. Puddicombe was on his way to work outside his assigned hours because he accepted his employer’s request to come into work to deal with an urgent situation,” said the court. “That situation was the poor road conditions and he was injured in an accident caused by those same poor road conditions. While it could not be said that he was performing his duties at the time of his injury, it could reasonably be said that he was doing something which was a natural incident or directly related to them. It could also be reasonably said that the risk which his call in to work was directed to alleviate — the snow and the slush on the road — was causally linked to his injury.”
Therefore, the court said the WCAT had a reasonable basis for concluding Puddicombe’s injury arose out of and in the course of his employment, even though not everyone may find its reasoning completely persuasive.
For more information see:
• Nova Scotia (Department of Tranportation & Public Works) v. Nova Scotia (Workers' Compensation Appeal Tribunal), 2005 CarswellNS 154, 2005 NSCA 62 (N.S. C.A.)
