Decision #36/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 28, 2004, at the claimant's request. The Panel discussed this appeal on January 29, 2004.

Issue

Whether or not the claim is acceptable;

Whether or not the claimant is entitled to payment of wage loss benefits beyond April 3, 1998; and

Whether or not the claimant has a collectable overpayment of benefits.

Decision

That the claim is not acceptable;

That the claimant is not entitled to payment of wage loss benefits beyond April 3, 1998; and

That the claimant has a collectable overpayment of benefits.

Decision: Unanimous

Background

On September 5, 1997, the claimant stated that he wrenched his back while pulling a 35 kg. roll off of a machine. Later in the day the claimant was pulling a skid with a hand-jack and felt the same pain in his back. The claimant did not report these incidents to his employer until September 9, 1997 as he felt that the pain would go away.

The employer's report of injury dated September 11, 1997, indicated the following: "Employee reported he sustained a back injury during his night shift of September 4-5th. He did not advise anyone. He came in and worked an overtime shift the following night - Sept. 5-6 to 7:00 a.m.. He phoned in sick Sept 8th reporting sore back, but no mention of it being work- related. He reported the injury on Sept. 9. Please investigate."

A Chiropractor's First Report revealed that the claimant was first treated on September 8, 1997. The diagnosis rendered was a vertebral subluxation - strain complex. Chiropractic treatment was recommended.

In order to adjudicate the claim, primary adjudication obtained sworn statements from the claimant as well as from several of his co-workers.

In a letter dated November 4, 1997, primary adjudication advised the employer that the claim was acceptable and that the Workers Compensation Board (WCB) would accept responsibility for any time missed from work and related medical expenses. Primary adjudication acknowledged that the claimant had delayed in reporting the accident but he did contact the employer on September 8, 1997 advising that he had a sore back. The accident history and the diagnosis were consistent with the history that was given by the claimant. On November 20, 1997 and January 15, 1998, the employer appealed the acceptance of the claim to Review Office.

On March 30, 1998, the claimant was advised by primary adjudication that his wage loss benefits would be paid to April 3, 1998 inclusive and final as it was determined that he had recovered from the effects of his compensable injury.

Prior to considering the employer's appeal, Review Office asked primary adjudication to take further statements from the claimant and one of his co-workers. The Review Office also attended the claimant's work site to view the slitting operation which the claimant was performing on September 5, 1997.

In a decision dated April 17, 1998, Review Office rescinded the acceptance of the worker's claim. Review Office took into consideration the mechanics of the accident that was described by the claimant in conjunction with the observations that it made at the work site. Review Office noted the claimant, in his original declaration, had explained that while a winch was normally used to take the rolls off the machine, he was unable to get one particular roll off with the winch and because of this he had to climb up on the machine and jerk the rolls loose with his arms. The operator who worked in close proximity to the claimant on this shift was not aware of any rolls jamming as the worker had claimed nor did he observe the claimant standing on the machine in order to get one particular roll off the machine. The operator was not informed of any injury sustained by the worker on that shift. Given the apparent severity of the injury, Review Office could not understand why the claimant would not have been aware of more immediate symptoms and make an immediate report of the accident to either the operator of the slitting machine or to the foreman or why the claimant volunteered and worked an overtime shift the following day, without any apparent back difficulties. Review Office did not believe that the claimant's back injury was sustained at the workplace on September 5, 1997 as he had claimed.

According to Review Office, the decision to rescind the acceptance of the claim came under the WCB's overpayment policy. The claimant would be contacted by the Collection Branch of the WCB regarding the overpayment of benefits.

In October 2002, the case was again listed with Review Office based on an appeal submission received from the claimant. The issues brought forward by the claimant dealt with the acceptance of the claim, whether or not he was entitled to wage loss benefits beyond April 3, 1998 and whether there was a collectable overpayment.

On November 15, 2002, Review Office determined the following:
  • there was no change in the original decision that the claimant's claim for compensation was not an acceptable one. The reasons were the same as were outlined in the original decision letter.

  • The available evidence did not support the claimant's contention that he had a loss of earning capacity due to his claimed accident beyond April 3, 1998. Review Office considered the examination notes dated March 6, 1998, from the WCB's chiropractic consultant who felt that the claimant could have resumed employment at that time if he had a job to go to.

  • The overpayment of benefits were collectable by the WCB under policy 35.40.50.
On March 25, 2003, the claimant appealed Review Office's decision and submitted additional information from his treating chiropractor for consideration. On September 9, 2003, an oral hearing took place at the Appeal Commission but was adjourned as the claimant wished to obtain an advocate to assist him with his appeal. On November 14, 2003, the claimant and his advocate advised the Appeal Commission that he was ready to proceed with his appeal. An oral hearing later convened on January 28, 2004.

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."

After having reviewed and considered all of the evidence, we find that the claim is not acceptable. We just simply do not believe that the claimant sustained an accident resulting in injury which arose out of and in the course of his employment. In coming to this conclusion, we attached considerable weight to the following facts and findings:
  • Significant discrepancy between the claimant's version of the mechanism of injury and the company's evidence which clearly refutes the occurrence of the alleged incident as described by the claimant.

  • The claimant never mentioned any complaints of injury to any of his co-workers.

  • There was no reporting of the injury to the employer. Three days after the alleged accident the claimant called in sick to work indicating simply that his back was sore but there was never any mention of a work-related injury.

  • We note that the claimant volunteered to work an overtime shift on the next day following the alleged incident.

  • We found the claimant to be a poor historian and his evidence to be inconsistent.

  • We did not find the claimant to be a credible witness.
Inasmuch as we do not find the claim to be acceptable, it necessarily follows that the claimant would not be entitled to payment of wage loss benefits beyond April 3rd, 1998.

With respect to the third and final issue, we find that the claimant has been paid benefits to which he was not entitled and as such he should be required to pay these monies back to the WCB. We therefore find that the claimant has a collectable overpayment of benefits. We note that the WCB offered the claimant several opportunities to work out a repayment schedule, which would not cause him undue financial hardship, but for whatever reason the claimant failed to co-operate.

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 11th day of March, 2004

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