The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 21, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on November 21, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On July 9, 1999, the claimant filed a Worker's Report of Injury or Occupational Disease form for injuries he sustained at work on July 6, 1999 during the course of his employment as a labourer. The claimant described his injuries as follows:

"8:00 a.m. I was moving a concrete side walk rail and it slipped out of my hand and landed on my left foot. Pain was minimal but I realized when I took off my boot later that my foot was injured because it was bruised and swelling. 1:00 p.m. I was throwing concrete into a single axle truck when I felt a pinch in my lower back."

The claimant indicated on his application form that he had reported the above episodes to two foremen on July 6, 1999. Consequently, the Workers Compensation Board (WCB) established two claims for the above injuries, i.e. one pertaining to the toe injury and the other regarding the back injury.

A Doctor's First Report dated July 19, 1999 (date of first treatment being July 6, 1999) indicated the following history of injury that was obtained from the claimant, "Dropped rail on 1st toe L foot. Then injured back lifting concrete". The diagnosis rendered was contusion to the left great toe and low back muscle strain. The claimant was prescribed Tylenol #3s and physiotherapy. The claimant was considered to be capable of light work and was advised to avoid repetitive standing and lifting over seven kilograms.

On July 22, 1999, a WCB adjudicator contacted the claimant by telephone. The claimant said that he advised two foremen about his foot and back injuries. He further indicated that he filled out a green card, believing that he mentioned both accidents on this form (the green form dated July 7, 1999 later submitted by the employer referenced the foot injury, but no mention was made of the back injury). The claimant indicated that no other co-workers were aware of his foot or back injuries or that his boot was damaged. The claimant described the work he had been performing when he injured his back. He was loading concrete into a single axle truck, the sides of which were quite high. When he picked up a piece of concrete, he felt a pinch in his lower back.

The adjudicator contacted both foremen on July 23, 1999. The first foreman indicated he knew nothing about a claim and that the claimant did not report an accident. The second foreman indicated that the claimant had come to see him at the end of his shift on July 6, 1999. The claimant reported a sidewalk rail had fallen on his foot and a green card was filled out. The foreman indicated that the claimant did not report a back injury on July 6, 1999 or any time afterward.

In a memo dated July 23, 1999, the adjudicator accepted the claim for a left foot injury and paid wage loss benefits to the claimant up to July 16, 1999 inclusive. It was further noted that a new claim would be made up for the back injury.

Statements were obtained from four crew members who were working with the claimant on the accident date. All crew members stated they were unaware of any problem that the claimant may have had with his back. One crew member advised that he thought the claimant had hurt his foot.

In an undated memo, the adjudicator noted that the claim was accepted based on "confirmation of job duties as per accident description and accident reported to doctor on exam that day." In a further memo dated August 13, 1999, the adjudicator stated that time loss benefits would be paid to the claimant for July 19 and July 20, 1999 and that consideration of further time loss would be made pending medical authorization.

File documentation contains information concerning further back problems that the claimant experienced during two non-compensable incidents. On July 30 1999, the claimant injured his back while lifting a 70 pound child at an accident scene. On August 14, 1999, the claimant injured his back when he lifted a bicycle.

On October 26, 1999, the employer was advised that the WCB accepted responsibility for the claimant's back difficulties beyond August 3, 1999.

In his submission of January 10, 2000, the employer's representative appealed the adjudicative decision of October 26, 1999 accepting the claim. He believed the weight of evidence did not establish a cause and effect relationship between the claimant's back problems and an accident arising out of and in the course of employment. A copy of the submission was forwarded to the claimant's union representative for rebuttal argument. A submission from the union representative was later received dated May 26, 2000.

On June 6, 2000, Review Office determined that the claim was not acceptable. Review Office concluded that "it cannot substantiate the claimant having sustained personal injury to his back on the date in question. Since it cannot be substantiated, claim for injuries sustained July 6, 1999 to the claimant's back is not acceptable." On August 16, 2000, the claimant's union representative appealed Review Office's decision and an oral hearing was held.

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 international 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,

Despite the fact that the claimant appeared as a poor historian when questioned about the inconsistency of his reporting of the incident, we, nevertheless, find the medical evidence does support the occurrence of a back injury on July 6th, 1999. Some of the factors we considered as being corroborative were as follows:

• the claimant presented at his doctor's office on the day of the accident almost immediately at the end of his shift;
• the attending physician's initial diagnosis included a low back muscle strain, which is consistent with the claimant's job duties and history of injury;
• physiotherapy as a mode of treatment was discussed by the examining physician on July 6th, 1999;
• the attending physician, according to his progress reports, referred the claimant to a physiotherapist on July 8th, 1999;
• statements obtained from the claimant's co-workers confirm that he had no previous back complaints prior to July 6th, 1999.

In accordance with the weight of evidence, we find, on a balance of probabilities that the claimant did in fact sustain an accident, which resulted in an injury to his back. The claim is therefore acceptable and the appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 5th day of January, 2001