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 teleconference hearing was held on September 9, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On October 22, 2020, the worker submitted a Worker Incident Report to the WCB, indicating she injured her left arm and elbow at work on October 13, 2020 when she "Went outside for break and fell from standing position on gravel falling on my left side."

The worker sought treatment at a local emergency department on October 13, 2020, reporting pain to her left elbow that was relieved with rest and no movement, and increased with movement. The worker advised the attending nurse practitioner that she was walking outside and tripped, fell from a standing position and landed on her left elbow and knee. She further noted she got up and moved around immediately after the fall.

On examination, the nurse practitioner noted no open wounds, no areas of bruising or swelling, full range of motion in the worker's wrist, no bony tenderness in the elbow, and pain with pronation and supination of the left forearm. An x-ray, taken the same day, indicated that a fracture of the left elbow could not be excluded. The worker was diagnosed with an elbow injury, a sling was provided for comfort, and it was recommended the worker remain off work for five days.

On October 23, 2020, the employer called the WCB to express some concerns with the worker's claim. The employer indicated that the worker and a co-worker went to the worker's car on her break, and the worker tripped when she left her car. The employer further advised that there was no snow or other hazard to have caused the trip and fall.

The WCB also spoke with the worker on October 23, 2020 to discuss her claim. The worker advised the WCB she was walking out of the building for a paid break at 9:30 a.m. and fell as soon as she closed the door. The worker said she was on uneven gravel and did not know whether that caused her fall, but she thought it did. The worker provided the WCB with the name and phone number of the co-worker who was with her when she fell.

On October 27, 2020, the WCB spoke to the co-worker, who confirmed she was with the worker when the incident occurred. The co-worker stated they were walking to go outside on their break when the worker "…tripped on her own foot and fell on her left elbow." The co-worker advised there was no hazard, the worker tripped on her own foot, and noted it may have been "…a bit slipperier as the parking lot is gravel and some of the rocks were looser."

On October 28, 2020, the WCB's Compensation Services advised the worker that her claim was not accepted. Compensation Services found that based on the information provided, the worker created a personal hazard which was unrelated to her employment duties, and as such, they were unable to approve her claim.

On February 11, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted she was injured on her employer's premises when she walked out the door, took about six steps, then tripped and fell. The worker noted the injury occurred in the parking lot in front of the workplace, and at approximately 9:30 a.m. The worker further noted that according to an online weather website, the temperature was 5 to 8 degrees Celsius and she believed there was dew on the gravel, which made it more slippery.

On March 15, 2021, Review Office determined the worker's claim was not acceptable. Review Office found the evidence did not support that the condition of the parking lot caused or contributed to the worker's fall. Review Office found that the worker and the co-worker's evidence was that the worker tripped on her footing, and that as the employer's business would have been open at the time of the incident, the employer would have addressed any hazards for customers entering and exiting the premises. Review Office further found that the worker was exiting the premises for personal reasons, unrelated to her employment. Review Office therefore concluded that they were unable to establish the worker's injury arose out of and in the course of her employment.

On April 20, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

Applicable Legislation and Policy

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

What constitutes an accident is defined in subsection 1(1) of the Act as "…a chance event occasioned by a physical or natural cause; and includes...any event arising out of, and in the course of, employment...and as a result of which a worker is injured."

Subsection 4(1) of the Act provides that once such a personal injury has been established, a worker is entitled to the benefits provided under the Act.

Subsection 4(5) creates a presumption, and provides that when the accident arises out of the employment, it will be presumed to have occurred in the course of the employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed to have arisen out of the employment unless the contrary is proven.

WCB Policy 44.05, Arising Out of and in the Course of Employment, states, in part:

Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred 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. 

… 

While workers are on the employer's premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises.

WCB Policy 44.05.20, General Premises (the "General Premises Policy"), focuses on the interpretation of the term "in the course of employment" and specific sub-topics relating to "employer premises." The Policy provides that "In the course of employment" is not limited to the actual tasks or exact hours of work.

The General Premises Policy states, in part, as follows:

1. The Meaning of "Premises" and "Arising In the Course of Employment":

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. 

...

7. Personal Hazards

a. To be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (i.e., is connected in a causal sense).

b. The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:

i. The injury was the result of a personal action by the worker and was not caused by a: 

* a hazard of the premises; or, 

* an occurrence under the control of the employer.

ii. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.

Worker's Position

The worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel.

The worker's representative noted that was no dispute that the worker suffered a left arm and elbow injury as a result of a fall in front of the workplace. What was in dispute was whether the worker's injury arose both out of and in the course of her employment. The worker's position was that there was sufficient information to find that both elements of this test were satisfied. Alternatively, it was their position that the evidence established the injury occurred in the course of employment, and the presumption in subsection 4(5) should apply.

The worker's representative noted that the incident happened at 9:30 a.m. during a paid work break, within seconds of the worker exiting the workplace. The representative submitted that the incident had a clear connection to the worker's scheduled work shift. The representative further noted that the General Premises Policy provides that a worker is generally in the course of employment while departing an employer's premises at a time reasonably close to beginning or end of work, and submitted that this should reasonably extend to a worker exiting an employer's place of business for a work break, as the worker did. The representative submitted that the injury also arose out of employment by way of an environmental hazard, being a rough, uneven surface comprised of gravel and stone.

The worker's representative stated that they accepted that the employer makes every effort to provide a safe environment for employees and the public, but submitted that such a surface is unlikely to be perfectly level and smooth, due in part to weather conditions and pedestrian traffic. The representative submitted that if exiting the workplace during a break to smoke a cigarette is considered a personal act or hazard, such an act was under the employer's control.

