SUMMARY DECISION NO. 1506/97. In the course of employment (travelling) (emergency); In the course of employment (proceeding to and from work).

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1 SUMMARY DECISION NO. 1506/97 In the course of employment (travelling) (emergency); In the course of employment (proceeding to and from work). The worker was a regular part-time registered nurse. In December 1991, the worker was called in to work at a time that was not her normal shift. She broke her leg when she slipped on her driveway as she was going to the taxi to take her to work. The worker appealed a decision of the Hearings Officer denying entitlement. The Board found that the worker was not in the course of employment at the time of the accident. A worker is generally not in the course of employment while proceeding to and from work. However, there is an exception in Board policy in the case of workers travelling to answer an emergency call from the employer, in which case coverage starts from the time the telephone call is received. In this case, the worker was called at 9:30 am and was asked to look after an ambulance transfer at 11 am. Five minutes later, the worker was called and was told that the transfer had been moved up to 10:15, and was asked if she could come immediately. The hospital had an unwritten practice regarding payment for call-ins. There was conflicting evidence as to the policy. This conflict did not indicate that there was a credibility issue. Rather, it confirmed the Panel's view that there was no uniform sense of how the unwritten practice was handled. There was evidence of a practice to pay nurses from the time of a call-in for emergency situations or when the nurse is required within one hour. There was also some conflict as to whether the situation in this case could be considered an emergency. There was evidence from the charge nurse that she would have authorized payment from the time of the call-in. In the absence of a clear policy, the Panel was satisfied that the situation should be considered as an emergency. The patient's condition was stable and not life-threatening, but once the worker agreed to come in, she was required to proceed to the hospital directly. She had to get to the hospital within 40 minutes of the time she received the call, without prior notice. The urgency of the situation altered her routine. The worker was in the course of employment. The appeal was allowed. [15 pages] DECIDED BY: Keil; Klym; Donaldson DATE: 16/10/2000 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: Decision No. 381/96 (1996), 40 W.C.A.T.R. 165 consd; Decision No. 414 refd to CASES CONSIDERED: Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C. C.A.) refd to; Phillips v. Ford Motor Co. of Canada (1971), 18 D.L.R. (3d) 641, [1971] 2 O.R. 637 (Ont. C.A.) refd to BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual, Documents No ,

2 2000 ONWSIAT 2846 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1506/97 [1] This appeal was heard in Toronto on December 10, 1997, and September 22, 1998, by a Tribunal Panel consisting of: M.F. Keil : Vice-Chair, J.J. Donaldson: Member representative of employers, P. Klym : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Hearings Officer G. McCaffrey, dated September 14, That decision concluded that the worker did not have initial entitlement for a fracture of her left leg, occurring on December 5, The Hearings Officer concluded that the worker was not in the course of her employment at the time of injury. [3] The worker appeared and was represented by E. Nurse, an arbitration officer with the Ontario Nurses Association. The employer was present in the person of its manager of Labour Relations and was represented by R. Atkinson, a lawyer with Hicks, Morley, Hamilton, Stewart and Storie. A former night supervisor, S ; a registered nurse, G ; and another registered nurse, M, were present on the first day to testify on behalf of the worker. A communications clerk, A, gave testimony for the employer on the first day. On the second day, a nurse manager, B, was in attendance to give testimony for the employer. [4] Between the time of the hearing of this appeal and the release of this decision, the Workplace Safety and Insurance Act, 1997 (WSI Act) took effect. Subsections 112(1) and (3) repeal certain provisions in the Workers Compensation Act as it read on December 31, 1997 (the pre-1997 Act ) and substitute provisions from the WSI Act. The amended provisions apply, with necessary modifications, to pre-1998 injuries and to decisions of the Board rendered before January 1, [5] Subsection 112(4) provides in part: (4) Despite subsections (1) to (3) if, (a) a panel of the Appeals Tribunal has commenced a hearing or consideration of an application or appeal and a final decision has not been made before this section comes into force, the panel may carry out and perform any duties and exercise any powers in connection with the application, [or] appeal as though this section had not come into force.

