The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non oral file review was held on November 16, 1999, at the employer’s request.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The claimant, after parking his vehicle on his way to the office on February 8, 1999, slipped on ice landing on his upper back and head area. On the same day the claimant attended an emergency facility and the diagnosis was a bruised rib, concussion and borderline cardiomegaly.

During a telephone conversation with the employer on February 19, 1999, an adjudicator with the Workers Compensation Board (WCB) documented that the claimant was expected to use his vehicle every day to make service calls. The claimant apparently slipped on the sidewalk while walking from his car to the building. The employer’s representative thought that the claimant was parked on the street. It was also confirmed that the claimant did not have a designated parking spot and would park on the street for one hour in the morning and then would leave the office to do inspections.

In a letter, dated April 19, 1999, the claimant was informed that his claim for compensation was denied as he was not considered to be in the course of his employment at the time of his fall. According to WCB policy, a worker was considered in the course of employment when traveling in a direct route to and from his place of employment. In this instance, the claimant was injured while walking on a public sidewalk between his car and office before the scheduled start of his work day. As such, the adjudicator felt that the claimant was not in the course of his employment when injured.

On May 24, 1999, the claimant appealed the above decision to Review Office. The claimant contended that his work day started when he entered his vehicle in the morning and started organizing his paper work for the day. The claimant stated, in part, “My vehicle becomes my office. I have certain tools in my briefcase that I am required to transport. When I transport these items to my office at [address] that is part of my job, in the same way that a worker on construction would be on the job when loading the truck or picking up material!”

In a submission to Review Office dated July 12, 1999, the employer’s position on the matter was as follows:

“As a personal vehicle is required as part of Mr. [claimant’s] position with the [employer], he is covered for the purposes of compensation from the time he establishes contact with his vehicle until he arrives at his place of employment. Upon arriving at his place of employment and exiting his vehicle, his status reverts to that of a worker not requiring a vehicle for employment. Specifically, the occurrence of an accident prior to the commencement of the regularly scheduled work day would not be compensable unless it arose due to a hazard of the employer’ premises.

In Mr. [the claimant’s] case, he had exited his vehicle and was proceeding to his place of employment when he slipped on a public sidewalk. This is no different than if Mr. [the claimant] sustained his injury while walking down the driveway at his home. Likewise, the accident would not be seen as one arising out of and in the course of his employment as he had not established contact with his vehicle.”

On July 23, 1999, Review Office determined that the claimant’s injury on February 8, 1999, was caused by accident arising out of and in the course of employment and that the benefits were payable under the Workers Compensation Act (the Act) for the effects of this “personal injury”.

Review Office believed that the claimant was reasonably in the course of employment at the time of his accident on February 8th and that this accident indirectly resulted from the obligations of employment. It was noted by Review Office that the claimant was required to use his personal vehicle to do his job and that specific parking arrangements were not available. It was considered that parking on the street in the region of the employer’s office building and proceeding on public sidewalks to the actual building location were both reasonably connected to the claimant’s transit to or from the place of employment.

Review Office indicated there was no evidence to show that the claimant had deviated from a direct and reasonable route from his vehicle to his place of employment or that such deviation might have been for personal reasons unconnected to the employment function. On July 28, 1999, the employer’s representative appealed the decision and requested a non-oral file review. On November 16, 1999, a non-oral file review was held at the Appeal Commission.

Reasons

Chairperson MacNeil and Commissioner Finkel:

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

“Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections.”

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, “a chance event occasioned by a physical or natural cause; and includes

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease

and as a result of which a worker is injured.”

Review Office accepted the claim for the following reasons:

“Review Office considers that parking on the street in the region of the employer’s office building, and proceeding on public sidewalks to the actual building location, were both reasonably connected to the claimant’s transit to or from the place of employment.”

Review Office, in arriving at its decision, applied WCB policy 44.10.50.10, which states in part as follows:

“A worker is considered to be in the course of employment while in transit to and from the place of employment when the employer has direct control over the transportation when:

b) A vehicle is essential to the employment and the worker furnishes his/her own vehicle in order to fulfill those obligations of employment.”

There is no dispute that the claimant required the use of his personal vehicle for work and that the employer was paying him mileage. We do not, however, hold the view that policy 44.10.50.10 is applicable in this particular case simply because the claimant was not in transit in his vehicle at the time of his accident. It is also important to note that the claimant’s injury occurred when he slipped and fell on a public sidewalk which according to WCB policy 44.05.20 is specifically excluded as being part of an employer’s premises. “The employer’s premises does not include: The public or private land, buildings, roads or sidewalks used by the worker to travel to and from home and the employer’s premises.”

We find that the claimant’s accident did not arise out of and in the course of his employment. As such, the claim is, therefore, not acceptable and the employer’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner 

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of December, 1999

Commissioner's Dissent

The Workers Compensation Board has developed policy to assist in the adjudication of claims such as this. In this case policy # 44.05.20 General premises applies. The majority has chosen to cite part b which reads in part. “The employers premises does not include: i. The public or private land, buildings, roads or sidewalks used by the worker to travel to and from home and the employer’s premises.” to overturn the acceptance of the claim.

However parts c & d of this policy in the opinion of the minority also need to be considered. Section c reads:

When determining whether an accident was in the course of employment, the WCB will consider:

i. What activity the worker was engaged in when injured in order to determine the connection with the employment ( ie., did the injury result from a personal act, unrelated to the employment, or was there an employment connection).

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

iii. When the worker was engaged in the activity. This is also an important factor in determining whether the activity was “in the course of employment” (ie., did the activity occur at a time reasonably connected to the work shift).

And part d which reads:

Generally, a worker is in the course of the employment upon entering or departing the employers 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 duties for the purposes of the employers business.

The what, where and when are satisfied in that:

1. the worker was required to supply a vehicle in order to hold his job,

2. his parking on the street to attend to the office was condoned by the employer by virtue of the fact that while a vehicle was needed, no parking facilities were provided.

3. It is considered that the time of the injury is indeed related to the employment obligations.

It is the opinion of the minority that the worker was under the control of the employer at the time of the accident and but for the employment obligations on a balance of probabilities would not have suffered this injury. Therefore I would find the claim acceptable.

R. Frisken, Commissioner