The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 14, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 14, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On March 8, 2000, the claimant filed a claim for compensation benefits indicating that he experienced headaches and pain in his upper and lower back during his shift as a bus operator on March 7, 2000.

In a letter attached with the application, the claimant indicated that his back started to bother him one hour into his shift. He was unable to adjust the back rest of the seat properly which caused him to sit in an awkward position. By not being able to move the back rest forward, the claimant indicated that he was sitting too far back and this caused him to extend his arms to steer the bus. This caused him to overreach to steer the bus which caused pulling on the arms, into the upper back area and radiated down the lower back.

The claimant further indicated in his letter that he called the control centre to ask for another bus identifying his injury and the cause. Due to the fact that there were other mechanical defects reported, his employer sent out a service truck but the mechanic just looked at the seat and lifted the cushion saying that was as far forward as the seat back would go. The claimant advised that while awaiting a call back with a time and location for a trade off (change of bus), his back pain became progressively worse throughout the upper and lower back regions and he was getting a major headache.

A letter dated March 16, 2000, was received from the employer questioning the validity of the accident. The employer stated that the claimant had asked his operations supervisor on March 6, 2000 if it would be possible not to assign him MCI buses as he did not like them. The supervisor pointed out that the MCI seat was a National 70, identical to the seats in Flyer buses, which the claimant had driven without any problem for the past month. On March 7, 2000, the claimant claimed a lower back injury after driving an MCI bus. The employer indicated that the seat had been checked by the street mechanic and that no defect was found.

A Doctor's First Report dated March 7, 2000, described the worker's injury as gradual onset of low back pain, neck pain and headache from sitting in a non-adjustable seat while driving transit for 7 hours. The diagnosis was acute low back pain and acute neck strain with secondary headache. The claimant was considered totally disabled effective March 8, 2000 and later returned to work on March 20, 2000.

File records showed that several conversations took place between the claimant, the employer's operations supervisor and a union representative surrounding the details of the case. On April 20, 2000, the claimant was advised that in the opinion of Short Term Claims, it could not be established that a work related injury occurred or that a cause and effect relationship existed between the seat and the claimant's back strain. This decision was reached based on the history and mechanism of injury reported, diagnosis, objective medical findings and subsequent investigations.

On June 23, 2000, the case was considered by Review Office following receipt of a submission from the claimant's union representative dated May 8, 2000. A rebuttal submission was filed by the employer dated June 16, 2000. Review Office confirmed in its decision that the claim was not acceptable based on the following rationale:

• it could not be established that an accident happened at work as required in the legislation. Review Office indicated that the bus seat was not found to be defective. It was reported to be in proper working order, and the back adjusted as far forward and backward as it was designed to do

On July 13, 2000, the union representative appealed Review Office's decision and oral hearing was arranged.

Reasons

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,

(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."

The claimant asserted that he injured his back in the course of his employment while driving a transit bus. Approximately an hour into his shift on the day in question, the claimant began to experience a sore back and neck. He indicated that he had trouble adjusting the driver's seat, particularly the backrest. The claimant's union representative made it quite clear that it was the back part of the seat, which was defective and not the seat cushion or the mechanism allowing the seat to slide back and forth.

A transit mechanic was summoned by the claimant to inspect the seat as well as to effect some other minor repairs to the bus. We note that the mechanic following his inspection could not detect any problems with the seat. In addition, the maintenance logs of this particular bus were complete and there was no evidence of any major repairs or adjustments done to the seat back such as would have necessarily been required if it were defective. There were no recorded complaints from other transit drivers that this bus had a faulty seat back.

We find based on a preponderance of evidence that the seat back was not defective as alleged. We further find that the claimant's sore back and neck were, on a balance of probabilities, caused by something other than what he believed to be a defective seat back. In our view, there is no causal relationship between the seat back and the claimant's physical complaints. There being no accident within the meaning of the Act, the claim is therefore not acceptable. Accordingly, the appeal is hereby dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 19th day of December, 2000