DECISION NUMBER:
20240026
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
DATED:
K. MACMILLAN, APPEALS RESOLUTION OFFICER
March 12, 2024
ISSUE
The worker representative, on behalf of the worker, is objecting to the Eligibility Adjudicator’s decision of February 25, 2022 to overturn initial entitlement to multiple areas, including a head injury, for a slip and fall incident that occurred in a parking lot.
BACKGROUND
On December 7, 2021, the worker was in a City parking lot when they unexpectedly slipped and fell on ice at approximately 8:00 AM prior to the start of their shift with the employer of record. The worker got up and walked across the street to the employer of record’s building and an ambulance was called. Lost time began on December 8, 2021. A Workplace Safety and Insurance Board (WSIB) decision letter dated December 10, 2021 allowed initial entitlement to health care benefits and loss of earnings (LOE) benefits for a head injury. The worker returned to pre-injury duties on December 14, 2021.
A Case Manager’s decision letter dated January 21, 2022 updated entitlement to include a concussion and sprain/strains of the neck and left shoulder while denying entitlement to sprain/strain injuries of the upper and lower back. An Eligibility Adjudicator’s reconsideration letter dated January 31, 2022 upheld initial entitlement and the payment of full LOE benefits from December 8, 2021 to December 13, 2021.
The Eligibility Adjudicator’s decision letter of February 25, 2022 overturned the prior decision dated December 10, 2021 after determining that the incident occurred prior to the start of the worker’s shift and that the employer of record did not own or lease the parking lot. The decision letter stated the employer of record was a separate entity from the City, even though they share the same WSIB firm number. Another reconsideration letter dated July 14, 2023 confirmed the denial of initial entitlement. A final reconsideration letter dated August 30, 2023 accepted the WSIB Legal Services’ opinion that the employer of record, and not the City, was the most appropriate accident employer in this claim.
Both representatives requested that the worker’s objection to the denial of initial entitlement be resolved as a hearing in writing. The issue is now before me.
AUTHORITY
Operational Policy Manual
Published
11-01-01
Adjudicative Process
November 3, 2008
12-01-01
Who is an Employer?
April 9, 2021
15-02-02
Accident in the Course of Employment
October 12, 2004
15-03-03
On/Off Employers' Premises
October 12, 2004
15-03-04
Employers' Premises, Parking Lots, Roads, Plazas, Malls,
October 12, 2004
Boundaries
ANALYSIS
I find that initial entitlement is not in order for the incident of December 7, 2021. 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 requests the restoration of initial entitlement for the slip and fall incident of December 7, 2021.
The worker representative maintains that the evidence supports that the worker was/is an employee of the City. It is the worker representative’s position that the necessary entitlement criteria are met as the City owned and operated the parking lot where the worker slipped and fell.
The written submission of June 13, 2023 questions why the Employer’s Report of Injury lists the employer as the City and not the employer of record. The worker representative presents the argument that a prior claim lists the employer as the City. The submission discusses that the issue of who the employer is under that claim was never raised, even though there are decisions at the Workplace Safety and Insurance Appeals Tribunal (WSIAT) level.
The worker representative argues that the City is legally responsible for the operation’s liabilities under the WSIB and that the City continues to be listed as the named employer on correspondence relating to claim entitlement. In the view of the worker representative, the evidence shows that the City owns and controls the parking lot in question, is responsible for the worker’s wages, and deducts the parking expense directly from the worker’s pay.
Employer representative’s position
The employer representative maintains that his client is the employer of record who does not own or lease the public parking lot where the worker fell prior the start of their shift. The written submission of February 14, 2024 argues that the worker was not in the course of employment at the time of injury as they had not yet entered the premises of the employer of record. The employer representative highlights that both the Worker’s Report of Injury and the Employer’s Report of Injury indicate that the worker fell prior to the start of their shift.
The employer representative does not dispute that one of the negotiated employment benefits includes parking. However, the written submission argues that this provision does not change the employment status or extend the employer of record’s care, control, or liability to parking areas in the public domain. The employer representative outlines that it is simply a monetary contribution by the employer of record to refund the monetary equivalent once an employee provides receipts for parking costs for whatever parking spot they chose/used. The written submission states that the employer of record does not share in the care and control of the local street parking, parking lots, or residential parking.
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 general agreement that the first two criteria are established. Proof of accident is not in dispute as there was immediate reporting and medical attention for this chance event accident. Similarly, there are no arguments presented with respect to the clinical compatibility of the accepted diagnoses to the accident history of a slip and fall on ice. Instead, the dispute involves determining who is the employer of record and deciding if the worker was in the course of employment at the time of the injury.
i) Who is the employer?
I am satisfied that the evidence supports that the employer of record is the employer in this claim.
The worker representative suggests that it is unclear how the WSIB determined that the City and the employer of record are separate employers even though they share the same firm number. The worker representative’s written submission of June 13, 2023 encloses a paystub from the City listing the after-tax deduction of $30.00 for parking as well as the employer-paid benefit of $35.00 for parking.
Policy 12-01-01, Who is an Employer? states that the registered employer is the person in law who is legally responsible for an operation’s liabilities to the WSIB.
With respect to the case before me, I note that the offer of employment contract dated May 24, 2021 from the employer of record (not the City) references section 49(1) of the Police Services Act listing the obligations for a member of a police force. For example, the employment contract states “all members of this Police Services are prohibited from engaging in full-time employment elsewhere”. A Police Service Conditions of Service for Civilian Members form signed by the worker on May 30, 2001 confirms agreement to abide