Worker fell while walking to work
This instalment of You Make the Call features a worker who injured herself just before she arrived at work one morning.
The worker was employed with a company who leased four floors inside a hospital. It also leased a parking area on one side of the hospital and had various means of access to each of its four floors from the hospital’s main entrance.
In addition to the parking area, the employer provided information to employees about other privately-owned parking lots nearby when spaces weren’t available at its own parking lot.
On June 27, 2011, the worker travelled to the hospital before the start of her shift. She didn’t park in the employer’s parking area beside the hospital, instead parking in a church parking lot nearby that had available spots. The worker walked from the church parking lot to the hospital and took a shortcut over a grassy area owned and controlled by the hospital. There was a path over the grassy area the led to a parking lot beside the hospital but not the one leased by the employer.
As the worker crossed the grassy area, she slipped and fell, fracturing her left tibia and fibula. The injury left her unable to work until her leg healed and she was able to walk again.
The worker filed a claim for worker’s compensation benefits, claiming the injury happened in the course of her employment, as she was on the way to work and about to start her shift shortly. She also said it happened on land adjacent to and owned by the hospital, which should be considered her employer by extension as she worked in the hospital.
You make the call
Was the injury unrelated to the worker’s employment at the hospital?
OR
Was the injury related to the worker’s employment and therefore compensable?
If you said the worker’s injury was not related to her employment, you’re correct. The Ontario Workplace Safety and Insurance Tribunal noted that injuries were only compensable if they arose out of and in the course of employment and it was Workplace Safety and Insurance Board (WSIB) policy that the injury must occur on the premises of the workplace and during working hours, if the worker’s workplace and hours are fixed — as well as while the worker was performing work-related duties.
The tribunal also noted the employer’s premises included all means of entering the premises. As far as parking areas are concerned, public parking areas are not under the employer’s control but parking spaces allocated by the employer are.
The tribunal found the accident occurred while the worker was on foot on land owned and controlled by the hospital. The hospital was not the employer, it was the employer’s landlord and had no control over the worker’s employment or workplace. As a result, the accident did not occur on the employer’s premises, said the tribunal.
The tribunal also found the pathway on the grassy area was not an accepted entrance to the employer’s premises. Rather, it led to a parking lot also owned by the hospital, not leased by the employer.
“The hospital is not the worker’s employer, by extension or otherwise; the hospital is the employer’s landlord, and is no more her employer than a mall owner is the employer of a retail clerk at one of his stores, or a high rise owner is the employer of someone working in one of the offices in her building,” the tribunal said.
The tribunal also noted that the accident happened before the worker started work, and therefore did not occur during regular working hours. In addition, it was WSIB policy that workers are generally not in the course of employment when travelling to and from the workplace, except for travel on employer’s business, as every commute is different and everyone except telecommuters does it.
The tribunal determined that the worker’s accident — which occurred near the end of her commute but before she reached the employer’s premises — was not “reasonably incidental to employment,” not in the course of her employment, and did not entitle the worker to workers’ compensation benefits. The complaint was dismissed.
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