20230129

REPRESENTED by:

HEARD by:

DATED:

OCTOBER 30, 2023

The employer, through their representative, objects to the Eligibility Adjudicator’s decision dated March 28, 2023, allowing for initial entitlement to benefits for a head injury, concussion, dental injury, right eyebrow laceration, and prescription eyewear.

On February 24, 2023, the worker was walking to a coffee shop while on a lunch break for their role as a crossing guard when they were involved in an accident. The sidewalk was covered in ice and snow and they slipped and fell.

They both reported the accident to the employer and sought medical attention on the day that it occurred. They were off work from February 27, 2023, to March 27, 2023. They broke their glasses in the accident and sustained a head injury, concussion, dental injury, and a right eyebrow/forehead laceration requiring four stitches.

The Eligibility Adjudicator’s decision dated March 28, 2023, allowed for initial entitlement to benefits for a head injury, concussion, dental injury, a right eyebrow/forehead laceration, and prescriptive eyewear.

They determined the worker’s accident occurred in the course of their employment. They also allowed for entitlement to loss of earnings benefits from February 27, 2023, to March 27, 2023. This decision was upheld in the reconsiderations dated May 11, 2023, and August 16, 2023. The employer’s objection to the allowance of initial entitlement to benefits in this claim forms the basis of this appeal.

Operational Policy Manual

Published

11-01-01 Adjudicative Process

15-02-02 Accident in the Course of Employment

November 3, 2008

October 12, 2004

15-03-03 On//Off Employer’s Premises

October 12, 2004

15-03-04 Employers’ Premises, Parking Lots, Roads, Plazas, Malls, Boundaries

October 12, 2004

15-03-05 Travelling

October 12, 2004

17-03-03 Dental Entitlement

October 12, 2004

17-07-01 Prescription Eyewear October 12, 2004

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I find that initial entitlement to benefits is in order. My reasons follow.

Employer’s Position

The employer representative provided a submission dated July 20, 2023, outlining the employer’s position on the issue in dispute. They contend that initial entitlement to benefits should be denied because the worker’s accident did not occur in the course of their employment.

They explain that in the worker’s role as a crossing guard, the intersection they are placed at is a fixed and permanent work location. They indicate the worker’s accident occurred 850 meters away from their work, and the sidewalk on which they fell is in front of a coffee shop. The sidewalk is owned and maintained by the City of X.

While they acknowledge the worker has paid breaks with no fixed location provided by the employer to take them at, they note the worker fell more than 20 minutes after the end of their second shift. Their work day is broken into three shifts from 7:30 am to 8:45 am; 10:55 am to 12:40 pm; and from 2:25 pm to 3:40 pm. They highlight that workers are not on-call during their breaks and the accident did not occur on the employer’s premises.

They argue that the worker was not engaged in an activity incidental to their employment at the time of their accident, and instead was a member of the general public exposed to a risk to which the general public is ordinarily exposed. They reference several Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions that they opine are analogous to this appeal and support their position.

Worker’s Position

The worker is not participating in the appeal and did not provide any appeal submissions regarding the issue in dispute.

Assessment of Evidence

Policy 11-01-01, Adjudicative Process, sets out five factors that must be present to allow a claim:

Is there an employer?
Is there a worker?
Is there proof of accident?
Is there compatibility of diagnosis to the accident or disablement history?
Was there a personal work-related injury?

It is not in dispute that this claim involves a worker and an employer.

I find that proof of accident has been established. The slip-and-fall incident of February 24, 2023, constitutes an accident situation. Immediate medical attention was sought at a hospital after a bystander

to the accident called emergency medical services. The accident was reported to the employer on the day that it occurred and the worker immediately laid off from work.

I also find that there is compatibility between the accident history and the diagnoses. When the worker slipped and fell on a sidewalk covered with ice and snow, they fell forward and impacted their face on the ground, losing consciousness. A head injury, concussion, dental injury, and right eyebrow laceration, are compatible with the accident history. I observed that a Health Professional’s Report (Form 8) dated February 28, 2023, indicated the worker had syncope along with a head injury and concussion; however, the worker has been consistent in reporting that slipping on the sidewalk is what caused them to fall, and explained on March 28, 2023, that they did not feel light-headed before their fall; they felt light-headed after they had already fallen and lost consciousness.