3 Page: 2 Decision No. 1506/97 [6] The effect of subsection 112(4) is to preserve the panel s authority to render a decision based on the Act as it read at the time of the hearing. All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, [7] The worker s appeal was heard over a year ago and the Panel wishes to apologize to the parties for the delay in issuing this decision. We realize that this matter is of concern to both sides and regret any distress that may have been caused. THE RECORD [8] The Panel had before it as exhibits the Case Record, one Addendum, and three Hearing Preparation Updates. The worker, three witnesses for the worker and, two witnesses for the employer all testified under oath. Both representatives made oral submissions. THE ISSUE [9] The Panel must determine whether the worker has initial entitlement for a left leg fracture occurring on December 5, THE REASONS (i) Background [10] While the employment status of the worker at the time of her injury is in dispute, many of the background facts relating to the injury, treatment and Board adjudication are a matter of record and can be summarized as follows: The now 52 year old worker started employment as a registered nurse with the accident employer in During the relevant period she was working as a regular, part-time registered nurse. On the morning of December 5, 1991, the worker was called into work (outside of her normal shift). While leaving the house prior to getting into a cab to go to the hospital, the worker slipped and fell on her driveway. When seen at the hospital, it was determined that she had suffered a compound fracture of the left tibia and fibula. Orthopaedic surgeon Dr. McTavish performed an open reduction and internal fixation the same day. The tibia went on to non-union and the worker underwent a second operation on October 18, 1993, consisting of replating the two bones and autogenous bone grafting. The worker returned to modified work in February of By August of 1994, orthopaedic surgeon Dr. C. Tallon, at the Regional Evaluation Centre, Kitchener-Waterloo Hospital, concluded the worker had reached maximum medical rehabilitation and would be left with permanent restrictions respecting prolonged standing or walking. Early on in this claim, entitlement was denied as the Board determined the worker had not been in the course of employment at the time of her injury. A review was carried out in July of At that point, the Board determined the worker had been called in on an emergency situation and, therefore, she was in the course of her employment. In November, another review was carried out and the decision to grant entitlement was reversed.

4 Page: 3 Decision No. 1506/97 The matter came before the Decision Review Specialist and, by way of a decision dated May 18, 1994, he concluded the worker was reporting for work on an emergency basis and was, therefore, in the course of her employment. The employer appealed this ruling and the matter came before a Hearings Officer. In his decision of September 14, 1995, he concluded the worker s situation did not fall within the bounds of emergency and, accordingly, was not in the course of her employment. Entitlement was rescinded and a sizeable overpayment was created as a result. The worker now brings this issue to the Tribunal for a final decision. (ii) Testimony (a) The worker [11] The worker testified that, in December of 1991, she had been working as a part-time nurse in the post-coronary unit 3E. This is the unit where patients come after they have been in the coronary unit. It is also for patients with cardio-vascular problems. The worker generally worked 24 hours a week, mostly pre-scheduled, but would pick up extra shifts on occasion. [12] The worker recounted that she did not generally get last minute call-ins. On December 5, 1991, she received a call from A at the hospital at 9:30 a.m. asking if she could take an ambulance transfer at 11:00 a.m. The worker was not provided with any details; she was simply asked if she could do the transfer and she agreed. The worker stated she would have planned to arrive at the hospital approximately half hour in advance, as she would be expected to familiarize herself with the patient and his/her chart. [13] The worker agreed that if the transfer had happened at 11:00 a.m. she would have expected to have been paid from the time she got to the hospital floor. However, A called again at 9:35 a.m. to advise that the ambulance had called and moved the pick-up to 10:15 and asked if the worker could come in immediately. The worker responded that she would have to make a couple of calls and get a cab but she could make the transfer. She did not wait for her husband to drive her and she did not take time for breakfast. The worker explained that she would have expected to have been paid from the time of the second call because she was then being asked to respond immediately. If a nurse is expected within the hour, payment starts from the time the call is received. [14] The taxi arrived at 10:00 a.m. As the worker only lived 10 minutes from the hospital, this would have been sufficient. As the worker was going out the door to the cab, she slipped, fell and fractured both bones in her lower left leg. She gave her house keys to the taxi driver so he could call the hospital to alert them to the fact that she would not be in. [15] The nurse testified that, while she had been called in for ambulance transfers before, she had been booked the night before on those occasions. This was the general procedure. On crossquestioning, the worker agreed she could have said no when asked at 9:30 if she would take the transfer. She also agreed that there were other nurses on the list and A could have called them. When A made the second call and asked if the worker could come in immediately, the worker agreed she would still have had the option to say no. However, once she said yes, she felt she was committed to going. She would never have called back in such a situation to say she had

