The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 30, 2000, at the request of the claimant. The Panel discussed this appeal on June 30, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In December 1998, the claimant filed an application for compensation benefits indicating that he injured his left side rib cage on October 23, 1998 while performing the duties of a crusher operator helper. In a letter attached with the application form, the claimant described the injury as follows:

"...I had hold of the grease gun in my left hand, (I am right handed but the conveyor belt had pulled the grease gun out of my right hand) and immediately pulled as hard as I could, while I was bent down. I pulled with a left hand, turning to the left. The hose of the grease gun came free from the roller of the conveyor belt. But while I pulled, I heard (through the echo of my torso while I wore my ear plugs) and felt a loud pop in my rib cage and experienced immediate extreme pain, causing me to drop the grease gun. The pain was so bad at this point, that I had extreme difficulty climbing down from the conveyor belt. The pain made me short of breath, and unable to turn, bend or lift my left arm or anything else. Thinking that the pain would subside, I let about fifteen minutes go by before reporting the injury to the control operator "...

The claimant indicated that he had told the control operator about the injury because the control operator was in the control tower and the machine obstructed his view of the accident. The claimant further advised that he had mentioned to the control operator about injuring the same side, on his own while moving furniture for a friend, and that it was a minor injury that did not require any medical attention or treatment.

The employer's report of injury indicated that the claimant had been involved in a fight previous to commencing employment and that he had sore ribs. The claimant advised that if he rested over the weekend he would be able to perform his job on Monday. On Monday morning the claimant was picked up and driven to work by a fellow employee. He worked for 3 hours and then he quit and left.

On January 14, 1999, a sworn statement was obtained from the claimant with respect to the alleged incident. A sworn statement was also obtained from the crusher operator dated February 2, 1999.

A doctor's first report dated October 26, 1998, indicated that the claimant strained the left lateral ribs while pulling on a conveyor belt. Subjective complaints were pain on coughing, sneezing and lifting. There were minimal objective signs.

In a decision dated February 4, 1999, Claims Services determined that based on the weight of evidence, there was insufficient evidence to establish than an injury occurred at work. The claim for compensation benefits was denied.

On March 3, 1999, a statement was obtained from the employer with respect to the events that occurred on October 23, 1998.

In a decision letter dated March 11, 1999, Claims Services advised the claimant that information obtained from the employer indicated that no accident at work was reported on October 23, 1998. It was the Vice President of the company who drove the claimant to work since starting with the company. On October 21, 1998, the Vice President of the company drove the claimant to work and he confirmed that the claimant did complain of sore ribs due to an incident outside of work. Based on the weight of evidence, there was insufficient evidence to establish that an injury occurred at work. The claim for compensation benefits was denied. On August 23, 1999, the claimant submitted an appeal requesting reconsideration of the decision denying his claim.

On September 17, 1999, Review Office confirmed that the claim was not acceptable and referred to section 17(1) of the Workers Compensation Act (the Act). Review Office indicated that the claimant provided a totally opposing version of the reporting of an accident at work as compared to the information obtained from the control operator and the employer. While there was little reason to accept one version of the events that transpired over the other, Review Office noted that the physician who examined the claimant on October 26, 1998, found few signs of any injury despite the fact that the claimant reported the pain was so bad that he could not take it anymore. Given the available information and the lack of any written notification of accident, Review Office found the decision to deny the worker's claim to be reasonable.

On April 4, 2000, the claimant appealed Review Office's decision and an oral hearing was arranged.

Reasons

Section 4(1) of 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,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) 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."

As the background notes indicate, the worker purports to have strained his left lateral ribs while attempting to remove a grease gun caught in a conveyor belt. A thorough review of the transcript revealed several inconsistencies with respect to the occurrence of certain of the events as described by the claimant. For example, the claimant states in both his report of injury form and his statement given to a WCB field representative that at the time of his accident he reported it within minutes to the crusher control operator, a man named Harry. "So actually I had originally reported it to Harry. I, I went up to Harry and I said listen you know, I, I really hurt my ribs just, just a few minutes ago and I, I can't even climb up the ladders, I can't cough, I can't breathe and he says well just take it easy." The evidence on file, however, confirms that the employee named Harry was at a local hospital having X-rays taken at the time of the claimant's alleged incident.

We find that there was no accident as defined by the Act. Therefore, the claim is not acceptable and the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil, Presiding Officer - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of July, 2000