The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on December 16, 2014 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 elbow injury that occurred on April 3, 2014 while walking into work. The worker indicated that the sidewalk was covered in snow/ice when she fell, landing onto her buttock and left elbow. The April 3, 2014 accident was reported to the employer on the same day.

On April 8, 2014, a WCB adjudicator noted to the file that the sidewalk where the worker fell was not the accident employer's property.

In a decision dated April 9, 2014, it was determined by the WCB that the worker's claim was not acceptable as the injury to her elbow occurred on property not owned by the employer and therefore she was not in the course of employment.

On May 14, 2014, the worker's union representative appealed the initial decision to Review Office on the following grounds:

• the worker parked her vehicle in the employer's parking lot and she had an employer-issued parking pass. The employer owned and maintained the lot.
• the only route from the employer's parking to the building where the worker worked was maintained by the employer.
• after the worker fell, she had contacted (maintenance department) to advise them the sidewalk was not cleared of snow and ice, creating hazardous conditions. The worker enquired at this time as to why the sidewalk had not yet been maintained by the employer and was advised the employer "did not want to pay overtime to do it."
• the worker was in the course of her employment when the accident occurred in accordance with WCB Policy 44.05.20, General Premises. The worker was entering the employer's premises just before her shift commenced and she used an accepted means of entering the employer's premises. This was in relation to performing activities for the purposes of the employer's business.

In a decision dated August 5, 2014, Review Office confirmed that the worker's claim was not acceptable. Review Office stated that Board Policy 44.05.20 regarding parking lots did not apply as the worker did not fall in the employer's parking lot.

Review Office found that the worker fell on the city's sidewalk. Review Office did not disagree that the worker likely used the only available route to get to the entrance of her workplace and she was attending work at a reasonable time in relation to her employment; however, it did not find that the location where the worker fell was owned and under the control or responsibility of the employer.

Review Office concluded that the worker fell on property not owned and controlled by her employer and that an accident had not been established. On August 25, 2014, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

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.

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 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 reads as follows:

Generally, a worker is in the course of the employment on 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.

Section 2 of 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.

Section 3 of the Policy provides as follows:

3. Travel Between Two Portions of the Employer's Premises

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.

The worker’s position:

The worker was assisted by a union representative at the hearing. It was submitted that the phrase "in the course of employment" is not limited to the actual tasks or exact hours of work. At the same time, it was acknowledged that workers compensation benefits were not intended to cover workers during travel between home and the workplace. The worker was not asking that she be covered during her commute to work prior to entering the employer's parking lot, however given that the worker was travelling from one part of the employer's premises to another, it was submitted that the worker ought to be covered by the legislation. This was even more so given that the sidewalk where the worker was injured was maintained on a regular and recurring basis by the employer. Despite the fact that the sidewalk was legally owned by the city, there was no question that the employer had a longstanding practice of maintaining the sidewalk. On the day in question, the employer had made a conscious decision not to maintain the sidewalk that day because it did not want to incur overtime charges. This resulted in a hazard which in turn directly resulted in the worker's injury. By virtue of the longstanding practice of maintenance, it was submitted that the employer should have responsibility for the sidewalk. While the worker was not specifically relying on the concept of a captive roadway, it was suggested that some of the principles regarding captive roadways applied, in that the sidewalk was the only way for workers to get from the employer parking lot to the buildings in which they worked.

Overall, the Policy set out a general approach for parking lots and stated that to be part of the employer's premises, the parking lot had to be owned, maintained, established or controlled by the employer. The Policy did not say that all of the elements had to be present. It was submitted that the sidewalk where the worker fell was very much in the control of the employer, and that they ought to have maintained it. While the sidewalk was neither owned nor established by the employer, it was certainly maintained and controlled by it, and in the circumstances, the worker ought to be covered. She was on the employer's property in the parking lot and had only one route to get from that piece of the employer's property to her work location. She took the most direct route that she could possibly have taken. The employer ought to bear some responsibility in its actions that day by choosing not to maintain that section of sidewalk. It was therefore submitted that the worker's claim should be acceptable.

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 order for the worker's appeal to be successful, the panel must find that the worker was on the employer's premises when she fell and injured her left elbow. On balance of probabilities, the panel is unable to make this finding.

As noted earlier, section 1(d) of the Policy provides that a worker is considered to be in the course of employment on entering or departing the employer's premises, at a time reasonably close to the beginning or end of work. In the present case, the worker suffered her injury at approximately 7:50 am when she was headed to her place of work for a shift that started at 8:00 am. The panel finds that the time of the accident was reasonably close to the beginning of her work.

The main question in this appeal is whether or not the worker should be considered to have been "on the employer's premises" when she fell. There is no question that if the worker was in the parking lot where her employer-assigned parking spot was located, she would be on the employer's premises. Similarly, if she had entered the building which was her place of work, she would also be considered to be on the employer's premises. The difficulty is that she was on a portion of city owned sidewalk between the two locations when she fell.

Section 3 of the Policy provides that when travelling on property between two portions of the employer's premises, a worker will not usually be "in the course of employment." Absent any other factors, it would appear that this section of the Policy would direct the result of this appeal.

The worker's union representative argued that the sidewalk should be considered to be the employer's premises on account of the fact that the employer had a longstanding practice of maintaining the sidewalk, and as such, the sidewalk was maintained and controlled by the employer. On further questioning at the hearing, however, it was determined that in fact, the accident employer did not assume responsibility for the sidewalk. The accident employer was merely a service provider which provided specialized services to a larger facility. The accident employer was not the entity which assumed responsibility for maintaining the sidewalk and the maintenance department who chose not to clear the sidewalk on the day in question was not part of the accident employer's corporate organization. In the circumstances, the panel finds that the union representative's arguments that the sidewalk was maintained and/or controlled by the employer cannot be sustained.

It therefore follows that section 3 of the Policy applies and we find that the worker was travelling between two portions of the employer's premises when she fell, and was not in the course of employment at the relevant time. We therefore find that the claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 12th day of February, 2015