The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on March 15, 2016 to consider the worker's appeal.

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 low back injury that occurred on November 12, 2006. The worker described the accident as follows:

I was on my way to work the night shift. I was walking on the sidewalk, just before the beginning of the driveway of the main entrance...I slipped and fell and I landed on my right knee and my left hand. I don't know how I jarred my back. This caused me to injure my lower back. I apparently moved a disc forward about one centimeter in my lower back.

The worker indicated that he reported the November 12 incident to his supervisor on December 1, 2006.

The Employer's Accident Report stated that the worker slipped on ice outside the employer's premises, fell forward, landed on his right knee and left hand, and jarred his back.

On December 22, 2006, the worker spoke with a WCB adjudicator, stating that he was on his way to work and was walking on the sidewalk just outside the front door. The sidewalk was just before the ramp outside the front doors. He believed that his fall was on the employer's premises. The worker said there were no witnesses and his knee and hand were now fine. The worker provided further details regarding his back symptoms and stated that he had been off work since November 26. The worker said he had no sick time left as he had had other medical problems.

In January 2007, the WCB adjudicator spoke with employer representatives regarding the exact location of the worker's slip and fall incident.

In a decision dated January 9, 2007, the worker was advised that the WCB could not accept responsibility for his claim based on information obtained from his employer that the sidewalk where he slipped was city property, and not the employer's property.

On February 13, 2007, the Worker Advisor Office requested reconsideration of the January 9, 2007 decision on the worker's behalf. The worker advisor provided pictures which showed the location of the fall and how it related to the employer's property. The worker advisor noted that the sidewalk where the worker fell was at the bottom of the ramp leading to the entrance of the employer's facility. The ramp was on the employer's property and the worker had to cross the sidewalk in order to get to the ramp. The maintenance staff had been observed cleaning and caring for the sidewalk at the bottom of the ramp. The worker advisor contended that based on the available information, the November 12, 2006 injury occurred as a result of crossing the sidewalk to get to the employer's premises.

On February 20, 2007, the WCB adjudicator upheld her decision that the claim for compensation was not acceptable. The adjudicator found that the sidewalk was on city property and the employer was not responsible for the maintenance of the sidewalk. Whether the employer had cleaned the sidewalk in the past was irrelevant. Even though the worker had to cross the sidewalk in order to get to the employer's premises, the fall did not occur on the employer's premises. The Worker Advisor Office appealed this decision to Review Office.

On October 23, 2007, Review Office considered the worker's appeal regarding the adjudicator's decision of February 20, 2007. Review Office noted that it was the worker's contention that his claim was acceptable, arguing that while his fall did not occur on his employer's premises, the employer had historically cleared the sidewalk in question of snow and ice. Based on its review of WCB Policy 44.05.20, General Premises, Review Office concluded that the worker's employer had no legal obligation to clear the city sidewalks outside their premises, but merely did so to allow easier access and egress to their property when the city had not yet cleared the sidewalk with their equipment. Any failure to keep the sidewalk clear of ice could not be considered a hazard of the employer's premises, and it was clear that the worker's accident occurred on city property prior to his being in the course of his employment on November 12, 2006.

On November 17, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's Board of Directors.

Subsections 1(1) ("accident") and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.05.20, General Premises, (the "Policy") focuses on the interpretation of the term "in the course of employment" as it applies to employer premises. The word "premises" is defined in Section 1.a of the Policy to mean:

…the entire geographic area developed by the employer in the industry in which the worker is employed. The employer's premises may be defined as the buildings, plant, or location in which the worker is reasonably entitled to be during the specific course of or incidental to the employment. Subject to the individual merits of each claim and specific exceptions noted in this policy, the employer's premises may include any land or buildings owned, leased, rented, controlled, or used (solely or shared) for the purposes of carrying out the employer's business.

Section 1.b goes on to provide that the employer's premises do 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."

Section 1.d of the Policy states:

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 5 of the Policy addresses the issue of "Captive Roads", and states as follows:

a. For the purposes of this policy, a "captive road" is one which may technically be a public road, but leads only to the premises of the particular employer and is for practical purposes under the control of the employer. Under these circumstances, the road is considered to be incidental to and part of the employer's premises.

b. A road may be considered a "captive road" if the employer makes decisions on repairs and/or maintains the condition of the road.

c. A determination as to whether a particular road is a "captive road" will not be based solely on whether the employer legally owns or controls the road. The real nature of the use of the road and its relationship to the employer's operation will be considered. For example, significant use of the road by the public and other employers for purposes not related to the employer's operation could result in a determination that the road is not a "captive road".

d. The occasional and incidental use of the road by the general public will not preclude determination of the road as a "captive road".

Worker's Position

The worker was represented at the hearing by a union representative, who made a submission on the worker's behalf. The worker participated in the hearing by teleconference. The worker and the worker's representative responded to questions from the panel.

The worker's position was that the claim was acceptable under the Policy. It was submitted that the facts of the claim did not appear to be in dispute. What was in dispute was the application of the Policy to the claim. In the worker's view, the Policy substantiated his claim for benefits.

