Decision #133/99 - Type: Workers Compensation
An Appeal Panel hearing was held on May 27, 1999, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed the appeal on May 27, 1999, and on August 26, 1999.
Whether the claim is acceptable.
That the claim is not acceptable.
The claimant filed a workers compensation claim for lower back difficulties which commenced on July 21, 1998 while performing the duties of a miner/blaster. According to the employer's report, there was no indication of an injury occurring on the job and no report of an injury being filed. File documentation notes that the claimant has a 1982 hearing loss claim and a 1997 leg claim with the Workers Compensation Board.
Medical information revealed that the claimant had attended a physician on July 24, 1998, presenting with a three day history of back pain which he related to "very physical job with heavy lifting". The diagnosis was mechanical low back pain. The claimant was then referred to an orthopaedic consultant.
In September/October, 1998, sworn statements were taken from the claimant, the shift leader and supervisor. Briefly, the statements indicated the following:
Claimant’s statement: Details were provided regarding the job duties performed by a miner/blaster. The duties included hauling explosives and lifting and carrying certain materials. Two days after working a four day shift (July 21, 1998) the claimant stated that he noticed a tightness in his back. He complained to his shift leader that he could really feel his back. He then attended a physician for treatment. When he returned to work on August 10, 1998, the claimant was unable to continue due to further back difficulties.
Supervisor’s statement: On July 23, 1998, the claimant telephoned and indicated that he was going to a doctor because his back was hurting. On July 24, 1998, a fax was received stating that the claimant wasn’t going to report to work for four days. There was no reported incidents of a work related injury.
Shift leader’s statement: There was no report of injury on the date that the claimant was supposed to have injured himself. From his home, the claimant telephoned to say that he had a bad back and that he had a feeling it happened at work. He said he was going to see the doctor. Apparently the doctor said that the claimant probably stressed his back out when he was at work. The claimant said that he had been lifting 3 foot long blastex which weighed 30 lbs. While lifting the blastex, the shift leader indicated that the claimant had not mentioned a back problem and did not appear to be in any distress.
In a decision, dated October 16, 1998, Claims Services concluded the available information did not substantiate that the claimant had suffered a personal injury due to an accident arising out of and in the course of his employment. The claimant noticed tightness in his back during a four day shift rotation ending July 21, 1998. There was no specific accident or incident at any time. The claimant stated that he had reported his difficulties to the shift leader. The employer, however, indicated that there was no mention of a sore back or back injury. The claimant’s last shift was actually July 19, 1998. There had been no mention of any back difficulties until the casual telephone conversation on July 23, 1998. A doctor’s note was faxed from the hospital on July 24, 1998, but it did not document any specific work related injury.
On December 9, 1998, a worker advisor assisting the claimant, appealed Claims Services’ decision to Review Office. The worker advisor believed that there was sufficient evidence to show that a work related injury had occurred. Heavy lifting in the work place did in fact cause the claimant to have a repetitive strain injury to his back.
On January 22, 1999, Review Office decided, on a balance of probabilities, that the claimant’s low back injury in July 1998 was not caused by an accident arising out of and in the course of his employment. It was also decided by Review Office that the claimant was not entitled to benefits for the effects of his back injury.
Review Office found the evidence did not establish that the claimant’s low back injury more likely than not happened in the course of employment or that it resulted from causes reasonably peculiar to the job. It was noted that there seemed to be much uncertainty about where and when the onset of the back symptoms was first noticed and very little to differentiate this episode from previous non-occupational back problems which had apparently contributed to the claimant’s absences from work in the past. Review Office took the view that the claimant did not provide the employer with prompt notice of a work related accident and that he had not given sufficient reason for his failure to give notice as soon as practicable.
On February 26, 1999, the worker advisor appealed Review Office’s decision and requested an oral hearing. Letters were submitted by several co-workers who acknowledged that the claimant was a conscientious and a hard working individual whose job requirements as a blaster often led to physical stress such as heavy lifting, etc. The worker advisor also provided time cards of days worked by the claimant and records of explosives taken from the magazine by the claimant.
On May 27, 1999, an oral hearing was held at the Appeal Commission at which time it was noted that the accident employer had a formalized program in which any and all accidents or incidents are reported and recorded immediately and that reporting procedures are well understood by all members of the staff.
Following the hearing the Appeal Panel requested additional information prior to rendering a decision. This request included information be obtained from the employer and from the hospital where the claimant attended for treatment on July 24, 1998. On April 9, 1999, all parties were provided with the information received by the Panel and were asked to provide comment. On August 26, 1999, the Panel met to render its final decision with respect to the issue under appeal.
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 accordance 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. That is, "a chance event occasioned by a physical or natural cause; and includes
- a wilful and intentional act that is not the act of the worker,
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises out of, and in the course of, employment, and
- an occupational disease and as a result of which a worker is injured."
We find that the preponderance of evidence does not support the claimant's contention that he incurred an accident within the meaning of the Act. There is a great deal of discrepancy surrounding the actual occurrence and reporting date of the alleged incident, not only on the part of the claimant, but also on the part of the treating physician. We note that the claimant, who was well familiar with the procedures required when filing a WCB claim, did not file until more than a month following the event and subsequent to his layoff notice received from the employer.
The claim is not acceptable and therefore the claimant's appeal is hereby dismissed.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of September, 1999