Decision #181/99 - Type: Workers Compensation


A Non-oral review was held on March 4, 1999, at the request of the claimant.


Whether or not the claim is acceptable.


That the claim is not acceptable.


On September 15, 1998, the claimant submitted an application for compensation benefits with respect to a lower left ligament strain and muscle spasm that occurred at work on August 26, 1998. The claimant described the injury as follows:

"I tried to print an order on a automatic screening press in a rush to get the job done before my shift ended. There is a lot of upper lateral movement and twisting to do so and I felt my back starting to spasm by end of shift. 1 hour after shift the pain associated with spasm was to (sic) intense so I seen the doctor asap/next available appointment."

On his application for compensation, the claimant indicated that he reported the accident to his employer on August 28, 1998.

The Employer's Report of Injury stated that the claimant did not injure himself while employed by their firm and no injury was reported.

A Doctor's First Report, dated September 10, 1998, described the worker's history of injury as follows: "Injury @ work - doing lighter duties with print shop - 2 hrs. after work felt acute (L) sided back pain." The claimant was diagnosed with an acute lumbar sprain and back strain. The doctor prescribed ice to the injured area as well as medication and physiotherapy treatments.

On December 21, 1998, a WCB adjudicator spoke to the claimant by phone. The claimant indicated that he did not report the accident the following day to his supervisor because no supervisors were there on the date of accident. The claimant explained that there was a mix up with his employer with respect to the reporting of the accident. The employer thought it was due to a MVA. The claimant stated that he was previously injured in a MVA in August 1995 when he injured his entire back. The claimant said he was riding a bike and got hit by a car.

The claimant had not returned to work and he felt that the injury was a relapse of his MVA accident. The claimant applied for CPP benefits and was in the process of appealing a decision by MPIC.

The claimant advised that on the day of accident he felt spasm in the lower left spine during the course of his shift. He was performing regular duties, which were not considered strenuous. He was working quickly. There was no specific accident that caused the pain in his back. He made no complaints to other co-workers.

Information was obtained from the Manitoba Public Insurance Corporation with respect to the July 8, 1995, MVA. The injuries sustained by the claimant were a fractured left 11th rib, low back strain, external oblique strain and upper scapular contusion. In a letter, dated October 7, 1998, an Acting Review Officer with MPIC advised the claimant that he no longer had any physical impairment due to the MVA of July 8, 1995. Any discomfort that he was now experiencing may be related to his lumbar sacralization but was not as a result of the MVA.

On January 14, 1999, a signed statement was obtained from the claimant that provided details regarding his work history and the MVA. The claimant noticed the onset of symptoms during the last couple of hours of his shift on August 26, 1998. He did not tell his co-worker at the time as he had more seniority. The claimant acknowledged that he had prior back difficulties in the past such as stiffening up or seizing up. Once while leaving work to go home, he started getting back spasms in the car. The claimant felt the problems with his back and the problems he experienced on August 26, 1998 were in relation to the injury he suffered in the MVA.

Information obtained from the employer on January 27, 1999, indicated that the claimant did not attend the office nor did he phone the office to report an injury. The employer stated that the first time there was any indication that an injury had occurred was when the company received an employer's report of injury form, in the mail, from the WCB. The claimant had come into the office about two or three weeks after the injury date to pick up his cheque and at this time stated that he had hurt his back while at work.

In a decision, dated February 11, 1999, primary adjudication determined that the claim was not acceptable and referred to Sections 4(1) and 1(1) of the Workers Compensation Act (the Act). It was the opinion of Claims Services, that there was insufficient evidence provided to establish a relationship between the worker's left back difficulties and an accident arising out of and in the course of his employment.

On July 18, 1999, the claimant appealed primary adjudication's decision to Review Office. The claimant stated that he had a similar claim in 1990 that the WCB had accepted. He stated that he did not mention any problems to his co-worker as he always suffered from mild to moderate back spasms while working and that he had become somewhat adaptive to the pain and discomfort. The claimant indicated that the accident was reported to various staff two days after the injury. There was confusion, however, on the part of the company, as it tried to determine what type of traumatic accident the claimant had been involved. The claimant stated that he went to MPIC's legal department to hold them responsible for his new injuries. This alone should provide a reasonable excuse as to why he did not follow proper procedure when he applied for WCB benefits.

In a decision, dated August 13, 1999, Review Office confirmed that the claim for compensation was not acceptable. Review Office noted the following when rendering its decision:

  • the employer indicated that the worker did not make any report of his claimed injuries until two to three weeks after the fact when he came to the office to pick up his cheque.
  • according to the employer, there was no record that the worker reported his injuries two days after the claimed accident.
  • the worker's case had been complicated to a degree by the 1995 MVA which was obviously creating some difficulties for the worker prior to the alleged at work incident in August.
  • the claimant himself had indicated he always worked in discomfort with his lower back and there was no evidence to support the worker's contention that he injured his back while on the job as claimed.

On October 7, 1999, the claimant appealed Review Office's decision and a non-oral file review was held.


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."

We find the evidence does not, on a balance of probabilities, establish that the claimant sustained an accident arising out of and in the course of his employment. In this regard, we took into consideration the following factors:

  • the claimant has been experiencing pain in his back on an ongoing basis since 1990;
  • the claimant has received treatment on an on again off again basis since 1990 for problems similar to his current difficulties;
  • there is considerable inconsistency with respect to the reporting of this alleged accident;
  • the claimant has indicated his back problems are related to the 1995 motor vehicle accident.

The claim is not acceptable and therefore the claimant's 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 17th day of December, 1999