It was submitted that the worker was entitled to be on the land and in the location incidental to his going to work. Referring to additional photographs which had been provided to the panel in advance of the hearing, the union representative indicated the spot where the worker fell. She stated, and the worker confirmed, that it was never in dispute that the worker was on the concrete sidewalk at the downward end of the asphalt ramp leading to or from the employer's facility. The union representative noted that at the time, the worker had turned and was committed to going up the ramp to the employer's premises, that he was not just walking down the sidewalk on a stroll but was committed to going to work. It was submitted that the location, as noted in the photographs and described in letters from the city and the employer, was controlled and used solely or primarily for the employer's business. In the worker's view, there was definitely an employer connection, as the worker had no other reason to be at that place at that time. The "what", "where" and "when" of the Policy were therefore satisfied.

The union representative submitted that Section 5 of the Policy dealing with "captive roads" was critical. It was submitted that while technically the spot where the worker fell was determined to be "public", it had been established that the employer had control over it. It had been documented that approximately 665 feet of the sidewalk from 2 to 4 feet south from the ramp were cleaned by the employer. In the worker's submission, it was not necessary that the employer have a legal obligation to clear the sidewalks outside their premises, as the road existed for the express purpose of accessing facilities owned by the employer. If the odd person was to use the road to take a stroll or walk their dog, this did not detract from the fact that there was no significant use that was unrelated to the employer's business.

It was submitted that Section 7 of the Policy, dealing with "personal hazards," was also relevant. In the worker's view, arriving at work was definitely incidental to, and causally related to, the employment. He was injured as a result of a hazard of the premises, under the control of the employer, and at no time did he break the employment connection.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is claim acceptability. The worker is seeking compensation for an injury that occurred while he was on his way to work. For the worker's appeal to be successful, the panel must find that the worker sustained an injury arising out of and in the course of his employment. The panel is unable to make that finding.

As previously stated, the worker did not dispute that he fell on the concrete sidewalk in front of the employer's premises, while on his way to work. He also acknowledged that "technically this was public land." When he fell, the worker had therefore not yet arrived at the workplace or "entered … the employer's premises" as contemplated under the Policy.

In advancing the worker's claim, the union representative relied heavily on the captive road provisions of the Policy. Based on our review of the evidence, the panel is unable to accept that the street or the sidewalk where the worker fell qualifies as a captive road under the Policy.

In this respect, the panel carefully questioned the worker regarding the geography and nature of the street. The worker's evidence was that this was a relatively short two-lane street running north-south, and part of a grid area of city streets. The street runs both ways past the employer's facility and two other facilities owned by the employer, one of which had not been built at the time of the accident, but the property was nevertheless owned by the employer. The employer's facilities are all on the west side of the street. Also on the west side of the street, at the north end, are 5 or 6 residential houses. Then there is a stop sign where you have to turn right or left onto a residential street running east-west. On the east side of the street, across from the employer's facility, there is a public clinic and pharmacy. There are also intersecting streets on the east side of the street which run east for three blocks to Main Street. Main Street is primarily commercial, and in between Main Street and the street where the employer's facilities are located is residential. In the panel's view, the evidence shows that the street and sidewalk did not lead only to the employer's premises. This was a through street, which would be used more than just occasionally or incidentally by the general public for purposes unrelated to the employer's business. As such, the panel finds that the worker was not injured on a captive road as defined by the Policy.

The worker also contended that the City and the employer had made it very clear to him that the employer had the care and control of, and had assumed responsibility for, that portion of the sidewalk. In the panel's view, the evidence does not support that assertion. The panel notes that both the letter from the City dated May 25, 2007 and the letter from the employer dated October 11, 2007 refer to the sidewalk as city property. The letter from the City states that the employer "clears snow from the ramp and the sidewalk all the way to the street line" and that the "City also clears the sidewalk with its cleaning equipment but normally the sidewalk at the end of the ramp is cleared by the [employer] before the City clears the sidewalk." The letter from the employer indicates that the employer would first focus on its property, including the parking lot, walkways, ramps and entranceways, and only after that would it clean the City's sidewalk. The panel is satisfied that the fact that the employer would clear the sidewalk in front of its premises before the City arrived with its equipment and cleared the sidewalk, does not mean that the employer had control of or maintained the condition of the sidewalk within the meaning of the Policy. The panel further finds that the worker was not injured on the employer's premises, as defined in the Policy, and as such, the worker was not yet in the course of employment at the time of his injury. In particular, the panel notes and applies Section 1.b of the Policy which specifically indicates that employer premises do not include "public…sidewalks used by the worker to travel to and from home and the employer's premises."

It was further suggested at the hearing that the worker was far enough forward when he fell that his hand at least would have to have landed on the asphalt driveway and therefore the employer's premises. The panel notes that the issue is where the worker was when he fell, not where he landed, and whether the worker's hand or any other part of his body may have landed on the employer's property is not relevant to the determination of the issue in this case.

In conclusion, the panel finds that the worker was not in the course of employment at the time of his November 12, 2006 injury, which is one of the required elements under the Act to establish an accident. The claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 11th day of May, 2016