5 Page: 4 Decision No. 1506/97 changed her mind and could not attend. The worker was adamant that A had asked her to come in immediately. [16] The worker stated the hospital had paid her for four hours work that day. She had written to her nurse manager, B, on the matter and payment had been authorized. Four hours was the minimum pay for a call-in. (b) Chart of witnesses [17] A number of people gave evidence. For ease of reference, a chart of their positions, length of service and relationship to 3E are set out below: Witness Position Service dates Relationship to 3E S Staff nurse head nurse night p.t. supervisor Would have supervised 3E on nights G part- Part-time nurse full-time nurse time nurse At work on the day in question on 3E M Staff nurse 1985 regular p.t. since 1987 Worked on 3E for 4 years since 1987 A Emergency clerk Cashier Ward clerk to 3E On duty the day in question on 3E B Staff nurse nurse manager Nurse manager on 3E from (c) Testimony of S [18] S testified that it was her practice as a part-time supervisor to pay nurses from the time of call-in if it was an urgent situation and you were asking them to come in immediately. She had learned this in her orientation training as a supervisor in 1975 and had been told of the practice by another supervisor. If she wanted a nurse in urgently, she would expect them within the hour and sooner if possible. S testified that, generally, one would pre-book ambulance transfers the day or night before. If these bookings were made in advance, the nurse would be paid from the time she arrived on the floor. Most of the time, nurses would arrive 15 minutes or more in advance to give themselves time to familiarize themselves with the patient and the paperwork.

6 Page: 5 Decision No. 1506/97 [19] S agreed one could take a nurse off the floor to do a transfer, but then the floor would be short-staffed and another nurse would have to be called in anyway. [20] In cross-questioning, S agreed that she did not have great experience with ambulance transfers as they did not happen that often during the evening and she had only occasionally worked days. S also agreed that she would only pay a nurse from the time she arrived on the floor for a pre-booked transfer but pre-booking meant in advance and would not cover a situation where a nurse was called in with 45 minutes notice. She stated that ambulances did sometimes arrive late or early but, mostly, they were on time and once they arrived they expected to leave promptly. [21] S testified that no one had ever questioned her practice of paying nurses from the time of call-in for emergency situations. She went on to state that some supervisors paid on that basis and some did not. It was, in her mind, at the discretion of the particular supervisor. In her view, it was not up to the ward clerk to authorize payment; that was a supervisor s responsibility. (d) Testimony of G [22] G testified she had worked as a charge nurse since When the nurse manager was not present, there was always a charge nurse (but not always the same one). On December 5, 1991, G had been assigned by B, as the charge nurse on 3E. A patient had been booked to go to London and the injured worker had been booked to accompany her. The ambulance driver had called that morning to say they would be ready to go earlier so the worker had been called to come in sooner. The patient in question had had a heart attack and was on an I.V. In such situations it was the practice for a nurse to travel with the patient. [23] G testified that, in general, one would call a part-time nurse the night before to arrange for an ambulance transfer. They would then come in 15 minutes to a half hour ahead to review the charts. If the transfers were pre-arranged, a nurse would be paid from the time of arrival on the floor. On the day in question, she considered the earlier ambulance time to constitute an emergency as she did not want to take a nurse off the floor. When the taxi driver called in for the injured worker, G had to take a nurse off the floor and then replace her with a nurse that was called in. That nurse was paid from the time of call-in and G would have authorized the payment. [24] G explained that nurses had the option to refuse a call-in and then you would go down the list to find a nurse. In her mind, if a nurse were asked to come in within the hour, they would be paid from time of call-in. It had happened to her while she was a part-time nurse and she had been paid from the time of the call-in. G thought this was an unwritten rule followed by the hospital. [25] In cross-questioning, G explained that, as far as she was concerned, pre-booked meant that when she came on shift in the morning, the nurse and ambulance would already be arranged. For that kind of transfer, a nurse would be paid from the time of arrival on the floor. She stated that the majority of transfers occur during the day and the majority of bookings are completed on the off shifts.

