Decision #46/24 - Type: Workers Compensation


The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on March 18, 2024 to consider the worker's appeal.


Whether or not the claim is acceptable.


The claim is not acceptable.


On August 15, 2023, an Employer’s Accident Report was received by the WCB reporting the worker injured their lower back as the result of an incident at work on July 30, 2023. The Report noted the worker was moving a heavy item after which they felt a pain in their back. On the same date, the worker submitted their Worker Incident Report and confirmed that on July 30, 2023, they were lifting an item weighing approximately 40 to 50 pounds when they felt an immediate pain in their lower back. The worker noted they did not report the incident or seek medical treatment right away as they thought it would get better.

The worker attended for an initial chiropractic assessment on August 14, 2023 reporting lower back pain after lifting a heavy item at work. The treating chiropractor noted a forward antalgic gait and decreased range of motion in the worker's lumbar spine. A diagnosis of a lumbar spine strain/sprain was provided and it was recommended the worker remain off work until August 17, 2023 then return to work on modified duties. A Functional Abilities Form was completed by the worker's treating chiropractor on August 16, 2023. It noted the worker could return to work on August 17, 2023 to modified duties of no lifting over 10 pounds, no repetition, no ladders and if standing in one place, would need to sit or walk for 5 minutes. These restrictions were in place until September 1, 2023. A Modified Duties Offer, signed by the worker and the employer on August 16, 2023 was also included noting the modified duties the worker could perform when they returned to work on August 17, 2023.

The employer contacted the WCB on August 24, 2023 to advise the worker had returned to work on August 17, 2023 on modified duties and worked until another incident at work on August 19, 2023 where they hurt their back. The employer requested the worker attend for medical treatment and return on modified duties on August 25, 2023.

During the August 24, 2023 conversation with the employer the WCB noted the worker reported the initial incident occurred on July 30, 2023 but did not report it until August 14, 2023 and requested the employer ask the worker's coworkers if they noticed the worker having difficulties after the incident. On August 25, 2023, the employer advised the WCB they had spoken with the worker's coworkers and they had not noticed the worker experiencing any difficulties.

The WCB contacted the worker on September 5, 2023 to discuss their claim. The worker confirmed the mechanism of injury noted on their incident report and further, confirmed the incident caused a sudden sharp pain in their left lower back. The worker noted they self-treated their symptoms with stretches and pain medication until they felt the pain getting worse and they sought chiropractic treatment and notified the employer of the incident. The worker advised the WCB they did not initially report the incident as they thought they could self-treat the injury and it would improve. The worker also noted they continued to work their regular duties but they felt uncomfortable with really sharp pain and when kneeling down, could barely stand up.

On September 12, 2023, the WCB advised the worker in a decision letter their claim was not acceptable. The WCB found it could not be established the worker suffered an accident arising out of or in the course of their employment due to the delay in reporting the incident to the employer and seeking medical treatment. The worker requested reconsideration of the WCB's decision to Review Office on October 10, 2023, indicating on their request they continued to work despite their injury as they were understaffed and they believed they had to continue working.

Review Office upheld the WCB's decision and determined the worker's claim was not acceptable on November 14, 2023. Review Office placed weight on the evidence on file the worker delayed for over two weeks in reporting and seeking medical treatment for their injury, that none of the worker's coworkers were aware of the incident or noted the worker having any difficulties and the worker was capable of performing their regular duties until August 13, 2023. As such, Review Office was unable to determine the worker sustained an injury as the result of an accident at work.

The worker filed an appeal with the Appeal Commission on December 4, 2023 and a hearing was arranged.


Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect on the date of the accident apply.

A worker is entitled to compensation under Section 4(1) of the Act when it is established that a worker has been injured as a result of an accident arising out of and in the course of employment. The Act sets out the definition of an accident in s 1(1) as follows:

"accident", subject to subsection (1.1) includes

• a chance event occasioned by a physical or natural cause, 

• a wilful and intentional act that is not the act of the worker, or 

• an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event.

The WCB has established Policy 44.05, Arising Out of and in the Course of Employment (the “Policy”) to describe the process to determine whether an accident arose out of and in the course of employment. WCB

Worker’s Position

The worker made an oral submission on their own behalf and provided testimony through answers to questions posed by members of the appeal panel. 

The worker explained to the panel that they injured their back while at work, and due to unfamiliarity with making a claim, did not initially report it to their employer. The worker stated that it was a busy time and they were short staffed at work. The worker's evidence is that their back pain got worse and they started seeing a physiotherapist. The worker stated that even one year later they still experience back pain if they don't do daily stretches or if they sit in an awkward position. The worker confirmed that they have not gone to a physician in regard to the back injury or ongoing symptoms.

The worker is requesting that the claim be accepted based on their ongoing symptoms.

Employer's Position

The employer did not participate in the appeal.


The panel must examine and weigh all the evidence before it in order to determine what is most likely or most probable to have occurred

The panel notes that there is limited evidence as it relates to the incident itself as the worker states he was working alone at the time of the injury. The panel notes that the WCB adjudicator inquired with the employer as to whether any coworkers would have noticed any difficulties with respect to the worker and the evidence before the panel is that no one noticed any issues during that time. Therefore, the panel does not have the benefit of independent evidence relating to the injury.

The panel has also considered the delay of the worker in reporting the injury, as well as the ability of the worker to continue working for several days following the incident without mentioning the injury to their employer. The panel accepts the evidence of the employer that the worker was advised to go see a doctor after reporting the injury, but that the worker took several days to seek medical attention, eventually going to see a chiropractor. The panel does acknowledge the youthfulness of the worker and is prepared to accept the worker's evidence as to a lack of understanding of the WCB claims process. However, the panel notes that once the worker was told by his employer to see a doctor, there were still delays.

Further, the panel notes that it does not have any additional medical reporting to consider even though the worker stated their symptoms have continued for 9 months after they reported the injury.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is unable to establish that the worker suffered personal injury from an accident that arose out of and in the course of their employment. Therefore, we find that the claim is not acceptable, and the worker’s appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of May, 2024