Decision #53/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on March 6, 2001, at the request of the claimant. The Panel discussed this appeal on March 6, 2001.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Background
On August 19, 1996, the claimant filed a claim for compensation benefits with respect to right lower back and leg pain as a result of a fall he sustained on August 14, 1996. The claimant described the accident as follows: "Entered building, turned to ensure door locked behind me, tripped on bottom stair and fell on my right side (leg & back). Currently on WCB for Carpal Tunnel Syndrome."
The Employer's Report of Injury form dated August 27, 1996, noted that the claimant was employed as a head caretaker at the time of the incident. In a letter attached with the application form, the employer noted that the claimant had been on WCB benefits since February 23, 1996, due to carpal tunnel syndrome of the left wrist. On August 14, 1996, the claimant decided to stop in at his place of employment to see how things were going and to deal with any work related questions that the acting head caretaker may have had at the time. The claimant was anxious from a custodial standpoint to ensure that the premises were ready for the opening day of school.
Initial medical information indicated that the attending physician had diagnosed the claimant with a contusion and strain of the lower back and contusion of the right hip and thigh. On September 3, 1996, the claim was accepted as the responsibility of the WCB.
On October 31, 1996, a human resources supervisor with the employer spoke to a WCB adjudicator. He elaborated that prior to the accident of August 14, 1996, the claimant would sometimes come down to work to check on how things were going. When the claimant went off work due to carpal tunnel syndrome (CTS), a new acting head caretaker replaced the claimant. The claimant would periodically come to work to see if the new acting caretaker had any questions or concerns about how to run the boiler, etc. The claimant never did any work, but would simply advise the new caretaker on what to do. The claimant went to the work site on August 14, 1996 to check and to make sure things were getting ready for the upcoming school season.
When speaking with a WCB adjudicator in March 1999, the employer questioned the initial acceptance of the worker's 1996 claim. The adjudicator stated that the claim had been accepted because the claimant's practice of dropping in on the acting custodian while on WCB benefits for CTS appeared to have been acceptable to the employer up until the new compensable injury.
In a letter dated March 26, 1999, the employer appealed the acceptance of the claim. The employer indicated the claimant was off work and was collecting WCB benefits for a CTS claim. Although he may have occasionally frequented the employer's premises, the injury did not arise out of or in the course of his employment. The employer advised that the claimant may have possibly been there to visit the person who was filling his vacancy. The claimant was not on the payroll, and he was not expected to attend the school premises and he chose to "visit" on his own time and at his own free will. The employer stated, "I realize that this was a common practice that Mr. [the claimant] would stop by and visit on different occasions, but it was not requested of him to do so. These visits are very different than if I had asked Mr. [the claimant] to attend meetings or appointments. He chose to do this on his own."
On March 24, 2000, Review Office was asked to review the case with respect to two issues. One of the issues pertained to whether or not the claim was acceptable. Prior to rendering a decision with respect to this issue, Review Office obtained sworn statements from the claimant, the acting head caretaker, the supervisor of human resources, a supervisor of custodial services as well as information from the assistant supervisor of building operations.
On March 24, 2000, Review Office determined that the claim was not acceptable as it had not been established that the claimant sustained a personal injury arising both out of and in the course of his employment on August 14, 1996. Review Office concluded that the claimant's back injury did not arise out of and in the course of his employment. The weight of evidence showed that any injury occurring on that day resulted from the personal actions of the claimant, and although the injury may have occurred on his employer's premises, the claimant was not required to be there. In addition, Review Office did not consider the claimant to be a "worker" on the day in question. Review Office indicated that the claimant was not asked to perform work of any kind, nor was his attendance required for supervision and direction, nor was there any reason for the claimant to be on the school premises while the claimant was off on the February 1996 WCB claim.
On October 16, 2000, the claimant appealed Review Office's decision and an 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 wilful and intentional act that is not the act of the worker,
- any
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises out of, and in the course of, employment, and
- an occupational disease
and as a result of which a worker is injured."
As the background notes indicate, the claimant was off work and in receipt of WCB benefits for his compensable carpal tunnel syndrome claim at the time that he sustained the back injury on August 14th, 1996. The evidence confirms that claimant's visitation to the work site on the 14th was neither a requirement of his employment nor was it an expectation of either the employer or the worker who had temporarily assumed the claimant's custodial responsibilities.
We find the weight of evidence does not support the claimant's contention that his back injury arose out of and in the course of his employment. Inasmuch as there was no compensable accident as defined by the Act, the claim is therefore not acceptable. Accordingly, the claimant's appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 17th day of April, 2001