The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with whether there was a workplace accident within the meaning of subsections 4(1) and 1(1) of The Workers Compensation Act (the "Act").

On October 26, 2005, the worker filed a claim with the Workers Compensation Board (the "WCB") for a back injury that occurred on October 18, 2005. His claim was refused by the WCB on the grounds that there was no causal relationship between the development of his back injury and an accident occurring at work. This position was upheld by the Review Office in a January 16, 2006 decision. It is this decision that the worker appealed to the Appeal Commission.

An appeal panel hearing was held on June 1, 2006, at the request of a union representative, acting on behalf of the worker. The worker and his union representative appeared as did the employer.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On October 18, 2005, the worker hurt his back.

His accident report to the WCB indicates that he first noticed his symptoms when he got off the bus. He described the onset of his back symptoms as follows:

I was driving and getting off the bus at the end of my shift. I went to get off and check things out. My back felt stiff and I stretched a little bit. It was quite sore and thought I would be fine the next day but it was worse."

He did not report his back symptoms immediately as he "thought it was just one of those things which happens all the time. [He] thought [he] could just sleep it off. But the next morning it was worse so [he] went to see a chiropractor".

He thought that his injury might have been caused by the seats:

"The seats on the bus are not particularly great. Some are half decent and some are not. This builds up and has taken a toll. Some seats are caved in and are not comfortable sitting in all day long."

The worker went back to work on October 19, 2005. As the symptoms were worse, he saw his doctor who diagnosed a lumbar strain. He was referred to physiotherapy and remained off work until November 14, 2005.

The employer checked the maintenance history on the bus the worker was operating on October 18, 2005 but could not find any reported defects with either the seat or the suspension.

Reasons

To accept the worker's appeal the panel must find that the worker's back strain arose out of and in the course of his employment. We are unable to make that finding.

Subsection 4(1) of the Act provides as follows:

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.

Subsection 1(1) of the Act defines an accident:

"accident" means 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;

In the case before us, while we accept that the worker's back symptoms began after his shift ended, we are unable to make any causal connection to his general workplace duties or to an incident that caused the back symptoms.

The worker's own report to the WCB states that he did not know the cause of his injury. He thought however that it could be due to the bus seats. At the hearing, the worker's union representative conceded that the worker did not report the bus as having a bad seat, nor did he report rough roads or potholes. He surmised that the worker's symptoms must therefore have been caused by a twisting injury which would have occurred when the worker got out of the bus seat.

The worker confirmed this position at the hearing. He testified that he first moved his upper body, then his legs to get out of the seat. He put his left foot on the platform under the seat, and then put his right foot forward to get up. After he stood up, he felt a sharp pain in his back.

We do not accept this new version of events on October 18, 2005. This was not the way in which the worker first described his injury. We place more weight on the worker's initial report on October 25, 2005 rather than seven months later when a new injury description was provided.

Accordingly, the worker's appeal is denied.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

L. Martin - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of July, 2006