WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1842/14

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1842/14 BEFORE: J. P. Moore : Vice-Chair M. Christie : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: September 25, 2014 at Windsor Oral DATE OF DECISION: December 12, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2693 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated October 10, 2012 APPEARANCES: For the worker: For the employer: Interpreter: D. Nantais, Office of the Worker Adviser T. Bergeron Lucha, Lawyer Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1842/14 REASONS (i) Introduction [1] On August 27, 2010, the appellant worker had an encounter with a former co-worker that caused her to experience a psychological reaction. The operating level of the Workplace Safety and Insurance Board (the Board ) allowed the worker entitlement to benefits under the Board s policy on traumatic mental stress ( TMS ). The employer objected to the allowance of entitlement. The employer's objection was allowed by an Appeals Resolution Officer ( ARO ) in a decision dated October 10, In that decision, the ARO ruled that, while the incident in question may have been traumatic in nature, it did not occur it the course of the worker's employment. The worker has appealed that decision to the Tribunal. (ii) The issues [2] The issue in this appeal is whether a traumatic incident that occurred on August 27, 2010, causing the worker psychological injury, occurred in the course of the worker's employment. (iii) The decision [3] On the evidence and submissions presented to us, the Panel is persuaded on the balance of probabilities that the incident of August 27, 2010 giving rise to the worker's injury occurred in the course of the worker's employment. (iv) Analysis (a) Background facts [4] At the time of the incident in issue, the worker was employed as a sales representative for an automobile dealership. She had been in that position for approximately three months. The employer had performance expectations of the sales representatives. The salary earned by the sales representatives was based on sales. Although the employer provided each representative with a draw equivalent to minimum wage, that draw was ultimately factored in to commission earnings. In the result, each representative s salary was based on their actual sales. [5] The employer also provided the representatives with a car allowance but they had to sell 12 vehicles in the previous month in order to receive that allowance. [6] According to the evidence, sales were generated in two ways. The first was through lot sale, that is: sales of vehicles to customers who walked onto the lot. The second technique used by the representatives was to find potential customers by going off the lot to locations where potential customers could be found. This practice was called prospecting. [7] A further expectation of the representatives was daily confirmation to management of three leads that the representative intended to pursue that day. [8] When prospecting, a representative was entitled to take a vehicle from the lot for the purposes of showcasing it. Each representative was expected to pick-up a dealer plate and obtain a gas voucher from the receptionist. They were also expected to inform management of the fact that they were leaving the lot. This communication was usually done when the gas voucher was authorized by a manager.

3 Page: 2 Decision No. 1842/14 [9] If a sales representative s employment was terminated, he/she was required to give any leads that he/she had to management. [10] If a representative went on a lunch break, he/she would typically inform the receptionist although there was no formal requirement to have management approval to do so, unlike the process for taking a company vehicle off lot. (b) The events of August 27, 2010 [11] Regarding the events of the day in issue, the Panel heard testimony from the worker and from a co-owner of the car dealership ( Mr. R. ). The Panel also had a transcript of testimony provided by the former co-worker ( Mr. K. ) during the course of criminal proceedings against Mr. K. regarding the incident of August 27, The evidence regarding the events of that day is largely consistent. Where there is inconsistency, the inconsistency is noted below. [12] Two background facts are noted. The first is that Mr. K. s employment was terminated the day before the incident in issue. He was asked at that time to hand over any leads he had and apparently did so. The second fact of note is that, as of August 27, 2010, the worker had not yet achieved her monthly quota for receiving a car allowance for the following month. [13] When the worker arrived at work on August 27, 2010, she was informed by the company receptionist that she had received a number of telephone messages from Mr. K., asking her to contact him immediately. The worker was aware that Mr. K. s employment had been terminated but was not aware why Mr. K. wished to speak to her. She returned his telephone call and, according to her testimony, was told that he had three leads that he could give to her if she stopped by his apartment. She made arrangements to do so later that day. [14] The worker testified that her primary goal that day was to do her weekly prospecting at a local restaurant. She testified that she went to this restaurant every Friday because many of the restaurant s customers were autoworkers. A number of the local autoworkers were being laid off. As part of their severance package, each of the laid-off workers was being given a substantial allowance to buy one of the manufacturer s automobiles. The worker testified that she had arranged to meet one of these individuals at the restaurant at lunch time. [15] According to the evidence, management was aware of the worker's Friday prospecting and approved of it because it had the potential to lead to sales. Mr. R. also acknowledged that a manager would have signed off on the worker's gas voucher for that trip and likely knew of the worker's destination. However, no one in management was aware that the worker also intended to visit Mr. K. Mr. R. stated that, had the worker informed management of her intention, she would have been told that Mr. K. had already given his leads to management. [16] There was some dispute in the testimony as to when the worker went to the restaurant. The worker thought that her appointment was at 11 a.m. However, in a letter dated October 8, 2010, written to the Board, the employer's Counsel asserted that the worker actually left the employer's premises around noon. That timing would be more consistent with the unfolding of subsequent events. [17] The worker remained at the prospecting site until around 1:15 when she left to go to Mr. K. s apartment. The evidence is consistent in establishing that she arrived at Mr. K. s apartment at around 1:30 p.m. and left around 2:00 p.m.

