The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 10, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In November 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a lower back injury that occurred on October 6, 2004. The worker was employed as a long distance truck driver at the time of his injury. He indicated that he was on the road for 3-4 weeks and the pain became worse and he did not know what the problem was from. The worker noted that he had pulled a muscle in his lower back and believed that the cause of his injury was from reaching behind the seat to get something out of the fridge while driving. He stated that he had to twist his back when driving and the fridge was located four feet behind the driver's seat.

The employer's report of injury dated November 16, 2004 noted that the worker "injured back while cranking down trailer legs" on October 6, 2004.

Medical information revealed that the worker was initially examined by a physician on October 31, 2004. The worker complained of a sore left flank and left lower back. Arrangements were made for the worker to undergo x-rays to rule out kidney stones.

On November 2, 2004, the worker was examined by a second physician at the same clinic as the first physician. The worker's description of accident or injury stated "Sept 7 & 8/04 unloaded truck full of chairs… had back pain following - could hardly walk - took 4 days off - Sept. 9, 10, 11, 12". Sept. 12 - driving again, Oct. 29 - stop (sic) driving back too sore." The diagnosis rendered was a back strain.

Reports were also received from an out-patient facility that the worker attended for treatment on November 8, 2004. The report stated that the worker complained of bilateral flank pain for three weeks.

The worker was initially treated by a physiotherapist on November 25, 2004 for right shoulder and neck problems. The worker was diagnosed with a severe thoracic strain with muscle spasm.

In a progress report dated November 26, 2004, the worker complained that his back pain was continuing and that physiotherapy aggravated his back. X-rays of the back were reported as being negative. On December 10, 2004, the worker complained of pain in his shoulder, neck, right upper back, mid-back, low thoracic and upper lumbar area. He was treated for right upper shoulder and neck pain and bilateral paraspinal sore muscles.

Memorandums on file dated November 22, 2004 and December 2, 9, & 13, 2004 outline conversations that took place between a WCB adjudicator and the worker concerning the onset of his lower back difficulties, work history, medical appointments, etc. The adjudicator also contacted the employer on several occasions to obtain pertinent information about the reporting of accident(s) by the worker.

On December 15, 2004, the worker was advised that the WCB was unable to accept responsibility for his claim, given that he was unsure of the cause of his symptoms, the inconsistencies in reporting to his employer, the delay in seeking medical treatment and because he made no mention of a workplace injury to his treating physician. On February 10, 2005, a worker advisor, acting on the worker's behalf, appealed this decision to Review Office.

In a decision dated March 10, 2005, Review Office confirmed that the claim was not acceptable. Review Office determined that the weight of evidence did not support a relationship between the treatment the worker received beginning October 31, 2004 and an accident at work. On March 22, 2005, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

Subsection 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 subsection 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 worker attributes his time loss and medical treatment subsequent to October 29, 2004 as a consequence of three separate and distinct work related incidents. However, in his report of injury form, he relies on the most recent incident where he was on the road and reached back to get into the fridge directly behind the driver's seat rather than having to pull over when his back hurt. "I believe the cause of the injury is from reaching behind the seat to get something out of the fridge while I was driving." We note this incident was never mentioned to his attending physician.

The evidence revealed that the worker was later reminded of two earlier work place incidents at which time he mentioned a sore back to his employer. The worker suggested that his current back problems were definitely related to these two occurrences (i.e., September 8, 2004 unloading school furniture and October 2, 2004 cranking trailer dollies). We note, however, that the worker lost no time from work and sought no medical attention as a result of these incidents. In addition, the worker neither informed the WCB of these incidents at the time of his alleged injury nor in later discussions.

After thoroughly reviewing all of the evidence, we find the claim is not acceptable. There were too many inconsistencies in the worker's reporting to his employer and the WCB as well as inconsistencies in his history of injury provided to his attending physician and physiotherapist. We further find that the worker did not sustain an accident, which arose out of and in the course of his employment and resulted in injury. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of June, 2005