The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 2, 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 acceptable.

Decision: Unanimous

Background

On October 1, 2003, the worker contacted the call centre at the Workers Compensation Board (WCB) to report a lower back injury that occurred on September 10, 2003 during the course of his employment as a mechanic. The worker indicated that he was replacing batteries in a truck and felt a pull in his lower back. The worker noted that he had the flu from September 11-13, 2003 and on September 13, 2003, he got out of bed and could not stand up straight. He advised that he saw a doctor on or about September 16, 2003 and was told to stay off work until his next appointment on September 26, 2003. When he saw the doctor on September 26, 2003, he was told to stay off work until October 10, 2003. The worker noted that he had a previous 2001 back claim and that he had not had any problems with his back until this recent accident. The worker stated that he reported the accident to his employer on September 22, 2003.

A Doctor's First Report indicated that the worker was treated on September 16, 2003 for his lower back. The worker described the accident to the physician as "…lifting and replacing batteries on trucks." The diagnosis rendered was an acute strain to the lower back. It was indicated that the worker was disabled and was not capable of alternate or modified work.

The Employer's Accident Report was received at the WCB's offices on October 16, 2003. The employer noted the September 10, 2003 accident was reported by the worker on September 29, 2003.

In October and November 2003, both the employer and worker were contacted by primary adjudication in order to obtain additional information surrounding the circumstances of the worker's injury, medical treatment, reporting factors, etc.

In a decision dated November 10, 2003, primary adjudication determined that the claim for compensation was not acceptable as it was unable to establish that a work related injury occurred given the worker's delay in reporting an injury to his employer and his delay in seeking medical treatment. In rendering its decision, primary adjudication considered the information on the accident report that was filed by the worker on October 1, 2003 along with the medical information on file. It also considered the worker's explanation that there were no witnesses to the accident and that he did not report an injury to his employer on the day of accident as he did not think it was work related. It also considered information that was supplied by the employer, i.e. that the worker did not report a work related injury or complete a green card until September 29, 2003 which stated, 'I ended up in bed with the flu and was in bed for four days. After I couldn't walk upright.'

On May 13, 2004, a worker advisor, acting on the worker's behalf, appealed the decision by primary adjudication dated November 10, 2003. The worker advisor believed that the claim should be accepted as the worker had suffered an injury at work and had reported it to his employer immediately. He noted that the worker did not file a green card until September 29, 2003 as none were available at the time of reporting to his supervisor. The worker advisor noted that the worker sought medical treatment on the same day of his accident but had to wait a few days before being able to see his family doctor. The worker was suffering from a viral infection and that this condition, in conjunction with his back pain, forced him to remain at home. When he was seen by his doctor on September 16, 2003, his back pain was the main disabling factor.

In a decision dated October 15, 2004, Review Office confirmed that the claim was not acceptable. Review Office determined there was insufficient evidence to support that the worker sustained personal injury by accident arising out of and in the course of the employment on September 10, 2003. In April 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 evidence discloses that there was an unrelated labour relations issue between the parties, which may have tempered what did or did not happen on September 10, 2003 with respect to the reporting of the accident. Therefore we place little weight on the suggested non-reporting of the injurious event on the aforesaid date. We accept the worker's evidence that he phoned and spoke directly to his treating physician on September 10 and that the earliest available appointment date would not be until September 16.

The worker attended his treating physician on September 16 and was diagnosed with an acute strain to the lower back as well as a viral infection. The treating physician completed an illness certificate with respect to the worker's injury and faxed the certificate to the employer at the worker's request. A green card (i.e., notice of injury) was completed by the worker bearing the date September 29, 2003. It confirms the date of the back injury as September 10, 2003 and that the worker had the flu for several days following his injury.

We find that the worker's diagnosed acute back strain is consistent with the mechanism of injury as described (lifting and replacing heavy truck batteries). This recent event is similar to his previous compensable injury of 1998. After having considered all of the evidence, we further find that the worker sustained an injury to his lower back which arose out of and in the course of his employment. The definition of an accident having been met, the claim is therefore acceptable. Accordingly, the worker's appeal is hereby allowed.

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 18th day of July, 2005