Worker asleep at the wheel after overtime

Worker sustained injuries in car accident on way home from overtime shift

This instalment of You Make the Call looks at a worker who filed for workers’ compensation for a car accident on his way home from a late-night emergency overtime call.

The worker was a backhoe operator for a city public utilities department. He had several duties related to maintaining the municipal water supply including maintenance and repair work.

On Jan. 17, 2003, the worker’s foreman called him at 9 p.m. asking if he would work some overtime to help repair a broken water main. The worker agreed and got dressed, drove to the employer’s yard to pick up a backhoe and drove to the site of the broken water main.

It was standard company practice to pay workers overtime from the moment they received the call because it was unplanned and usually an emergency, as long as the worker arrived at the site in a reasonable amount of time. When overtime was arranged in advance, payment started once the worker arrived at the employer’s yard.

The worker helped excavate the water main, cleared snow to allow the water to flow into a drain and salted the sidewalk and road to prevent it from freezing. Around 2 a.m., the water main was repaired and the worker drove the backhoe to the yard, retrieved his car and drove home. However, on his way home, he fell asleep and drove his car into a ditch, hitting a telephone pole. He suffered several injuries and was off work for five months. The worker filed a claim with the Workplace Safety and Insurance Board (WSIB), asking for compensation for the time he was off work.
You Make the Call

Was the worker injured in the course of doing his job and entitled to workers’ compensation?
Did the car accident happen outside of work and not entitle him to compensation?

If you said the worker was entitled to compensation, you’re right. The WSIB initially denied his claim, saying he was no longer working at the time of the accident. It said his overtime shift had ended once he left the yard and the accident didn’t occur on company property. Therefore, the accident didn’t happen in the course of his employment.

The appeals tribunal disagreed. It said the WSIB’s operational policy manual stipulated workers responding to an emergency call were considered in the course of employment when they were traveling to and from the worksite, including “the return trip to the worker’s own property.”

Though neither the policy nor the collective agreement specifically defined what qualified as an emergency situation, the policy did say it required “immediate action on the worker’s part.” The tribunal found it was accepted by the employer and its employees that unplanned overtime calls were emergency calls.

“It does not seem unreasonable to suggest that workers would not be called out unless there were some sudden, unexpected event that required immediate action or presented an imminent threat of danger to life or property,” the tribunal said.

The broken water main which the worker was called to help fix could reasonably be considered an emergency, the tribunal said.

“The worker was being called out to address a situation where there had already been some property damage and, given the cold temperature, there was also the risk of ice forming on the sidewalks and road,” the tribunal said.

Since the worker had been called in to deal with an emergency situation, the tribunal ruled he was covered for workers’ compensation from when he left his home until he arrived back there. Since the car accident happened on his way home from the call, it took place during the course of employment. The tribunal ruled the worker was entitled to compensation for the five months he missed because of his injuries sustained in the accident. See Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 565/08, 2008 CarswellOnt 5683 (Ont. W.S.I.A.T.).

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