Worker was unable to work following injuries; fell on way into building where she worked
This instalment of You Make the Call features a worker who injured herself on the way to work.
The 64-year-old worker was a cleaner for a company that occupied upper floors in a building in downtown Toronto. On Oct. 20, 2009, she was walking on the sidewalk towards the building after exiting a subway station. Near the stairs of the building, the 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 and told the supervisor and a union representative of her fall on the sidewalk. The supervisor completed a report of injury 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 and signed a document stating she could return to work able to perform her pre-injury 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. Though the employer didn’t own the building, it was responsible for the cleaning and snow shovelling of the area, she said.
You Make the Call
Was the worker’s injury not compensable by the WSIB?
OR
Was the worker entitled to workers' compensation benefits?
If you said the worker was not entitled to workers’ compensation, you’re right. The WSIB found the worker’s 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 actually arrived at the employer’s premises.
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 in front of the stairs leading to the building. 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 injury report which the employer completed based on the worker’s description of the incident, which indicated she fell on her way to work, not when she arrived at work. No mention of a fall onto stairs was made in the injury report; in fact the report mentioned the fall took place on a sidewalk.
"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.
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