7 Page: 6 Decision No. 1506/97 [26] In her view, the worker should have been paid from the time of call-in and B had never told her not to pay in such circumstances. Nor had B ever questioned her on any decisions she had made authorizing payment. (e) Testimony of M [27] M testified that she had, in the past, been called at home to come in to work immediately and had been paid from the time of call-in. Usually, with ambulance transfers, the nurse is booked the day or night before. If not, then one is generally called a few hours before. A nurse would be expected to arrive 20 minutes to half hour ahead to review the chart and obtain a report from the staff on duty. She agreed that she had never specifically been called in for an ambulance transfer on short notice. In her view, it was fairly uncommon to be called in within an hour for an ambulance transfer. (f) Testimony of A [28] A testified that she had been the ward clerk on 3E since 1987 and had been working there on December 5, B had been the nurse manager since 1988 and A reported to her. There was a call-in list used with all the full and part-time nurses on it. She could not remember if it was alphabetical or by seniority. If someone were needed, A would look at the list to see who was available and then start at the top, working down until someone agreed to come in. [29] A testified that she had been arranging for ambulance transfers since she came onto 3E. If a patient were going to London, the hospital would call with the date and time it had a room, she would call and book the ambulance and would be given a time. If the patient being transferred needed an escort, the nurse manager liked to have that nurse present half hour before departure to familiarize herself with the chart. In A s experience, the receiving hospital would often call the night before but sometimes the morning of the transfer. If she were to get a call-in the morning, she would call the ambulance dispatcher to see if an ambulance could be booked. The time period would vary as it depended on the availability of the ambulance. [30] Once the ambulance was booked A would go the staffing list and find the first available person to agree to go and ask them to be there half hour in advance. She stated that nurses would be paid from the time they came in to work. The nurse manager had never told her otherwise and she did not believe the degree of notice given to the nurse would affect the payment. [31] On December 5, 1991, A received notice in the morning for the patient to go to London. The patient was going in for an angiography and had an I.V. but A thought she could be described as stable. It was not out of the ordinary and she thought any R.N. could have gone. She had originally booked the ambulance for 11:00 a.m. and went to the staff sheet. The worker was first on the list; A had called around 9:30 a.m. and asked her if she could be in for 10:30. The worker had agreed. The ambulance driver then called back to say s/he would be there at 10:15 a.m. so A had called the worker back at around 9:35 a.m. to advise her of the time change and to see if she could still go. The worker had said yes, she would cancel a hair appointment and call a taxi. The worker said she would be able to make it and A thought she lived only about 10 minutes away. A denied ever having told the worker to come in immediately; she had only told her to come is as soon as she could. In A s mind, the worker

