Decision #46/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 8, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 8, 2002 and March 15, 2002.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Decision: Unanimous

Background

On February 16, 2001, the claimant submitted an application for compensation benefits claiming that he injured his back on February 5, 2001 while pulling batteries out of a bus. In correspondence dated February 14, 2001, the employer's representative questioned the validity of the accident based on the following factors:
  • the claimant had no sick credits available to him at the time of the alleged accident and was shy of 20 years of service.

  • the claimant had been experiencing back problems and was missing time from work on an intermittent basis since June 2000.

  • during the morning of February 5, 2001, a union steward was advised that a meeting was to be held to discuss the claimant's absenteeism. In this regard, the claimant allegedly sustained his accident at 8:30 a.m. and yet he did not report the accident to the employer until 2:00 p.m. on the same day.

  • the claimant was absent due to his back on January 29, 30 and 21 and February 2, 2001. Due to his previous back problems, the employer representative felt it was difficult to contend that the claimant would have been pulling a 100 lb. battery out of a bus without assistance.
In early March 2001, a Workers Compensation Board (WCB) adjudicator advised the employer that she had spoken with the claimant and that medical reports would be requested from the physicians that had seen the claimant prior to the date of accident. The claimant indicated that he was being treated for the right side of his back during the week prior to the February 5th accident and that the February 5th injury was to his right lower back region. The claimant admitted that he was out of sick credits, but denied that he was required or did meet with the union on February 5, 2001.

Upon speaking with the claimant on March 6, 2001, a WCB adjudicator documented the following information:
  • on February 5, 2001 at 8:30 a.m., the claimant bent down to pull out a battery tray (batteries weigh 50-60 lbs.) so he could lubricate the rollers. As the tray was stuck, he exerted more pressure to pull out the tray when the tray suddenly became loose and he injured his left lower back area. There were no witnesses to the accident. The claimant reported the injury to his foreman around the end of the day as he did not think his back was that bad at the time.

  • the claimant has had back difficulties since 1994 resulting from a motor vehicle accident. The claimant advised that he originally injured himself from hammering rods off at work. Since June 2000, the claimant admitted that he had been missing time from work and that the injury was work related, however, he did not make a compensation claim and went off work on sick benefits.

  • the claimant missed time from work between January 29 and February 2, 2001 due to right lower back difficulties and he took the week off work because his back was stiff.

  • the claimant advised the adjudicator that he did not attend a meeting with the union and was not contacted by the union to discuss his attendance record. He did not know the union wanted to meet with him. The claimant admitted that he was out of sick credits at work.
On March 6, 2001, the adjudicator contacted the claimant's union representative, who met with the claimant in person around 8:30 a.m. on February 5, 2001. The claimant was advised that the union wanted to meet with him to discuss his attendance record. Following this, the claimant advised the union representative that he had hurt his back pulling out a battery tray and was going home.

Medical information on file consisted of a Doctor's First Report dated February 13, 2001, which showed that the worker was examined on February 9, 2001. The diagnosis rendered was a back strain. The claimant was prescribed medication and exercise. He was expected to return to work by February 13, 2001. Subsequent progress reports revealed that the claimant was treated on February 16, 2001 and February 23, 2001 and that physiotherapy had been prescribed.

On March 6, 2001, the WCB contacted the attending physician's office. It was noted that the claimant was previously seen by the physician in April of 2000.

A chiropractic report dated March 8, 2001 recorded that the claimant was first treated on February 2, 2001. The report also stated, in part, the following:
    "Mr. [the claimant's] chief complaint at the time of my initial examination was lower back pain with numbness/tingling in the left leg. Mr. [the claimant] indicates that the condition was somewhat ongoing. He related that his lower back problems seemed to start after a motor vehicle accident in 1993. Flare-ups of lower back pain were noted to be frequent, often occurring every second or third moth. Mr. [the claimant] indicated that he had not worked for the portion of the week preceding his visit to my office. Walking tended to aggravate the leg. In the past, Mr. [the claimant's] medical doctor had prescribed muscle relaxants to relieve his condition."
The chiropractor reported that the claimant's next treatment was delivered on February 5, 2001, at which time the claimant's back had been painful over the weekend. No indication was made of a work related injury on February 5, 2001. The chiropractor advised that re-examination was not conducted due to the fact that treatment of the condition was in the early stages and no indication of another injury since the initial examination was reported.

In a decision by Rehabilitation and Compensation Services dated March 16, 2001, the claimant was informed that his claim for compensation was not accepted as it was unable to establish that a work related injury had occurred. The decision was based on the weight of evidence, which included objective medical findings, diagnoses, history, mechanism of injury reported and subsequent investigations. On May 28, 2001, a union representative appealed this decision to Review Office.

On August 3, 2001, Review Office stated that significant weight was placed on a number of factors noted throughout the file documentation, which called into question the claimant's credibility. Ultimately, Review Office was unable to establish that the worker sustained personal injury by accident arising out of and in the course of his employment. On October 10, 2001, the union representative appealed Review Office's decision and an oral hearing was held on January 8, 2002.

Following the hearing and after discussing the case, the Panel requested additional information from the claimant's treating physician and chiropractor. On February 26, 2002, all parties were provided with the additional information and were invited to provide further comment. On March 15, 2002, the Panel met to discuss the case and to render a final decision.

Reasons

Section 4 (1) of the Workers Compensation Act (the Act) provides for 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 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. An accident is defined as,
    "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 occupation disease
    and as a result of which a worker is injured."
On his report of injury form, the claimant described the event that caused his alleged injury as follows: "hurt back while pulling batteries out of bus". We note that several medical reports pre-dating the February 5th, 2001 incident all make mention of ongoing back pain following a motor vehicle accident. The claimant confirmed during the course of the hearing that he had indeed been involved in a non-compensable motor vehicle accident in 1993. In addition, the medical information received subsequent to the alleged incident also refers to a prior motor vehicle accident without, however, any reference to a work related incident.

The evidence further confirms that the claimant had been treated for lower back problems prior to the alleged February 5th incident. In this regard, there is a letter on file from a chiropractor to the WCB dated March 8th, 2001, which records as follows:
    "Mr. [the claimant's] first treatment at our office was on February2, 2001. Mr. [the claimant's] chief complaint at the time of my initial examination was lower back pain with numbness / tingling in the left leg. Mr. [the claimant] indicated that the condition was somewhat ongoing. He related that his lower back problems seemed to start after a motor vehicle accident in 1993. Flare-ups of lower back pain were noted to be frequent, often occurring every second or third month. Mr. [the claimant] indicated that he had not worked for the portion of the week preceding his visit to my office.

    Mr. [the claimant] scheduled for his next treatment which was delivered on February 5, 2001. My notes indicate that Mr. [the claimant] noted that the back had been painful over the weekend. No indication of a work related injury was noted on February 5, 2001. Re-examination was not conducted due to the fact that treatment of the condition was in the early stages (i.e. the second treatment) and no indication of another injury since the initial examination was reported."
We find based on the preponderance of evidence that the claimant did not, on a balance of probabilities, sustain an accident arising out of and in the course of his employment, which resulted injury. Accordingly, the claim is not acceptable and 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 12th day of April, 2002

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