The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 16, 2002 at the request of the union representative on behalf of the claimant. The Panel discussed the appeal on December 16, 2002 and on April 23, 2003.

Issue

Whether or not the worker's claim for low back complaints is acceptable in relation to the compensable accident of March 8, 2002.

Decision

That the worker's claim for low back complaints is not acceptable in relation to the compensable accident of March 8, 2002.

Decision: Unanimous

Background

On March 8, 2002 the claimant was injured while working as a welder on a boxcar. The accident occurred while exiting backwards through a three-foot square opening in the sidewall of the car. The claimant placed his legs on a rolling stand outside the car and, before he could crawl out, the stand slipped away causing the claimant to fall, striking his right elbow on the inside floor. The claimant advised his supervisor of the injury, complaining of a sore elbow. On March 12, 2002, the claimant reported for the first time to the first aid office at work. According to the first aid slip completed by a co-worker on that day, the injury was described as a bruised right elbow, which was treated with ice. The claimant did not take time off work.

On March 18, 2002, the claimant again attended at the first aid office at work. According to the first aid slip completed by another co-worker on that day, an injury was described as pain to the lower back, which occurred in the lunchroom while the claimant was sitting on a chair. The cause of the injury was listed as unknown and the date of accident was listed as March 18, 2002.

A physician examined the claimant for the first time on March 21, 2002. The physician's report referred to an injury to the right elbow and back. The report stated that the claimant had recurrent back injuries. The physician prescribed lumbar support as well as ice and heat and indicated that the claimant should not return to work until March 25^th. The physician placed restrictions on the claimant's return to work noting that he should avoid repeated bending and carrying more than 20 pounds. The employer was unable to assign suitable employment and the claimant did not return to work until April 22, 2002. The claimant is seeking recovery for wage loss due to his back injury from March 21, 2002 until his return to work on April 22, 2002.

The adjudicator on behalf of the Workers Compensation Board ("WCB") concluded that there was a compensable accident on March 8, 2002 in which the claimant injured his elbow but no time off work resulted from the elbow injury. The WCB did not accept responsibility for wage loss attributed to a back injury on the basis that it was not related to the compensable accident. The adjudicator relied on the evidence that the claimant had not indicated any back problem when he reported his elbow injury to the supervisor or when he reported to the first aid worker on March 12, 2002.

The WCB Review Office considered the matter. The union representative on behalf of the claimant submitted that there had been an accident which resulted in the claimant striking his elbow as well as his side and that due to the pain initially felt by the claimant in his elbow, he made a mistake in not reporting his back problem as well. The representative referred to the Accident/Incident Report Form in which the investigating supervisors reported that the accident on March 8^th caused the claimant to strike his elbow and his side and listed the parts of the body injured as the right elbow, lower back and side.

The Review Office considered the matter and concluded that the claimant's low back complaints were not related to the compensable accident and denied the claim. In its decision of August 9, 2002, the Review Office referred to the fact that the claimant first mentioned lower back problems to various supervisors at work on March 18, 2002 and did not initially relate them to the compensable accident. Further, the Accident/Incident Report Form referred to by the union representative was not completed until on or after March 26, 2002. The reference to a back injury made long after the accident occurred did not establish that the back injury was related to the accident. The Review Office also indicated that given the claimant's extensive prior claim history with the WCB, he should have been aware of the necessity to report injuries. The claimant's failure to report back problems earlier led the Review Office to conclude that, on a balance of probabilities, the back injury was not related to the compensable accident.

Reasons

Evidence at the Hearing

An oral hearing was held on December 16, 2002. The claimant testified that immediately following the accident he felt pain to his elbow and over the next two to three days his back got progressively worse. The claimant testified that on the weekend immediately following the accident he couldn't bend down to work in the garden and when he returned to work three to four days after the accident, his back was so sore he had to wear a support belt. The claimant could not remember which supervisors he had spoken to about the accident and whether he had told them about his back pain.

Following the hearing, the panel requested a special investigations officer to interview and obtain statements from two supervisors and a worker who may have talked to the claimant following the accident and from the two workers who completed the first aid reports. Transcripts of recorded interviews conducted with these individuals were provided to the parties.

Evidence of Co-workers

One of the supervisors interviewed by the investigator confirmed that he had spoken to the claimant on the day of the accident. According to the evidence, this supervisor saw the claimant rubbing his elbow and asked him to explain the circumstances of the accident. The supervisor recalls advising the claimant to fill out a first aid slip and that the claimant indicated he would do so if he felt it was a problem after the weekend. Following the weekend, this supervisor spoke to the claimant again about his elbow. When the claimant advised that it was still sore, the supervisor told him to immediately report it to another supervisor who was in charge on that day. The first supervisor confirmed that in both of these conversations, the claimant never mentioned any back problems and referred only to his sore elbow.

The second supervisor interviewed by the investigator confirmed that the claimant first reported the accident to him four days after the accident had occurred. This supervisor also confirmed that the claimant made no mention of his back problems and they only discussed the condition of his elbow, which appeared to be swollen.

The evidence of the co-worker who filled out the first aid slip on March 12, 2002 was that the claimant only reported an injury to his elbow. This worker's evidence was that he writes down "whatever he tells me is hurt". The evidence of the second co-worker who filled out the first aid slip on March 18, 2002 was that he saw the claimant in obvious pain in the lunchroom and asked him what was wrong. According to this worker, the claimant answered that he had back pain and that it had just happened while he was sitting in his chair. The claimant said nothing else regarding the cause of the injury.

The last co-worker who was interviewed confirmed that the claimant had complained to him about back pain, but he was unsure when this had occurred or whether it was related to the incident involving the elbow or another unrelated incident.

Conclusion of the Panel

After taking into account all of the evidence, the Panel has unanimously determined that, on the balance of probabilities, the claimant's back problems were not caused by the work-related accident of March 8, 2002.

In reaching its decision, the Panel notes that the evidence of the supervisors and co-workers to whom the claimant reported his injury confirmed that the claimant failed to mention his back problems either on the day of the accident or four days later when he reported to the supervisor and the first aid worker. There is no explanation as to why the claimant would not have reported his back pain, particularly in light of his evidence that by this time it was so severe, he was unable to work without a back support. In reviewing the file, the Panel notes that the claimant has had 15 prior WCB claims, with at least 8 involving back injuries. Given the claimant's familiarity with the claims process, one would have expected him to realize the importance of describing his injuries fully at the earliest opportunity. The evidence indicates that the claimant did not report his back pain until 10 days after the work-related accident and at that time he did not attribute his back pain to any work-related accident. The Panel concludes that on the preponderance of evidence, the claimant's back problems were not caused by a work-related accident, and the worker's claim is denied.

Panel Members

M. Thow, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of June, 2003