The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 14, 1999, at the request of the claimant. The Panel discussed this appeal on September 14, 1999.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On December 5, 1998, the claimant filed a claim for workers compensation benefits indicating that he moved the wrong way when he lifted a cylinder on November 2, 1998, and injured his lower back. The claimant advised that the accident was not reported to the employer until November 3, 1998, as he did not think it would affect his work. File documentation also notes that the claimant has a prior 1997 back claim with the Workers Compensation Board (WCB).

Medical information showed that the claimant attended a hospital emergency department on November 3, 1998. The emergency triage form recorded the fact that the claimant had injured his back on Friday (October 30, 1998) and that he had lower back pain. History of a previous back injury one year ago was also noted. The hospital emergency report indicated that the claimant felt severe pain in his right lower back four days ago after sneezing and coughing and had intermittent pain since. The final diagnosis was low back pain.

The Employer's Report of Injury, dated November 10, 1998, indicated that the claimant "had a sore back claiming it was a result of a previous back injury. At first a group insurance form was completed by the claimant's physician. Later [the claimant] requested that this should be WCB and treated it as a reoccurrence of last year's injury which will pay for his chiropractic visits. Please investigate."

A report was received from a chiropractor concerning a visit on December 4, 1998. The worker's history of injury reported by the chiropractor was as follows: "Pt. was putting cylinder down - twisted wrong way on November 2, 1998 - and felt a "pop. Finished day - did not report b/c usually works itself out".

On January 12, 1999, Claims Services denied the claim based on sections 4(1) and 17(5) of the Workers Compensation Act (the Act). In the opinion of Claims Services, the evidence did not establish that an injury occurred at work. The claimant appealed the decision to Review Office.

On February 19, 1999, the claimant advised a WCB Review Officer that a co-worker was present at the time of injury. The claimant also indicated that he provided the hospital with a history of an accident occurring at work on November 2, 1998 as well as particulars of his previous back problems. The claimant had no explanation as to why the reports did not mention an accident at work. The claimant indicated that his wife took it upon herself to go to the employer and obtain an accident and sickness claim form and have the doctor at the hospital complete it. She then gave it to the claimant.

The Review Officer also noted that when the claimant returned to work on November 9, 1998, he gave the employer the accident and sickness form and advised in writing that it was a WCB matter because he had hurt himself on November 2, 1998. It was on November 9, 1998, that the claimant provided the employer with a history of accident. The claimant was absent from work between November 3 and 6, 1998, as a result of his back problems.

On March 2, 1999, a signed statement was obtained from the claimant's supervisor (group leader) who indicated that he could not remember the date or time when the injury occurred but did recall the following:

"I was in the welding shop and was delivering parts to [the claimant's] area. I observed [the claimant] bend over to pick something up off the floor. [The claimant] quickly grabbed at his lower back when he tried to stand up. I asked [the claimant] what the problem was to which [the claimant] responded, 'I hurt my back'."

The supervisor indicated he was not aware if the claimant worked the rest of the day or not as he had 35 people working for him. He did not remember if the claimant approached him following the initial incident to report ongoing problems.

A statement was also taken from a foreman, dated March 24, 1999. The foreman indicated that the claimant's wife called him following the injury date. The claimant's wife advised that the claimant was taken to hospital by ambulance as a result of back pain. The foreman indicated that no report of injury had been made directly nor had a green card been filled out. He also stated that he was never aware the injury was compensation related.

On March 12, 1999, Review Office confirmed that the claim was not acceptable. Review Office was of the opinion, based on a balance of probabilities, that the weight of evidence did not support a finding that the claimant suffered an accident which arose out of and in the course of his employment on November 2, 1998. On June 30, 1999, the claimant appealed the decision and oral hearing was convened.

Reasons

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

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."

Despite a thorough review of the evidence, we find that there is considerable inconsistency with respect to the occurrence of the alleged work-related accident on November 2nd, 1998. In particular, we note that the hospital emergency admission sheet, dated November 3rd, 1998, recorded an entrance complaint of an "injured back" together with the following history: "History of lower back pain approximately 1 year. 4 days ago felt severe pain right lower back after sneezing and coughing. Intermittent pain since then. Previous medical history: Injured back 1 year ago twisting at work. Fully recovered. Diagnosis: Low back pain." As well, the hospital triage report states that the claimant injured his back on Friday i.e. October 30th,1998, whereas the claimant advised his chiropractor that the injury occurred on November 2, 1998. Finally, the claimant did not attend his first treatment with his chiropractor until December 4th,1998.

We find that the weight of evidence does not support the contention of a work-related accident.

Accordingly, the claim is not acceptable and the appeal is hereby dismissed.

Panel Members

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 18th day of October, 1999