4 Page: 3 Decision No. 1842/14 [18] The worker testified that she had called Mr. K. shortly before leaving the restaurant to inform him that she was on her way. She told him to be outside his apartment with the leads. When she arrived, Mr. K. said that he had the leads in his apartment and asked her to come up to get them. The worker acknowledged that she was somewhat disturbed by this fact, particularly given the worker's appearance, which included the fact that he was shirtless. However, she stated that the leads were important to her so she decided to go to Mr. K. s apartment. [19] While there, Mr. K. insisted that they socialize. As they were talking, Mr. K. engaged in activity that was implicitly sexual and very disturbing to the worker. She testified that she tolerated the activity until he stopped at which point she left the apartment. She stated that Mr. K. gave her his leads as she was leaving although the leads seemed to be nothing more than a few scribbled notations on a slip of paper. [20] The worker returned to the employer's premises and immediately notified Mr. R. and another manager of what had happened. She was upset. She told Mr. R. that she had gone to get leads from Mr. K. and that things went bad. Mr. R. stated that he learned more fully the details of what happened from the worker's father about a week later. [21] Over the following days, the worker became increasingly distressed and stopped work on September 1, Subsequent medical evidence indicates that the worker suffered a psychological reaction to the incident. [22] The Board initially allowed entitlement on the basis that the incident in question was a sudden and unexpected traumatic event for which the worker had entitlement under the Board s policy on TMS. However, as noted above, the employer objected to that decision which led to a reversal of entitlement by an ARO. In the decision under appeal, the ARO concluded that, in all the circumstances, the incident in issue occurred outside the course of the worker's employment. (c) Law and policy [23] The worker's entitlement is governed by section 13 of the Workplace Safety and Insurance Act, 1997 ( WSIA ), which stipulates, among other things, that entitlement requires that an injury by accident occur in the course of employment. [24] The Board s policy on course of employment is found in Document No of the Board s Operational Policy Manual ( OPM ), which stipulates if an accident occurs in the course of employment if: the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related. [25] Regarding place, the policy stipulates in part: 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. [26] Regarding time, the policy stipulates in part: 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.

5 Page: 4 Decision No. 1842/14 [27] Regarding activity, the policy stipulates that a work-related activity can include an activity that is reasonably incidental to the employment. In making a determination whether an activity was reasonably incidental to the employment, the decision-maker is to consider the following three factors: the nature of the work the nature of the work environment, and the customs and practices of the particular workplace. [28] The policy further stipulates that engaging in a brief interlude of personal activity does not take a worker outside the course of employment and that the decision-maker should consider the following: the duration of the activity the nature of the activity and the extent to which it deviated from the worker's regular employment activities. [29] Additional policy on personal activities is found in OPM Document No , which stipulates that a person can remove him or herself from the course of employment in the following circumstances: 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 [30] Finally, the Board s policy on travelling states that a worker can be in the course of employment while travelling in the following circumstances: 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. (d) Findings of fact [31] The Panel makes the following findings of fact: The worker's work environment was extremely competitive. A sales representative s salary depended entirely on making sales. In addition, a quota of sales was required in order to receive a monthly car allowance. Mr. R. confirmed that aggressive and creative sales techniques were required to make a living. Leads were an essential sales component. Sales representatives were expected to have ongoing leads and to confirm those leads with management. Leaving the premises for the purposes of prospecting was an accepted sales technique. Leaving the premises in order to take a company vehicle for the purposes of prospecting required management approval which was obtained by getting a manager s signature on a gas voucher.