8 Page: 7 Decision No. 1506/97 could have said no and she would have moved on to someone else on the list. The time change did not make any difference in her mind and the worker would still have been paid from the time she arrived on the floor. [32] When referred to documentation on file, A testified that she did not know why she had used the term emergency transfer as it was routine. She agreed that the worker would no longer have been able to arrive half hour before departure but thought that she could have arrived by 10:00 a.m. As it happened, they had pulled a nurse off the floor and then replaced her with someone off the list. A did not know how that nurse had been paid. In cross-questioning, A agreed that she did not have the authority to decide whether someone would be paid from the time of call-in or time of arrival. She was not aware of nurses being paid from the time of callin. In her mind, this would have to be authorized by the nurse manager or the charge nurse. She again denied having asked the worker to come in immediately, insisting she wasn t the kind of person to say that. She might have used the phrase as soon as you can. A remembered vaguely talking to a Board investigator but suggested that his use of immediately might have been his interpretation of what she said. A did not think it would have been a problem to find someone else if the worker declined and stated that they had always been able to get someone for an ambulance transfer. She also did not agree that it would be harder to get someone the less time there was. Quite a few nurses lived close by and could come in at the drop of a hat. A did agree that the worker would have been rushing to make the ambulance transfer on time. She clarified that, in her mind, once the ambulance driver gave her a time of arrival, then it was booked, regardless of how short the time period involved. When asked by the Panel. A did say that it would be unusual for the time frame for an ambulance booking and its subsequent departure to be less than an hour. [33] A did remember that, in March of 1992, B had entered four hours on the pay sheet for the worker but had not discussed this with A. If the charge nurse on duty that day had authorized payment for the worker from the time of call-in, A agreed she would have had nothing to do with that decision. The charge nurse would have had to answer to B. B would have had the final decision-making authority. (g) Testimony of B [34] B testified she had worked for the accident employer as an R.N. from 1979 until March of She had always worked full time and been the head nurse/nurse manager of 3E since She described 3E as a step down unit where patients would be designated as being in stable condition. Patients were often required to have diagnostic procedures performed in other hospitals most commonly in London or Toronto. B described the procedure for ambulance transfer much as A did in her testimony. She did say that ambulance bookings were usually made the day before but could happen the day of. When a nurse was required to accompany a patient, B explained that they preferred to use one from that unit, as they would be skilled in cardio-pulmonary care. [35] If they needed a nurse to be called in, the ward clerk would work down the list. The nurse would be requested to come in a few minutes before the ambulance was scheduled and would be paid from the time of arrival on the floor. She was quite clear that there had never been a situation where a nurse was paid from the time of the call-in for an ambulance transfer. Nurses

9 Page: 8 Decision No. 1506/97 would be paid in that manner in circumstances where patient care needs required immediate nursing care and a nurse was needed on the floor immediately. Ultimately, the responsibility for such a decision (and payment) would rest with the nurse manager or her delegate. [36] On December 5, 1991, B was not at work, as she was on vacation. Her take on a situation where there was a patient in stable condition booked the same day for diagnostic testing, where the ambulance was called for 11:00 a.m. and the nurse was called at 9:30 a.m., was that the nurse would be paid from the time of arrival. In her mind, the nurse would still be paid from the time of arrival, if the ambulance time were moved up to 9:30 a.m. This situation would not qualify as an emergency transfer as the patient was stable and the ambulance was prebooked. She agreed that G had been the charge nurse on 3E the day in question and would have been acting in her stead. She had never had any conversation with G about payment for the worker. She agreed with G s decision that day to take someone off the floor and then callin another nurse to replace her. She also agreed with the decision to pay that nurse from the time of call-in. [37] B did recall (after being shown the documentation on file) receiving a March 25, 1992, letter from the worker asking for four hours payment for her call-in on December 5, She said the request gave her a sinking feeling but she decided to pay the worker four hours for that day even though she had not made the call. B felt it was the least she could do as she felt badly for [the worker's] injuries. She stated that she did not consider the Collective Agreement when making this decision or consult with anyone. B never considered the compensation claim either. [38] In cross questioning, B stated that a nurse would be paid from time of call-in in circumstances where the nurse would be expected to be at the hospital within the hour. When an immediate response is expected from a nurse, they would be paid from time of call. She agreed this was an unwritten practice at the hospital but had no recollection of how she had become aware of it. The payment was an acknowledgement of the disruption to that nurse s schedule and the urgency of the request. B agreed that if a nurse were called at 9:35 a.m. for a 10:15 a.m. transfer, she was unlikely to arrive 15 minutes early to familiarize herself with the patient s chart. She repeated that she would not have paid from the time of call-in for an ambulance transfer because these were pre-booked and an ambulance will wait a few minutes. She did however agree that, on the day in question, it would have been G s call as to how urgent the situation was and she would not question that decision. When asked by the Panel, B stated that reasonable people could disagree on the implementation of an unwritten policy but she had no doubt as to how she would have applied it in the worker s situation. (iii) Relevant law and policy [39] The relevant section with respect to initial entitlement states: 4(1) Where in any employment, to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the worker and the worker's dependants are entitled to benefits in the manner and to the extent provided under this Act....

