Decision #17/03 - Type: Workers Compensation

Preamble

A non oral file review was held on February 5, 2003, at the claimant's request.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In May 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a head injury that she suffered on May 14, 2002. Details of the injury were described as follows:
"I was in the work parking lot and I was getting something out of the back seat of my car at the end of the day. As I stepped out of the way to close the door, I stepped back and there was a curb there. I tripped on the curb and fell back hitting my head on the fence. This happened at 5:00 p.m.. I was taking milk cartons out of my car to throw them into the dumpster."
The Employer's Report of Injury dated May 15, 2002, confirmed that the claimant was taking an item out of the back seat of her car when she stepped back and tripped over a concrete curb. The claimant reported injuries to the back of her head and a bruised and swollen right wrist.

In a letter dated June 5, 2002, a WCB adjudicator advised the claimant that in accordance with Section 4(1) of The Workers Compensation Act (the Act), her claim for compensation was not acceptable. It was determined that the injury incurred by the claimant was the result of a personal action, i.e. taking egg cartons out of the back seat to throw them into the dumpster, not related to her employment.

On August 9, 2002, the Review Office considered an appeal submission from the claimant dated August 2, 2002. Review Office confirmed that the claim for compensation was not acceptable. Review Office referred to Board Policy #44.05.20 entitled General Premises in its decision. Review Office concluded that the activity which led to the claimant's injury i.e. getting something out of the backseat of her car to throw into a dumpster could not be considered an action connected to her employment. Review Office could not allow the claim as the accident did not arise out of the claimant's employment. On January 1, 2003, the claimant appealed Review Office's decision and a non-oral file review was arranged.

Reasons

This claim involves a worker who suffered injuries as a result of a fall in the parking lot of her employer. Her claim for compensation was not accepted, which decision was upheld by Review Office upon reconsideration. She then appealed to this Commission.

The issue before the Panel was one of claim acceptability. For her appeal to be successful, we would have to determine that the accident, which gave rise to her injuries, arose out of and in the course of her employment, as required by the Act. We did not make that determination.

Our decision was based on a thorough review and consideration of the file evidence, as well as of Board Policy #44.05.20, General Premises.

This policy specifically addresses the interpretation of "in the course of employment", stating that this:
"… refers to an injury which occurs within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment."
Section 1. c., which further elaborates on this, sets out the test for consideration:
"When determining whether an accident was in the course of employment, the WCB will consider:
  1. What activity the worker was engaged in when injured …. (ie., did the injury result from a personal act, unrelated to the employment, or was there an employment connection).

  2. Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment.

  3. When the worker was engaged in the activity. This is also an important factor in determining whether the activity was "in the course of the employment" (ie., did the activity occur at a time reasonably connected to the work shift)." (Emphasis in the policy.)
Section 1. d. sums this up, as follows:
"Generally, a worker is in the course of the employment upon entering or departing the employer's premises, at a time reasonably close to the beginning or end of work, and using an accepted means of entering and leaving the employer's premises, all in relation to performing activities for the purposes of the employer's business."
The Policy also notes that company parking lots are considered to be part of the employer's premises. Section 2., a. reads:
"A parking lot is considered to be part of the employer's premises where it is owned, maintained, established, or controlled by the employer."
In applying the policy provisions to the case before us, we concluded that the claimant's case met only two of the three required elements of the test.

She met the "where" and "when" tests, in that the accident occurred in her employer's parking lot, at a time shortly after the end of her workday. However, she failed the "what" test, in that her injury did result from a personal act, unrelated to her employment.

In her written submission, the claimant argued that this policy encouraged injured workers to lie about what they were doing at the time of the injury. Admittedly, a seemingly simple lie might have changed the outcome for the claimant. But such a lie may well constitute fraud, for which there are other penalties under both The Workers Compensation Act and the Criminal Code.

We have concluded that, by attending to a personal act, the claimant removed herself from the course of her employment, not meeting the requirements of the above-noted policy.

Accordingly, the claim is not acceptable and the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of February, 2003

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