Decision #101/22 - Type: Workers Compensation
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 July 20, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
An Employer's Accident Report was received by the WCB on December 7, 2021 reporting the worker injured both her hands and her right shoulder in an incident on December 2, 2021. The employer noted the worker reported she was walking from her vehicle in the staff parking lot to start her shift and "Midway through parking lot, she slipped on the gravel walking and fell on her hands and shoulder." The employer noted that the worker returned to work on December 4, 2021, after missing only December 3, 2021.
On December 7, 2021, the WCB provided the worker and the employer with an initial decision letter accepting the worker's claim. On December 8, 2021, the worker provided the WCB with her Worker Incident Report. The worker reported:
I was walking in to work and between 10 to and 5 to 5 pm. I was not sure if there was ice under the gravel but I slipped and I flew forward and I scraped up the top of my left hand and the bottom of my right hand and I landed with right arm extended in front of me. I immediately felt pain in my right shoulder after the fall and I did not hit my head but I felt dizzy shortly after. I was wearing flats with rubber soles when I slipped in the parking and I believe that it is owned by the company and it is part of the staff parking.
On December 10, 2021, the employer contacted the WCB, noting the worker had fallen in the parking lot on her way into work, and that the parking lot was not owned by the employer. On December 14, 2021, the employer confirmed the parking lot where the worker fell was not owned by the employer. The employer further confirmed that workers were aware they could park in the parking lot.
On December 14, 2021, the WCB advised the worker and the employer that after further review and investigation, they had determined the worker's claim was not acceptable. The WCB noted that pursuant to WCB policy, a parking lot is considered to be part of the employer's premises "…when it is owned, maintained, established, or controlled by the employer" and the WCB's investigation had found the employer did not own or have control over the parking lot where the worker fell.
On February 16, 2022, the worker's representative submitted photographs of the parking lot and asked that the WCB reconsider their decision to deny the worker's claim. The representative noted the worker reported she was directed by one of her supervisors to park in the lot where she fell and that the photographs taken by the worker indicated a "Reserved Parking Only" sign, which pointed to this separate parking area and supported the worker's understanding and her supervisor's direction. The representative submitted that the evidence supported the employer exercised "…a degree of control over the parking arrangements of their staff," and pursuant to the WCB policy, the worker's claim should therefore be accepted.
On February 16, 2022, the WCB contacted the employer to seek clarification as to whether or not the employer had a certain section of the parking lot where their staff was directed to park, whether or not specific spots were reserved for their staff to park in, and if so, whether the employer or staff had to pay for those spots. On February 24, 2022, the employer confirmed it was suggested that staff park in the staff parking area, but this was not mandatory, there were reserved spots strictly for staff, and no one paid for those parking spots.
On March 1, 2022, the WCB requested further information from the employer, and the employer confirmed there were other businesses "in the parking lot." On March 8, 2022, the employer further confirmed that maintenance and snow clearing of the area was overseen by the owner of the building. On March 15, 2022, the employer further indicated that all exterior areas were considered common areas, with the "sublandlord landlord being responsible for these areas, which would include snow clearing." The employer also clarified that they paid for snow clearing for the parking area and that these costs formed a part of the common area costs under the lease. The employer further advised the WCB that the store manager had confirmed there was no snow build up and gravel was spread in the parking on the date of the reported workplace accident.
On March 22, 2022, the WCB advised the worker that the new information had been reviewed, and they had determined she slipped and fell in the common area of the parking lot, which the employer did not own or have control over, and as such, there would be no change to their decision that her claim was not acceptable.
On March 29, 2022, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative disagreed with the WCB's interpretation of the photographs provided by the worker and noted there was a specific staff parking area, with signage, as well as physical barriers that "…distinguish it from parking areas intended for use by the employer's customers." The representative submitted that the evidence supported the worker was on the employer's premises when the workplace accident occurred, and was making reasonable use of the area designated by the employer for her and other staff to park in immediately prior to the start of her shift. The representative also noted the employer's report of gravel having been spread on the parking lot area on the date of accident, and submitted that the workplace accident likely occurred "…due to an unobserved hazard of the employer's premises," being ice or gravel.
On April 8, 2022, Review Office upheld the WCB's decision and determined the worker's claim was not acceptable. Review Office found that the parking lot was not considered to be a part of the employer's premises. Review Office further found that the worker did not require use of a personal vehicle to perform her job duties and the worker made a personal choice to drive to work and park in an area the employer made available for their staff for convenience purposes. Review Office therefore concluded that the worker was not injured on the employer's premises or in the course of her employment at the time of the injury.
