By Jeffrey R. Smith
Whether a workers’ compensation claim is accepted or rejected depends on whether the relevant workers’ compensation board determines if the injury was actually related to the job — usually defined in legislation as “in the course of employment.” There have been many injured workers whose claims have been rejected because their injuries were not deemed to have happened “in the course of employment.” But what exactly does that phrase mean? Most workers’ compensation legislation has some sort of definition and it usually involves the worker on the employer’s premises during work hours. The commute to and from work is usually excluded, unless the job involves travelling to different sites and the worker is in an employer-owned vehicle. But there are different considerations that can come into play.
A few years ago, on Oct. 20, 2009, a cleaning woman for a company in a Toronto high-rise was walking on the sidewalk towards the building on her way to work. Near the stairs of the building, the 64-year-old worker had to move to avoid a man in a wheelchair. She fell and, according to the worker, landed on the sidewalk and injured her right knee and right shoulder on the cement.
The worker tried starting work but one hour later, she couldn’t continue because of the pain. She advised her supervisor of the accident who completed an injury report for the Ontario Workplace Safety and Insurance Board (WSIB), and the worker went home to see her doctor.
The worker’s injuries turned out to be torn muscles in both the shoulder and knee. She could no longer work and required surgery to repair the damage. About one year later, the worker inquired with the employer if there were light duties, but the employer said it could only use her if she could perform regular duties.
The worker filed a claim for workers’ compensation, claiming the injury occurred at the stairs leading into her workplace while she was on her way to work. She said she tripped and fell on the stairs of the building, not the sidewalk, and the employer was responsible for the incident because she was going to work and the accident happened outside the entrance.
The WSIB found the worker was not entitled to workers’ compensation because her injury did not arise out of the course of her employment. The employer’s premises was defined as “the building, plant or location of work, including entrances, exits, stairs, elevators, lobbies, parking lots, passageways and private roads.” However, the worker confirmed the incident took place on the sidewalk, which was public property, before she arrived at work.
An appeals resolution officer agreed that the worker was not in the course of her employment “but rather on public property at the time and a member of the general public.”
The worker appealed to the province’s Workplace Safety and Insurance Appeals Tribunal. The tribunal found there was a fall that seriously injured the worker, enough to prevent her from being able to work; however, the tribunal also found the evidence pointed to the fact the fall took place on a public sidewalk. The worker’s reports on where exactly she fell were inconsistent and her explanations supported the fact she hadn’t reached the stairs when she fell.
The tribunal pointed to the employer’s injury report which indicated she fell on her way to work on the sidewalk, not on the stairs at work.
“The worker’s testimony and previous accounts in the documentary record made clear that her expedient action of moving out of the way of a man in a wheelchair led her to trip but the tripping action had never been recited by the worker as being initiated by the stairs,” said the tribunal.
In addition, the WSIB operational policy manual stated that “a worker is considered to be in the course of employment when the person reaches the employer’s premises or place of work” and “a worker is considered to be in the course of employment on entering the employer’s premises, as defined, at the proper time, using the accepted means for entering and leaving to perform activities for the purpose of the employer’s business.” Also, the manual stated “workers entering the building on any but the main floor or the floor occupied by the employer are not in the course of employment until entering the elevator/stairs leading to the floor of the employer’s premises.”
Since the fall occurred before the worker had reached the employer’s property, she wasn’t performing any work-related tasks or functions and she hadn’t yet begun her scheduled workday, the tribunal agreed that the worker was not in the course of employment and therefore wasn’t entitled to worker’s compensation. The appeal was denied.
This case shows when a worker is injured on the way to work, it’s unlikely he will be entitled to workers’ compensation benefits — even if it happens right in front of the employer’s property. There have been other cases where a worker injured in a parking lot at the workplace is entitled to benefits — but only if the parking lot is owned by the employer or the employer specifically instructs employees to park in specific locations in the lot.
Injuries that happen to workers on the way to work have been a source of debate for workers’ compensation. After all, the worker wouldn’t be in that position if it weren’t for her employment and the job is the reason she’s commuting at that time. But there also have to be limits to compensation, otherwise, it could put too much financial pressure on the whole workers’ compensation system, or at least the companies that have to contribute to it.
Jeffrey R. Smith is the editor of Canadian Safety Reporter
and Canadian Employment Law Today
, sister publications of COS.