Policy 17-03-03, Dental Entitlement, specifically provides that dental services are approved if they are required as a direct result of a work-related injury, which is what occurred in this case. Policy 17-07-01, Prescription Eyewear, sets out that the Workplace Safety and Insurance Board (WSIB) may pay to repair or replace a worker's assistive device or prosthesis if it is damaged as a result of an accident in the worker’s employment. It specifies that prescription eyewear, including prescription glasses (frames and lenses) that serves as an extension of the body by correcting and improving the worker’s vision, is considered to be a device covered under the policy. The worker’s prescription eyeglasses broke in the accident and are covered as per this policy.

In my view, the crux of this case is whether the worker’s injuries are work-related, which turns on whether the worker was in the course of their employment when the accident occurred. Policy 15-02-02, Accident in the Course of Employment, provides that in determining whether a personal injury by accident occurred in the course of employment, the decision-maker applies the criteria of place, time, and activity in the following way:

Place

If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment.

If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities.

Time

If a worker has fixed working hours, a personal injury by accident generally will have occurred in the course of employment if it occurred during those hours or during a reasonable period before starting or after finishing work.

If a worker does not have fixed working hours or if the accident occurred outside the worker's fixed working hours, the criteria of place and activity are applied to determine whether the personal injury by accident occurred in the course of employment.

Activity

If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.

If a worker was engaged in an activity to satisfy a personal need, the worker may have been engaged in an activity that was incidental to the employment. Similarly, engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment. In determining whether a personal activity occurred in the course of employment, the decision-maker should consider factors such as:

the duration of the activity
the nature of the activity, and
the extent to which it deviated from the worker's regular employment activities.

In determining whether an activity was incidental to the employment, the decision-maker should take into consideration:

the nature of the work
the nature of the work environment, and
the customs and practices of the particular workplace.

Policy 15-03-03, On/Off Employers’ Premises, further specifies that it is generally considered that workers are in the course of their employment when they reach the employer's premises or place of work. It also provides in part that the WSIB will consider entitlement in claims where a worker is injured when on a lunch, break, or other non-work period (period of leisure) by ordinary hazards of the employer's premises; however, I note the worker was not on the employer’s premises when the accident occurred.

Policy 15-03-05, Travelling, sets out a general rule that a worker is considered to be in the course of the employment when the person reaches the employer's premises or place of work, such as a construction work site, and is not in the course of employment when the person leaves the premises or place of work.

The employer representative referenced several WSIAT decisions pertaining to cases where it was contemplated whether workers were in the course of their employment when an accident occurred:

WSIAT Decision 897/09

Decision 897/09 involved an application under section 31 of the Workplace Safety and Insurance Act. This was a case where a worker for a steel manufacturer left the employer’s premises to go to a convenience store 500 meters away to purchase a magazine and a sandwich. They intended to eat the sandwich later on during their lunch break. On their way back from the store, the worker drove their vehicle the wrong way down a one-way street and collided with a motorcycle. The Vice-Chair in this decision found the worker’s accident occurred in the course of their employment and they were entitled to claim benefits. The Vice-Chair referenced several earlier WSIAT decisions in their analysis and noted that other decision-makers may legitimately come to a different conclusion than they did, but noted there are also numerous WSIAT decisions supporting the conclusion at which they arrived.

The employer representative specifically cited the following passage from this decision:

“However, the general principle is well articulated, in my opinion, in Decision No. 2124/99 where the Vice-Chair stated:

A review of Tribunal cases dealing with workers injured while on a lunch break during the work day indicates that the general rule is that lunch is considered a personal activity, and not an employment-related activity. This is so even though the worker would not have been at lunch at the place of the injury but for employment. In general, workers who are on a lunch break during the working day are considered to be members of the general public, and subject to the general

risks to which members of the general public are exposed (see, for example, Decision No. 775/98 47 W.S.I.A.T.R. 185). In the same way, the general rule is that workers who are injured while travelling to and from employment are not covered even though they would not have been travelling (and thus not injured) but for the employment.

The exception to these general rules is when the worker is doing something reasonably incidental to employment at the time of the accident. For example, a worker injured at lunch while driving a company-owned vehicle may be found to be in the course of employment, but only if the worker is engaged in an employment-related activity (see, for example, Decision No. 833/95). A worker

injured while at lunch may be covered if the worker was also engaged in a work-related activity, such as banking or purchasing supplies needed for work (see for example Decision Nos. 823/96, 1/94).

Similarly, in Decision No. 485, the Panel found that a worker who slipped and fell on a public sidewalk while returning from her lunch break was not in the course of employment. Notwithstanding the fact that there were no lunch facilities on the employer’s premises, the Panel concluded that there was no connection between the worker’s activities and the “employment environment.” The Panel stated:

It is the opinion of the Panel that "the course of employment" requires a tangible connection with the employment environment. The worker here offered no evidence to support such a tangible connection.”

