DECISION NUMBER:

20230040

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER, NOT PARTICIPATING

HEARING:

TELECONFERENCE – MARCH 20, 2023

HEARD by:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

DATED:

MARCH 28, 2023

ISSUE

The worker representative, on behalf of the worker, is objecting to the Eligibility Adjudicator’s decision of May 16, 2022 to overturn initial entitlement to healthcare benefits for a left wrist fracture and loss of earnings benefits from February 19, 2022 to March 10, 2022.

BACKGROUND

On February 18, 2022, the worker slipped and fell on ice while walking from their vehicle to start their shift as mail carrier. A distal radial fracture of the left wrist was diagnosed the same day. An Eligibility Adjudicator’s decision letter dated March 11, 2022 allowed initial entitlement for the left wrist after accepting the worker’s statement that they fell in a designated parking lot. Correspondence from the employer dated May 9, 2022 requested a reconsideration and provided additional information to support that the parking area used by the worker was not the property of the employer.

The Eligibility Adjudicator’s decision letter of May 16, 2022 determined that the worker was not in the course of employment at the time of injury as they were not using an accepted means of entrance to the employer’s premises. The Eligibility Adjudicator’s reconsideration letters of June 14, 2022 and

October 3, 2022 upheld the denial of initial entitlement for the left wrist.

The administrative decision dated January 9, 2023 confirmed that the worker’s objection would be addressed as an oral hearing. The Appeals Coordinator’s letter of February 22, 2023 verified that the oral hearing was scheduled as a teleconference. The issue of initial entitlement for a left wrist fracture is now before me.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

15-02-02 Accident in the Course of Employment 15-03-03 On/Off Employers' Premises

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

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review)

November 3, 2008

October 12, 2004

October 12, 2004

October 12, 2004

September 1, 2021

ANALYSIS

I find that initial entitlement is not in order. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

The worker representative submits that initial entitlement should be reinstated as the worker was hurt on the way to work and that there is no dispute about the area where the injury occurred. The question is raised why entitlement was overturned after the Workplace Safety and Insurance Board (WSIB) received a letter from the employer. The worker representative asserts that the accident had nothing to do with any area that the employer has deemed to be unsafe.

The worker representative explains that the employer does not provide parking and that employees need to find their own parking, either by taking the pathway that has been used for the past 12 years, or by parking on the street. According to the worker representative, employees may park on the side of the road, or in the designated union parking lot at the local Legion which is approximately 200 feet from the employer’s facility and the safest method of getting to the facility.

The worker representative describes that there is a particular pathway owned by a private individual that is separate from the Legion’s property. The argument is made that there are no signs saying no trespassing and that the owner of this properly confirmed approximately three years ago that they had no issue with individuals crossing in order to get to the employer’s facility. The worker representative stresses that this route on the pathway is perfectly safe, well-lit, is salted/sanded, does not have a high accident rate, and is not a dangerous area. In the view of the worker representative, the employer’s recommended route is approximately two to three blocks longer and has more ice.

Worker’s testimony

It is the worker’s testimony that they did not fall in the Legion parking lot. Rather, the snow-covered ice causing the worker’s fall was approximately 50 feet from the parking lot.

The worker explains that they fell on the foot path that they usually take into work. At the time of the accident, the worker describes being approximately two minutes away from the post office door. Within the testimony, the worker indicates that they initially thought that the pathway was public property but now understands that it could be private property. Regardless, the worker states that there are no signsor notices in the area to identify who the owner is, although there is a light post by the area where they fell.

Initial entitlement

I will begin my review by considering that Policy 11-01-01, Adjudicative Process, sets out a five point check system of which all factors must be present in order to allow a claim. The listed criteria are as follows:

• Is there an employer?

• Is there a worker?

• Was there a personal work-related injury?

• Is there proof of accident?

• Is there compatibility of diagnosis to accident history?

There is no disagreement that the first two factors are evident as there is both an employer and a worker as confirmed by both the Employer’s Report of Injury and the Worker’s Report of Injury contained within the case record. I further find that the criterion of proof of accident is met as an accident situation clearly exists with no delay in either the onset of symptoms or in seeking medical attention. Additionally, it is my view that the policy requirement of compatibility is met. In other words, I accept that the accident history of February 18, 2022 caused the resulting diagnosis of a distal radial fracture of the left wrist.

Therefore, the remaining criterion to consider relates to if there was a personal work-related injury. To put it another way, I must now determine if injury happened while the worker was in the course of employment. Policy 15-02-02, Accident in the Course of Employment, sets out the criteria for confirming that an accident occurred in the course of employment in order to establish that there is a personal

work-related injury as required under Policy 11-01-01. Policy 15-02-02 directs decision-makers to consider the criteria of place, time, and activity when determining whether a personal injury by accident occurred in the course of employment.

