The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

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

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 her 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.

Section 1.d of the Policy provides as follows:

d. 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 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 most relevant of these questions is (iii) which asks: "Was the injury the result of a hazard of the premises? The issue is whether the injury results from the employment versus a personal cause."

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 employer’s position:

An advocate appeared on behalf of the employer at the hearing. It was submitted that the worker's injury did not arise out of and in the course of her employment. By entering the parking lot through a gap in the fences rather than either of the two approved stairways, the worker broke the employment connection. The employer had a long-established injury reporting procedure and on the day of the accident, the worker's supervisor sat down with her to obtain a description of the incident and to identify corrective action to prevent a recurrence from happening. It was evident in the incident tracker that the worker indicated she was exiting the private parking lot and entering the employer's lot when she stepped down and lost her footing. This was at a time when the events were fresh in her mind. The supervisor maintained that she was told by the worker that the cause of the fall was the transition between the two parking lots, and this was consistent with the corrective actions identified in the incident tracker which stated: "(worker) will use the stairs or ramp provided on the other side of the parking lot to exit the … parking lot." It was the employer's position that not every accident that occurs at work is compensable. It was the worker's choice to walk through the gap in the two fences, which was clearly hazardous. There was a jagged drop in elevation, yet the worker chose to use this opening rather than using either of the other two safe, accepted means of entering the employer's lot.

In the event that it is found that the fall did not occur while transitioning the lots, the employer advocate maintained that the claim was still not acceptable as there was no hazard identified which gave rise to the worker's injury. The road area was level and free of obstacles and there was no hazard which caused the worker to sustain injury. Simply walking on a sidewalk was not out of the ordinary.

It was therefore submitted that the worker's claim should not be accepted.

The worker’s position:

The worker attended the hearing accompanied by a union representative. It was submitted that the WCB correctly decided that the worker's claim was a just one and ought to be allowed. The evidence showed that the worker sustained an accident arising out of and in the course of her employment. She was arriving at a reasonable time which was ten minutes before the start of her shift. The location where the worker fell was in the middle of the driveway in the parking lot which was fully within the employer's premises. She did not fall in the gap in the fences as she had already crossed over. WCB Policy 44.50.20 was applicable and it did cover the worker. In the circumstances, it was submitted that the worker sustained an accident at work and that her claim was acceptable.

Analysis:

The issue before the panel in this appeal is whether the worker's claim is acceptable. In order for the employer's appeal to succeed, the panel must find that the injury did not arise out of or in the course of employment.

The employer's initial position presented to the WCB and to this panel was that the worker's injury did not arise out of and in the course of her employment, but rather was due to personal actions beyond the control of the employer. This position was based on the assumption that the worker's fall was caused by her losing her footing while stepping down as she was crossing from one parking lot to another. It was submitted that by entering the parking lot through the narrow gap in the fence rather than by using one of the two approved stairways (ie. the accepted means of entering and leaving the employer's premises), the worker broke the employment connection.

At the hearing, the worker's evidence was that the location where she fell was not at the transition between the two lots but rather was approximately 7 or 8 steps away from the break in the fences. She stated that she had come through the transition and had stepped down. She was already walking when she fell down and she fell in the middle of the roadway where the cars drove. She recalled feeling scared that she was in the line of traffic and that she would get hit by a car. The worker estimated that this would be approximately a full car length from the fence.

When asked why the incident tracker report identified the location of the accident as being the crossover and corrective action as using the steps, the worker was not able to explain why that information was inserted. She did indicate, however, that she was not the author of the report and she did not read through the report before it was signed. The worker felt that she must have just been following the supervisor's suggestion.

On a balance of probabilities, the panel accepts the worker's evidence regarding the specific location of her fall and we therefore find that the accident occurred approximately 20 feet away from the gap in the fence and well within the boundary of the employer's premises. We further find that the gap was not causative of nor did it contribute to the worker's fall. In view of this finding of fact, the argument that the employment connection was broken by the personal decision of the worker to use a non-approved means of entry onto the employer's premises is of little weight. The employer advocate essentially admitted this at the hearing, but then stressed her secondary argument.