On April 11, 2022, the worker's union representative appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
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 of the WCB's Board of Directors. The provisions of the Act that were in effect as of the date of the December 2, 2021 incident are applicable.
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"), focuses on the interpretation of the term "in the course of employment" as it applies to employer premises. The term "premises" is defined to mean:
… 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.
The Policy goes on to provide that the employer's premises do not include "Private parking arrangements made by the worker (ie., independent of the employer)."
The Policy further 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, all in relation to performing activities for the purposes of the employer's business.
Under the heading "General Approach for Parking Lots", the Policy states, in part, as follows:
a. A parking lot is considered to be part of the employer's premises when it is owned, maintained, established, or controlled by the employer. As well, a parking lot or space is considered to be part of the employer's premises when workers are allocated parking spaces by the employer or when parking privileges with specific assignments are granted by the employer.
b. In deciding whether an injury on a parking lot arose out of and in the course of the employment, the WCB will consider the following questions as applicable in individual claims:
i. Did the employer provide or assign the parking space for the worker? The unauthorized use of a parking lot by a worker would normally result in a claim not being accepted (ie., the injury was not work-related).
ii. Did the employer control the parking lot? This question does not necessarily mean "did the employer own or lease the parking lot?" A claim may be accepted when the parking lot is not owned by the employer, but the employer has arranged for the worker to use the parking lot. The issue is not only whether the employer controls the parking lot, but whether the employer, in essence, controls the worker by establishing certain parking arrangements.
The worker was represented by a union representative, who provided a written submission in advance of the hearing and made a presentation to the panel.
The worker's position was that her claim is acceptable because she suffered injuries due to a workplace accident which occurred on her employer's premises.
The worker's representative submitted that the precise location where the worker fell was consistent with the Policy's definition of the employer's premises. The worker's report that the employer had directed her to park in the lot where she fell was corroborated by the employer.
The representative further submitted that the photographs they had provided of the signage at the parking lot further confirmed that the area was "Reserved Parking Only", presumably for the employees of the employer, rather than customers of the general public, to park. There were also physical barriers which separated this lot from the larger open public lot.
The representative submitted that when the worker fell, she was not yet working but was making reasonable use of an area made available by her employer for a purpose incidental to her employment, namely to park her vehicle while at work. Although the worker was unable to identify what caused her to fall, the representative submitted that there was more likely than not an unseen hazard on the surface of the parking lot, which caused her accident.
In conclusion, the representative submitted that there was sufficient information to show that employer exercised a degree of control over the worker's parking arrangements to meet the requirements under the Policy, and the worker's claim should be accepted.
The employer did not participate in the appeal.
The issue on this appeal is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment. For the reasons that follow, the panel is able to make that finding.
As noted earlier, 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 this case, the worker suffered an injury as she was headed through the designated parking area to her work within approximately five minutes of the start of her work shift. The panel finds that the time of the accident was reasonably close to the beginning of her work.
The main question on this appeal is whether or not the worker should be considered to have been on the employer's premises when she fell. Based on our review of the evidence, the panel is satisfied that the parking area where the worker was walking and fell meets the definition of employer premises, and the accident occurred while the worker was on those premises.
In this regard, the panel carefully reviewed and considered the photographs of the parking lot which the worker had provided. The worker confirmed that the photographs were a fairly accurate reflection of the parking area. The panel notes that the parking area was separated from the open public parking areas by physical barriers in the form of curbs on either side of the entrance to the lot, with signage at the entrance indicating "Reserved Parking Only" and an arrow pointing to that area.
While the sign did not specifically say so, the panel is satisfied that the evidence establishes, on a balance of probabilities, that that the area was reserved for the employer's staff. The evidence on file further indicates that the employer paid for snow clearing in this area as part of its lease. The panel finds it significant that plugs were also provided for a number of the spots in that area, for those who needed them.
The panel is satisfied that the evidence further establishes that the employer directed the worker to park in the specific lot where she was injured. The worker indicated in her evidence that she had not deviated from parking in that specific area since the employer had directed her to do so.
The panel acknowledges the employer's argument that the worker did not have to park in that parking lot, but notes that it is not necessary that a worker have to park in a parking lot for a claim to be accepted.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of her employment. The worker's claim is therefore acceptable.
The worker's appeal is allowed.
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 16th day of September, 2022