I note that the Vice-Chair in Decision 897/09 went on to indicate in their analysis that eating food or going to the toilet are activities that are reasonably incidental to work.

WSIAT Decision 461/05

Decision 461/05 involved a case where a worker was crossing a municipal road on their way to the employer’s garage to start their shift as a transit driver when they slipped on black ice. They had parked in a neighbouring parking lot on the opposite side of the road from the garage, and were a few steps into the road when they slipped. The Panel denied the worker’s appeal, finding that their accident did not occur in the course of employment. They indicated that the fact that, at time the of injury, the worker was on a public road that was not controlled by the employer, took precedence over the issue of whether the act of crossing the road was sufficiently incidental to their employment that it could be considered to have occurred in the course of employment.

The employer representative specifically cited the following passage of this decision: “In Decision no. 461/05, the Panel held the following:

“Pursuant to OPM No. 03-02-02, a worker is not in the course of employment while using a road open to the general public. The only exception to this rule occurs when a worker is using a road that is “completely controlled” by the employer by means such as “posted notices, warning signs, or opening or closing of gates, maintenance work or snow clearing… In this appeal, the municipality

completely controlled the road the worker was crossing when she was injured and the employer asserted no control over it, either by maintaining it in any way or by directing or controlling pedestrian or automobile traffic on it. The policy that provides that a worker is not in the course of employment while using a road open to the general public unless an employer has asserted some control over that road, is clear and unambiguous… In the opinion of the Panel, the specific policy with regard to the crossing of public roads takes precedence over the more general policy relating to the custom and practice of a worker and which asks whether a specific activity was sufficiently incidental to a worker’s employment that it brought it within the course of the worker’s employment.”

WSIAT Decision 1238/08

Decision 1238/08 again involved an application under section 31 of the Workplace Safety and Insurance Act. This case involved two electricians who were working away from the employer’s premises doing a day job that did not necessitate an overnight stay. They reported to the employer’s yard in the morning and then left the yard to their assigned worksite. The collective agreement that they worked under mandated a 45-minute unpaid lunch break. The workers deferred having lunch until completing their job that day, stopping to eat at a restaurant while travelling back to the employer’s yard. The restaurant was one kilometer off their route of travel and was chosen by one of the workers. After finishing their meal, one of the workers was struck by another vehicle. The Vice-Chair denied the section 31 application, finding that a lawsuit commenced by the injured worker was not barred by section 28 of the Workplace Safety and Insurance Act as the worker was not in the course of their employment when injured. The Vice-Chair reasoned that the worker was on personal time, at a distance removed from their day’s worksite, and engaged in a personal activity when their injury occurred.

The employer representative specifically cited the following passage of the decision:

“Tribunal case law in this area reflects the Board’s policy. The case law generally accepts that a worker who is injured while travelling away from the employer’s premises will be in the course of employment provided that, at the time he was injured, he was engaged in an activity reasonably incidental to his employment and in a place he might reasonably have been expected to be while engaged in work-related activities. As a rule, if a worker is injured in a motor vehicle accident while travelling on his employer’s business, he will be in the course of his employment. The Tribunal’s case law on “lunch breaks” has commonly found that a lunch break is a personal activity constituting a “distinct departure” from the employment. Case law has generally been consistent in finding that, where a worker has been based at his employer’s premises and then leaves the premises for a lunch break, he ceases to be in the course of employment (see for example, Decisions No.

280/91, 597/87,817/87 and 2142/89). Decision No. 817/87 (August 28, 1987) offered the following rationale for that position, at page 8 of the decision, where the Panel stated that the worker’s half-hour lunch break in that case:

… exposed [the worker] to a type of risk type different from and additional to that to which he would be normally exposed in the course of his … work.…

Similar reasoning was found in Decision No. 2142/99 (February 8, 2000), at paragraphs 35-36:

risks to which members of the general public are exposed (see, for example, Decision No. 775/98 47

W.S.I.A.T.R. 185). In the same way, the general rule is that workers who are injured while travelling to and from employment are not covered even though they would not have been travelling (and thus not injured) but for the employment. The exception to these general rules is when the worker is doing something reasonably incidental to employment at the time of the accident. For example, a worker injured at lunch while driving a company-owned vehicle may be found to be in the course of employment, but only if the worker is engaged in an employment-related activity (see, for example, Decision No. 833/95). A worker injured while at lunch may be covered if the worker was also engaged in a work-related activity, such as banking or purchasing supplies needed for work (see for example Decision Nos. 823/96, 1/94)…

The Panel in Decision No. 1/94 noted in particular Decision No. 62/89, in which a worker was injured during an unpaid lunch period at a remote location. The Panel in Decision No. 62/89 applied the “reasonably incidental activity” test. In the case before it, the Panel in Decision No. 1/94 found that the worker was not in the course of her employment because the accident occurred “at a geographical location resulting from her personal plans for that particular lunch hour”.”

