The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 22, 2003, at the claimant's request. The Panel discussed this appeal on July 22, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 29, 2000, the claimant filed an application for compensation benefits for an injury that occurred while jack hammering walls in July-August 1999. With respect to the area of injury, the claimant referred to a doctor's report for information. The employer's report for this claim indicated that no injury had been reported and that the claimant was not in their employ on July 1, 1999.

A report from the attending physician dated November 17, 2000 noted that the claimant first came to see him on October 19, 1999 with complaints of left leg swelling. When seen again on November 26, 1999, the claimant complained of pain in his right groin and left knee area. The physician stated that the claimant injured his groin a couple of months before he was seen by him and that the claimant was working in construction and did not wish to take time off for various reasons. "The pain has persisted, he still has pain in the groin and I believe it may be due to the original injury which should have been reported to the Workers Compensation but was not." Subsequent medical information on file consisted of several reports prepared by an orthopaedic specialist as well as the results of various laboratory investigations, which included CT scan, x-ray and myelogram results.

In order to adjudicate the claim, a WCB adjudicator contacted the claimant on December 22, 2000 and the following information was obtained:

• the claimant did not file a claim up to this point as it was his doctors who were filing on his behalf.
  
  
• the claimant injured his groin region while jack hammering. He did not report the accident to anyone because he did not want to lose his job. He was employed with the accident employer in July 1999 and worked for approximately two months. The claimant began to develop problems and was told by his doctors that it was just a strain. He started to have back troubles as well and was referred to a specialist.
  
  
• after being laid off by the accident employer, he started work with another construction company. He was at work when he tripped over some re-bar and fell, landing on his left knee. A foreman witnessed the accident and told him to sit down and rest. He did not want to complain so he kept on working. A few months later his knee started to pop out. The claimant advised the adjudicator that he did not file WCB claims for either accidents up until this point.

A second adjudicator contacted the claimant on January 29, 2001 and the following information was obtained:

• the claimant's groin/back was currently causing him the most difficulty. His knee was still bothering him even though it was minor.
  
  
• a CT scan of his back showed some type of problem with the discs which was thought to be related to his jackhammering duties and his groin injury.
  
  
• the claimant described the activities that were involved with jackhammering. He said you stand on scaffolding with the jack hammer parallel with the floor. He would lean into the jack hammer with the right side of his groin in order to place more pressure. After working, he would turn black and blue between his belly button and the groin on his right side.
  
  
• the claimant advised the adjudicator that he complained of pain to another co-worker but not to his foreman.

On February 23, 2001, a WCB adjudicator spoke with the claimant's co-worker. This person stated that he had been jackhammering up high on the walls and had hurt his shoulders doing so. The claimant had been working down lower and had used his groin to push harder on the jack hammer. When they complained to the foreman and the superintendent, they were fired.

On April 18, 2001, a WCB adjudicator spoke with the employer. The claimant had been employed with the company from July 13 to August 13, 1999 and he was laid off due to work shortage. The claimant was part of a two man team jackhammering walls with a 35 lb. rented jackhammer. They would jackhammer for 1 1/2 hours split between the two of them and then take ½ hour off to clean-up and do rubble removal, and then repeat the process. The employer felt that the claim should not be accepted.

In a decision letter dated April 25, 2001, the claimant was informed that his claim for right groin difficulties starting in July 2000 was not acceptable as it did not meet the criteria set out under Section 1(1) and 4(1) of The Workers Compensation Act (the Act). The letter noted that the claimant did not report his problem to his employer and that he did not seek medical attention, hoping the pain would go away on its own. The employer was unable to confirm the claimant's difficulties because no injury was reported to them. The medical information on file revealed that the claimant sought medical attention for unrelated complaints on four occasions between August 17 and October 19, 2000. He initially complained of groin pain to his doctor on the November 26, 2000 visit. On July 3, 2001, the claimant's physician wrote to Review Office requesting reconsideration of the WCB's position on this case.

In a decision dated August 31, 2001, Review Office noted that the claimant did not make a verbal or written report of his accident to the employer and that he did not provide a reasonable explanation for his not doing so. Review Office felt that the claimant did not establish that he had sustained a personal injury by reason of an accident that both arose out of and in the course of his employment with this construction firm during the months of July and August 1999. Review Office also took into consideration that the claimant's predominant problems were for his spinal area, which was not directly related to his right groin. Review Office confirmed this decision again on January 23, 2003. On May 7, 2003, the claimant appealed Review Office's decision and an oral hearing was convened.

Reasons

Section 4(1) of 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."

As the background notes indicate, the claimant filed a claim for compensation as a consequence of an alleged work related groin and right hip injury occurring in July-August of 1999. After thoroughly reviewing the evidence, we find that there are several inconsistencies, which do not support the claimant's contention of a work related incident.

• The claimant did not inform his employer of the alleged right hip and groin injury;
• The initial treating physician did not complete and submit a Doctor's First Report of Injury form to the WCB as required by the Act;
• When the claimant first attended his now treating physician on October 19th, 1999 the claimant was "complaining of left leg swelling";
• On his next visit to the treating physician (November 26th, 1999) the claimant "complained of pain in the right groin and left knee, and at that time was concerned about plaster mycosis and this was investigated and found not to be the case." Again there was no mention of the claimant's condition being work related.
• After being laid off the claimant filed for regular employment insurance benefits and not sick benefits;
• The claimant worked for two other employers following the alleged injury;
• Letter of March 14th, 2001 from the treating physician to the WCB - "I have written about this man before but, unfortunately, I was not in possession of his previous chart from Dr. [name]. I can now state that he saw Dr. [name] on August 17th, 1999 having had an accident about three weeks previously for which he did not seek medical help. On this occasion he had pain down - what I think is the left leg, although I am not sure that I can read Dr. [name's] writing. On September 21st he saw Dr. [name] again and on that occasion he had some swelling in the knee - again I am not sure which one - and was given Indocid. On September 28th, 1999 he again saw Dr. [name] with a history of having fallen the day before at Silver City where, I presume, he was working. He had pain in the lateral thigh and some discomfort over the tibial tuberosity. Again it does state which side the problem occurred."
• Following the foregoing visits, there was no Doctor's First Report of Injury and/or Doctor's Progress Report ever filed with the WCB.

We took particular note of the fact that the claimant has severe right hip osteoarthritis, which was diagnosed subsequent to the alleged compensable injury. We suspect that this condition in all likelihood preceded the alleged compensable injury and would not, on a balance of probabilities, have been enhanced by the claimant's brief employment with the employer.

We find that the evidence as a whole does not support the claimant's contention that he sustained an accident arising out of and in the course of his employment which resulted in injury. There being no accident, the claimant is therefore not entitled to compensation under section 4(1) of the Act. Accordingly, the claim is not acceptable and the claimant's appeal 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 26th day of August, 2003