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 is not acceptable. A videoconference hearing was held on December 2, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The worker provided a Worker Incident Report to the WCB on December 17, 2019 reporting she injured her low back, right shoulder, neck and left wrist on December 16, 2019 when she was “…walking out the back door of the building and I slid on the ice in the back lane. I slipped and fell, landing on my lower back. I feel throbbing pain in my shoulder and neck, my lower back is aching.”

The worker discussed her claim with the WCB on December 24, 2019 and advised that when the fall occurred, she was on her way to a personal appointment, exiting via the back door of her office building. She “…took two or three small steps out of building and slipped on ice in the back lane.” The worker noted her employer usually sands the area, but it had not been done. The worker reported she felt immediate pain in her neck and lower back after the accident and was in a lot of pain the next day, especially in her lower back, left shoulder and left side of her neck.

When asked by the WCB for clarification of the location where the workplace accident occurred, the employer advised:

“The incident happened outside of the building’s rear entrance. This is not the main entrance but it is one of the two building entrances available to staff…. [The worker] describes the fall as happening a few feet from the rear entrance and when she was leaving the building during business hours for her lunch break. The [employer] is a tenant in the building itself and the property is maintained by the property manager and appears to include management of access points where large barrel sized sand containers are stationed for use at both the front and rear entrances.”

On January 21, 2020, the WCB advised the worker that her claim was not acceptable. The WCB noted the worker was on her way to a personal appointment on her lunch break when she slipped on ice in the back lane of her office building. The WCB referred the worker to its policy related to employers’ premises that did not include public or private land, buildings, roads or sidewalks used by a worker to travel to and from home and the employer’s premises and advised it had determined she was not in the course of her employment when the accident occurred as she was leaving her workplace for a personal appointment.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on March 6, 2020. The representative submitted photographs of the location where the workplace accident occurred and submitted that the worker was still on the employer’s premises when the accident occurred. Further, the worker’s representative noted the WCB’s policy provides a worker is generally considered to be in the course of employment while entering or departing an employer’s premises at a time close to or near the end of work and using an accepted means of entering or leaving the employer’s premises. The employer provided a submission in support of the WCB’s position on April 15, 2020, a copy of which was provided to the worker and her representative on the same date. The worker’s representative provided a further response on April 17, 2020.

Review Office spoke with the worker on April 22, 2020 for further clarification. The worker advised Review Office that she stepped out of the door at the rear of her building, let go of the door, took two or three steps then fell. In reviewing the pictures provided by her representative, Review Office noted the door at the rear of the building opens out to the back lane and would appear to be a minimum of three fee wide. Further, Review Office noted if the worker stepped through the door as she noted and let go of it, then took two or three steps, on a balance of probabilities based on the location of the door and back lane, the worker was not on the employer’s premises when the accident occurred. As such, Review Office determined on April 24, 2020 that the worker’s injury did not arise out of and in the course of her employment and her claim was not acceptable.

The worker’s representative filed an appeal with the Appeal Commission on June 24, 2020. A videoconference hearing was arranged and held on December 2, 2020.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.

When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury, as set out in s 39 of the Act, or medical aid to cure and provide relief from injury arising out of a compensable accident, as provided under s 27 of the Act.

The WCB has established Policy 44.05.20, General Premises (the “Policy”) to provide clarification on how the WCB will define “employer premises" regarding accidents that occur during the course of going to and from work. The Policy provides that “"In the course of employment" is not limited to the actual tasks or exact hours of work” and goes on to set out:

a. The term "premises" means the entire geographic area devoted by the employer to 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. 

b. The employer's premises do not include: 

i. The public or private land, buildings, roads or sidewalks used by the worker to travel to and from home and the employer's premises. ii. Private parking arrangements made by the worker (ie., independent of the employer). 

... 

d. 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.

Worker’s Position

The worker was represented in the appeal by a union representative who provided written submissions to the panel in advance of the hearing and made oral submissions in the hearing. The worker provided testimony in answer to questions posed by her representative and by members of the appeal panel.

