The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with acceptance of the worker’s claim for an injury that occurred on the employer’s parking lot.

On December 6, 2006, the worker injured her back while plugging in her car block heater on the employer’s parking lot, shortly before she was to start her shift. The claim was denied by the Workers Compensation Board (WCB) on the basis that the accident did not arise out of and in the course of the worker’s employment. The decision to deny the claim was upheld by Review Office on March 27, 2007. Its position on the matter was that the worker was involved in a personal act when she was plugging in her own vehicle and that it had no relationship to her employment. The worker disagreed with Review Office’s position and appealed to the Appeal Commission. On June 20, 2007 a hearing was held to consider the appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On December 6, 2006, the worker claimed that she felt a pull in her lumbar region when she turned to her left and bent down to plug in her car in the employer’s parking lot.

In a decision dated January 2, 2007, the worker was advised that her claim for compensation was denied on the grounds that “…there was no hazard of your employer’s parking lot which caused the injury. Therefore, it is the opinion of the Workers Compensation Board that the evidence does not support that your lower back injury occurred arising ‘out of an (sic) in the course of’ your employment.”

The above decision was appealed by the worker’s union representative to Review Office in March 2007. The union representative noted that the worker was going into work when she suffered a back injury while plugging in her car in the employer’s parking lot. In order to plug in the car, the worker had to put one foot on a small pile of snow and bent down and turned to her left. When she did this she felt an immediate pull in her back and had difficulty trying to straighten up. The union representative submitted that based on WCB policies governing accidents that occur on company parking lots, it was clear that the accident on December 6, 2006 met the test for compensability.

On March 27, 2007, Review Office confirmed the adjudicator’s decision to deny the claim. Review Office took note of the initial medical report on file which indicated that the worker reported to the chiropractor that she was injured while bending over to plug in her vehicle when she sneezed and felt a grab in her low back. The sneezing incident was never mentioned to the WCB by the worker when she was reporting her condition to WCB staff. After considering WCB policy 44.05.20, Review Office ultimately determined that the worker was involved in a personal act when she was plugging in her own vehicle and that her sneeze likely played a significant role in her low back strain and that this scenario had no relationship to her employment. On April 4, 2007, the union representative appealed Review Office’s decision and a hearing was arranged.

Reasons

Chairperson Scramstad and Commissioner Finkel:

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the Act), regulations and policies of the Board of Directors.

For the worker's claim to be accepted the worker must have had an accident as provided in subsection 1(1) of the Act and the accident must have arisen out of and in the course of employment as provided in subsection 4(1) of the Act.

The Board of Directors of the WCB made WCB Policy No. 44.05.20, General Premises, which states that “ "In the course of employment" is not limited to the actual tasks or exact hours of work.” The policy purpose also states that going to and from work is covered while on the employer premises. Subsection 2(a) of the policy provides further that a parking lot is part of the employer’s premises where it is owned, maintained, established, or controlled by the employer. Therefore, a worker who has not started work may be covered for certain accidents that occur on the employer’s parking lot.

Worker’s Position and Evidence at the Hearing

The worker attended the hearing with her union representative who made a submission on her behalf. The worker answered questions posed by her representative and the panel.

The worker described the accident. She advised that she had plugged the end of an extension cord into the electrical outlet and then went to plug the block heater into the cord. She stated that as she turned to plug the car in, she pulled her back. She advised there was some snow on the ground in front of the vehicle and that she had to step up on to the snow to plug the car in.

The worker advised that she attended at the employer’s nursing station and was seen by a chiropractor retained by the employer. She was sent home for the balance of the day, missed some additional time for which she was paid and was given modified duties on subsequent shifts. The worker advised that the nurse at the nursing station eventually advised her to apply for WCB benefits because the injury was taking longer to heal.

The worker’s representative noted that Review Office attributed the injury, in part, to the worker sneezing when she was plugging in the car. This was based upon a report by the chiropractor. The representative noted that the chiropractor provided a clarification of his report and referred to his clinical notes which stated “Bending to plug in car felt grab (pain) in low back; sneezing caused pain.” The chiropractor advised that he did not believe that the sneeze was the primary mechanism of injury. The worker’s representative submitted that a sneeze did not cause the injury.

The worker’s representative referred to a general information document referenced as WCB Policy No. 44.05, Arising Out of and In the Course of Employment and to WCB Policy No. 44.05.20, General Premises. He noted that the general information provided by WCB Policy No. 44.05 states that while workers are on the employer’s premises they are subject to environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment.

The worker’s representative reviewed WCB Policy No. 44.05.20. He noted that the policy lists criteria for determining compensability for accidents occurring on employer’s premises. The worker’s representative submitted that a key argument is whether the injury was the result of a hazard of the premises or from a personal hazard. He noted that personal hazard is described as an activity that is so remote from normal employment functions that the activity and the resulting injury cannot be characterized as reasonably incidental to the employment.

The worker’s representative submitted that “…parking a car in an employer’s parking lot on the way to work is, in fact, incidental to employment and, in particular, the fact of needing to plug in your car is certainly incidental to employment in the Winnipeg winter.” He stated that it would be unreasonable to conclude that plugging your car in on the way into work is so remote from employment that it breaks the employment connection.

The representative submitted that the worker’s injury was caused by twisting and standing on a pile of snow while plugging in her car and is acceptable in accordance with WCB Policy and the Act.

