The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 18, 1999, following receipt of an appeal from the claimant. The Panel discussed this case on January 18, 1999.

Issue

Whether the claim for compensation is acceptable.

Decision

That the claim for compensation is not acceptable.

Background

On March 11, 1998, the claimant submitted an application for compensation benefits relating aches and pain on the right side of his body to his employment activities as a television representative at a local hospital. In a letter attached with his application form, the claimant stated that beginning in October or November 1997, he started to feel pain in his right upper arm, "the joint connecting my arm to the shoulder, the muscles in my lower and upper back, the muscles on my shoulder, the muscles of my neck, right side going up to the head including some ringing of my right ear." The date reported to the employer was February 22, 1998.

In a letter to the Workers Compensation Board (WCB) dated March 24, 1998, the employer's business manager indicated that the claimant called in sick on February 21, 1998, stating that he had flu-like symptoms and was told by his doctor to stay off work for approximately three days. On February 25, 1998, the claimant came to pick up his pay cheque and at the same time presented a doctor's note. The claimant did not report an injury to his hand at that time or any other time. On February 26, 1998, the claimant resigned his position with the company.

A Doctor's First Report dated March 24, 1998, indicated that the claimant was seen for cold symptoms on February 23, 1998, and on March 4, 1998, with muscular pains. On March 6, 1998, the claimant's history of injury was reported as pain on the right side of neck and shoulder from ? (query) lifting/installing TV's.

File documentation contains a statement from the claimant dated April 9, 1998, taken by a WCB field representative. Briefly, the claimant stated that he was told by his therapist that by using his right arm he pulled the muscles on the right side of his upper body. The claimant described his job duties as installing 9 inch televisions, with the mounting arm, into hospital rooms and moving the televisions and arms from ward to ward in a cart. The TV's are then lifted out of the cart and are set up at shoulder level. The claimant indicated that he gradually noticed pains around October or November 1997, and on February 22, 1998, he told his supervisor that he couldn't work due to fever, body pains, coughing and cold symptoms. The claimant stated he was claiming for lost wages starting February 23, 1998, and for the costs associated with physiotherapy.

In a statement dated April 17, 1998, the claimant's supervisor indicated that 75% of the claimant's job involved invoice and money collection and 25% involved hook-ups. There was also a lot of walking on the job. When the claimant booked off in February 1997, he said he had the flu.

On April 17, 1998, the business manager submitted a copy of the claimant's written resignation dated February 27, 1998, and a letter from the claimant dated March 12, 1998. The business manager claimed that the first time she was aware of a possible work injury was when she received the claimant's March 12, 1998, letter and that prior to that she thought he had the flu.

In a statement dated April 17, 1998, a TV rental representative indicated the following, "ever since I started here, [the claimant] does this motion where he moves his head side to side and you could hear a 'crack' to his neck, just like people do with their knuckles. He would say his neck was stiff when he did this, which was quite often. There was never any mention of an injury nor did his complaints of neck stiffness get any worse prior to his not working here anymore. When [the claimant] stopped working, [supervisor's name] got this message on his answering machine. [the claimant] said he would be off work for a 3-4 day flu."

On May 6, 1998, Claims Services rejected the claim under Sections 4(1), 1(1) and 17(5) of the Workers Compensation Act (the Act) based on the following commentary:

"...the worker states he began to experience symptoms around October 1997. There was no report of any work related injury. A co-worker reports long term complaints of neck stiffness. The worker stopped working in February 1998, called in sick with the flu, then quit his employment. In March 1998, he notified his employer that he wished to file a workers compensation claim.

Based on the information available, Claims Services cannot substantiate that the worker suffered a personal injury due to an accident arising out of and in the course of employment. Therefore, the claim is not acceptable."

On July 14, 1998, the WCB's Review Office received an appeal from the claimant in view of the May 6, 1998, decision rendered by Claims Services.

In its decision of July 31, 1998, the Review Office pointed out that the employer denied any knowledge of an accident and that the worker himself had acknowledged not reporting any work related cause for being off work as of February 21, 1998. It was not until March 1998, after several visits to the doctor for flu-like symptoms, that the worker did determine that his body pain was related to his employment. The Review Office determined therefore that the worker's claim for compensation was not acceptable as the evidence did not support the worker's contention that he sustained a personal injury by reason of an accident that arose out of and in the course of his employment.

On October 20, 1998, the claimant appealed the Review Office's decision and requested an oral hearing which was conducted on January 18, 1999.

Reasons

The issue in this case is whether the claim is acceptable. The relevant subsections of The Workers Compensation Act (the Act) are subsections 1(1) and 4(1). Subsection 4(1) provides for the payment of wage loss benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

Subsection 1(1) states:

1(1)     "accident" means  a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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.”

Subsection 4(1) states:

Compensation payable out of accident fund

4(1)     "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."

We reviewed all the evidence on file and given during the hearing and find that the evidence on a balance of probabilities supports a finding that the claimant did not sustain an accident within the meaning of subsection 1(1) of the Act. In reaching this conclusion we note the following evidence:

• the claimant called in sick on February 21, 1998 indicating that he had flu like symptoms and that he would be off approximately three days and did not relate his condition to any particular work activities or incident at work;
• the employer through the business manager and the supervisor deny any knowledge of any accident at work until informed by the worker that he was making a WCB claim, by voice mail to the supervisor sometime between February 27 and March 12, 1998, and to the business manager by letter dated March 12, 1998;
• In a letter to the employer dated February 27, 1998 the claimant terminated his employment approximately seven days after booking off sick and with no reference to an injury at work or a particular increase in work activities;
• In a report dated March 24 1998 an attending physician indicates that he first saw the claimant on February 23, 1998 for cold symptoms and on March 4, 1998 for muscular pains giving the worker's history of injury as pain in the right side of neck and shoulder and indicates "(? from lifting and installing T.V.'s)";
• In a sworn statement dated April 9, 1998 the claimant indicates that most of the upper right side of his body was injured, the chest muscle, the upper back near the right shoulder blade the right shoulder and up into the neck on the right side yet also indicates that he first started having pains in October or November 1997; the worker further relates his pain to his employment in general and to increases in work activity in the Fall and not to any specific injury or event;
• In a letter received by the Review Office on July 14, 1998 the claimant indicates that the injury happened from and between February 17, 18, 19 and 20, 1998 when his supervisor changed the work assignment and a co-worker was off sick which increased the work load;
• In a sworn statement dated April 17, 1978 a co-worker indicates that the claimant reported occasional neck stiffness at work but had never mentioned an injury or worsening of neck symptoms before he left his employment; the co-worker also gives his opinion that the work is not physically demanding;
• In a letter to his employer dated March 12, 1998 the claimant indicates that since March 6, 1998 he still had cough and colds which had left him with little or croaking voice as well as indicating that he had muscular body pains to an extensive area of his upper body including his right ear. The claimant further indicates that he has been using an ointment for both muscle and back pains for the last six months and that he has filed a claim with WCB as he attributes these general and varied muscular pains to his employment.

We note from a letter dated February 27, 1998 that the claimant expressed his intention to the employer to resign his position. We further note from the file documentation that this resignation occurred approximately one week before the claimant was first seen for medical treatment of his muscular complaints.

The evidence suggests the claimant developed non-specific complaints relating to his upper chest, shoulder, back and neck which he attributed to the general nature or requirements of his employment duties. The evidence however does not support a causal relationship between the employment and claimant's delayed physical complaints.

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 employment on or about February 20, 1998 or as a result of his work activities in general and consequently there is no entitlement to benefits. Therefore the claimant's appeal is denied.

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 4th day of February, 1999