The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's claim is not acceptable. A teleconference hearing was held on January 18, 2023 to consider the employer's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The employer filed an Employer Incident Report with the WCB on July 28, 2022, reporting that the worker injured her knee on July 21, 2022 as the result of an incident at work. The employer reported that the worker fell in the employer's parking lot, was taken to a local hospital by ambulance, and had surgery on her knee the following day.

The worker submitted her Worker Incident Report to the WCB on July 29, 2022. The worker reported that:

I was walking out to the parking lot and as I reached the parking lot my right foot slipped out from under me and I landed on my Left knee cap. I immediately felt the crush and instant excruciating pain in my left knee. 2 coworkers had just pulled in the parking lot and came to assist me…

In a discussion with the WCB on August 2, 2022, the worker confirmed the date of incident of July 21, 2022 and indicated that:

She was walking out of the building, down the stairs into the parking lot. As she was walking, her right foot, came from under her and she landed on the left knee. She fell on the very entrance of the parking lot. There was no curve (sic), no hazard that she recalls, she just recalls her right foot slipped from her (sic) under her and landed on her left knee. This happened around…11:30 am and she was going to the parking lot to get her jacket from her car as she was cold in the office.

The worker said she was transported by ambulance to a local hospital, where x-rays were taken and she was diagnosed with a broken kneecap. The worker said she underwent surgery on July 22, 2022 and had not been back at work since then.

On August 4, 2022, the WCB advised the worker that her claim was not acceptable. The WCB determined that while the worker had fallen in the employer's parking lot, there was no hazard to account for her fall. The WCB further noted that the incident occurred when the worker was going to her vehicle to get a jacket, and found that this was not arising out of or in the course of her job duties.

On August 25, 2022, the employer's representative requested that Review Office reconsider the WCB's decision to deny the worker's claim. The representative noted that the employer fully supported the worker's claim and strongly believed it should have been accepted. The representative submitted that the accident occurred on the employer's parking lot, during the worker's regular work hours, in a place she was allowed to be in and which was under the care and control of the employer. The representative further submitted that the worker had no personal health issues or conditions which caused her to fall. On September 20, 2022, the worker provided a submission to Review Office in support of the employer's request for reconsideration.

On October 20, 2022, Review Office determined that the worker's claim was not acceptable. Review Office found that the evidence of the worker and of the emergency medical personnel on July 21, 2022 supported the worker tripped on her right foot. Review Office therefore concluded that it was "the worker's foot biomechanics (i.e. a personal action) that resulted in/caused her to fall", and that her fall was not caused by a hazard of the premises. Review Office further found that the worker had left the employer's premises for personal reasons, to get a jacket from her car, and she was therefore engaged in an activity which had no causal connection to her employment.

On October 25, 2022, the employer's representative appealed the Review Office 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") and regulations, and by policies made by the WCB's Board of Directors. As the date of injury is identified as July 21, 2022, the applicable legislation is the Act as it existed at that date.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation as provided by the Act shall be paid.

What constitutes an accident is defined in subsection 1(1) of the Act as follows:

"accident", subject to subsection (1.1), includes: 

(a) a chance event occasioned by a physical or natural cause, 

(b) a wilful and intentional act that is not the act of the worker, or 

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event.

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

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"), serves as a framework for claims when the issue of "premises" is to be addressed. The Policy notes, in part, that:

Workers are eligible for compensation if they suffer a personal injury "arising out of and in the course of employment". "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".

The General Premises Policy further provides, in part, as follows:

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. 

(Emphasis in the Policy)

Employer's Position

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

The employer's position was that the circumstances of this case meet the definition of an accident under the Act and the worker's claim should be accepted.

The employer's representative noted that the worker sustained an injury when she fell in the employer's parking lot. The accident occurred during the worker's regular work hours, in a place where she was allowed to be and which was under the care and control of the employer. The representative noted that the worker had no relevant personal health issues or conditions which caused her to fall, and submitted that it was reasonable to assume on a balance of probabilities that the accident and resulting injury occurred as a result of a hazard of the premises.

