The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 25, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on August 25, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker has a 1996 claim with the Workers Compensation Board (WCB) for a lower back injury that occurred on November 12, 1996 during the course of his employment as a construction foreman. The initial diagnosis rendered was an L3-L5 facet sprain - paraspinal strain. The claim for compensation was accepted by the WCB and benefits were paid accordingly.

In April 1997, the worker returned to pre-accident employment but claimed to be experiencing increased back pain. In a decision dated July 28, 1997, the worker's claim for recurrent back difficulties was denied by the WCB as it felt that there was no longer a cause and effect relationship between his ongoing symptoms and the compensable injury. Note was made of the fact that the worker had "minor spondylolisthesis" which was a condition that predated his compensable injury. Subsequent medical information indicated that the worker was treated for mechanical back pain.

On October 28, 2002, the worker informed a WCB adjudicator that he had returned to work in 1997 and was able to perform his regular duties without any difficulties. In January 2002, the pain slowly started and he described a tightness and pulling in his lower back with pain radiating down both legs and changes from side to side depending on how he twisted.

On December 10, 2002, a WCB adjudicator advised the worker that on a balance of probabilities, the WCB could not relate his current symptoms to his 1996 accident. The worker was advised that he should file a new claim with the WCB if he felt that his symptoms were work related.

In January 2003, the worker filed a claim with the WCB for lower back difficulties that he attributed to his work activities as a mechanic/machinist on January 30, 2002. The worker described the accident to the WCB as follows:

"I am not aware of what is causing my back to be sore. My chiro advised this might be coming from my neck. Working under vehicles, looking up, working while standing, bending over to look under the hood of a car. I did this for 8 - 9 hrs. day. Clmt [claimant] had to lift heads of vehicles and they are over 100 lbs (approx) vary in sizes and shapes. Clmt had worked doing this job for about 6 months."

The worker advised the WCB that he left employment with the company on January 30, 2002 and filed a disability claim through unemployment insurance.

The Employer's Accident Report dated January 22, 2003 indicated, "We were not notified of any injury that happened while he was employed here."

In a telephone conversation between the worker and his WCB adjudicator on February 3, 2003, the worker indicated that he started working with the accident employer in August 2001 and worked until January 30, 2002 but had to stop due to his lower back difficulties. He went on EI sick benefits for 15 weeks and then started to help out at his dad's farm. The worker told the adjudicator that he could not recall exactly when the pain came on, just that it occurred suddenly. It was a tingly sensation and it occurred prior to his last day of work in January 2002. He could not recall any specific event that led to his lower back difficulties. The worker recalled being off work for 1-2 days prior to January 30, 2002 due to his back signs and symptoms. He recalled moving a hoist around with an article on it but did not know exactly which part of his job caused his symptoms.

On February 12, 2003, the WCB contacted a co-worker who indicated that the worker had made complaints to him of lower back difficulties which he related to a previous claim. He indicated that the worker was having difficulties walking due to his lower back symptoms.

In a decision dated February 24, 2003, the worker was advised that his claim for compensation was denied. The adjudicator considered the medical information on file as well the discussions that she had had with the worker, his employer and co-worker. It was the opinion of Rehabilitation and Compensation Services that a relationship between the development of the worker's lower back pain and an accident 'arising out of and in the course of' his employment in January 2002 had not been established. Note was made of the fact that no specific work related activity had been identified as the precipitating factor leading to the development of his symptoms.

On March 15, 2005, a worker advisor wrote to Review Office and requested reconsideration of the decisions made on December 10, 2002 and February 24, 2003 denying acceptance of the claim. It was later clarified that the worker advisor was only appealing the decision made on February 24, 2003.

On March 25, 2005, Review Office confirmed that the claim was not acceptable. Review Office pointed out that there was no evidence to support that the worker's onset of symptoms occurred at work and that the worker had not notified his employer of any injury at work nor did he seek medical attention until February 2002. Based on the available information, the Review Office was unable to establish that the worker incurred injury to his low back 'arising out of and in the course of employment'. In May 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 subsection, 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 asserts the argument that he sustained low back difficulties on or about January 30, 2002 while working as a mechanic. However, we note that the worker never filed a claim with the WCB until January 2003. In addition, there is no corroborative evidence around the time of the alleged injury from either the attending physician or the employer.

We are also unable to establish a working diagnosis which can possibly be related to a work incident as contended. We further find that the weight of evidence does not support the assertion that the worker sustained an injury arising out of and in the course of his employment as a mechanic. There being no accident as defined by the Act, the claim is therefore not acceptable. Accordingly, the worker's claim 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 4th day of October, 2005