The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant appealed a decision of the Workers Compensation Board Review Office granted on August 28, 1998. Review Office determined that the claimant was not entitled to benefits because his injury did not arise out of and in the course of his employment.

An Appeal Panel hearing was held on December 9, 1998, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on December 9, 1998.

Issue

Whether the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The claimant submitted an application for compensation benefits for a lower back injury that occurred on March 19, 1998. The claimant described the injury as follows:

"I injured my lower back stacking boxes. First to stack boxes you need to place a pallet onto the floor. The height of the pallet is about seven inches. The boxes are then stacked bottom to top. Bending down to start to stack I felt a sharp pain on the right side of my lower back. The pain had gone down my right leg, to the bottom of my right foot. Note: the height of the empty pallet (about seven inches) my height is 6 feet 2 inches."

The claimant further indicated on his application form that he did not report the injury to his employer until April 1, 1998, as he thought the pain would go away.

On April 8, 1998, the employer's report of injury noted the accident date as March 31, 1998, and stated that an injury was reported by the claimant on April 6, 1998. The employer stated, "...he was bending over, stacking boxes and felt pain in low back - pain radiated down right leg." The employer stated that they were unsure if the worker was in the course of his employment at the time of injury as the claimant did not let anyone know he was injured. On April 6, 1998, the claimant came into work with a note from his doctor after missing 3 days.

Medical information from the attending physician dated April 2, 1998, indicated a diagnosis of lower back strain. X-rays of the lumbar spine dated April 3, 1998, revealed normal lumbar lordosis and the vertebral bodies, disc spaces, pedicles, transverse processes and SI joints were intact. The claimant was subsequently referred for physiotherapy treatments.

On May 6, 1998, the claimant provided the Workers Compensation Board (WCB) with a signed declaration indicating that he first noticed pain in his lower back commencing February 1998 from stacking boxes at work. He did not report the pain to anyone at the time as he thought the pain would go away on its own. The claimant stated that when he switched to another job between March 2, 1998 to March 18, 1998 there was no lifting and minimal bending involved and the pain in his lower back was not being aggravated. When he returned to his normal duties on March 24, 1998, the claimant stated that he felt a little discomfort in his lower back and by the end of the day after bending and lifting the pain became much worse. The claimant did not complain about his back difficulties to any co-workers as he stated he did not like to complain. The claimant said he finished his shift on March 24, 1998 and worked up until March 31, 1998, but did not complain to anyone about his pain.

With regard to extra-curricular activities, the claimant stated he was previously involved in weight lifting but was now only doing the exercises recommended by his physiotherapist. The claimant indicated that he used to work out three times per week for 45 minutes each time and the last time he was able to work out pain free was in early February 1998.

On June 11, 1998, Claims Services determined that the WCB would not accept responsibility for the claim based on Sections 4(1) and 1(1) of The Workers Compensation Act (the Act). Claims Services noted that although the worker first noticed the onset of symptoms in February 1998, he did not report it to his employer nor did he mention it to any of his co-workers. Further, the claimant was doing weight lifting three times a week up until February 1998, when he could no longer continue because of back pain. In conclusion, Claims Services believed there was insufficient evidence provided to establish a relationship between the worker's low back difficulties and an accident arising out of and in the course of employment. On August 10, 1998, this decision was appealed by a union representative on behalf of the claimant.

On August 28, 1998, the Review Office determined "That the claimant was not entitled to benefits for the effects of a right lower back problem which apparently developed in about February 1998, and resulted in subsequent disablement." When denying the appeal the Review Office made reference to Sections 4(1) and 17 of the Act. The Review Office summarized that it did not believe there was evidence to establish that the claimant's lower back problem arose out of and in the course of his employment nor did the claimant give prompt notice to his employer if indeed the onset of his low back problem actually happened at work.

On September 10, 1998, the union representative appealed the Review Office's decision and an oral hearing was held on December 9, 1998.

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

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

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

(c) an occupational disease,

and as a result of which a worker is injured.

The claimant has indicated that the first signs of back problems that he experienced occurred in February of 1998. He had been on the job making boxes for approximately six months. He did not mention that he was having back problems to his employer or any of his co-workers at this time. He did not see a doctor. There was no specific incident that the claimant could point to that caused the onset of his problems. He continued to work until his back problems "came to a head" on March 31, 1998.

