Decision #08/00 - Type: Workers Compensation
An Appeal Panel hearing was held on January 12, 2000, at the request of the claimant. The Panel discussed the case on January 12, 2000.
Whether or not the claim is acceptable.
The claim is acceptable.
On October 29, 1998, the claimant submitted an application for compensation benefits indicating that he injured his neck, right elbow and back on June 2, 1998, while lifting heavy paper products on an ongoing basis. When speaking to a Workers Compensation Board (WCB) adjudicator on November 19, 1998, the claimant indicated that his symptoms first began in his back and neck commencing in May 1998 and then it progressed to his elbows in August 1998. On October 1, 1998, he quit working for the company due to his injuries.
In a letter, dated October 28, 1998, the employer advised they first became were aware of a claim when the WCB form appeared in the office. When contacted on October 28, 1998, the claimant said he did not realize that he was covered by WCB. He stated that he had been attending a chiropractor since beginning work in May due to the fact that he was lifting heavy paper. When he found out that he was covered by WCB he decided to submit a claim. The employer stated that the claimant indicated that he had an existing back problem when he was hired. The employer contended that as the claimant had an existing back problem there was no accident to speak of, and therefore the claim should not be accepted.
In a doctor's first report, dated October 20, 1998, the physician's history indicated that the claimant worked as a courier and this frequently involved carrying heavy loads up stairs or unloading a truck. He developed pain in his right elbow and lower back during the course of his duties. The diagnoses reported were soft tissue strains of the neck and lower back and a medial epicondylitis of the elbow. In a telephone conversation on February 9, 1999, the treating physician advised a WCB adjudicator that the claimant had been a patient of his since 1983 and that the claimant had not been treated for any previous back difficulties. The claimant was last seen for unrelated problems on April 7, 1998, and was not seen again until October 20, 1998, for complaints of back and elbow difficulties. At this time the claimant related his problems to lifting 50 - 160 pound boxes between May 18 and October 1, 1998. No specific accident was reported.
On June 3, 1998, and October 15, 1998, the claimant was treated by a chiropractor. The chiropractor reported the worker's history of injury as "the patient was lifting heavy loads of material causing severe lumbosacral pain". The diagnoses reported were an acute traumatic lumbosacral strain/sprain; reoccurring traumatic strain/sprain. On February 1, 1999, the chiropractor advised a WCB adjudicator that the claimant had been treated for back difficulties since 1996 and that the last treatment date before being seen on June 3, 1998, had been December 5, 1997. The chiropractor advised that on June 3, 1998, the claimant complained of back pain as a result of lifting and bending at work. The chiropractor could not comment on the relationship between the claimant's difficulties and his employment but did state that the claimant was not authorized time loss from work.
In a sworn statement, dated January 19, 1999, the claimant indicated that during a pick up he had to lift extremely heavy boxes on the wheeler, push them onto the elevator, push them to the contract locale, then unload the boxes. This is when he felt a sudden, sharp pain in his lower back and abdominals. The claimant indicated that he spoke to one of the girls at the office and told them that he hurt himself. From this point on his back became problematic and as time progressed he began to experience problems with his elbows, neck and hip.
The claimant indicated that the company was aware of his chiropractic appointments. He stated that he did not have a pre-existing condition when he started with the company. He said that when he hurt his back on occasion, he would see the chiropractor and the condition would resolve. He acknowledged that he has had his back adjusted but that he does not have any kind of chronic back problem. The claimant claimed time loss from October 1, 1998 to present as well as coverage for all prescriptions, medical and chiropractic costs.
On January 25, 1999, the employer was contacted by a WCB field representative. The worker's description of injury was provided to the employer. The employer said that she never heard anything about an injury. Until the WCB form was received, she had no idea that the claimant had any kind of work related problem. The claimant periodically phoned in about his back being sore and so the employer had difficulty understanding how the alleged injury could be attributed specifically to a work related incident. Nothing was formally reported by the claimant nor did he ever indicate that an injury occurred at any specific job at any specific time.
On February 16, 1999, primary adjudication denied the claim as it could not be substantiated that the worker sustained a personal injury or accident which both arose out of and in the course of his employment. In addition, he delayed in reporting a work related incident to his employer. On April 20, 1999, the claimant appealed this decision to Review Office.
On August 13, 1999, Review Office indicated that it was unable to conclude that the worker's back, elbow and neck problems were as a result of a personal injury arising out of and in the course of employment. This was based on the following factors:
- the claimant attended for sporadic treatment from healthcare professionals between June and December 1998 for his back. October 20, 1998 was for complaints to the back, elbow and neck. At no time did the worker report a specific accident to account for his problems. He had reported to his physician that his problems were as a result of lifting and bending activities on his job between May 18 and October 1, 1998. The file evidence did not confirm that the worker reported any of these problems to his employer until October 28, 1998.
- the claimant reported to the WCB that he had injured his back on June 3, 1998. Information from the chiropractor was that the claimant had 2 injuries, one on June 3 and the other on October 15, 1998. The worker stopped work on October 1, 1998, therefore it can only be concluded that any injury sustained on October 15, 1998, as noted by the chiropractor, was not in the course of the worker's employment.
On November 23, 1999, the claimant appealed Review Office's decision and an oral hearing took place on January 12, 2000.
Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes
a. a wilful and intentional act that is not the act of the worker,
1.event arising out of, and in the course of, employment, or
2.thing that is done and the doing of which arises out of, and in the course of employment, and
c. an occupational disease.
and as a result of which a worker is injured."
The worker testified that as a result of lifting heavy loads on June 2nd, 1998, he developed a sudden severe pain in his lower back and abdominal region. The telephone records submitted in evidence by the worker confirm that he indeed did contact his chiropractor shortly after the alleged injury on June 2nd, 1998. The evidence further establishes that the worker received treatment to his lower back from his chiropractor on the day following the alleged accident.
We are satisfied, based on the weight of evidence, that the claimant did, on a balance of probabilities, incur an accident arising out of and in the course of his employment, which resulted in injury. Accordingly, we find the claim acceptable.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil, Presiding Officer - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of January, 2000