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 was not acceptable. A hearing was held on November 8, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

The worker filed a claim with the WCB when she slipped and fell on her way into work on April 26, 2016, resulting in a fractured left ankle. The worker stated:

I was on my way into work and slipped on stairs, I fell down two or three stairs. There were about two-three people there and they took me right to the hospital.

The employer noted on April 27, 2016 that:

…discussion with WPS&H Committee members investigating this incident reveled (sic) that the maintenance dept at [location] had pressure washed the upper level of the parking parkade. This water was on the parking lot that the employee would have walked across (shoes wet) as well as draining a small amount of water over the upper stairs, causing a slipping hazard. The treads on the stairs are made of the old type of linoleum which does have the capacity to be slippery when wet.

On April 28, 2016, the employer's representative advised the WCB of the following:

…was injured due to a slip and fall accident at a property not owned by [employer]. [Employer rents] this facility and [does] not have responsibility for upkeep/maintenance of the lot, nor do they have any responsibility for ensuring its safety for pedestrians using the lot.

On May 4, 2016, the WCB determined that the claim was not acceptable. In making this decision, the WCB advised the worker that:

The term "In the course of employment" refers to an injury which occurs within the time of employment, at a location where the worker may reasonable (sic) be, and while performing work duties or an activity incidental to employment.

As you were not on property controlled by your employer when the injury occurred, it is the opinion of Compensation Services that you were not in the course of your employment. Therefore Compensation Services will not be responsible for any wage loss, medical expenses, and physiotherapy or chiropractic treatments with respect to your injury.

The WCB was asked to reconsider the decision to deny the claim based on the submission of further information. Following its review of the further information, the WCB determined there would be no change to the earlier decision.

In February 2017, the worker's union representative submitted an appeal to Review Office. The employer's representative provided a response to the union's submission on April 10, 2017, and on May 2, 2017, the union representative responded to the employer's submission.

On May 5, 2017, Review Office confirmed that the claim was not acceptable. Review Office found that the worker was not under the care and control of her employer or "in the course of" her employment at the time of her fall. It also determined that the circumstances were not arising out of the worker's employment, as the worker was not doing anything at the time that could reasonably be determined to be an element of her job duties. Review Office was unable to conclude there was a hazard attributable to the worker's employment or under the control of her employer, as the site of the fall was owned by a third party, was subject to public use and the employer had no part in its care and maintenance. Review Office concluded that the worker was injured on her way to work rather than while at work.

On May 26, 2017, the worker 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) 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 a personal injury by accident arising 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") addresses the interpretation of the phrase "in the course of employment" as it applies to employer premises. The Purpose of the Policy is stated, in part, as follows:

"Arising out of the employment" is mostly concerned with whether the activity giving rise to the injury is causally connected to the employment. "In the course of employment" refers to an injury which occurs within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment. Put simply, "arising out of the employment" generally refers to what caused the injury. "In the course of employment" generally relates to "in the doing of".

This policy focuses on "in the course of employment" and specific sub-topics which fall under "employer premises". This policy only deals with the determination of the "employer premises" regarding accidents that occur during the course of going to and from work…

"In the course of employment" is not limited to the actual tasks or exact hours of work. At the same time, it is generally agreed that workers compensation was not intended to cover the worker during travel between home and the workplace. Between these two extremes, a balanced principle on the subject of going to and from work has developed in the workers compensation arena. Namely, going to and from work is covered on the employer's premises. (Italics in original)

Section 1.b of the Policy provides 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 4 of the Policy addresses the subject of "Multi-Story Buildings/Shopping Malls", and reads, in part, as follows:

Shopping Malls:

a. A worker is not covered while in the common areas of a shopping mall shared by workers and the public unless the entire area is owned and/or maintained by the employer. The worker is considered to be in the course of the employment on entering the particular premises assigned to the employer.

b. A worker is not normally considered in the course of the employment while in shared areas wholly used by the general public which are in no way controlled by the employer. The determination is based upon whether the worker is subject to an increased quantity of risk (i.e., more than the general public).

Worker's Position

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

The worker's position was that she was in the course of her employment when she was injured on April 26, 2016, and her claim should be accepted.

The worker's representative acknowledged that the employer does not own the building where its premises are located. The representative noted, however, that the General Premises Policy speaks to the "connection with the employment," as a factor in determining if an accident was in the course of employment. It was submitted that the worker would not have been in the building and would not have been injured if she had not been called in to work to cover for a sick co-worker that day. The specific connection with the worker's employment was that she attended this location for work that morning. It was noted that there is no separate entrance to the employer's premises, and the worker had to use the entrance and staircase to get to the employer's premises and work.

The representative further suggested that the worker started work when she received the call at home at 7:00 a.m. asking her to cover a sick call for an 8:00 a.m. shift that day. She had to make numerous calls before she could take the shift, as she was already scheduled to work an evening shift at a different location and would therefore be working a double shift. The worker stated that it was standard for co-workers to contact each other directly to cover sick calls. It was submitted that this situation was different, however, as the double shift had to be authorized and the area manager was unavailable. Therefore the worker had to spend approximately 20 minutes on the phone doing the manager's work and getting authorization to cover the shift which would otherwise not have been covered.