Findings

While I consider the WSIAT decisions provided by the employer representative to be informative when analyzing the factors to be considered when assessing whether an injury occurred in the course of employment, none of the cases provided are completely analogous to the one before me. I consider it an important distinction that the case before me is specific to a worker who both was still being paid at the time of their accident and does not have a fixed work location on the employer’s premises. In my view, Decision 485 which was referenced within Decision 897/09 that was provided contains a fact pattern most closely analogous to the one before me, though it still does not appear the worker was on a paid lunch break when they fell on a sidewalk. I also note this decision is from 1986. It was not made under the Workplace Safety and Insurance Act, 1997, and the Vice-Chair in Decision 897/09 noted inconsistent approaches to similar matters in case law over time.

With consideration of Policy 15-02-02, I find the time of the worker’s accident supports that they were in the course of their employment. They have fixed working hours, and their personal injuries by accident occurred during those hours – noting they were on a paid lunch break. The policy provides that generally, this means that a personal injury by accident will have occurred in the course of employment.

The worker’s shift duration is long enough that they would reasonably be expected to eat during it. I agree with the analysis in Decision 897/09 that activities like eating food or going to the toilet are reasonably incidental to work. The act of going to a nearby coffee shop during their breaks was a regular practice for the worker. The act of going for lunch during the shift, while personal in nature, is not in any way egregious. This act would not, in my view, take the worker out of the course of their employment given that they cannot be expected to only eat at the intersection at which they work – especially given that their accident occurred in the middle of winter. I find the activity the worker was engaged in at the time of their accident does not take them out of the course of their employment.

When considering the place of the accident as it pertains to the matter before me, I note the worker does not have a fixed work location on their employer’s premises, but does work solely at one specific intersection. Their accident occurred 850 meters away from this location, which I do not consider to be a distance so far that it would put them out of the course of their employment. The employer

representative referenced Policy 15-03-04, Employers’ Premises, Parking Lots, Roads, Plazas, Malls, Boundaries, which provides in part that:

If part of the worker's journey to or from work takes place on a road that is completely controlled by means such as posted notices, warning signs, or opening or closing of gates, maintenance work or snow clearing, the worker is in the course of employment while using the roadway. The worker is not in the course of employment while using a road open to the general public. As highlighted by the employer representative, the policy also goes on to indicate that workers are members of the general public once they leave the allocated areas and remain so until they arrive on the employer's premises.

In my view, these provisions are not intended to directly and narrowly apply to the circumstances in the case before me. The worker in this case does not have a fixed work location on the employer’s premises. The circumstances of their employment require them to leave their intersection to engage in personal activities that are reasonably incidental to their work, like eating or going to the toilet. The worker was not journeying to or from work prior to or after their shift when they were injured. They were injured during their shift while walking a reasonable distance to take their break and eat lunch. I consider it significant that they were still being paid during this time.

I recognize that the employer does not have control over the sidewalk where the worker was injured, and the worker was exposed to the same risk as any member of the general public when using the sidewalk on that day; however, this is not a bar to entitlement in the claim. In my view, these facts are outweighed by the fact that the worker was at the place where the accident occurred because of the conditions of their work and had a reasonable need to go somewhere during their lunch break.

I find the balance of evidence supports that the worker’s personal injuries arose both out of and in the course of their employment; therefore, they are work-related. As all five factors set out in Policy 11-01- 01 to allow a claim have been met, I confirm that initial entitlement to benefits is in order for a head injury, concussion, dental injury, a right eyebrow/forehead laceration, and prescriptive eyewear.

CONCLUSION

The employer’s objection is denied.

DATED October 30, 2023

Candice Kish

Appeals Resolution Officer Appeals Services Division

Employer v. Worker, 2023 CanLII 112866

Case Summary

Employer’s Position

Worker’s Position

Assessment of Evidence

Place

Time

Activity

WSIAT Decision 897/09

WSIAT Decision 461/05

WSIAT Decision 1238/08

Findings

CONCLUSION