On April 1, 1998, the claimant did not show up for work. He left the company nurse a voice mail message he says to the effect that he would not be in to work because he couldn't sleep the preceding night due to the back pain that he was suffering. The company nurse disputes this statement and says that the claimant did not indicate that he had hurt his back but rather simply called in sick.

On April 2, 1998, the claimant reported to work for one hour. He then saw the nurse and told her that he had to leave to seek medical attention for his back. The claimant saw his doctor on April 2, 1998, and on April 6, 1998, he delivered a note to his employer stating that he was unable to work due to lower back problems. The claimant was off work from April 2, 1998, to August 4, 1998, when he returned to work on a graduated basis.

The issue for this Panel is whether the evidence supports that the claimant's lower back condition was caused by his work activities. The opinion of this Panel is that the evidence does not, on a balance of probabilities, support the conclusion that the claimant's injuries were caused by his duties at work.

The most difficult aspect of the claimant's case is the reporting of his injury and the conflicting statements that he made to several people. The claimant's position at the hearing of this matter was that the onset of symptoms occurred in or around February of 1998. The claimant acknowledged that he never mentioned his back pain to anyone until notice was given to his employer on April 2, 1998. He continued to work his regular duties except for a two week period between March 2nd and the 18th when he operated the powered pallet jack, which apparently doesn't involve any lifting and involves minimal bending.

There is a report on file from the claimant's physician dated April 2, 1998, which indicates that the claimant provided a history of his injury indicating that it happened "approximately one month ago." This would suggest that a specific injury occurred at work on or about March 2, 1998.

The worker's injury report on his file signed on April 14, 1998, gives no indication as to when the injury occurred and whether or not it was sudden or gradual. The report has the injury date recorded as March 19, 1998, but this was entered by the WCB based upon the claimant's telephone call of April 2, 1998.

There is a memo on file from an adjudicator dated April 20, 1998, which appears to suggest that the accident took place sometime around February 2, 1998.

Finally, the claimant's own statement provided to the WCB on May 6, 1998, appears to suggest that something occurred during the course of employment on March 24, 1998, either to cause injury or aggravation to an existing condition.

In summary, the evidence indicates injury and/or aggravation to the claimant's back occurring on or about February 2, 1998, on or about March 2, 1998, on or about March 19, 1998, on or about March 24, 1998, on or about March 25 1998, none of which was reported to anyone prior to April 2, 1998.

The etiology of the claimant's condition is difficult to determine given the conflicting evidence.

It is also to be noted that on questioning by the Panel, the claimant described the onset of his injury in February of 1998 as involving sciatica with pain radiating down the leg. As this appears to have been a fairly significant episode it is difficult to understand why the claimant did not mention his pain to anyone. He also described his condition as causing limping at times. It is also difficult to understand how no one could have taken note of this. Form 3, the Worker's Report of Injury appears to suggest that a fairly acute event may have taken place.

The Panel has also noted that the claimant was well aware of the WCB's reporting procedures with respect to accidents at work. He had reported several injuries before with his current employer and he knew that if he was injured he had to fill out a "green card."

Finally, the claimant has suffered two previous injuries, one to his upper back and one to his wrist, due to his weight lifting activities. The last time that the claimant was able to work out pain free was in early February 1998. The claimant suggested that his weight lifting regime was for his upper body and therefore could not have caused lower back problems, however, the evidence suggests that his weight lifting program did involve some free weights including 40 pound weights which would have to be lifted off the floor. This type of activity would necessarily involve bending and lifting much heavier weights than the one pound boxes he was lifting at work.

Given that no work injury was reported to anyone until April 1998, it is difficult to conclude that the claimant's onset of back symptoms was more likely to be related to lifting and bending at work than to weight lifting at home.

Accordingly, the claimant is not entitled to benefits as he has failed to meet the requirements of Sections 4(1) and 1(1) of the Act as the evidence has not established, on a balance of probabilities, that the injury more likely than not, arose out of and in the course of his employment.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of January, 1999