The worker’s position, as outlined by her representative, is that the claim should be accepted because the evidence supports the conclusion that the worker’s accident occurred while she was in an area under the care and control of her employer, on the employer’s premises.

The worker’s representative outlined the worker’s position that the employer’s premises extend both beyond the doorway where the worker exited the workplace and beyond the building’s envelope. The representative acknowledged that there is no evidence before the panel as to the precise location of the property line between the employer’s premises and the public property in the back lane beyond the employer’s premises, so that it cannot be precisely established where the worker was located when she slipped on the ice. The representative noted that the WCB failed to seek out and confirm this information, and then went on to deny the worker’s claim based on its presumption that she fell outside the limits of worker’s premises, relying on the worker’s description of falling in the “back lane” as being determinative of the question.

The worker’s representative submitted the evidence rather supports a conclusion that the worker was in close proximity to the rear exit of her workplace at the time she slipped and as such was on the employer’s premises when the accident occurred. The worker relies upon statements she made in communication with the employer as well as in reports on the WCB file as indicating that she slipped on ice just after leaving the building. The worker’s representative submitted that the Policy ought to be construed broadly and to the effect that the limits of the employer’s control and responsibility are not restricted to building boundaries or property lines.

The worker described to the panel the rear exit of the workplace, noting that she commonly uses this exit as it is nearest her parking spot. The door is solid and does not have any window or peep hole allowing a person to look outside before exiting. She indicated that she does not swing the door completely open as she is not able to see what is happening outside it and opens the door slowly to peer out and see if it is safe to proceed. On the day in question, she slowly opened the door as usual and on seeing it was clear to proceed, she took two or three steps forward away from the door frame. As she stepped onto ice in the platform of the doorway, she slipped and fell onto her back, sliding down the slope of the pavement as she landed. She stated she remembered that she was still holding the door and let go of it as she slipped and fell.

The worker noted that the area around the exit is sometimes used by individuals as a place to relieve themselves and as such, in winter, there is often ice there. Although there is a barrel of sand near the exit, the worker noted that the area is generally not sanded. The worker’s representative provided the panel with copies of emails indicating the worker’s inquiries to the employer's workplace health and safety committee regarding the ice and sanding this area.

The worker described to the panel landing on her left shoulder and arm, noting she broke her fall with her left hand. She described that her back started to hurt the next day. After the fall, the worker went back into the building for a few moments to collect herself and then continued on with her plan to attend to a personal appointment. She reported the injury to her employer when she returned to work from her lunch break and advised she would also report to WCB. The worker sought medical attention the next day and thereafter, as outlined in the file information. She continues to experience symptoms of headache and back pain, even to the date of hearing.

In sum, the worker’s position is that she was injured as a result of fall that occurred on the employer’s premises, in the course of exiting the workplace and as such, her claim should be accepted.

Employer’s Position

The employer was represented in the appeal by its WCB coordinator, who provided a written submission to the panel in advance of the hearing and made oral submissions in the hearing.

The employer’s position, as outlined by its representative, is that the worker fell on ice located in the back lane, which is not within the premises of the employer, and is more likely than not, on municipal property. As the worker was not in the course of her employment when she fell and the injury did not arise out of her employment, the worker’s claim should not be accepted.

The employer’s representative provided the panel with photographs showing the rear exit of the building where the worker slipped and fell as well as measurements of the building door and exit area. In his submission, he noted the worker’s description of the event to her supervisor, to the WCB and to the physician as slipping in the alley or back lane outside the building where she worked. The photographs provided indicate that the door is 37” in width and a distance of 38” on from the door sill to the edge of the pavement cap. The employer’s representative suggested to the panel that this means the worker was at least 37” away from the doorway at the time she fell, noting she did not strike the door as she fell.

In its submission to the Review Office, a different representative of the employer outlined that the worker’s workplace is located in leased office space and that the employer does not control or maintain the alleyway or parking lot adjacent. Further, the employer confirmed that the worker’s lunch period is unpaid, and that the worker left the building on December 16, 2019 to attend to a personal appointment not associated with her work responsibilities. The employer noted in this submission that video footage of the incident may have been available had it been requested earlier but was no longer available at that time.

