The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 30, 2001, at the employer's request. The Panel discussed this appeal on October 30, 2001

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On December 13, 2000, the claimant filed an application for compensation benefits for a lower back injury that occurred during the course of his employment as a millwright. On his benefit application, the claimant noted that on December 11, 2000 he was lifting and bouncing a drive unit and on December 12, 2001 he lifted a 14 foot 2 x 10 plank. The injury was reported to the employer on December 13, 2000.

A Doctor's First Report showed that the claimant was examined on December 13, 2000. The worker's description of accident was noted as LBP (low back pain) at work two days ago, lifting and bouncing - increased pain. The diagnosis rendered was discogenic pain.

Subsequent file records showed that a Workers Compensation Board (WCB) adjudicator contacted the mechanical superintendent, the claimant and a shop steward to obtain additional information surrounding the two work incidents along with details regarding the reporting of the accidents.

In a letter dated March 15, 2001, the WCB advised the claimant that his claim for compensation benefits was not acceptable. The adjudicator based his decision on the following factors:

• In a telephone conversation on February 22, 2001, the claimant indicated that on December 12, 2000 he reported for work and when asked whether he mentioned the previous days incident to his employer, the claimant replied "no".
• The claimant stated that on December 12, 2000 he and other co-workers were given the option of leaving work early by the shop steward. The claimant indicated that he told his shop steward that he would be leaving early. When the claimant was asked if he mentioned either the December 11th or December 12th, 2000 incident to the shop steward, the claimant again replied "no". This information was substantiated in a phone call to the shop steward on March 2, 2001.
• The claimant indicated that he called his shop steward and site foreman on December 13, 2000 to report the two incidents. However, after speaking with both men on separate occasions, the adjudicator was unable to confirm any such phone call occurred on December 13th.

The adjudicator concluded that although the claimant related his low back difficulties to two separate incidents, he did not make any complaint of injury or incident to his employer nor did he did complete a notice of injury form. Given the weight of evidence and the delay in reporting either incidents to the employer, the adjudicator was unable to establish that the claimant suffered a personal injury due to an incident arising out of and in the course of his employment. On March 26, 2001, the claimant appealed this decision to Review Office.

On April 12, 2001 Review Office determined that the claim was acceptable based on the following factors:

• Both the claimant and mechanical superintendent confirmed that the claimant had reported his injury on December 13, 2000 which was the first shift missed following his back injuries of December 11 and 12, 2000.
• In the opinion of Review Office, contacting one's employer at the time of the absenteeism from work due to injury commences was not so unreasonable to void the claim.
• Review Office stated that it would have liked to have seen the low back condition reported right at the time of the discomfort, but did not view the claimant's actions as unreasonable. The claimant had just commenced work with his employer on December 11, 2000 and therefore circumstances such as potential deconditioning regarding the claimant as well as not wanting to get off on a bad foot with the new employer enter into the picture.
• The claimant sought medical attention immediately upon the commencement of his time loss from work and the physician provided a description of injury matching the claimant's.

On May 2, 2001, the employer appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who injured his back while employed as a millwright at an industrial site. His injury involved two separate incidents. The first occurred while assisting to move a large and heavy drive unit into place. The second occurred the next day when bending over to pick up a large piece of lumber.

He filed a claim with the WCB, which was initially denied. The Adjudicator concluded that the Board was unable to establish that an injury occurred arising out of and in the course of employment. An appeal to the Review Office was successful.

The employer appealed that decision to this commission. The issue before the Panel was whether or not the claim should have been accepted.

For the appeal to succeed the Panel would have to determine that the claimant did not suffer an injury in the workplace.

We were not able to make that determination.

The employer argued, before us, that there was insufficient evidence to support that a workplace accident occurred. To support this position, the employer noted that the worker did not report the incident until two days after the initial incident. He noted that the worker did not mention it to his co-workers, on either day, during a one and one-half hour drive from the job site to the city.

The worker related the incidents as he recalled them. He stated that he did not report it because he felt it would not prevent him from working. He did return to work on the second day, only to have a second injury which he maintained further hurt his back, but again he felt it would go away. He first noticed significant back problems when he stepped out of a co-worker's vehicle, when he was dropped off at home on the 2nd day, after a 1 hour trip from the worksite. When he awoke on the third day, he felt he was unable to go to work and phoned the person with whom he rode to the jobsite to inform him. That morning he went to see a doctor, who recorded that the worker reported two separate workplace incidents. Still later that day, he called the office of the employer to report the accident.

We agree with the Review Office that the timeframe for reporting the incident was not unreasonable. Section 17(1) of the Act allows 30 days. In this case, the worker reported it on the day following the second incident.

We note that the job as described by the worker, as well as the mechanics of injury, are consistent with lower back strain. We note that back strains may not show immediate symptoms and may slow up after a period of inactivity. We also note that both the worker and the employer reported that it was very cold on both days and the work was out of doors. Indeed, on the second day, the job shut down at midday due to the cold. We are of the view that such cold weather could well contribute to the occurrence of such incidents, as experienced by the claimant.

We have concluded that - on a balance of probabilities - the worker did suffer a compensable injury.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of November, 2001