Public Decisions | The Appeal Commission

Decision #16/99 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on January 13, 1999, at the request of the employer.

Issue

Whether the claimant is entitled to benefits for the effects of his low back injury on July 30, 1998.

Decision

That the claimant is not entitled to benefits for the effects of his low back injury on July 30, 1998.

Background

The claimant submitted a claim for compensation benefits in relation to a sprained back injury which he related to continuous lifting at work. The date of accident was reported as July 30, 1998. The claimant further stated on his application form that he felt a sharp pain at home and did not attend work.

The employer's report of injury dated August 6, 1998, indicated that the claimant phoned work on Friday stating that his back was sore and that he could not work. The claimant stated that he hurt his back on the previous shift. The employer indicated, however, that the claimant did not report it to anyone at work and that he seemed fine when he left work.

Medical information from the attending physician dated August 4, 1998, reported a diagnosis of a low back sprain from repetitive lifting of boxes.

On August 21, 1998, the claimant provided a signed statement to a Workers Compensation Board (WCB) field representative regarding his activities at work and at home on July 30, 1998. The claimant also provided details regarding medical treatment and his extra-curricular activities. On August 21, 1998, a WCB adjudicator spoke with the employer and obtained details regarding the claimant's job duties.

Following a review of all file documentation, Claims Services wrote the claimant on September 2, 1998, with the decision that his claim was not acceptable. Claims Services stated that it could not substantiate that the worker suffered a personal injury due to an accident arising out of and in the course of his employment. The claimant appealed this decision to the Review Office in a letter dated September 29, 1998.

On October 23, 1998, the Review Office determined that the claimant was entitled to benefits for the effects of his low back (sprain) injury on July 30, 1998. The Review Office was satisfied that the claimant's job activities on July 30th and in the days prior, were likely to involve increased risks of causing a muscle strain/sprain to the lower back region. The Review Office noted in particular, the somewhat increased hours of work and the type of duties performed by the claimant.

The Review Office found it reasonable to believe that the claimant's onset of low back pain happened shortly after he finished work on July 30th and was not apparently precipitated by anything outside of work which was likely to cause a back sprain injury. In conclusion, the Review Office considered the claimant's job activities more likely than not contributed to the cause of his low back sprain injury.

On November 9, 1998, the employer appealed the Review Office's decision and contended that the claimant's back injury did not occur as a result of employment but was caused by his actions at home after work.

On January 13, 1999, a non-oral file review was held at the Appeal Commission. The Appeal Panel took into consideration all file documentation including a further submission from the employer dated December 17, 1998, and from the claimant dated January 6, 1999.

Reasons

The issues in this case is whether the claim is acceptable and whether there is an entitlement to benefits as a result of a low back injury on July 30, 1998.

The relevant subsections of the Workers Compensation Act (the Act) are subsections 1(1) and 4(1). Subsection 4(1) of 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.

Subsection 4(1) states:

Compensation payable out of accident fund

"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 subsection, the panel must, initially, be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act.

Subsection 1(1) states:

Definitions

(b) any

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

and as a result of which a worker is injured.

We reviewed all the evidence on file and we find that the weight of the evidence, on a balance of probabilities, does not support a finding that the claimant sustained a personal injury due to an accident arising out of and in the course of his employment. In reaching this conclusion we note the following evidence:

In a sworn statement dated August 21, 1998, the claimant indicates that on July 30, 1998, he completed his regular shift, that he felt fine during and at the end of his shift. He further indicates he got home from work at 8.00 p.m. and had a couple of hours sleep. He got up approximately 2 hours later at 10.30 p.m. at which time he felt no discomfort. The claimant further indicated he then showered and made dinner;
In his sworn statement the claimant also describes an incident of feeling a sudden sharp pain to the spine area, associated with a specific movement, while seated in a chair at home following the activities noted above. The claimant also indicated that he rides his bike to work every day;
In a letter dated August 6, 1998, the employer indicates that the claimant had not reported any injury to his back to anyone at work and was unable to give a specific incident which occurred at work, yet reports feeling a sharp pain at home.

While the panel notes that the claimant worked somewhat in excess of his regularly scheduled hours during the week of July 28, 1998, we find that the weight of the evidence, on a balance of probabilities, does not support a finding that the claimant sustained an accident which arose out of and in the course of his employment on July 30, 1998, and consequently the claimant is not entitled to benefits. Therefore the employer's appeal is allowed.

Panel Members

D. A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D. A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of January, 1999

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