The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 1, 2000, at the request of the employer. The Panel discussed this appeal on November 1, 2000 and December 12, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On January 18, 2000, the claimant submitted an application for compensation benefits indicating that he injured his groin, lower back, and right knee while shoveling snow in the employer's parking lot on December 20, 1999. The claimant advised that he reported the accident to his supervisor on December 21, 1999.

The employer indicated in a letter dated December 30, 1999 that it was disputing the claim as the claimant "failed to report any injury to our production or administrative offices, as per our employee guidelines for health and safety, having completed the remaining full days work consisting of 4.25 hours of sheet metal operations". The employer indicated that the claimant called the office on December 21, 1999, to notify he was ill and would not be in to work. At no time did he mention a work injury. The employer further indicated that the claimant was terminated from employment on December 22, 1999.

On February 4, 2000, a Workers Compensation Board (WCB) adjudicator spoke with the claimant who advised that he injured his back on December 20, 1999 when the blade from his shovel caught something on the ground and he felt a pull to his groin. The claimant said that he went inside and took a bit of a break to relieve the pain. His employer asked that he trace patterns with a stencil. The injury was not yet reported. He continued to work and felt what he was doing was bearable and not too straining to his groin. The claimant advised that he went home, rested and put his feet up. He took painkillers and went to bed. When he awoke in the morning he was in a lot of pain and his back and left leg were sore. The claimant indicated that he called into work and advised his supervisor that he injured himself and needed to see the doctor. On December 21, 1999, the doctor prescribed anti-inflammatories and he was referred to physiotherapy. The claimant advised that his employer called him at home after the injury and advised him that his services were no longer needed and that they had made other arrangements. The claimant indicated that he has not returned to work to a new employment because of his injury and that he is claiming time loss to date.

On February 7, 2000, the adjudicator spoke with the claimant's supervisor. The supervisor indicated that no accident was reported and that the claimant had been terminated for work related reasons. The adjudicator spoke with payroll personnel on the same day. The adjudicator was told that the claimant was shoveling snow on December 20, 1999 and that he called in the next day indicating he was sick. He did not say that he was injured at work. The claimant was let go on December 22, 1999 due to work performance. The claimant had been on probation.

The adjudicator concluded by stating that the claim was acceptable on the following grounds: the claimant saw his doctor on December 21, 1999 indicating that he injured his back while shoveling snow; the claimant said that he reported the injury to his supervisor and was shoveling snow on December 20th; the claimant called in sick on December 21, 1999 and sought treatment the same day. On February 15, 2000, the employer appealed the decision to Review Office.

On March 24, 2000, Review Office confirmed that the claim was acceptable. Review Office was satisfied that the claimant's injuries were as a result of an accident arising out of and in the course of his employment. Review Office found no evidence on file to indicate that the claimant's injuries were caused other than as described by the worker and the history presented to his doctor. The employer appealed Review Office's decision and an oral hearing was arranged.

On November 1, 2000, an Appeal Panel hearing was held to discuss the employer's appeal. Following the hearing, the Panel determined that additional information needed to be obtained prior to its discussing the case further. Specifically, the Panel requested that sworn declarations be taken from the claimant's co-worker and supervisor with respect to the reporting of the accident that allegedly occurred on December 20, 1999. Statements were later obtained from the co-worker and supervisor and copies were forwarded to the interested parties for comment. On December 12, 2000, the Panel met to render its final decision.

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 preponderance of evidence does not support the claimant’s contention that he sustained an accident resulting in injury, which arose out of and in the course of his employment. In arriving at this conclusion, we attached considerable weight to the statements obtained from co-workers with respect to the alleged incident:

We also took note of the fact that the claimant has had several prior claims with the WCB and that he was more than familiar with the necessity of filling out a green card. Yet in the particular case at hand, he did not fill one out. We find after having considered all of the evidence that the claimant did not sustain an accident as alleged. Accordingly, the claim is not acceptable and the employer’s appeal is hereby allowed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 11th day of January, 2001