You fall into the parking lot of your workplace while heading towards it. You suffer a fracture in your tibia and are no longer able to work for a few weeks. In addition, your doctor tells you that the injury will probably leave sequelae once healed. We advise you to make a claim with the CNESST in order to obtain compensation for your damage.
Do you have access to such benefits, considering that you were neither in the workplace nor working at the time of the accident? If so, what are the elements you will have to prove to succeed in your claim?
Mr. Lambert answers these questions with examples from case law.
What the law provides
To obtain compensation from the CNESST, it must first be shown that the damage suffered is the consequence of a work accident in order to qualify it as an occupational injury or disease.
Normally, there is a legal presumption of employment injury in favour of the worker. Section 28 of the Act respecting industrial accidents and occupational diseases establishes that an injury occurring in the workplace while the employee is working will be presumed to be an employment injury.
When the injury occurs while the employee is on hiatus or leaving the workplace, this presumption no longer applies. It will then be necessary to prove that the accident occurred while the employee was acting in the course of his work. In addition, it will also be necessary to demonstrate the sudden and unpredictable nature of the incident as well as the relationship between it and the injury caused.
In determining whether an accident occurred during work, the court will consider several factors, including:
- the location of the event;
- the time of the event;
- remuneration for the activity carried out by the worker at the time of the event;
- the existence and degree of authority or subordination to the employer when the event does not occur on the premises or during working hours;
- the purpose of the activity carried out at the time of the event, whether incidental, ancillary or optional to its working conditions;
- the connectedness or relative usefulness of the worker’s activity with regard to the performance of the work.
While these criteria serve as guidelines, they do not all need to be present to succeed in your claim. The importance given to each element will vary according to the circumstances and facts of each situation.
Accident when arriving or leaving the workplace
In general, claims about injuries sustained while the employee is on their way to or from work are upheld. Such is the case of a waitress, working for Les Rôtisseries St-Hubert, who, while finishing her shift, slips and falls into the parking lot of the restaurant. In doing so, she fractures her ankle. The claim is upheld because the accident occurred concurrently with the departure from the workplace, that is, that little time had elapsed since the end of the shift.
It is also recognized in the case law that an injury that occurs on the routes of access to work made available to workers by the employer to leave or arrive on the site represents an employment injury, since there is a sufficiently strong link with the work. Thus, the case law recognizes accidents occurring in a parking lot, or a stairwell allowing access to the workplace and provided by the employer, as having occurred in the course of work.
It is important to mention that, however, public roads to the workplace are not recognized by case law. This is the case for streets or parks that the worker must cross to get to work, home or his parked car.
Accident at work during a break
Accidental injuries that occurred during breaks are generally recognized as employment injuries by case law. The criteria are mainly the same as for accidents occurring outside the workplace. Thus, the case law has recognized an accident during a ski game, a cut in the hand during a meal break and a fall during a break to stretch one’s legs as work accidents.
Note that only accidents occurring during incidental activities at work will be compensated and not activities of a personal nature. For example, a worker who was injured while taking a break to smoke had his application denied. Indeed, according to the judge, this was a personal choice that had nothing to do with the accomplishment of the work.
Accidents occurring during activities prohibited by the employer will also rarely be compensated.
If you have any further questions about this article or have been the victim of a work accident, do not hesitate to contact our firm.
