Decision #130/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 5, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on September 5, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On April 9, 1999, the claimant filed an application for compensation benefits for a tailbone and lower back injury that occurred on January 24, 1999. The claimant described the accident as follows: "I was operating #122 966C loader for snow removal. The seat was sliding all night long plus pins on loader were wore out."

The Employer's Report of Injury (undated) stated the following: "This employee worked 6 hours on snow removal driving a rubber tire loader. His shift was a short one as was all other employee's that night. If in fact he did hurt his back, he did not inform his foreman nor his supervisors when he brought in his machine in morning. He did not show any signs of injury when he went home."

Medical information on file revealed the following:

  • after speaking with the attending physician's secretary (the doctor was away on vacation) on August 9, 1999, a WCB adjudicator noted that the claimant was seen on January 29, 1999. No mention of back injury was found on the chart. The claimant was in for hemorrhoid problems.
  • an orthopedic surgeon wrote to the attending physician on March 17, 1999. He stated that he saw the claimant on March 17th who indicated that he was injured on January 24, 1999. The claimant was diagnosed with findings consistent with coccygitis and was treated by injection. A follow-up report dated April 14, 1999 noted that the claimant had little tenderness over the sacrum but was markedly tender over the coccyx. The claimant was given another injection for treatment.

In a letter dated August 24, 1999, the claimant was advised by primary adjudication that his claim was not acceptable. The letter stated, in part, the following: "Section 4(1) of the Workers Compensation Act provides that compensation is payable in respect of personal injury sustained by accident arising out of and in the course of work. Given the lack of reporting of an incident at work, the delay in seeking medical attention for the injury, and the delay in reporting to the Workers Compensation Board, I am unable to establish that an accident occurred at work. Therefore, your claim is unacceptable." This decision was appealed by the claimant to Review Office.

Prior to considering the appeal, Review Office obtained a signed statement from the claimant on January 10, 2000, which provided details about the accident, the reporting of the accident and information dealing with his medical appointments.

On January 21, 2000, Review Office determined that the claim was not acceptable and that the evidence did not establish the claimant's having sustained a personal injury arising out of and in the course of his employment. Review Office based its decision on the following factors:

  • The claim did not meet the requirements of Section 17(5) of the Act;
  • The claimant's delay in seeking medical attention until 5 days following the alleged injury;
  • The physician's office confirmed that the claimant was seen at the office on January 29th but that it was for other reasons;
  • The claimant did not provide a history to the doctor of having sustained an injury at the workplace or having any problems with his back/tailbone;
  • The claimant was first treated for his sacrum/tailbone problems on March 17, 1999.
  • The claimant had a history of claims with the WCB and would be aware of his requirements to file a claim with the WCB and in reporting of any injury to his employer.

The attending physician submitted additional reports which he received from the treating orthopaedic specialist dated October 4, 1999 and July 21, 1999. In his covering letter dated September 7, 2000, the physician indicated that he came across a WCB initial report, which he had written out but had not sent to the WCB regarding the claimant's coccyx injury of January 24, 1999. The physician stated that the claimant did seek medical help with regard to his coccyx injury and a referral to an orthopedic surgeon was initiated. Due to the fact that during the visit of January 29, 1999 the claimant was also complaining of rectal bleeding, an appointment was made with a general surgeon.

On October 19, 2000, the Review Office contacted the claimant by phone to advise that the additional medical reports were reviewed, however, no change would be made to its decision of January 21, 2000. In June 2001, a worker advisor appealed the Review Office decision to the Appeal Commission 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

  1. A wilful and intentional act that is not the act of the worker,
  2. any
    1. event arising out of, and in the course of, employment, or
    2. thing that is done and the doing of which arises out of, and in the course of, employment, and
  3. an occupational disease

and as a result of which a worker is injured."

After a careful review of the evidence, we were able to reach the conclusion that the claimant did not sustain an accident, which arose out of and in the course of his employment. In this regard, we attached considerable weight to the following body of evidence:

  • the particular snow clearing equipment being operated by the claimant on the date of the alleged accident had broken down on 2 or 3 separate occasions and required repair, however, there was no mention of seat malfunction by the claimant to either the employer's mechanic and/or his foreman;
  • the employer provided a complete maintenance history of the equipment in question, which showed that there had not been any requirement to repair the seat either before or after the alleged accident and that no one who had operated this equipment had ever reported a problem with the seat;
  • the claimant was fully familiar with the requirements of making a WCB claim and yet there was considerable delay in his reporting of the alleged incident to the employer;
  • the day following the alleged incident the claimant awoke with "sharp pain, sharp throbbing pain in my back and also my tailbone was aching and throbbing pain", however, he did not seek medical treatment until nearly five days later.

Inasmuch as there was no accident, we find the claim not to be acceptable and therefore the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 16th day of October, 2001

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