The worker's representative further submitted that the worker's actions were not so remote as to break the employment connection, as the worker had engaged in the same activity prior to the accident date. The representative submitted that the activity giving rise to the worker's injury was at least reasonably incidental to her employment and therefore arose out of employment.

The worker's representative noted that the WCB relied on a co-worker's witness statement, set out in an October 27, 2020 claim memo. The representative submitted that the notes in that memo are brief and left several questions unanswered, and which the co-worker's information is only useful insofar as it confirms the worker fell to the ground.

In response to questioning, the worker said there was no scheduled time for her to take her break and it was fair to say that if or when she took her break was at her discretion. She said that on the day of the accident, her co-worker suggested that they go for a smoke break and she agreed. Describing their positioning when she fell, the worker stated that "We walked out of the door, we were walking side-by-side talking…I was closer to the building and she was on my right side." The worker said she and her co-worker were not very far apart, that there was maybe 12 inches between them.

The worker said that as they were walking, she stumbled. She tried to stop her fall, but ended up falling on her left side. She said she sat there for a bit, then got up and walked towards the car. The worker said she was looking at her co-worker when she stumbled, and they were talking. She said she did not know what she tripped on, that it might have been loose gravel. She said she had nothing in her hands. She did not trip over her own feet, and was not sure how her co-worker could have known whether she tripped over her foot, given they were looking at each other and walking and talking at the time.

In conclusion, the worker's representative submitted that they were sympathetic to the employer's position, and that this was not a case where they were claiming the employer was intentionally negligent or careless. On the contrary, it appeared the employer was fairly diligent in trying to maintain the surface of the lot, but such a surface was naturally not going to be perfectly level and smooth. The representative submitted that it is clear the incident occurred on the employer's premises, while the worker was on a break, and her claim should be acceptable.

Employer's Position

The employer was represented by its owner, who was accompanied by his spouse. The employer's representative made an oral submission at the hearing and responded to questions from the panel.

The employer's position was that the worker's accident and injury were not related to her employment and the claim should not be allowed.

The employer's representative submitted that he should not be responsible for a situation like this, where a worker is walking outside on a break. He submitted that it would be one thing if the worker was doing something for him or for the business at the relevant time, but that was not the case.

The employer's representative submitted that he had provided a safe spot in back of the building, with a picnic table and a "butt can", where the employees could go and would be out of the public's view. He said he did not promote smoking. He did not want customers seeing his employees smoking, and noted that employees would go out the back door to smoke, where they were not in the public eye. The representative submitted that they were all adults; that he did not give them a diagram indicating that they should go sit on the picnic table out back, but assumed they would do so. He said he had seen the worker sitting on the picnic table in the past.

The employer's representative stated that he did not own the premises or the parking lot. In response to questions from the panel, he said he leased the property, and there was technically no written rule as to exactly where the property ended. The employer's representative said he had someone run over the property with a bobcat a couple of times a year, to make sure the gravel was graded properly. The representative indicated he could understand if there was something preventable, such as if there was a pothole, or loose gravel or some such thing that resulted in something like the worker twisting her ankle. There was no evidence, however, of loose gravel or something else that was preventable having caused the incident. Rather, the evidence showed the worker simply tripped, stumbled and fell, and her claim should not be acceptable.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury as a result of an accident arising out of and in the course of her employment. For the reasons that follow, the panel is able to make that finding.

The panel is satisfied that the evidence supports that the worker was engaged in a work activity and was in the course of her employment when the incident occurred. The worker was on a break, which was part of or incidental to her job, and was on the employer premises which the employer leased for the business when she fell.

The employer's representative and the worker both acknowledged that the incident occurred in front of the building. The employer agreed that it was fair to say that the photographs which the worker had provided were a fairly accurate reflection of the frontage where the incident occurred. The evidence shows that the surface at that location is gravel. The panel is of the view that the gravel surface is inherently uneven, and is satisfied that the gravel was a hazard of the workplace. The panel is satisfied that the gravel surface likely caused or at least contributed to the worker's fall.

The panel is unable to find that the worker's fall was the result of a personal action as provided under the General Premises Policy. The panel is satisfied that while the worker had discretion as to if and when she took her breaks, the timing or taking of breaks would generally be under the control of the employer. The employer's representative has argued that he provided a safe spot for breaks, but the evidence does not indicate that employees were required to use that spot for their breaks. The panel is satisfied that the worker was at a place where she was reasonably entitled to be during the course of or incidental to her employment.

In arriving at our decision, the panel carefully considered the October 27, 2020 note of the co-worker's statement as to what happened. The panel finds that the statement is ambiguous and is unable to accord it much weight. The panel accepts the worker's evidence that she and the co-worker were walking beside each other and talking after they exited the premises, and were not far apart when the incident occurred. In the circumstances, the panel is not satisfied that the co-worker would have been in a position to conclude that the worker "tripped on her own foot."

The panel notes that the employer had originally stated that the worker was getting out of her car, at a different location in the parking lot, when the accident occurred. The panel is satisfied that this is not supported by the evidence, and notes that the employer's representative did not argue this position at the hearing.

The employer's representative indicated he could understand being liable or responsible if something which was preventable had caused the incident. The panel notes, however, that the worker compensation system is a no fault system. The employer's practices are not under scrutiny. Rather, the issue which the panel must address is whether, on a balance of probabilities, an accident occurred. A finding that a worker was injured does not in and of itself imply that the employer did something wrong.

Having said that, the panel would add that we agree with the comments by the worker's representative that the employer appears to have been diligent in trying to maintain or arrange to maintain the surface of the premises, but that such a surface is naturally not going to be perfectly level and smooth.

In conclusion, the panel finds, based on the evidence which is before us and on a balance of probabilities, that the worker suffered an injury as a result of an accident arising out of and in the course of her employment. The panel therefore determines that the worker's claim is acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 8th day of November, 2021