The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

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. (emphasis added)

The worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the evidence supports that an accident occurred when the worker was lifting and moving a heavy solid wooden desk. The worker’s superior was able to confirm that he was performing these duties. The mechanism of injury fits with the worker’s personal injury, being a disc herniation. There was no evidence to support any non-work related caused his condition. Although the employer was not notified of the accident until the worker reported it on September 19, 2008, it was submitted that notice was still provided well within the 30 day allowable time limit provided for in the Act. It was therefore asked that the panel accept the worker’s claim as the evidence supported, on a balance of probabilities, that the worker suffered personal injury by accident on August 28, 2008.

The employer’s position:

A representative from the employer appeared at the hearing. The employer supported the WCB’s previous decision and submitted that based on the evidence, it could not be confirmed that the disc herniation reported by the worker on September 19, 2008 was attributable to the workplace incident three weeks earlier. The employer noted that when reporting the injury, the worker was unsure as to what was the cause for it. It was also submitted that if the worker had suffered a disc herniation on August 28, 2008, he could not have continued to perform his regular duties until September 18, 2008. Finally, it was noted that the worker had filed several prior claims for compensation and therefore should have been aware of the need for immediate reporting of an injury.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker suffered an injury to his back during the course of his employment on August 28, 2008. On a balance of probabilities, we are able to make that finding.

At the hearing, the worker described an incident on Thursday, August 28, 2008 whereby he lifted one end of a heavy wooden desk to test its weight, when he felt a sharp pain in his back. He commented to his co-worker that he felt a pain in his back, and then they proceeded to lift the desk together and move it across the room. The worker was able to complete his shift that day, and the next day as well.

The next three days were the Saturday, Sunday and Monday of the Labour Day long weekend, and the worker did not work on those days. When he went back to work on Tuesday, he felt pain, but continued to perform his duties. The summer clean-up tasks were now completed, and his work did not involve as much heavy lifting. He was able to perform all of his regular duties by moving slowly and carefully. He missed one day of work (September 8, 2008) because of his back pain. As time went on, the pain in the worker’s back got worse and worse. He described a pain across his lower back which would become a shooting pain into his left buttock if he moved the wrong way. He continued to struggle through the pain until by September 18, 2008, the pain was so severe that he could hardly sit or stand. At that point, he was not able to work any longer and he left work early to seek medical attention. The next day, he filed a report of injury with his employer. He remained off work until October 7, 2008.

The worker explained that he did not file a WCB claim as he thought that he had suffered a minor back strain and that it would get better on its own. He had worked through back strains before and they had always resolved after a short time. It was only when he could no longer work that he realized that he was not getting better and at that point he felt he had better put in a claim with the WCB.

In the panel’s opinion, the worker’s claim for compensation should be accepted. The panel found the worker to be credible when explaining why he delayed in reporting his accident and seeking medical treatment. We note that twelve days after the incident, on September 9, 2008, the worker saw his family physician who noted: “Back pain after lifting heavy furniture at work 10 days ago.” Thus, at least from that date, there is confirmation that the worker attributed his injury to the work duties. Although at the outset, the worker was initially unsure as to the cause for his injury, the panel accepts that the disc herniation was likely caused by the lifting of the desk at work. The worker’s evidence at the hearing was that he was not involved in any sports or other physical activities at the time which could have caused the injury to occur.