The Appeal CommissionThe Workers Compensation Act of Manitoba

This case deals with a worker who injured himself on a sidewalk, while walking from his workplace to his car which was parked in an employer-owned parking lot. The issue before the panel is whether the worker’s claim is acceptable.

Applicable Legislation:

In making this determination, 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 has also passed WCB Policy No. 40.05.20, General Premises, which provides further guidance on what qualifies as an “accident”. It states, in part,

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, and the policy then sets out how far this extension might go.

The Policy sets out a general approach for parking lots and other areas that are not formally a part of the workplace environment. The policy states, in part:

1(b): 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.

· Private parking arrangements made by the worker (ie., independent of the employer).

2(a): A parking lot is considered to be part of the employer’s premises where it is owned, maintained, established, or controlled by the employer.

3. In going to and from work, a worker will not usually be "in the course of employment" when travelling on property between two portions of the employer's premises.

Section 7 of the policy, entitled “Personal Hazards” also distinguishes between activities incidental to the employment while on the premises (would qualify as an accident) and injuries resulting from personal causes (would not qualify as an accident).

The worker’s position:

The worker provided a submission to the panel, and was also assisted in his appeal by a worker advisor, who provided a written submission to the panel on the worker’s behalf. They argue that the General Premises policy is broad enough to cover not only the employer-owned parking lot in which the worker had parked his vehicle, but the area adjacent to it as well, including the public sidewalk near the parking lot. They note that the worker was walking directly from his workplace to the parking lot, and this kept him in the course of his employment. The submission was accompanied by a series of drawings illustrating the relative locations of the workplace, the public street, the public sidewalk (marked with the worker’s location at the time of injury), the employer’s parking lot, and the worker’s car.

The employer’s position:

The employer was assisted by an advocate, who provided a written submission to the panel on the employer’s behalf. She argues that the specific location where the worker fell and injured himself was on a city sidewalk close to a major street. He did not fall while in the employer-owned parking lot. The advocate notes that the General Premises policy only applies to employer-owned property, and that there is a specific provision in the policy stating that injuries occurring on public property on the way to or from work are not considered to be an accident under the Act. She also disputed the worker’s position that the boundaries of the employer’s premises could be extended to nearby public areas.

The advocate further notes that the worker’s job duties did not require him to have a vehicle, and that the worker was simply leaving work to go home when the accident on public property happened. The decision to use a car to travel to and from work was a personal matter, and not related to his employment. 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 in late March qualifies as an accident arising out of and in the course of employment, under the Act. After our review of the Act and relevant policies, we find on a balance of probabilities that the worker’s injury did not meet the criteria to qualify as a work-related accident under the Act and policies, and we deny the appeal. In reaching this conclusion, we rely on the following findings:

• The evidence from all parties is that the worker’s slip and fall occurred on a public sidewalk, belonging to the city.
• The worker had completed his work shift and had left the employer’s work premises. He was on his way to the employer-owned and operated parking lot, but had not reached it when he slipped on the public sidewalk and injured himself.
• The worker did not require his vehicle for work purposes.

The panel notes that the Act and policies make it clear that a worker does not have to be at his or her workstation for there to be a workplace accident, or more specifically for the accident to arise out of the employment. This general understanding is reflected in the General Premises policy, which suggests that a broader view can be taken in defining what is incidental to the employment. This policy, in particular, extends workplace coverage to workers entering or leaving the workplace and even to employer-owned parking lots, under certain circumstances. This is not, however, a blanket extension of coverage; the wording of the policy does not extend to travel from home to the parking lot, for example, and provides different rules for injuries incurred during travel in multi-use buildings, shared common areas, and malls, and clearly contemplates the distinctions between “public” and “employer-controlled” premises, as being an essential factor in deciding whether there is a compensable accident.

While the worker’s position is that the panel can and should extend the definition of an employer-controlled parking lot to include the adjacent public sidewalk, the panel is unable to do so in this case. The wording of subsection 3 of the General Premises policy clearly contemplates situations where a worker may be traveling between two different premises owned by the employer, with the general rule that an injury occurring in those circumstances will not be covered. Subsection 1(b) of the policy likewise excludes public roads and sidewalks used by the worker while traveling to and from work. The panel finds that the wording of these two sections applies directly to the situation at hand; the worker’s injuries occurred after leaving his workplace at the end of the workday, and while he was on public property, and before he had reached the second employer’s premises, the parking lot.

Under the wording of this policy, the panel finds that the worker has not, on a balance of probabilities, met the definition of an accident.

The panel therefore finds that the claim is not acceptable. The worker’s appeal is dismissed.