Decision #49/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 26, 2004, at the employer's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In early July 2002, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a work related lower back and right leg injury that occurred in the workplace on June 26, 2002. The claimant described the accident as follows:
"We were packing reinforcing steel (rebar) on the Provencher Bridge and I was carrying over existing rebar but it was not tied and it rolled and when it rolled I kept the weight that I had approx 80 - 100 lbs up at shoulder height and I twisted my back. My right leg is numb from this from my hip to my big toe."
Initial medical information revealed that the claimant sought treatment on June 26, 2002. The diagnosis rendered was an acute mechanical back strain. On June 27, 2002, x-rays of the lumbar spine demonstrated degenerative narrowing of the L5-S1 interspace. It was also noted that the degree of degenerative changes in the lumbar spine did not appear to have altered significantly from January of 1998.

A letter from the employer dated July 9, 2002, indicated that the claimant started work for the company on June 24, 2002. The claimant was noted to have trouble walking on his first day of work. The employer said he could testify that the claimant could not perform his duties since day one on the job.

On July 24, 2002, the claimant advised a WCB adjudicator that the only prior back problems he had were in 1997 when he filed a WCB claim for a few days of time loss. For the past 3 ½ years he had been working in Alberta and had no back problems or WCB claims in that province. The claimant denied having any problems with walking or performing his duties. The claimant also stated that he told two witnesses about his injury when it happened, which was around lunchtime. He told them that he was leaving to go to the hospital and by the time he was admitted it was quitting time. The claimant said he told some other co-workers about his injury and that he could provide their names if required.

On July 25, 2002, the WCB adjudicator contacted the employer. The employer stated that the claimant had been hurt elsewhere and was trying to use his company to get a WCB claim. The employer noted several co-workers who would provide written confirmation to the WCB with respect to its assertions. The adjudicator advised the employer that the claim would likely be accepted given that the WCB had received a medical report for the date of accident with a similar accident history to what the claimant had provided.

In a letter dated July 26, 2002, a foreman stated that the claimant "was hurt before he was at this project. I asked him about this. He said he was injured before. He did not specify where." Another co-worker made the following comments in the same letter, "I worked with [claimant] when he first arrived on the job that Monday morning. He had a limp when he arrived. He had a hard time walking normally."

On August 13, 2002, primary adjudicator advised all parties that the claim for compensation was accepted based on the following factors:
  • the mechanism of injury which had been reported by the claimant to the WCB was consistent with the accident history that he provided to the medical facility on the date of injury as well as the practitioner that he had been attending to date;

  • a WCB medical advisor had confirmed that the diagnosis provided by the practitioner and the medical facility were consistent with the mechanism of injury.
On August 23, 2002, the employer appealed the acceptance of the claim. On January 16, 2003, a WCB adjudicator wrote the employer to indicate that no change would be made to his initial decision.

On April 17, 2003, the case was considered by Review Office. The Review Office noted that it had contacted the witness to the incident on June 26, 2002 who saw the incident. The witness stated that this happened before lunch. He remembered the claimant's leaving the worksite and then returning that afternoon with a slip from his doctor.

Review Office also contacted the employer who said it had four employees who could sign a statement indicating that the claimant did not sustain injury on their job site. The case was then referred back to short term claims and a WCB supervisor met with the employer and three of its employees. The Review Office stated, "None of the employees knew about this injury until the worker approached them at lunch hour advising them that he was going to a doctor. He then returned two to three hours later with a slip from the doctor. The employer stated that he has known this worker for years and that he has always had a limp. He stated he also knew that the worker has always had a bad back. The WCB supervisor advised the employer that he could not change the decision to accept the claim. The file was then referred to Review Office for reconsideration."

Based on Section 4(1) and 1(1) of The Workers Compensation Act (the Act) along with the evidence provided by the witness and the medical evidence confirming an acute injury on the same date of accident, Review Office confirmed that the claim for compensation was acceptable. On June 26, 2003, the employer appealed Review Office's decision and the case was referred to the Appeal Commission. Subsequent information on file contained a statement from a co-worker dated November 12, 2003. On February 26, 2004, an oral hearing took place to consider the employer's appeal.

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, this is an employer appeal disputing the worker's injuring himself while in the employ of the employer. The employer asserted that the claimant was injured prior to his commencing work with the employer. We note, however, that the claimant while working for the appellant employer had been pushing and lifting rebar for two (2) days prior to his accident. In addition, the mechanism of injury is consistent with the worker's report of injury and subsequent diagnosis of acute mechanical back strain. As well, there was timely reporting of the incident to both the employer and the treating physician.

After thoroughly considering all of the evidence, we find the claim to be acceptable. Accordingly, the employer'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 7th day of April, 2004

Back