In sum, the employer’s position is that the appeal should be dismissed, and the Review Office decision upheld as the evidence does not support a finding that the worker was injured as a result of an accident that occurred arising out of and in the course of her employment, as she had more likely than not, left the employer’s premises on a personal errand at the time the injury occurred.

Analysis

The issue for the panel to determine is whether or not the worker’s claim is acceptable. In order to find that the claim is acceptable the panel would have to determine that the worker was injured as a result of an accident that arose out of and in the course of employment. As detailed in the reasons that follow, the panel was able to make such findings on the basis of the evidence before it.

The Act defines an accident as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.

In determining whether the worker’s fall was an accident, the panel considered the information on file and the testimony of the worker as to the circumstances of the fall. The worker was on her unpaid lunch break, leaving the premises of the employer by an exit commonly used for that purpose. She was on her way to her vehicle and intending to drive to a personal appointment. As she exited the rear door of the building, she slipped on ice located there and fell onto her left side and back.

The WCB determined, based upon the worker’s initial report and subsequent conversations with the worker, that she fell in a public laneway, and as such, was no longer on the employer’s premises as defined by the Policy. The panel noted that there were no eyewitnesses to the fall. Both the worker’s representative and employer’s representative provided a number of photographs of the relevant building exit and surface area in support of their respective positions. While these photographs provide helpful context, they do not establish or confirm where the worker was located at the time she fell, whether on the employer’s premises or on the public laneway. The panel noted that by the time a request was made by the WCB for video surveillance footage of the area in question and for the time of the incident, that evidence was no longer available.

In this case, the panel must rely wholly upon the testimony of the worker as to how, where and when the fall occurred. The panel found the worker to be a credible witness, providing significant detail in her description of the incident.

The worker provided the panel with a step-by-step description of how she exited the building and fell. She noted that the exit door is heavy and somewhat difficult to open. She advised that the area in the laneway is often frequented by patrons of the nearby store as well as other individuals and she therefore always exercises caution in exiting through that door, taking time to look around the area before fully exiting. She described holding onto the door with one hand as she steps out of the alcove in which the door is set so that she can easily go back inside if needed.

The worker described to the panel that on the day in question she stepped out cautiously as usual and was just letting go of the door when she stepped on ice, slipped and began to fall to the ground. The worker recalled the smell of urine when she fell and noted that the alcove area in which the exit door is located is often used by the individuals in the area as a semi-private place to relieve themselves.

The Policy sets out that "premises" means the entire geographic area devoted by the employer to the industry in which the worker is employed, including the buildings, plant, or location in which the worker is reasonably entitled to be during the specific course of or incidental to the employment. The Policy provides that 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. The panel accepts that this includes entering and exiting those premises on the worker’s lunch break, as she was entitled to do.

While it is impossible to establish exactly where the worker was located at the moment she slipped and fell to the pavement, on the basis of the worker’s testimony and her prior reports to the WCB, the panel is satisfied that the worker more likely than not was still on the employer’s premises, where she was reasonably entitled to be on her lunch break, at the time she fell.

The medical reporting on file supports the worker’s position that she was injured as a result of the fall. The panel noted that the worker sought medical attention the following day and the treating physician reported findings of a tender left AC joint with normal range of motion, a tender left thumb, also with normal range of motion and a tender posterior superior iliac spine, with normal range of motion in the lumbar spine. She sought care from her treating chiropractor on December 18, 2019 and was diagnosed with a cervical and lumbar sprain/strain, left shoulder sprain/strain, left wrist and left-hand sprain. On December 24, 2019, the worker reported to the WCB her symptoms were continuing. When she attended for follow up with her family physician on January 4, 2020, she was diagnosed with a concussion, neck/shoulder/left hand and low back injury and referred for further follow-up. The worker’s testimony is that she continues to experience symptoms arising out of this injury at this time.

The panel is satisfied on the basis of the evidence before it, and on the standard of a balance of probabilities, that the worker was injured as a result of an accident arising out of and in the course of her employment.

Therefore, the panel determines that the claim is acceptable. The worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of January, 2021