Decision #78/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 11, 2002, at the claimant's request. The Panel discussed this appeal on June 11, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In January 2002, the claimant submitted a claim for compensation benefits for an accident that occurred on December 28, 2001, during the course of his employment as a delivery driver/restaurant helper. The claimant advised that he was carrying a 40 kg. rice bag up from the basement when his foot got caught in the opening on the vertical part of the stair. He lost his balance and struck the wall injuring his back. The claimant advised that he reported the accident to the owner of the company on December 28, 2001.

The Employer's Accident Report noted that the claimant "did not tell us anything about injuring his back and he did work Dec 31 and January 1st."

In subsequent correspondence received on January 26, 2002, the employer indicated that the claimant did report an accident on January 17, 2002, when he injured his wrist after taking out the garbage to the dumpster. On January 18, 2002, the claimant did not show up for work nor did he call his employer to inform that he would not be coming in to work. On January 14th, the claimant had been given notice that his position would be terminated in two weeks due to the sale of the business. On January 22, 2002, the claimant called to say that he would not be coming back to work because his doctor told him that he needed to rest for two weeks.

A Doctor's First Report indicated that the claimant was first seen on January 17, 2002. The diagnosis was a right SI strain and a referral was made for physiotherapy treatments.

On February 14, 2002, a Workers Compensation Board (WCB) adjudicator contacted the claimant and the following information was obtained:
  • the claimant advised that he had had two accidents. One was on December 28th and the other on January 16th. He did not report his initial accident until he injured himself on January 16, 2002.

  • the accident of December 28th was no time loss. The doctor suggested that both accidents were related to each other.

  • a doctor was not seen until after the accident on January 16, 2002.
In a memo dated February 22, 2002, a WCB adjudicator noted that she spoke with the attending physician's assistant. The claimant was seen on February 8, 2002, January 22, 2002, and January 17, 2002. There was no record of the claimant's being seen on December 28, 2001. The adjudicator also noted a progress report on file dated February 8, 2002, which was faxed to the WCB on February 10, 2002. She noted that the date had been changed on the report to read December 28, 2001. When asked about this, the assistant knew nothing about the date change and reiterated that the claimant had never been seen on December 28, 2001.

In a February 25, 2002, decision, primary adjudication informed the claimant that the WCB could not accept responsibility for his claim due to the delays in reporting his accident and in seeking medical treatment. On February 26, 2002, the claimant appealed the decision to Review Office.

On April 12, 2002, Review Office confirmed that the claim for compensation was not acceptable. Review Office provided the following rationale for its decision:
  • in his appeal submission, the claimant changed his version of events as to when he reported the accident, i.e. the claimant told his adjudicator that he reported the December 28th injury on either January 16th or 17th. In his appeal submission, the claimant stated that he reported the back injury immediately upon exiting the basement and the stairs where the accident occurred.

  • the changing of the date regarding the medical report which originally indicated attendance on February 8, 2002 and was then changed by someone to read December 28, 2001.

  • the claimant did not seek medical attention until January 17, 2002, 20 days beyond the date of the alleged injury.
Based on the above, Review Office concluded that it was unable to confirm the accident occurred as per the claimant's version of events. In April 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."
We find, based on the weight of evidence, that there was a compensable incident on December 28, 2001, as asserted and described by the claimant to the Panel and to his attending physician in mid January 2002. The claim is therefore acceptable.

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 July, 2002

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