10 Page: 9 Decision No. 1506/97 (3) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment and, where the accident occurred in the course of the employment unless the contrary is shown, it shall be presumed that it arose out of the employment. (4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. [40] In determining whether a an accident has occurred in the course of employment, Board Operational Policy Manual Document # , entitled Accident in the Course of Employment, states that, 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. (emphasis in original) [41] The policy goes on to state that if a worker does not have 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. With respect to activity Board policy states the following: 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 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 the customs and practices of the particular workplace. [42] The policy concludes by noting that the importance of the three criteria time, place and activity varies depending on the circumstances of the 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. [43] With respect to travelling, Board Operational Policy Manual Document # , entitled Travelling, states that, 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. The policy goes on to state the following respecting emergency calls:

11 Page: 10 Decision No. 1506/97 (iv) Workers travelling to answer an emergency call from the employer, requiring immediate action on the worker's part, are in the course of employment. Coverage starts from the time the telephone call is received, and while travelling by reasonable and direct route to the employer's premises or work site from the time and point of departure. Coverage also applies on the return trip to the worker's own property or the point of departure. Submissions (a) Ms. Nurse [44] Ms. Nurse submitted that the bulk of testimony heard by the Panel substantiated that the worker was responding on an immediate basis to an ambulance transfer call-in. The general practice was to pay nurses from the time of call-in where one had to respond within the hour. These circumstances were present in the instant case. The charge nurse that day, G, had stated that the worker was needed on an immediate basis and that payment would have been in order from the time of call-in. B had agreed that, on the date in question, authority to pay would have been vested in G. In fact, the nurse manager had herself authorized four hours payment for the worker for the accident date. Payment, in her mind, went to an employment nexus. The worker had changed her activities after the second call reflective of the emergency nature. She did not wait for her husband to drive her and she did not take time for breakfast. The speed with which she readied herself attested to the immediacy of response necessary. [45] A broad reading of the Board policy on emergency calls would also allow for the fact situation before the Panel. In Decision No. 381/96 (1996) 40 W.C.A.T.R. 165, that Panel had outlined some of the criteria to be considered in determining whether a worker was responding to an emergency call. Immediate action was required on the part of the worker. While payment was not set out in the Collective Agreement, there was general agreement that there was a hospital practice to pay from time of call-ins for emergency situations. There was a real prospect of loss to the employer if the call was not answered. Ms. Nurse suggested that even if the Panel were to find the evidence approximately equal in weight, benefit of the doubt would go to the worker. [46] If the Panel were not persuaded the worker was injured in the course of her employment, Ms. Nurse asked the overpayment be waived. She cited Tribunal Decision No. 24F2 (1992) 22 W.C.A.T.R. 1, and Decision No. 879/92 (1996) W.C.A.T.R. 56, as being reflective of institutional thinking on detrimental reliance. She argued that this case clearly met the criteria. (b) Mr. Atkinson [47] Mr. Atkinson submitted that, in general, workers were understood not to be in the course of their employment when travelling to work. Hence the worker had an obligation to demonstrate that this was an emergency situation such as would bring her within the employment ambit. He submitted there had been much testimony heard about what people would have done but the Panel s duty was to sort facts from suppositions. He argued that this was a routine ambulance transfer; part-time nurses were often called to fill these assignments; arrangements would be made at any point before the transfer; and, it was generally understood that nurses would show up approximately half hour before transfer and be paid from the time of arrival on the floor. He

