The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The issue before the panel is whether the worker’s claim is acceptable. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The key issue to be determined by the panel is the interpretation of the phrase “arising out of and in the course of employment” and whether the worker’s personal injury was caused by an accident which both arose “out of the employment” and “in the course of his employment.”

WCB Policy 44.05.20 – General Premises (the “Policy”) focuses on interpretation of the term “in the course of employment” as it applies to employer premises. The Policy sets out a general approach for parking lots and states that: “a parking lot is considered to be part of the employer’s premises where it is owned, maintained, established, or controlled by the employer.” The Policy then sets out a number of questions to be considered in deciding whether an injury on a parking lot arose out of and in the course of employment.

The Policy also addresses the issue of “Personal Hazards” and provides as follows

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 worker’s position:

The worker was self-represented at the hearing. His submission was that he had been offered a parking spot in the employer parking lot by a supervisor. His job duties included patrolling the area where his vehicle was parked. It was during his shift that he went outside of his employer’s building to patrol the area, and to move his vehicle at the same time. As it was during work hours and he was also performing a patrol, the worker submitted that his claim for compensation for his injury should be accepted.

The employer’s position:

An advocate and a representative from the employer were present at the hearing. The submission on behalf of the employer was that the information provided by the worker has varied over time. The most credible and accurate version is that which was provided in the worker’s handwritten worker accident report of January 24, 2008 which stated that the worker was going to move his vehicle off the street into the employer’s premises and while doing so he slipped on ice. It was submitted that there was no need to move his vehicle in the course of his employment and that even though he was injured during work time it was while he was attending to a personal matter. As the injury was not related to any of the worker’s job requirements, the claim should not be accepted by the WCB.

Analysis:

The question for the panel in this appeal is whether the worker’s slip and fall was an accident arising out of and in the course of employment. In our opinion, the issue may be decided with reference to the section of the Policy which deals with “Personal Hazards.” As outlined above, the Policy states that in order to be compensable, the injury must arise from an activity related to the employment. A distinction is made between an injury resulting from a personal cause and one resulting from employment.

In the present case, there is some dispute as to whether or not the worker was performing exterior patrol duties at the time of the accident and also whether or not the side street where he slipped formed part of the area he was required to monitor. At the hearing, the worker made a diagram of the walking route that he took when he was outside of the building. His evidence was that he exited from the rear of the building, then walked through the employer’s parking lot, down a back lane, then up the sidewalk on the side street where he was parked. After he reached the main street, he turned around and doubled back down the side street, only this time he walked on the street rather than the sidewalk. The reason he walked on the street was so that he could get into his car and drive it into the employer’s parking lot.