Employer’s Position and Evidence

The employer was represented by an advocate and its health and safety manager. The advocate made a submission on behalf of the employer. The manager answered questions posed by the panel.

The manager confirmed that the parking lot upon which the accident occurred is owned by the employer and provided for use by staff. He also confirmed that electric plugs are also provided.

The advocate submitted that neither the presence of a small bank of snow nor the location of the electrical outlets is an environmental hazard or a hazard of the premises. In support of this position she noted the memo from WCB staff regarding a telephone conversation with the worker which stated “Spoke to worker, she said there was nothing in the parking lot which caused to bend awkwardly or that was in the way while plugging in the car.”

The advocate advised that driving her personal car to work and having a car available during the workday is not an expectation of the worker’s employment. She submitted that the worker was performing a personal act when she was plugging in her car.

Analysis

The issue before the panel was whether the worker’s claim is acceptable. For the appeal to be successful the panel must find that the accident, which gave rise to her injuries, arose out of and in the course of her employment. The majority did not make this determination.

The majority’s review of the relevant legislation and WCB policies, lead it to conclude that there are two “competing” themes with respect to whether an accident has arisen out of and in the course of employment.

On the one hand, the Act and policies make it clear that a worker does not have to be at his or her work station for there to be a workplace accident, or more specifically for the accident to arise out of the employment, and can include activities or circumstances incidental to the employment. The General Premises policy makes it clear that a broader view can be taken in defining what is incidental to the employment, and in particular, it extends workplace coverage to workers entering or leaving the workplace, and expands the concept of “premises” to include accidents in parking lots, under certain circumstances.

On the other hand, a worker driving to and from work in their own vehicle and where there is no requirement for that vehicle in the conduct of their job duties will not be covered for injuries incidental to their travels to and from the workplace. As such, it is generally accepted that although travel to and from work is a mandatory feature of the work day, it is nonetheless not considered to be “incidental to the employment,” under the Act. Thus this type of injury would not be found to arise out of the employment (one of the necessary legal requirements for an accident under the Act) and would not qualify as an accident under the Act.

Parking lots present an interesting challenge, as they are the nexus or cross-over point between the worker’s travels to and from the workplace (not covered) and the worker’s entrances and exits from the workplace (covered). The policy with respect to parking lots requires that each case must be determined on its own merits to determine whether the specific circumstances of the injury were indeed incidental to the employment.

A consideration of the policy confirms that it is not intended that all incidents on an employer’s parking lot will be covered. Section 2(b) of the policy provides a list of five questions to be answered in determining whether an injury on a parking lot arose out of and in the course of employment. Four of the questions ( i., ii., iv., and v.) are easily answered on the facts of this case and support acceptance of the claim. However, the answer to question iii. suggests that the claim is not acceptable. It asks “was the injury the result of a hazard of the premises? The issue to be determined is whether the injury results from the employment versus a personal cause.”

Section 7 of the policy provides guidance in answering this question. It provides:

7. Personal Hazards:

a. In order to be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (ie., is connected in a causal sense).

b. The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

i. The injury was the result of a personal action by the worker and was not caused by:

* a hazard of the premises; or,

* an occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.”

The facts of this case are that the worker had driven to work just prior to the commencement of her work shift. She was plugging in her car block heater on her employer’s parking lot on a winter day, and was leaning or twisting to plug an extension cord into her car’s block heater plug when she was injured. The majority finds that this act was not incidental to her entering or leaving the employer’s premises, such as might be the case if she had slipped while getting out of her car, or on ice while walking toward the employer’s building. Rather, the act of plugging in her car was incidental to her use of her car to travel to work and was in fact a task directly associated with the maintenance of her car. This particular act was in no way connected or incidental to the worker’s job duties on a production line, and the majority finds that the mechanism of injury was, in the words of Section 7 of the policy cited above, so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. As such, the majority find that that the worker’s injuries were not incidental to her employment, and that one of the legal tests for there to be a workplace accident - an act arising out of the employment - has not been met. The majority therefore find the worker’s claim is not acceptable.

Finally, the majority notes that the worker’s representative had argued that the pile of snow in front of the vehicle was a hazard of the premises which contributed to the worker’s injury. Given the description of the accident by the worker and the worker’s initial statement that there was nothing on the parking lot which caused her to bend awkwardly, the majority does not find the pile of snow to be a hazard that contributed to the worker’s injury.

The worker’s appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 18th day of July, 2007

Commissioner's Dissent

Commissioner Malazdrewich’s dissent:

With respect, I cannot accept the conclusion reached by the majority. I reject the notion that the worker’s plugging in of her car is associated merely with the maintenance of her car and is therefore not incidental to employment.

In this case, the worker drove to the employer’s worksite, parked her car (just prior to the start of her shift) in a lot provided by the employer, and sustained an injury while plugging in her car (plug-ins provided by the employer).

I have no difficulty concluding that these actions by the worker at the time of her injury were incidental to her employment and fall within the application of the policy.

In regard to the pile of snow in front of her vehicle, I place significantly more weight on the worker’s testimony at the hearing than on the file notes wherein a case manager quotes the worker as stating nothing in the parking lot caused her to bend awkwardly.

At the hearing, the worker’s un-contradicted testimony was that she stepped up on a small snow bank and at the same time bent over to plug in her car, immediately injuring her back.

I would have allowed the appeal.

B. Malazdrewich, Commissioner