Decision #50/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on April 8, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 8, 2003.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Decision: Unanimous

Background

The claimant contacted the Call Centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred at work on June 17, 2001. On this date, the claimant felt a pull in his lower back when he bent over to flush a toilet. On June 21, 2001, the employer asked the WCB to deny the claim as it was of the position that the injury did not arise out of the worker's employment.

In a telephone conversation with a WCB adjudicator on July 5, 2001, the claimant advised that the accident occurred while he was reaching for a four inch pin attached to a pipe on the toilet. The pin was positioned about a foot above the ground and it needed twisting in order to flush the toilet. The claimant was not there to clean the toilet but was using it for his own personal use. The accident occurred at about 10:30 - 11:00 a.m. and he was not on any break. The claimant could not recall whether or not any of his co-workers complained or made comments about the way the toilet flushed as it was not a topic that was often discussed. The claimant informed the adjudicator that he had had prior problems with his back and that he had been injured 17 years ago at work and has had problems on and off since then.

On July 18, 2001 the claimant attended a chiropractor for treatment and was diagnosed with a lumbar facet syndrome. In a further undated report, the chiropractor stated that the claimant's injury was "consistent with a bending/lifting type injury and may have been set off by a benign act such as bending over."

In a decision dated July 11, 2001, the claimant was advised that his claim for compensation was denied on the basis that his injury was the result of a personal action, which was not related to his employment. This decision was appealed by a union representative, who contended that the claimant's work activities on the day in question (i.e. bending, lifting, etc.) may have contributed to his back injury along with the flushing mechanism of the toilet.

On November 29, 2001, the claimant and his union representative were advised that the WCB's previous decision of July 11, 2001 would not be altered. The adjudicator noted that there had been no recent change in the claimant's employment activities prior to the onset of his back difficulties.

The adjudicator was of the opinion that the circumstances surrounding the claimant's back difficulties did not meet the requirement of Section 4(1) of the Act, i.e. that the accident arose "out of and in the course of" employment. It was acknowledged that while the claimant's difficulties happened at work, he had been engaged in what was termed to be a personal comfort activity. There was no mishap that could be considered employment related. In the absence of an employment created causal connection between the injury and the employment, the claim could not be accepted. On May 20, 2002, the union representative disagreed with the decision and the case was forwarded an appeal to Review Office.

On July 19, 2002, Review Office indicated that when considering the appeal, it must be noted that the claimant was performing his regular duties as a heavy duty mechanic on the morning in question. The claimant had informed the adjudicator that his back felt fine when he went to work on June 17, 2001 and that he could not recall any type of symptom suggestive of a back injury prior to flushing the toilet. The claimant reported a pulling sensation in his lower back as he bent over to flush the toilet on the morning of June 17, 2001.

On a balance of probabilities, Review Office was of the opinion that the evidence established that the claimant's injury occurred while bending over to flush the toilet at work rather than arising out of his employment. Review Office was of the position that the claimant's injury occurred as a result of a personal act unrelated to the employment and that the appeal must be denied. On January 6, 2003, the union representative appealed Review Office's decision and an oral hearing was arranged.

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 keeping 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 occupational disease and as a result of which a worker is injured.
and as a result of which a worker is injured.

The claimant testified at the hearing that his back went into spasm at the time when he leaned over to flush the toilet. We find that this occurrence was a personal act, which was not incidental to his employment. The treating chiropractor referred to the incident as a "benign act", which is consistent with the mechanism of injury as described by the claimant.

While the event of leaning over occurred in the course of his employment, it did not, however, arise out of his employment. We find the claim not to be acceptable. There is no evidence of an accident as defined in the Act to have occurred on June 17th, 2001. There being no accident, the claim 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 9th day of May, 2003

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