Decision #148/01 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on October 31, 2001, at the employer's request. The Panel discussed this appeal on October 31, 2001.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Background
While operating a transit bus on December 14, 2000, the claimant indicated that he experienced a sharp pain in his mid and lower back areas after driving over ice ruts.
The employer's report of injury dated January 2, 2001 stated that the claimant reported back soreness due to the rough suspension of the bus he was operating on December 14, 2000. In a separate letter dated January 5, 2001, the employer's representative stated that the bus the claimant had been driving, (bus no. 353) was subjected to a mechanical inspection shortly after December 14th and it was found to be in good working order. Therefore, the employer's representative contended that a work related cause for the claimant's back problems had not been established.
On December 20, 2000 the claimant attended a chiropractor for treatment. The claimant's description of the accident was recorded as "While driving on rough rutted streets the bus bottomed out and jarred his back." The claimant complained of a sore mid and lower back with tenderness on palpating the dorsolumbar, lumbosacral and base of neck spinal areas, as well as problems with tight quadriceps and hamstrings. The diagnosis rendered was an acute spine strain and subluxation/fixation complex.
In a telephone conversation with the claimant on February 13, 2001, a Workers Compensation Board (WCB) adjudicator noted the claimant's advice that ever since an August injury, his back had been in a delicate state and that he had been seeing a chiropractor for treatment. The claimant stated that he regularly experienced discomfort about 8 inches above his tail bone. The claimant felt his back problems were related to the bad suspension on the bus.
With respect to the mechanism of injury, the claimant said he was sitting at a bus stop and when the light turned green he slowly started to proceed. The ice ruts were bad at this particular intersection and when he drove over the ruts, a pain shot into his back. He then called the control centre and complained about the suspension on the bus.
The claimant admitted that he had driven over ice ruts on numerous occasions over the course of the winter. He tried to brace himself and drive over them slowly in order to avoid the shock. He had not been injured on any other occasion. The claimant may have driven bus 353 previously but he was not sure. The claimant commented that all the suspensions on the new 300 and 600 series buses were terrible and that the suspension was like riding on rocks. The WCB adjudicator advised the claimant that as the inspection report indicated the suspension was in proper working order and the fact that his activities on the date of accident were no different from any other day, the WCB would be unable to establish that a work related injury occurred. This decision was later confirmed in a letter dated February 14, 2001. On March 6, 2001, a union representative appealed the decision to Review Office.
In a decision dated May 4, 2001, Review Office determined that the claim was acceptable as a lumbar/thoracic strain. Review Office noted that on December 14, 2000 the claimant drove over some ruts and felt a sharp pain in his lower back while doing so. It therefore concluded that the incident arose out of and in the course of the claimant's employment and that the criteria of Sections 4(1) and 1(1) of the Workers Compensation Act (the Act) had been met. Review Office agreed with the employer's representative that multiple injuries seemed to be referenced by the chiropractic evidence including the cervical, thoracic and lumbosacral sections of the spine as well as tight quadriceps and hamstrings. Review Office did not accept responsibility for the claimant's cervical, quadriceps and hamstrings conditions as being related to the claim. On May 16, 2001, the employer's representative appealed Review Office's decision to the Appeal Commission.
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."
We find as a fact that the claimant did experience a work-related incident on December 14th, 2000. However, after carefully reviewing the medical evidence together with the array of reported symptoms, there does not appear to be any specific injury that we can attribute to this December 14th event. In addition, it is important to note that the claimant continued to perform his regular work duties thereafter without any time loss.
We find based on the preponderance of evidence that the claimant did not sustain an accident as defined by the Act. Inasmuch as there was no accident, the claim is therefore not acceptable. The employer's appeal is hereby allowed.
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 4th day of December, 2001