The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 30, 2000, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on November 30, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

In April 2000, the claimant submitted an application for compensation benefits for lower back pain that occurred on March 22, 2000. The claimant described her injury as follows:

"I was alone in the Program Dept. and wanted to make tea. I removed the water bottle which was completely empty and placed a full container on the stand. I had done this many times before without incident. This time, I felt a pain in my lower left side and later visited the chiropractor after work. I told him what had happened. On March 28 my back completely went into spasms. I was away from work March 29, 30, 31 and April 3rd. I returned to work April 4 & 5 and have been off from work since."

The claimant reported the incident to her employer on April 7, 2000. She further stated that her chiropractor thought the water cooler was located in her home. The chiropractor mentioned on April 7th that the injury on March 22 triggered the entire episode of care.

In an undated letter that was received by facsimile on April 20, 2000, the employer outlined a similar history of accident as the claimant had on her application form for benefits. The employer indicated that the claimant saw her chiropractor after work and told him what happened. The claimant worked on March 23 and 24th and was off work on March 27 and 28 due to stress. On the evening of March 28th the claimant's back went completely into spasms and she was away from work on March 29, 30, 31 and April 3rd. The claimant returned to work on April 4 and 5 and had been off work ever since.

The employer noted that the claimant had requested leave for several months effective April 3 because of emotional and physical exhaustion.

A Chiropractor's First Report dated April 11, 2000, indicated a diagnosis of an acute sprain/strain injury throughout the area of L3-S1 with associated muscle spasm.

In a telephone conversation with the claimant on May 1, 2000, a Workers Compensation Board (WCB) adjudicator documented that the claimant was looking for coverage for March 29, 30, 31 and April 3rd. The claimant believed that her back was susceptible to injury because of a previous accident when she was injured while restraining an inmate.

At the time of the incident the claimant said she was making tea for herself and not for the inmates. The claimant advised that she had worked on March 23 and 24 with no problems except that her back was tender which probably had resulted from the chiropractic adjustment. She said that she did her regular duties with no help. On March 25, 2000, she began to feel flu symptoms and missed work on March 27 and March 28 due to the flu. The claimant advised that her flu symptoms included coughing and sneezing and that she had stayed home all weekend as she didn't feel well. On March 28, 2000, the claimant opened her back door to go outside and felt bad pain in her back. The claimant indicated that she saw her doctor every now and then for her back because it gets stiff from standing and teaching.

On May 12, 2000, the claimant was informed by the WCB that her claim for compensation was denied. The adjudicator noted that when considering a claim, it must be determined that the claimant's injury was related to specific duties being done for the purpose of the employer's business. As the water cooler was funded solely by voluntary employee contributions, it was not considered to be under the direct control of the employer. The adjudicator indicated that obtaining water for the cooler was for personal use and was considered a personal activity unrelated to her employment. As a result, the injury did not arise out of her employment and responsibility could not be accepted for the claim.

On August 11, 2000, Review Office determined that the claimant's low back condition was not the result of an accident arising out of and in the course of her employment and that her claim was therefore not acceptable. Review Office was unable to conclude that the claimant's low back complaints arose out of and in the course of her employment as the employer had no control over the water cooler. The injury was considered by Review Office to be the result of personal action on the part of the claimant.

On August 25, 2000, Review Office received a submission from the claimant asking for reconsideration of the decision made on August 11, 2000. The claimant indicated that according to employer regulations there was a responsibility for the employer to provide potable water to employees. The claimant indicated that water testing had indicated there was bacteria in the tap water and therefore she was uncomfortable using the employer's source of water and thus the need for a water cooler. In a letter dated September 7, 2000, Review Office stated that the issue regarding the quality of tap water was a labour relations issue and that WCB was silent on such matters. Review Office therefore confirmed its earlier decision of August 11, 2000. On October 16, 2000, a worker advisor appealed the Review Office's decision to the Appeal Commission and an oral hearing was convened.

Reasons

The eligibility for compensation benefits by federal employees is governed by The Government Employees Compensation Act (GECA) and the Government Employees Compensation Regulations (GECR) which are both administered by agreement in Manitoba by the Workers Compensation Board (WCB). In the GECA, an accident is defined as "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

According to Section 4(1) of the GECA, compensation shall be payable to

(a) an employee who

(i) is caused personal injury by an accident arising out of and in the course of his employment, or

(ii) is disabled by reason of an industrial disease due to the nature of the employment.

The GECR provide that, "an employee who is disabled by reason of a disease that is not an industrial disease but is due to the nature of his employment and peculiar to or characteristic of the particular process, trade or occupation in which he is employed at the time of the disease was contracted ...[is] entitled to receive compensation at the same rate as [he/she] would be entitled to receive under the Government Employees Compensation Act if the disease were an industrial disease ...".

In 1993, the Board of Directors of the WCB instituted policy 44.05.10 in order to clarify and/or to expand the definition of accident contained in the GECA. This particular policy provides:

"The following principles will apply when interpreting GECA. The definition of 'accident' in the GECA will be given a broad interpretation. Therefore:

1. The phrases personal injury by an accident will be interpreted to mean 'personal injury by accident'

2. The interpretation of 'accident' will encompass both accidental cause and accidental result. That is, the injury itself may be considered the 'accident'

3. The gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion, will be considered an 'accident'."

As the background notes indicate, the claimant was lifting and placing a full water bottle into its cooling stand when she felt a pain in the lower left side of her back. Later that day after having completed her shift, the claimant attended at her treating chiropractor's office for an examination. According to the evidence the chiropractor performed a spinal adjustment. The evidence further establishes that the claimant returned to work the next day as well as the day after and performed all of her regular workplace duties.

The claimant testified at the hearing that over the course of the weekend she developed flu like symptoms and that she missed the next two days of work because she was feeling sick. This illness prompted a visit to her family physician. "So I went to Dr. [name] and we discussed my health in general. At the time, he gave me a certified doctor's slip, you know, to authorize why I was off for two days. When I got out into the vehicle, into my car, I went to put it in the glove box so that I could bring it to work the next day". (Emphasis ours)

Shortly after returning home from the doctor's office, the claimant ventured out her back door and while taking a step down she experienced incapacitating back pain. The following morning she again attended at her chiropractor's office.

We find the claim is acceptable. There is sufficient evidence to establish that an accident, as defined under the GECA, the GECR and/or WCB policy 44.05.10, did in fact occur on or about March 22nd, 2000, as asserted. However, we also note that it appears this accident did not result in a loss of earning capacity on the part of the claimant. In this regard, we note that the claimant resumed her regular work duties for the balance of the workweek (i.e. 2 days) on the following day. We further conclude that the event which occurred at the claimant's residence and prompted a second visit to her chiropractor was non-compensable and not as a direct consequence of her acceptable accident. Accordingly, the claimant would appear to be entitled to reimbursement for one chiropractic treatment only.

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