12 Page: 11 Decision No. 1506/97 conceded that this transfer was arranged on somewhat shorter notice than usual, but that did not translate into its being an emergency. [48] Mr. Atkinson argued that this was not an emergency call; rather it was a routine transfer within a short time frame. It became an emergency when the worker could not attend and a nurse had to be taken off the floor minutes before the ambulance was scheduled to leave. The worker had time to cancel her hair appointment and call for a taxi at 10:00 a.m. These were not actions suggestive of immediacy or urgency. Mr. Atkinson referred to Decision No. 381/96 and pointed out that in that case, the Collective Agreement set out the terms of an emergency call-in while the binding Collective Agreement covering the worker s terms of employment had no such mention. There was no prospect of loss and no real emergency. [49] While G stated that the worker should have been paid, it was worth noting that this witness was also in the bargaining unit and was, therefore, not a disinterested witness. S worked mainly in the evenings and had no direct experience of the situation under discussion. M agreed she had never been paid from the time of call-in for a pre-booked transfer. The worker herself did not expect to be paid as she only wrote to her nurse manager some three months later with the request and it was honoured purely on compassionate grounds. Sympathy for the worker was not a defining element in demonstrating an employment relationship. (v) The Panel s findings [50] Much has been said in closing submissions concerning the relative credibility of the various witnesses and whose version/perspective should be given more weight. As has often been noted in Tribunal decisions, assessing credibility is a delicate exercise. Often, there is genuine disagreement as to facts or their interpretation. An individual may, quite naturally and honestly, wish to provide his or her perspective in the best possible light. This is by way of acknowledging that there are situations where strikingly different versions of events can be presented without loss of credibility to any of those offering a perspective. [51] The assessment of the credibility of interested witnesses has been discussed as follows in the following decision of the British Columbia Court of Appeal, Faryna v. Chorney (1951), 4 W.W.R. (N.S.) 171, (which was quoted with approval by the Ontario Court of Appeal in Phillips v. Ford Motor Co., [1971] 2 O.R. 637): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness is such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [52] In the Panel s view, the divergence of opinion does not lead us to conclude that one person s testimony was suspect and another person s is to be preferred. It confirms our sense that there exists at the hospital (or at least existed at the time of the worker s injury) no uniform sense of how the unwritten practice regarding payment for call-ins was to be handled. We accept that both S and B held supervisory positions at the hospital. S held a more senior position

13 Page: 12 Decision No. 1506/97 but B had more direct experience on the unit in question. Both witnesses struck the Panel as credible and direct. Their respective testimony was in preponderance with the probabilities of their experience. It is simply that their views differed. As agreed to by B, it is possible for reasonable people to disagree. [53] What this signifies for the Panel is there is no clear and unambiguous consensus on the practice of payment for a call-in. It was generally agreed that a nurse was paid from the time of arrival on the floor. It was also generally agreed that, in certain circumstances (although the exact nature of such circumstances did not attract unanimity), a nurse would be paid from the time of call-in. [54] It follows that we must closely examine the particular facts of this case. The charge nurse for the day of the accident, G unequivocally gave her opinion that, given the tight time frame, she would have authorized payment to the worker from the time of call-in. The only reason she did not authorize such payment was that the worker never did come in and, in the flux of events, she overlooked it. The fact that she is also in the bargaining unit and her testimony on that point might not be disinterested was never put to her by Mr. Atkinson. Closing argument is not where this issue should be raised. Further, the Panel accepts that the witness testified candidly as to what she would have done and we do not doubt her testimony on that point. [55] If we look to the actions of the nurse manager for 3E, it is apparent that B, regardless of her reasons, did pay the worker. In any case where one is attempting to determine whether the worker is in the course of employment at a particular juncture, the fact that he or she is receiving regular wages at that point is compelling evidence of an employment relationship that is beyond incidental. As it happens, we do not doubt that the nurse manager was motivated by sympathy rather than her personal belief that the worker s circumstances merited payment. However, we note it was also her testimony that the decision as to payment for that day would have devolved to G and G has been clear that she would have paid the worker. Therefore, the facts as we understand them are that the responsible person would have authorized payment had events not gotten away from her and, later, the nurse manager did authorize payment. [56] Let us take these facts into account as we consider the criteria set out by the Panel in Decision No. 381/96 for emergency travel. In that case, the hearing Panel did note the reasoning set out by another Panel in Decision No. 414/86: If an employer agrees to pay a worker for the time involved in travelling to and from the job site then, in the absence of any contrary evidence, the worker would normally be found to be acting in the course of employment. [57] In the fact situation before the Decision No. 381/96 Panel, it happened that the worker had not been paid for his travel time but was injured while travelling. In determining whether the worker satisfied the Board policy requirements for responding to an emergency situation, the Panel outlined some of the factors to be considered as follows: 1. The nature of the workplace and the terms of the Collective Agreement (if any) in defining what the employer considers to be, for its production or services, an emergency. 2. A consideration of the plain meaning of the word, as set out for instance, in the Oxford Concise Dictionary to be a sudden juncture requiring immediate action.

