Decision #80/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 23, 2003, at the employer's request. The Panel discussed this appeal on June 23, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The claimant stated that he injured his lower back region from lifting and pushing during his employment activities as a journeyman carpenter on June 1, 2001. The claimant said his back got worse over time until he could hardly walk.

Early information from the employer indicated that the claimant began working for the company on May 29, 2001 and on June 1, 2001 he failed to show up for work. Prior to being hired, the claimant did not report any pre-existing injuries or injury claims. The employer recently became aware of an MPIC claim which had been filed by the claimant. The claimant did not report an accident or injury or gave any indication of a pre-existing condition.

On August 7, 2001, an adjudicator with the Workers Compensation Board (WCB) spoke with the claimant. The claimant claimed that he reported the accident to his employer on June 4, 2001. The claimant said he had a previous claim with MPIC for a lower back and left leg injury that ended in July 2000. His MVA symptoms would reappear on and off since July 2000.

On August 13, 2001, the adjudicator spoke with the claimant again concerning his claim. The claimant confirmed that he was employed with the employer for 3 days and that his job involved working on concrete forming and cribbing which involved constructing and placing concrete forms with some excavating. The claimant said he worked on May 29, 30 and 31 with increasing symptoms beginning on the second day. He was unable to go into work on June 1, 2001 and waited until Monday, June 4th, to advise his supervisor that he had a health problem. The claimant did not advise his employer that he injured his back nor that his health problem was related to his employment.

Prior to this claim, the claimant worked with a different company for about 1 year. He was involved in a motor vehicle accident on September 16, 1994 and had protruding discs in his back and was on MPIC for about 5 years. The claimant advised the adjudicator that he attempted to seek autopac coverage first but they denied coverage and advised him to see WCB as this occurred at the work site. The claimant felt that his current condition was related to his work duties because he lived a sedentary lifestyle before his employment and was de-conditioned to the physical nature of the employment.

On August 15, 2001, the WCB adjudicator informed the employer that he had concluded his investigation regarding the events that transpired in late May and June of 2001. He determined that the claim was acceptable based on an aggravation of a pre-existing condition. Reference was made to WCB policy 44.10.20.10 in the decision.

In another letter dated October 2, 2001, the claimant was advised that the WCB was ending its responsibility for his claim as it was determined that the aggravation of his pre-existing condition had settled and that he had returned to his pre-accident status. Wage loss benefits were paid from June 4, 2001 to October 9, 2001 inclusive and final.

In a letter dated January 15, 2002, the employer acknowledged that the WCB had awarded the company 50% cost relief and that it was intending to appeal the remaining 50%. On June 11, 2002, the WCB's Review Office acknowledged receipt of the employer's appeal submission dated June 4, 2002.

In a decision dated June 28, 2002, Review Office confirmed that the claim was acceptable. Review Office noted that the employer objected to the claim stating that the worker had not reported a work related injury to them and they objected to accepting responsibility and costs associated with an ongoing prior injury unrelated to their company. Review Office did not support the employer's contention that the claimant did not aggravate his pre-existing mechanical low back pain while performing the repetitive laborious duties from May 29th to June 1, 2001. The claim had been accepted by the adjudicator as an aggravation of pre-existing back difficulties and Review Office agreed with this conclusion. On March 20, 2003, the employer appealed Review Office's decision and an oral hearing was arranged.

Reasons

This case involves a worker who, in a workplace incident, aggravated pre-existing problems with his lower back. His claim for compensation was accepted and benefits paid. His employer appealed the decision, which was upheld on reconsideration by the Review Office. The employer then appealed to the Appeal Commission.

For the appeal to be successful, the Appeal Panel would have to find that the claimant did not incur a compensable injury by accident as required by subsection 4(1) of The Workers Compensation Act. We did not make that determination.

In coming to our conclusion, we conducted a thorough review of the claim file, as well as conducting a hearing at which we heard testimony from the claimant, his advocate and a representative of the employer.

The employer based its argument on two factors: one, that the worker's injury did not occur while at work; and two, that he filed his claim too late.

In respect of the first, the claimant was employed for only four days on a construction site. His job involved building, moving, lifting and placing forms, some excavation work, driving pegs into hard-packed fill, etc. for ten hours a day. All of these tasks are laborious, heavy and repetitive.

He reported that, over those four days, his back pain increased to the point that, by the morning of the fifth day, he was unable to continue to work. He did phone the employer to inform them he would not be in. Believing that MPIC would be responsible for compensating his injury, he told the employer that his problem was not work related.

The medical evidence, from his family doctor, as well as board medical advisors, found that he had suffered an aggravation of a pre-existing back injury. Pursuant to Board Policy 44.10.20.10, Pre-Existing Conditions, where a workplace incident results in an aggravation of a previous injury, compensation will be paid as long as the aggravation is still at play.

Based on the medical evidence, as well as the claimant's description of his duties, we are of the view that his work, over those four days, did cause his back to flare up. Thus, it is our conclusion that the Adjudicator was correct in accepting this claim as an aggravation of his previous injury.

In respect of the second point raised by the employer and as noted in the Background section, this worker had suffered a fairly serious injury to his lower back as a result of a motor vehicle accident in 1994. For this, he received benefits from MPIC for about five years. At one point, during this time, he had returned to work for a couple of months. This work aggravated his injury and he returned to MPIC benefits.

It was his testimony before us that, when he reinjured his back in June 2001, he believed that he should report this to MPIC, which would reinstate his benefits. He did report the injury to them. He did not report to the WCB until after being informed that MPIC would not cover this aggravation. As well, as already noted, he did report to the employer that he was unable to work due to his back pain.

It is our view that he did report the injury in a timely fashion, albeit to the wrong body.

Based on our consideration of the evidence before us, we conclude - on a balance of probabilities - that the claimant did incur an injury arising out of and in the course of his employment, as required by the Act and Board Policy.

Accordingly, the employer's appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of July, 2003

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