The employer's representative referred to photographs which they had provided prior to the hearing, showing the portion of the parking lot where the accident took place. The representative noted that the photographs show the pavement was somewhat uneven, that there were cracks, and that there was a differential in height where the sidewalk met the parking lot. The representative submitted that while the employer endeavours to keep the parking lot and premises in good shape, nothing is perfect, and the photographs show there are some anomalies on the pavement that could have, and likely did, cause the worker to fall.

The employer's representative further stated that they disagreed with Review Office's position that the worker was essentially on her own time doing a personal errand when she was going back to her vehicle to retrieve her jacket. The representative noted that the office temperatures can be variable and it can be chilly in the summer with air conditioning. He submitted that it was reasonable for the worker to go and get her jacket, and her reason for doing so was directly related to the condition or temperature inside the employer's premises. In the employer's view, going to get her jacket so she would be comfortable in the workplace was related or peripheral to the worker's duties, and her actions were not so remote as to break the employment connection.

Worker's Position

The worker was represented by a worker advisor, who made a presentation at the hearing, and the worker and her representative responded to questions from the panel.

The worker's position was that she experienced an accident arising out of and in the course of her employment as a result of which she injured her left knee and the employer's appeal should be approved.

The worker's representative submitted that certain facts appeared to be indisputable, namely that the worker injured her left knee on July 21, 2022 during a scheduled work shift, and that she was on the employer's premises when the injury occurred.

The representative noted that a video recording of the incident which was provided in advance of the hearing shows precisely where the worker was when the slip and fall occurred. The video evidence further shows how the worker's right foot slipped forward suddenly, causing her left knee to bend and strike the surface of the parking lot with force.

In response to questions from her representative, the worker confirmed that the reason she was going to her vehicle was to get her jacket because she was cold. She said that cold air from the air conditioning had been coming directly down on her from the ceiling, and "it was definitely chilly and blowing on me so I just wanted to get a jacket so I could do my job."

The worker's representative submitted that the worker's decision to attend her vehicle to retrieve her jacket was reasonably incidental to her employment and did not sever the employment connection. The evidence indicated that her decision to go and get her jacket was influenced by the temperature in the office, and that it was her intention to go back inside and return to her duties immediately after that. The representative further noted that the worker indicated in her evidence that she did not need permission from anyone to make a quick trip to her vehicle to get something, and submitted that this was confirmed by the employer's support for her claim.

Analysis

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

The panel finds that there is no dispute that the July 21, 2022 incident occurred during the worker's scheduled work hours, or that it occurred in the employer's parking lot, which was under the employer's care and control and where the worker was reasonably allowed to be. The panel further finds that there is no dispute that when the incident occurred, the worker was going to her vehicle to get her jacket because she was cold in the office.

The panel places significant weight on the video recording of the accident. The panel finds that the recording clearly shows that as the worker was walking to the parking lot, her right foot shot forward, causing her left knee to bend and strike the pavement. Based on the video evidence, the panel is satisfied that previous references on file and in the Review Office decision to the worker having "tripped on her right foot" and her injury having been caused by her "foot biomechanics (a personal action)" do not accurately reflect what occurred.

The panel is of the view that the way the worker's right foot suddenly slid forward, as seen on the video recording, was not a natural body movement, and that this suggests there was some environmental factor which caused the worker's foot to shoot forward as it did.

In this regard, the panel notes that the photographs and video evidence which were provided show the pavement in the parking lot was somewhat uneven, and that there were cracks and painted lines in the area where the incident occurred. The evidence also indicates that there were pebbles and the pavement sloped slightly downwards from the sidewalk into the parking lot. While the panel is unable to identify a specific factor or hazard which caused the worker's right foot to slide forward and led to her left knee injury, the panel is satisfied that the evidence supports that environmental factors or conditions in the parking lot likely caused or contributed to the worker's accident, and that as indicated above, her left knee injury was not the result of biomechanics or a personal hazard or action.

In the circumstances, and based on the evidence which is before us, the panel finds that in going to her vehicle to retrieve her jacket, the worker was engaged in an activity which was reasonably incidental to her employment, and not so remote from her normal employment functions as to break the employment connection.

The panel therefore finds, on a balance of probabilities, that the worker suffered an injury to her left knee as a result of an accident arising out of and in the course of her employment. As a result, the worker's claim is acceptable.

The employer's appeal is allowed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 17th day of March, 2023