14 Page: 13 Decision No. 1506/97 3. An urgency of response being required to address the situation, which may but need not contain an element of coercion. 4. A requirement that it occurs outside the worker's normal work hours or outside the normal place of work (otherwise there would be no dispute as to the work-relatedness). 5. The real prospect of loss to the employer if the situation is not addressed in a timely fashion: that is, outside the normal working hours. 6. The directness of the worker's route to and from the work place or the work site. [58] That Panel also went on to note that the above list was not intended to be definitive; rather it [was] meant to suggest some of the criteria that might properly be considered when determining whether a worker s travel to and from work would constitute responding to an emergency. In that case, the Panel noted that, although the worker was not paid for his travel time the night of his work injury, the Collective Agreement did define call-in as an emergency. The Panel concluded that as the Collective Agreement was binding document between the employer and its employees, the mutually agreed upon definition of emergency could not lightly be gainsaid. The Panel also noted that timely action on the part of a worker (in responding to an emergency call-in) could avert a real crisis from occurring; it did not signify that there had been no emergency in the first place. [59] The criteria set out above are helpful but not determinative. In that case, the worker was not paid for his travelling time while, in the instant case, the worker was paid the minimum four hours set out in the Collective Agreement. However, even payment would not be determinative if the Panel were to find that the worker was not in the course of her employment. The fact that she was paid is a powerful argument in favour of an employment relationship, but it is not the only one. [60] Was the worker responding to an emergency situation? It is, in our view, indisputable that a time frame of less than 45 minutes to arrive for an ambulance transfer renders the assignment out of the ordinary. No one testifying suggested that this would be a usual occurrence. It also made it impossible for the worker to arrive in time to familiarize herself with the chart. Again, in our view, this takes the situation out of the routine. A certain urgency of response was necessitated when the worker said she would take the transfer. There was some agreement in testimony that when a nurse had to arrive within the hour, payment would commence at the time of call-in to reflect the inconvenience to the nurse and immediacy of response required. [61] The Panel does not disagree with the assessment of the ambulance patient s condition as a stable one. There was no evidence presented to suggest that the patient would have been in a life-threatening state had she failed to make the transfer. Nonetheless, once the worker said yes, it was incumbent on her, in our view, to proceed to the hospital directly. There was considerable argument as to whether the worker was asked to come in immediately or as soon as possible. In the end, this smacks somewhat of semantics, since there is no appreciable difference. If a person is expected to be at his or her place of work within 40 minutes (with no prior notice), that person must move quickly. If the worker had not had this expectation, she would have had breakfast and waited for a ride with her husband. The urgency of the situation significantly altered her routine.

15 Page: 14 Decision No. 1506/97 [62] The Panel acknowledges that this case does not fit squarely within the criteria set out by the Panel in Decision No. 381/96. In large part, this reflects the difference between a codified section of the Collective Agreement and an unwritten policy that was not understood similarly by all staff. If the hospital had a policy excluding payment for call-ins for ambulance transfers or if there were a written policy that set out the parameters in a clear fashion, the Panel might well have come to a different conclusion. [63] However, in the absence of a clear policy, we find that the situation on December 5, 1991, was understood to be an emergency situation by the charge nurse, in that she would have authorized payment for the worker from the time of call-in. We further find this was not an unreasonable characterization in that the former part-time supervisor, S, testified that she would have similarly characterized the situation and paid the worker from the time of call-in. We do acknowledge that the actual nurse manager of 3E would not have so characterized the relevant circumstances. In our view, the weight of evidence is relatively equal as to whether the call-in could be constituted as an emergency within the hospital s own understanding and, therefore, benefit of the doubt goes to the worker. [64] The worker s appeal is therefore allowed. In conclusion, however, the Panel would stress that it makes no general findings as to whether such a situation would always be characterized as an emergency. As noted above, clear and written practice or policy on the matter if in existence would have greatly influenced our analysis. Absent that, we were persuaded that reasonable people could and did disagree on the application (and indeed meaning) of the practice; in such circumstances, the wording of the statute extends benefits to the worker. THE DECISION [65] The worker's appeal is allowed. DATED: October 16, SIGNED: M.F. Keil, J.J. Donaldson, P. Klym.