Was the worker in the course of employment?

I accept that the worker was not in the course of employment at the time of the accident. I understand that the Eligibility Adjudicator initially allows entitlement based on the worker’s assertion that they were using a designated parking area. As previously referenced, the first decision letter of March 11, 2022 states that the Eligibility Adjudicator was accepting the worker’s statement regarding the designated parking lot as they were unable to confirm the details with the employer. The employer’s subsequent letter of May 9, 2022 states that neither the parking lot nor the path are property of the employer.

The worker and worker representative both indicate that the area in which the accident occurred is privately owned. The worker confirms they do not receive reimbursement for parking from the employer. Still, the worker stresses that they were not given direct instruction or training on how they needed to get in to work. The worker’s testimony suggests that management has parking available at the employer’s premises that employees do not. The worker representative questions why some people are provided with parking by the employer depending on their shift or position while most are not. In the opinion of the worker representative, the employer would likely ask the worker move their vehicle if they had parked on the premises.

I realize that the employer did not provide parking for the majority of employees and that the union had made arrangements with the local Legion. I also appreciate the worker’s testimony that employees would place sand and salt down themselves. However, there is general agreement that the area in which the

worker fell is not the employer’s property or premises. Policy 15-02-02 outlines that 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. In this case, I accept the worker’s testimony that they were approximately a few minutes away from the employer’s premises when the accident occurred.

Policy 15-03-03, On/Off Employers' Premises, states that 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. I must keep in mind that the employer’s premises are defined as the building, plant, or location in which the worker is entitled to be, including entrances and parking lots, passageways, and roads controlled by the employer for the use of the workers when entering or leaving the work site. Policy verifies that location has been adopted as the line to be drawn between personal activities and work-related activities.

Finally, Policy 15-03-04, Employers' Premises, Parking Lots, Roads, Plazas, Malls, Boundaries, requires worker’s to use an accepted entrance when entering the employer’s premises at the proper time. Policy 15-03-04 also requires the parking lot to be owned or leased by the employer. Similarly, any road must be employer-owned and completely controlled by means such as posted notices, warning signs, or opening or closing gates, maintenance work or snow clearing.

With respect to the situation before me, the worker explains that they do not have any start time as they are on-call relief. It is the worker’s testimony that they start once they arrive at the office where there is a sign-in sheet with a place to enter the time. I appreciate the worker’s indication that the pathway they took is the safest route and that many employees view themselves to be in the course of employment once they arrive as walking and driving are parts of their job. Further, I understand the worker’s testimony that employees have discussed that they should be provided with parking by the employer to avoid risks.

All the same, I find that the worker’s testimony, the worker representative’s verbal submissions, and the employer’s correspondence of May 9, 2022 all corroborate that the area in which the worker fell is not owned, leased, or controlled by the employer as required under Policies 15-03-03 and 15-03-04. In addition, I am not persuaded that the worker was in the course of employment at the time of injury as the accident occurred off of the employer’s premises since the property is privately owned. Therefore, it is my view that it is not material that the private owner of the property informed the union that they had no concerns with employees using the pathway or that many of the worker’s colleagues typically used the pathway to and from the employer’s premises. For the same reason, I find that it is immaterial that employees have being using this particular pathway for the last 12 years, or that the worker has at times parked on the street or wherever they can get close enough to the employer’s premises.

Policy 11-01-01 states that all five listed criteria must be present in order for there to be initial entitlement to a work-related injury. I find that the issue before me hinges on the fact that the area in which the worker fell is private property and that the worker had not yet arrived onto the employer’s premises.

Again, I accept that the location of the accident is not owned, leased, or controlled by the employer.

Consequently, I am not persuaded that the criterion of location is satisfied for there to be a personal

work-related injury. Policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), states that LOE benefits may be paid if the lost time is the result of a work-related injury. Based on my determination that the left wrist injury is not work-related, I find that initial entitlement is not in order for either a fracture of the left distal radius or to loss of earnings benefits for the period of February 19, 2022 to March 10, 2022.

CONCLUSION

I conclude that initial entitlement for a distal radial fracture of the left wrist, including loss of earnings benefits for the period of February 19, 2022 to March 10, 2022, is not appropriate as the worker was not in the course of employment at the time of injury.

The worker’s objection is denied.

DATED March 28, 2023

K. MacMillan

Appeals Resolution Officer Appeals Services Division