- In the course of employment (proceeding to and from work) (employer's vehicle)
The worker's estate appealed an ARO decision which denied initial entitlement for the worker's fatal motor vehicle accident on June 30, 2021. The worker had been driving away from the employer's premises in a company vehicle when he was fatally struck by a train. The worker had been employed as a senior gas fitter with the employer at the time of the accident.
The Panel denied the appeal.The worker had requested the use of a company vehicle, a cube van which was a "rolling workshop" that contained tools and material. The worker used this vehicle to travel to the employer's premises and to job sites for four years. The contents of the vehicle were necessary for the training that he was providing to another employee on that morning of the accident. The Panel noted that the temporal aspects were relevant. The date of accident was a Wednesday, and the following day was a statutory holiday. The employer allowed employees to leave early and the worker left earlier than usual (around noon) on that day.The Panel considered whether the worker was in the course of his employment at the time of this accident. A worker is generally not in the course of his employment when leaving the employer's premises unless there is a work-related purpose for the departure. There are two potential exceptions to the general rule. The first being that "the conditions of the employment require the worker to drive a vehicle to and from work for the purpose of the employment" as found in OPM Document No. 15-03-05. The second being that "the worker is travelling to and from work in a vehicle under the control and supervision of the employer", also found in OPM Document No. 15-03-05. There was insufficient evidence to establish, on a balance of probabilities, that the company vehicle was under the control and supervision of, or chartered by, the employer in this case. The worker had chosen to use the company vehicle out of benefit to him. The employer was very detached from the worker's use of the company vehicle. The employer did not impose any requirements upon the worker in its use. The employer did not have any policy governing the use of the company vehicle for employees driving to and from work and did not have any mechanism in place to monitor the worker's use of the company vehicle. The Panel also assessed whether the worker was in the course of his employment by taking into account additional factors related to the time, place and activity of the worker at the time of the accident. The worker had completed work at noon. He was then not traveling to a job site. He was not being paid by the employer when he left the employer's premises as he was off the clock. He was traveling on a public road that was not part of the employer's premises. He was not engaged in any work-related activity or anything reasonably incidental to his employment at the time of this accident. Therefore, the worker was not in the course of his employment at that time of the accident. Use of a company vehicle was not in itself determinative of whether he was in the course of his employment at the time of the accident.