Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. gSt #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CustoMer serViCe Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com thomson reuters Canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher: John hobel Managing Editor: todd humber Editor: Jeffrey R. Smith E-mail: Jeffrey.r.smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com how would you handle this case? read the facts and see if the judge agrees YOU MAKE THE CALL 8 worker takes a fall outside workplace, fi les claim for injuries ThIs InsTAlMenT of You Make the Call features a worker who injured herself on the way to work. e 64-year-old worker was a cleaner for a company that occupied upper fl oors in a building in downtown Toronto. On Oct. 20, 2009, she was walking on the sidewalk towards the building after exiting a sub- way 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 ce- ment. e 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 side- walk. e supervisor completed a report of injury for the Ontario Worker Safety and In- surance Board (WSIB) and the worker went home to see her doctor. e worker's injuries turned out to be torn muscles in both the shoulder and knee. She could no longer work and required sur- gery 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 per- form regular duties and signed a document stating she could return to work able to per- form her pre-injury duties. e worker fi led 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 build- ing, not the sidewalk, and the employer was responsible for the incident because she was going to work and the accident happened outside the entrance. ough the employer didn't own the building, it was responsible for the cleaning and snow shovelling of the area, she said. IF YOU sAId the worker was not entitled to workers' compensation, you're right. e WSIB found the worker's injury did not arise out of the course of her employ- ment. e employer's premises was defi ned as "the building, plant or location of work, including entrances, exits, stairs, eleva- tors, lobbies, parking lots, passageways and private roads." However, the worker con- fi rmed the incident took place on the side- walk, which was public property, before she actually arrived at the employer's premises. An appeals resolution offi cer agreed that the worker was not in the course of her em- ployment "but rather on public property at the time and a member of the general pub- lic." e worker appealed to the province's Workplace Safety and Appeals Tribunal. e tribunal found there was a fall that seri- ously 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. e 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. e 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. " e 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 initi- ated 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 enter- ing the employer's premises, as defi ned, at the proper time, using the accepted means for entering and leaving to perform activi- ties for the purpose of the employer's busi- ness." Also, the manual stated "workers entering the building on any but the main fl oor or the fl oor occupied by the employer, are not in the course of employment until entering the elevator/stairs leading to the fl oor 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. e appeal was denied. For more information see: • Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 759/13 (May 9, 2013), L. Petrykowski – V-Chair (Ont. W.S.I.A.T.). You MAKe the CAll Was the worker's injury not compensable by the WSIB? OR Was the worker entitled to workers' compensation benefi ts?

• Cover