The Appeal CommissionThe Workers Compensation Act of Manitoba

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.