6 Page: 5 Decision No. 1842/14 On the date in issue, management was aware that the worker intended to do her weekly prospecting at a local restaurant and approved that excursion by authorizing a gas voucher. Management was not aware that the worker also intended, in the course of that excursion, to obtain leads from Mr. K. The worker was aware that Mr. K. had been fired the day before but was not aware that Mr. K. had been asked to hand over any leads he had to management at that time. The worker and Mr. K. had no prior social relationship. Mr. K. used the prospect of obtaining valuable leads to induce the worker to come to his apartment. Mr. K. used the employer's receptionist as the medium to contact the worker in order to induce her to come to his apartment. The receptionist did not inform anyone in management that Mr. K. had made a number of phone calls to the worker. After completing her prospecting excursion, the worker went directly to Mr. K. s for the purpose of picking up the leads, and with the intention of returning immediately to work. Mr. K. induced the worker to come up to his apartment with the promise of leads. Prior to giving the worker those leads, Mr. K. engaged in behavior that greatly disturbed the worker. The worker went directly from Mr. K. s apartment to the employer's premises where she immediately reported the incident to management. At that time, the worker informed management that she had gone to Mr. K. s to obtain leads. Management did not subsequently discipline the worker for doing so. (e) The Panel s conclusions [32] The Panel is persuaded, on the above findings of fact, that the worker was in the course of her employment on August 27, 2010 when she experienced a traumatic event. [33] Central to the Panel s conclusion is the following fact: in the highly competitive world of car sales, leads were gold. Sales representatives were required to show management that they had ongoing leads. Leads were essential to making sales. In that environment, aggressive initiative was rewarded; prospecting for leads was encouraged because leads promised sales. Sales were the only source of income. In the Panel s view, this was the workplace environment in which the indicia of the course of employment must be considered. That environment effectively created the customs and practices of the workplace. [34] In the Panel s opinion, the worker s activities on August 27, 2010 were consistent with the customs and practices of the workplace and she remained in the course of her employment while attempting to obtain the promised leads from Mr. K.

7 Page: 6 Decision No. 1842/14 [35] Looking at the Board s policy criteria, we note that the policy requires that, where an injury occurs away from the employer's premises, the place must be one where the worker might reasonably have been expected to be while engaged in work-related activities. [36] In her submissions on behalf of the employer, Counsel argued that the place where the incident occurred was a private residence where the worker would not reasonably have been expected to be while engaged in work-related activities. However, in the Panel s opinion, the employer encouraged the pursuit of prospective sales away from the lot. The employer also encouraged, and in fact demanded, that sales representatives find leads. In our opinion, it was reasonable for the worker to go to an offsite location to obtain leads since obtaining leads was a work-related activity and one that would often occur away from the employer's premises. [37] Regarding the time element, the employer's Counsel argued that, at the time of the incident, the worker was on a lunch break. She noted that, according to the worker's testimony, the worker left the premises around 11 or 11:30 and did not return until 2:30. She submitted that the worker's visit to Mr. K. s apartment was part of the worker's lunch break. [38] As the Panel noted above, there is some discrepancy regarding when the worker left the employer's premises. The worker initially testified that she left around 11 or 11:30 a.m. As noted above, the employer's Counsel wrote a letter to the Board shortly after the events in question stating that the worker left the premises at noon. There was evidence in the criminal proceedings from the worker indicating that she left the employer's premises around noon. In her testimony, the worker conceded that this evidence was probably more accurate than her current recollection. Consequently, the Panel is persuaded that the worker likely left the employer's premises around noon for her prospecting engagement. She likely left the restaurant at around 1:15, arriving at Mr. K. s apartment at around 1:30 as previously arranged. We are not persuaded that the worker was on a lunch break at the time she visited Mr. K. It is likely that, to the extent that the worker took lunch that day, she did so while at the restaurant prospecting. We are persuaded that, at the time of the incident, the worker was returning from her prospecting outing with an intention to make a diversionary visit to Mr. K. to obtain leads. We are persuaded that these events all occurred during the worker's normal work hours. [39] With respect to the worker's activity, Ms. Bergeron Lucha argued that the worker's visit to Mr. K. s apartment was strictly a personal activity that provided no benefit to the employer, an activity that the worker was not directed to undertake by the employer. In fact, she submitted that, had the employer been aware of the worker's intentions, the employer would have told her not to go to Mr. K. s apartment. Ms. Bergeron Lucha cited the Board s policy on travelling and argued that the worker engaged in a distinct departure on a personal errand. She also cited the Board s policy on personal activities and argued that the worker went to a location that had nothing to do with her employment. [40] In response to these arguments, the Panel is persuaded, first of all, that there was nothing personal about the worker's visit to Mr. K. There is no evidence that she went to Mr. K. s apartment for the purpose of making a personal social call. There is no evidence that they had a prior social relationship. In our opinion, the worker went to Mr. K. s apartment for the sole purpose of obtaining what she considered to be an essential tool of her employment: leads for potential sales. We accept her evidence that she found herself, at the end of the month, with insufficient sales to meet her quota. She stated that she needed the additional leads promised by Mr. K. and went to his apartment because of that need. In our opinion, given the workplace

