The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 12, 2003, at the request of legal counsel, acting on behalf of the claimant.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On September 21, 2001, the claimant submitted an application for compensation benefits with respect to a groin and lower back injury that occurred on August 25, 2000 and was allegedly reported to his employer on August 27, 2000. The claimant stated on his application form for benefits that the injury occurred while assisting a person [the employer] in the act of lifting a very heavy large truck spring.

Medical information on file consisted of a hospital report dated September 4, 2000 which indicated that the claimant had walked from Kenora to Keewatin the day before with a resulting painful right groin. The discharge/admitting diagnosis was a pulled right groin.

A report addressed to the WCB from a sports medicine specialist dated May 24, 2001, indicated that he had seen the claimant in September of 2000 and he was diagnosed with a right groin strain. The specialist indicated that he was unclear as to the cause of the injury at that time.

On October 12, 2001, the employer was contacted by a WCB adjudicator togather information surrounding the claim. The employer indicated that he did not recall the claimant's being injured in August 2000. The employer made reference to the following notation found in his file records regarding the claimant dated November 16, 2000 at 7:00 p.m. "he was having pain all night, he thinks it is the same old groin pull that has recurred again - seems to be the same recurring problem as he had in the summer." The employer indicated that he was not aware of what caused the groin pull in the summer and that it had not been reported as being work related. The employer's wife called the adjudicator to indicate that after checking her records, the claimant had received full pay for all his shifts in the month of August 2000. On September 5, 6, and 7 the claimant was absent from work with the reason given as being "sick, old pulled groin" and was paid sick time. The employer also commented that the claimant's family ran a marina in Kenora and that the claimant apparently helped them out in the summer months.

On October 16, 2001, the claimant told his WCB adjudicator that he had injured his groin on either Wednesday or Thursday of the week before the long weekend (either August 30 or 31, 2000). He was able to work with dull, numbing stiffness for the reminder of the week. The claimant indicated that he did not work at the marina as he had a bad relationship with his stepfather and he was not allowed to work there.

The claimant further advised the adjudicator that he rested over the weekend but he still experienced groin pain throughout and it really became worse on Sunday morning. On Saturday afternoon his car broke down and he had to walk about ¾ of a mile to a friend's house and he stayed at the friend's place for the rest of the day. The friend drove him home later that night. His mother then drove him to the hospital.

In a letter dated October 18, 2001, the claimant's mother wrote to the WCB indicating that over the September long weekend her son came to visit arriving on Friday evening. He was limping and in visible pain. Her son said he had lifted a heavy spring at work and hurt his "gut". The claimant was limping on Saturday and when he awakened on Sunday he was in excruciating pain. She observed and felt a hard lump in his right groin that was sore to the touch.

On October 19, 2001, Rehabilitation and Compensation Services determined that it was unable to establish a relationship between the claimant's right groin pain and an accident as defined in Section 1(1) of The Workers Compensation Act (the Act). The adjudicator could not establish that an accident occurred during the week preceding his time loss, therefore his claim for benefits had been denied.

In a submission dated October 24, 2001, a solicitor, acting on behalf of the claimant, appealed the adjudicator's decision of October 19, 2001. The solicitor contended that the claimant appeared to be suffering from a chronic injury of the right groin and he asked that Review Office consider this claim in conjunction with two other groin injury claims that had been filed by the claimant. In a further submission to Review Office dated November 1, 2001, the solicitor presented argument that the claimant initially injured himself with a groin pull just prior to the September long weekend. He then re-injured the same area in early November and then re-injured his body in the same area in the early Spring of 2001.

On November 16, 2001, Review Office rendered two decisions. One decision was with respect to a March 2001 claim for a groin injury filed by the claimant. As to this claim and the alleged injury which occurred in and around late August 2000, Review Office was unable to rescind the decision made by primary adjudication to deny the claim. Review Office determined that the claimant had delayed in seeking medical attention and that there were inconsistencies in the claimant's reporting of any work related injury to the involved physicians. In addition, the employer did not support a contention that the claimant sustained an injury in the workplace.

On June 26, 2003, the claimant's solicitor appealed Review Office's decision and a non-oral file review was arranged.

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."

We find this claim not to be acceptable for several reasons. The claimant's history is inconsistent with respect to the cause of injury. There is no apparent report of accident to the employer. In addition, there is no corroborating evidence from the employer as to the alleged incident. And finally, there is the question of the late reporting to the WCB. The alleged accident occurred according to the claimant on August 25th, 2000 and yet he did not file the report of incident to the WCB until September 21st, 2001. Section 19(2) of the Act very clearly states that unless an application for compensation is filed within one year after the day upon which the injury occurred no compensation in respect of any injury is payable.

The weight of evidence does not support the occurrence of an accident as defined by the Act. Therefore the claim is not acceptable and the worker'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 10th day of October, 2003