Decision #10/13 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that her left ankle injury did not arise out of and in the course of her employment. A hearing was held on December 18, 2012 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left ankle injury that occurred on November 8, 2008 when she slipped on ice while walking across a car park to her car. The claim for compensation was accepted by the WCB as it was determined that the area where the worker slipped was in front of an area that was leased by her employer.

In February 2009, the employer contacted the WCB to advise that the worker fell in a common area and that her claim for compensation should not have been accepted. This led to a further investigation by primary adjudication whereby a WCB case manager attended the work site to see the area where the worker slipped. In a memo to file dated May 21, 2009, the WCB case manager stated:

"…We exited from the side of the building…worker fell in front of [area] door, she pinpointed the location, also provided that this is not [the employer's] property but in fact [government property]. Worker does not have an assigned parking spot but a location of where to park. This was on the way to her parked vehicle but was not under the direct control of the employer. I informed worker that it appears that her claim is not acceptable after all as it is not in the course of her employment. The injury occurred at the end of her work day.

Worker informed that she never told the WCB that it occurred on [employer's] property, she also stated that when she informed me that she did not realize she had a compensation claim and then telephoned to inform that she in fact did have a work place injury that she just thought it would go under [Landlord name] and not [employer] for a WCB claim. I explained to worker that [Landlord name] is not her employer and that the hazard has to be under the direct control of the employer."

On July 17, 2009, the worker advised the WCB that she was on call 24 hours a day and asked whether this would be considered "in the course of her employment."

On July 31, 2009, the worker was advised that the WCB was unable to accept responsibility for her claim. It was the case manager's decision that the worker was leaving the job site for the day when her injury occurred and that her being on call did not have any bearing on the acceptability of her claim. In the case manager's opinion, the worker's injury did not result from an accident which occurred on the employer's premises. On May 2, 2012, the worker appealed the decision to Review Office.

Following contact with the worker and her employer for additional information, Review Office determined on July 6, 2012 that the worker's claim was not acceptable. Review Office referred to WCB Policy 44.05.20, General Premises, in its decision. Review Office noted that the worker's slip and fall occurred on public land and that the worker was not required to use her vehicle for work purposes. Review Office's opinion was that the worker's fall was not caused by an "event arising out of, and in the course of, employment." Review Office was of the opinion that the "General Approach for Parking Lots" as outlined in the policy was not applicable to this case. "Even though the employer has assigned an area in the parking lot for their employees to use (which may be considered controlling the worker by establishing certain parking arrangements), the worker's fall did not occur in the parking lot." In September 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

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. 44.05.20, 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.

Subsection 2(a) 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. On the other hand, a parking lot or space is also considered to be part of the employer's premises when the workers are allocated parking spaces by the employer or when parking privileges with specific assignments are granted by the employer.

Subsection 3 provides that 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.

Worker's Position

The worker attended the hearing and explained her reasons for appeal. The worker does not dispute the determination that she was not in the course of her employment at the time of the injury. She advised that because of other actions she has taken, she must obtain a final ruling from the Appeal Commission on the issue.

She described the accident and specifically the location where she fell and was injured. She said that she fell on a roadway between the building in which her workplace was situated and the parking lot where she parked her vehicle. She said that the roadway was used by other persons working at the facility and also by members of the public. The roadway provided access to another business on the property and formed a loop around the parking lot where she parked. The worker said that her parking space is assigned to her and is paid for by her employer.

Employer's Position

The employer was represented by its vice-president of human resources. The employer representative outlined the employer's position and answered questions from the panel.

The employer representative advised that the employer is not responsible for the roadway and does not maintain the roadway. She said that the employer leases several parking spaces surrounding the building in nearby parking lots for the use of its employees. It does not maintain the parking lots.

Analysis

The issue before the panel is whether the worker's accident is acceptable. In other words, does the worker's slip and fall qualify as an accident that arose out of and in the course of her employment. The panel has reviewed the Act and relevant policy and finds that the claim is not acceptable.

In making this decision the panel relies upon the following facts:

  • The worker completed her duties at the end of the work day.
  • She exited her workplace which was on premises leased and used by her employer and she was walking to her parking stall.
  • The parking stall was leased by her employer and assigned for her use.
  • She took a direct route from the workplace to the parking lot.
  • The roadway was covered with ice and snow.
  • She slipped on ice and snow on the roadway.
  • The roadway separated the building which housed her workplace from the parking lot where her assigned stall was located.
  • The roadway was used by and accessible to the public.
  • The employer had no control over the maintenance of the roadway.

The panel finds that the General Premises policy is applicable to this appeal. The policy purpose notes that "No hard and fast rules can be maintained when considering the broad issue of "arising out of and in the course of employment." This policy only deals with the determination of the "employer premises" regarding accidents that occur during the course of going to and from work. The policy provides that going to and from work is covered on the employer's premises. The policy serves as a framework for claims when the premises issue must be addressed.

In this case, the worker's slip and fall occurred on a roadway, which was accessible to and used by the public, and located between the workplace and the parking lot. The panel finds that the roadway is not "employer premises" for the purposes of the policy but rather "a common area." Subsection 3 of the policy deals with situations where a worker may be travelling between two different premises owned or controlled by the employer. It provides that "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.”

While it is possible that the parking lot that the worker was walking towards meets the definition of employer premises, the panel finds that the accident did not occur inside the parking lot. The evidence is that the accident occurred while the worker was on the roadway which, based upon the facts before the panel, was not employer premises, and accordingly a slip and fall on the roadway is not a slip and fall on "employer premises."

Given the above, the panel finds that the worker's injury did not arise out of or in the course of her employment and that her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 17th day of January, 2013

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