It was further submitted that the shift which the worker was to work went from 8:00 a.m. - 4:00 p.m. and she had already started work when the accident occurred at 8:10 a.m. The representative also noted that the collective agreement provides that when a worker is called into work within one hour of shift and reports to work within one hour, the worker is to be paid for the full shift.

Employer's Position

The employer was represented by an advocate, who advised that they agreed with the decision that the worker's claim was not acceptable.

The advocate noted that the employer did not dispute the worker's injuries. They did not agree, however, that her injuries occurred at work or as part of her workplace duties. The advocate submitted that the worker arrived at work prior to the start of her shift on April 26, 2016. She came straight from home, and had not seen another client previously that day. On her way into work, she slipped on the stairs in the shopping mall where the employer rents premises, and injured her ankle.

The advocate noted that the employer is not responsible for the upkeep or maintenance of the staircase. It was submitted that the Policy is clear that a worker is not covered while in the common areas of a shopping mall which are shared by workers and the public, unless the entire area is owned and/or maintained by the employer. The worker was therefore not in the course of employment before entering the particular premises assigned to the employer.

The advocate acknowledged that the worker was scheduled to work a regular shift at 3:00 p.m. on the date of the accident. She received a phone call at 7:00 that morning requesting that she cover a day shift. She called her supervisor at around 7:15, and received approval for overtime in respect of the additional hours. The injury occurred approximately one hour later, at 8:15 a.m. The advocate agreed with the adjudicator's conclusion that speaking with employers or co-workers prior to the beginning of a shift does not constitute being in the course of employment.

The advocate further submitted that as per the Policy, it is generally agreed that workers compensation is not intended to cover a worker during travel between home and the workplace.

In conclusion, it was submitted that the claim does not meet the requirements of the Act and Policy, and should not be accepted.

Analysis

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

The panel finds that the General Premises Policy, and in particular the Shopping Mall sections of the Policy, are applicable to this appeal.

There is no dispute that the employer leases the premises it occupies in the shopping mall.

The worker confirmed at the hearing that when she arrived for work on April 26, 2016, she parked her car on the street and entered the building through one of the entrances to the shopping mall. The employer's premises are on the lower level of the mall, and the worker fell as she was going down the stairs to that level.

The worker stated that you have to go down the stairs, or take an elevator, to get to the lower level. She described the layout of the lower level, indicating that there are a number of different facilities at that level, including a variety of retail stores, food outlets and offices. The worker indicated that the public and "everybody" uses the stairs to get to the lower level. Based on the information which is before us, the panel finds that the worker fell on a staircase which was accessible to and used by the general public, and was not controlled or maintained by the employer.

The worker's representative has argued that there is nevertheless a connection to the employment as the only reason the worker was at that location was to cover a shift for a sick co-worker. The panel notes, however, that the particular wording of the Policy is focused on where an incident occurs in a shopping mall, and not on why a worker is there or their intention. The evidence in this case shows that the worker was not on the employer's premises or in an area controlled by the employer when she fell.

The worker's representative also submitted that the worker started work at 7:00 a.m., when she received the call from her co-worker, particularly since she had to spend additional time arranging for coverage for the co-worker's shift. As the panel understands it, the worker's position is that her workday would have continued from that point forward, and included the time she spent preparing for and travelling to work that morning. The panel is unable to accept that position. The panel is not satisfied that the calls to and by the worker and her efforts at home to set up her workday brought her into the course of her employment. In support of her position, the worker also stated that it is part of her job duties to cover shifts. While that may be the case, the panel does not accept that her job duties included receiving a call from a co-worker asking her to cover a shift and seeking authorization to cover and be remunerated for that shift, as opposed to actually covering the shift. The panel finds that the worker's job duties would have started when she arrived at work, and not at home.

Further, or alternatively, it was submitted that the worker's workday started at 8:00 a.m., and she was therefore in the course of her employment when she fell at 8:10 a.m. There was some disagreement in the evidence as to whether the worker's shift started at 8:00 or 8:30 a.m. It is clear, however, that the worker had not yet arrived at work and was not engaged at the workplace by 8:10 a.m. She had parked her car and was still on her way to work when she fell on the stairs. In the circumstances, the panel is satisfied that the worker was not in the course of her employment within the meaning of the Act and Policy, whether her shift started at 8:00 or 8:30 a.m.

The panel considered the provision of the collective agreement referred to by the worker's representative. The panel notes that the intention of the quoted provision appears to ensure a worker is fully compensated when he/she is called in to work and attends on short notice. It is the panel's view that the worker's entitlement to remuneration without having physically attended or started work at that point in time is irrelevant to the circumstances of this case.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's injury did not arise out of or in the course of her employment. Her claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

M.L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of January, 2018