The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on July 8, 2003, at the employer's request.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On June 7, 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred at work on June 4, 2002. The claimant described the accident to the call center as follows:

"I was removing refuse from the roof and throwing it in the truck. I had to move a propane cylinder out of my way, I was standing on plastic, when I picked up the propane tank, I slipped on the plastic and I hurt my lower back."

The claimant indicated that he reported the accident to his employer on June 5, 2002.

In a communication to the WCB dated June 11, 2002, the employer's general manager opposed the acceptance of the claim. She noted that the claimant commenced employment with the company on June 3, 2002 and that the claim was made on June 4, 2002. "At the time of the supposed accident, he had only been on the job site for one hour on his second day of work. He did not report the injury to anyone on the job site, he simply left and we did not know anything about it until the next day, June 5, 2002. We also have witnesses to verify that they saw no injuries occurring while he was on the job site. We find it very peculiar that an injury would occur so quickly after starting a new job."

A Doctor's First Report dated June 10, 2001, revealed that the claimant was seen on June 5, 2002. Under "Worker's description of accident or injury" the doctor stated that the claimant hurt his back at work lifting a propane cylinder. The diagnosis rendered was an acute lumbosacral strain.

On June 25, 2002, a WCB adjudicator spoke with the claimant to obtain further details with respect to the reported accident along with information concerning the medical treatment he received and reporting of the incident to his employer. Contact was also made with the employer's receptionist and supervisor with respect to their knowledge of the alleged incident.

On July 4, 2002, both the employer and the claimant were verbally advised by a WCB adjudicator that the WCB was accepting the claim on the basis of an acute lumbosacral strain and that wage loss benefits would be paid to the claimant. On July 11, 2002, the employer appealed the acceptance of the claim and Review Office referred the case back to primary adjudication to provide a written decision explaining the reasons behind its decision.

On September 11, 2002, the adjudicator wrote the employer and provided the following rationale for accepting the claim:

"Information on file indicates that on June 4, 2002, Mr. [the claimant] injured himself by slipping on plastic on a roof while carrying a propane tank weighing approximately 60-80 lbs. Further information indicates that Mr. [the claimant] left the job site and immediately went to a walk-in clinic to seek medical attention. Mr. [the claimant] had indicated that he phoned his employer's office while at the medical clinic, and spoke with the receptionist who advised him to call back in the morning to speak with the supervisor. This information was confirmed on June 25, 2002."

Based on the above, the adjudicator was satisfied that an accident as defined in Section 1(1) of The Workers Compensation Board Act (the Act), arose out of and in the course of the claimant's employment. On September 18, 2002, the employer appealed the decision and the case was forwarded to Review Office for consideration.

On November 22, 2002, Review Office confirmed that the claim was acceptable. Review Office noted that the information on file confirmed that the claimant left the job site without mentioning an injury to anyone, but that he did call the office and spoke with the receptionist from the doctor's office. Review Office said there was no indication that the claimant had any prior back difficulties nor was there indication that he experienced any difficulties in performing his job duties prior to the incident at work.

Review Office was of the opinion that it was reasonable that, if the claimant walked off the job site with no one noticing, then it was possible that no one would have witnessed the incident either. Based on the information provided by the employer's receptionist as well as the medical information confirming an acute back injury, it was the opinion of Review Office that, on balance of probabilities, the injury did arise 'out of and in the course of' employment and that the claim was acceptable. On May 12, 2003, the employer appealed Review Office's decision and a non-oral file review 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."

The evidence in this case presents with far too many inconsistencies to support the occurrence of the alleged incident. In this regard, we attached substantial weight to the following facts:

• the claimant walked off the job without speaking to any of his co-workers about his injury;
• there was no witness to the alleged incident;
• the claimant doesn't remember the name of the cab company which picked him up;
• the claimant couldn't recall the name of the street where he was picked up;
• the claimant couldn't produce in evidence the appointment notice with his physician;
• the claimant said he spoke to his boss about the alleged incident on the day that it happened, but this was categorically denied by the employer;
• the claimant said that he was in a great deal of pain following the alleged incident and yet he did not seek medical attention until the day after.

We find based on the preponderance of evidence that there was no compensable incident as alleged. Therefore the claim is not acceptable and the employer's appeal is hereby allowed.

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 6th day of August, 2003