Decision #62/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 10, 2002, at the request of the claimant. The Panel discussed this appeal on April 10, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On November 1, 2001, the claimant filed an application for compensation benefits in relation to a middle back injury that occurred on October 31, 2001. The claimant described the accident as follows:
    "I was lifting a fridge with a co-worker. We were using a 4 wheel cart, that has straps in the front and back, we lifting the frige (sic) on the cart and proceeding to go down the stairs, I felt a pop in my middle back and my back went numb. Later that evening I felt pins and needles in my back and legs."
The Employer's Report of injury dated November 7, 2001, noted the following information:
    "This mover has only worked 3 days for the company. He was used as casual labour. Nobody saw this apparent accident."
Medical information consisted of a Doctor's First Report dated November 1, 2001. The physician noted that the claimant had lifted a fridge at work and felt a pop. The claimant complained of pain in his middle and lower back radiating into both legs. The diagnosis rendered was severe neck, thoracic and lumbar pain. Medication and physiotherapy were prescribed.

On November 2, 2001, the claimant attended a local hospital for treatment. The hospital report noted that the claimant injured his back while at work on October 31, 2001 moving a fridge and had been investigated by his own doctor with examination and x-rays. The claimant complained of nausea and thought this was related to his prescriptions. The diagnosis rendered was lower back pain.

On November 13, 2001 a Workers Compensation Board (WCB) adjudicator contacted the claimant. The claimant advised that at the time of his injury he told a co-worker that he felt a pop in his back. He then finished his shift at 6:00 and reported the injury to a supervisor.

The adjudicator contacted the supervisor who advised that the claimant had called to say he would not be in as he hurt his back. The supervisor recalled this was a day or so after the reported injury. As far he knew, the claimant did not say anything to any co-worker.

The adjudicator spoke with the owner of the accident employer. Apparently the owner contacted the claimant's actual supervisor who said nothing had been reported and that the claimant finished his shift and worked the rest of the day with no complaints. He heard that day or the day after injury that the claimant had called to say his back was sore.

The adjudicator spoke with the claimant's actual supervisor. He advised nothing was reported to him. He learned from the owner the next day that the claimant had filed a claim. The supervisor paid the claimant cash for that day. The claimant walked away at the end of the day just fine. The only thing which happened on the day of the alleged incident was that the claimant hurt his hand, i.e. a little cut, nothing major.

On November 15, 2001, the WCB adjudicator spoke with co-worker who was helping the claimant move the fridge. He advised that at no time did the claimant mention that he injured his back. The only injury that he could recall was the claimant's small paper type cut to his hand. The co-worker advised that he was the one at the bottom end of the fridge bearing most of the weight and not the claimant. If anyone would have been injured from lifting the fridge, then it would have been him.

In a written decision dated November 15, 2001, primary adjudication advised the claimant that it was unable to establish he suffered a personal injury due to an accident 'arising out of and in the course of' his employment. Medical information received from the claimant's physician indicated that he sought treatment for his back on November 1, 2001. The employer had advised that no accident or complaints were reported and that the claimant completed his shift without mention of any complaints. Section 4(1) and 17(5) of The Workers Compensation Act (the Act) was quoted in the decision. On November 20, 2001, the claimant appealed the decision to Review Office.

In its decision of December 7, 2001, Review Office stated that the current claim boiled down to a matter of credibility as the claimant's version of events had not been confirmed through the other parties involved in the matter. Through past dealings with the WCB, the claimant had demonstrated that his credibility could be called into question. Review Office agreed with primary adjudication that it had not been established the claimant's condition for which he sought medical attention on November 1, 2001 arose out of and in the course of his employment on October 31, 2001. On January 11, 2002, 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 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."
A thorough review of the evidence together with the claimant's oral testimony highlight too many inconsistencies, in our view, with respect to the occurrence of a compensable incident resulting in injury. In this regard, we studied very closely the mechanics of injury, the mode of treatment, and the emergency hospital report as well as the statements of the claimant's co-worker and employer. We find that there was no accident as defined by the Act. Accordingly, the claim is not acceptable and the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
B. Popowich, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of May, 2002

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