8 Page: 7 Decision No. 1842/14 environment, doing whatever it took to get leads for prospective sales was an essential component of the workplace environment. As noted above, the Board s policy on course of employment indicates that what might appear to be a personal activity depends on the extent to which it deviated from the worker's regular employment activities. In the present case, we are not persuaded that the aggressive pursuit of leads deviated from the worker's regular employment activities. The policy also stipulates that determining whether an activity was incidental to employment required considering the customs and practices of the particular workplace. We are persuaded that the customs and practices of the workplace encouraged aggressive pursuit of sales. In our opinion, the worker's decision to visit Mr. K. to obtain promised leads was entirely consistent with the customs and practices of the workplace and did not deviate from the worker's regular employment activities. [41] In our view, the fact that the employer did not direct the worker to go to Mr. K. s apartment is irrelevant. Many employment activities not directed by an employer are nonetheless reasonably incidental to the employment. Although the worker did not have approval to go to Mr. K. s apartment and would not have been granted that approval had she requested it, the worker did not consider that she needed approval for that activity. She had already received approval to take a company car off the lot as part of her regular Friday prospecting. The worker reasonably viewed her visit to Mr. K. as a slight deviation from her normal work activities, but one that was motivated exclusively by work-related needs. [42] Although, according to Mr. R., the worker was instructed, as part of her training, that leads were the property of management and had to be given to management if employment was terminated, we accept the worker's testimony that she was unaware of that fact. We are particularly persuaded that she was unaware that Mr. K. had turned in his leads to the employer because we accept that she would not have gone to Mr. K. s apartment but for her belief that leads were still available. [43] We are not persuaded that the worker made a distinct departure on a personal errand when she visited Mr. K. and we are not persuaded that the worker was at Mr. K. s apartment for reasons that had nothing to do with her employment activities. As we have stated above, obtaining leads was an essential employment activity and that was, in our opinion, the sole purpose for the worker's visit to Mr. K. s apartment. [44] Although the worker acknowledged, in her testimony, that she became aware of a possible risk in going to Mr. K. s apartment, we are persuaded that the competitive and aggressive environment described by Mr. R. created an ethos in which such risk-taking would not have been considered unreasonable. In that environment, in order to make income, a representative had to be competitive and aggressive. Making income is not, in our view, a personal activity. [45] Even if obtaining the leads from Mr. K. was contrary to the employer's policy and rules, in our opinion, the worker's decision to do so did not deviate significantly from her regular employment activities of finding leads wherever possible. The policy directs that determining whether a personal activity takes a worker out of the course of employment requires considering the duration of the activity, the nature of the activity, and the extent to which it deviated from regular employment duties. In our opinion, the duration and nature of the activity did not deviate significantly from the worker's regular employment activities of seeking leads. We note that, in the employer's view, having the worker spend several hours in a restaurant seeking potential

9 Page: 8 Decision No. 1842/14 customers was not an activity outside the course of employment. In our view, there is no substantial difference between that activity and the activity of going to a personal residence to obtain potential leads. [46] We also think it significant that Mr. K. used the employer to get to the worker and to add legitimacy to his ploy. The employer was certainly an unwilling participant in this ploy. However, there is no doubt that using the employer's receptionist to convey his message to the worker added a measure of legitimacy to Mr. K. s plan to get the worker to come to his apartment. The employer most certainly would have considered it an illegitimate use of the employer's resources. However, the worker would not have had as elevated a level of suspicion of Mr. K. s motives as she might have had if he called her at her home. As we noted above, the worker had only been on the job for three months and her lack of experience may have made her more gullible. [47] Weighing all of the circumstances of the worker's activity, as well as the place and time where and when those activities took place, we are not persuaded that the worker intended to leave the course of her employment when she went to Mr. K. s apartment and we are not persuaded, as a factual matter, that she left the course of her employment. In our opinion, the incident of August 27, 2010 giving rise to the worker's injury was an accident that occurred in the course of the worker's employment. [48] For these reasons, we reverse the decision of the ARO denying the worker entitlement to benefits for a traumatic mental injury and reinstate the decision of the Board s operating level allowing entitlement.

10 Page: 9 Decision No. 1842/14 DISPOSITION [49] The worker's appeal is allowed. [50] The decision of the ARO denying entitlement to benefits for a traumatic mental stress injury is reversed. We find that the worker was in the course of her employment at the time of the accident giving rise to that injury. The Board is directed to reinstate entitlement. We leave to the Board the determination of the nature, duration, and extent of the worker's entitlement. DATED: December 12, 2014 SIGNED: J. P. Moore, M. Christie, M. Ferrari