Public Decision No. 74/2012
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The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") that his hernia condition did not arise out of and in the course of his employment. A hearing was held on May 4, 2012 to consider the matter.
Whether or not the claim is acceptable.
That the claim is acceptable.
On September 23, 2011, the worker filed a claim with the WCB for a hernia condition that he related to his work activities that involved shoveling and pushing snow off a roof and unloading/carrying heavy solid core doors into a building or up a flight of stairs. The worker noted that his symptoms began at work in May 2011. He felt an uncomfortable feeling on his left side. The worker said he delayed in seeking medical treatment until July 2011 as he previously scheduled this appointment with his doctor and it took usually 6 to 8 weeks to get an appointment. The worker indicated that he plays hockey but did not play hockey that winter.
The employer advised the WCB that they were unaware of an injury/accident occurring until the worker told them that he required surgery.
Medical information submitted by the family physician dated July 4, 2011 indicated that the worker developed a left inguinal hernia which bothered him from time to time. It was easily reducible and a referral was made to a specialist.
On October 7, 2011, a WCB adjudicator spoke with the worker and obtained information regarding the development of his hernia condition. The worker believed that the onset of his symptoms occurred sometime in May but he was not sure. He felt that the hernia was related to shoveling snow and lifting material which he performed in January, February or March 2011. The worker said he could not recall any one incident or day when this could have occurred. He said his hernia was discovered during a routine medical exam. He did not feel a bulge prior to his regular scheduled appointment. The worker noted that he reported the injury to the employer's owner in June.
On October 26, 2011, the worker was advised that the WCB was unable to accept responsibility for his claim as it was unable to identify a specific incident or change in duties preceding the onset of symptoms to account for his left groin difficulties. The adjudicator noted:
- the injury was first noticed at a regularly scheduled check up.
- the worker was not able to identify a traumatic event at work.
- the injury was not reported to his employer until approximately 3 to 6 months after the hernia was noticed.
The worker appealed the above decision to Review Office. The worker stated in his appeal submission that:
- he first noticed symptoms on March 15 which were only confirmed as a hernia at a regularly scheduled check up.
- there were two occasions during his work day and within the same week where he felt something was wrong. "I would describe these more as a "strain" than a "traumatic" event although I reported them as a "twinge".
- the hernia was reported to his employer two months following the initial strain.
In a report dated November 8, 2011, the family physician stated:
He was working shoveling snow off a roof at a job… on March 15, 2011 when he felt a twinge of discomfort in the left groin area. The discomfort settled and then working at the same job a couple days later on the Friday, March 18, he was lifting heavy doors and windows, and then felt another twinge of pain. Following March 15 he felt like there was some air or some fluid in the area but he did not have a bump or experience any significant pain. Subsequently towards the middle of May he began noticing a lump in the area which he could push back and that would obviously be the onset of the actual hernia in terms of his ability to perceive it.
He had an appointment for a complete physical examination with me booked for July 4 and in view of the fact that he was not experiencing significant symptoms felt this would be soon enough to bring up the matter with me and, therefore, did not seek any medical attention until that time.
He has subsequently had repair of his left inguinal hernia. In retrospect it would certainly seem reasonable that the sequence of events which resulted in his hernia began on March 15 while he was shoveling snow off the roof at the job site.
On January 11, 2012, Review Office confirmed that the claim was not acceptable. Review Office outlined the position that the evidence on file including the worker's inability to initially identify a workplace incident, the delay in the onset of symptoms and the delay in reporting the injury to the employer did not support a causal relationship between the worker's hernia and his work duties. Review Office determined that the claim was not acceptable as the evidence did not establish that the worker suffered personal injury by an accident arising out of and in the course of his employment. On March 9, 2012, the worker appealed the decision to the Appeal Commission and a hearing was arranged.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.
The key issue to be determined by the panel deals with causation and whether the worker’s left inguinal hernia arose out of and in the course of his employment.
The worker’s position:
The worker was self-represented and accompanied by his spouse at the hearing. The worker described his work in the construction industry. He started working for the accident employer in 1987 as a labourer, received his journeyman carpentry status and was promoted to working as a site foreman on various construction projects. In October, 2010, the worker was asked to oversee an out-of-town job as project manager and site foreman. As part of that job, he supervised staff and the project, dealt with subcontractors, and made sure that the project ran efficiently. Although he mostly supervised, he would also do work which would normally be performed by labourers.
On March 15, 2011, the worker was clearing snow off the roof of the building that was being constructed. The snow was wet and heavy, but needed to be removed from the roof before the construction work could be continued. While he was clearing the snow, he felt a twinge of pain on his groin. A few days later, on March 18, 2011, they were carrying in heavy, solid maple doors and, again, he felt a similar twinge of pain.
The worker stated that in construction, it is not unusual to feel discomfort but it is very often temporary and no significant long term effects are experienced. In this case, the discomfort continued and eventually the worker felt "an air pocket or gas" that he would push back in. On May, 20, 2011, he told his employer that he thought he might have a work-related hernia, but no record was made of the conversation.
The worker discussed the issue with his daughter, who is a physician. She suggested he seek medical attention. Given that he had a scheduled appointment with his doctor within six weeks, the worker decided it was not an emergency and he would wait until his scheduled appointment. When the worker saw his doctor on July 4, 2011, he was diagnosed with a hernia.
The worker's evidence was that he never experienced what he would consider an accident or traumatic event, either at work or otherwise. He could only recall the two incidents of pushing snow and carrying doors from which he felt what he described as a twinge. Despite thinking that the pain would go away, like a pulled muscle, it never did go away, and he started to notice the "air pocket" in his groin. He never did feel it as a lump.
The worker felt that there had been some misunderstandings resulting from use of different terms when communicating with the WCB. For example, he reported a twinge, but did not feel that this would be a traumatic event. Similarly, when he referred to the air pocket, he would not have described this as a lump. With respect to outside activities, the worker confirmed that while he played sports in the past, since being assigned to the out-of-town project in October, 2010, he did not participate in hockey, physical activities or side jobs outside of work with the accident employer.
Overall, the worker felt that his hernia was work-related and asked that his claim be accepted.
The issue before the panel is whether the worker’s left inguinal hernia arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the hernia, which was diagnosed on July 4, 2011, is attributable to the job duties the worker performed in March 2011.
After reviewing the evidence as a whole, we find on a balance of probabilities that the hernia is related to the worker's job duties. In coming to this conclusion, we rely on the following:
- At the hearing, the worker provided the panel with copies of the date logs he kept in March 2010. The date logs recorded the staff who were on site and gave a general description of the work performed each day. The worker was able to identify specific dates in March when he cleared snow (March 15) and carried doors (March 18). These dates are generally consistent with the time identified in the worker's original report of injury.
- The worker's evidence was that he did not have his date logs in front of him when the WCB adjudicator was pressing him for details regarding his claim. The panel accepts this as a partial explanation as to why his report of dates is inconsistent in the file. The panel notes that what has been consistent is the worker's attribution of the hernia to these two tasks.
- Although the notes of the WCB adjudicator indicate the worker could not recall any one incident, the worker explained at the hearing that he did not consider the "twinge" that he experienced to be an "incident". He felt that a traumatic event would have to involve throwing up or falling over. He likened it to breaking a bone.
- The twinge described by the worker was in the same location in his groin as where the hernia was later diagnosed.
- The mechanism of injury of lifting heavy wet snow and doors is an activity which involves intra-abdominal strain. Strenuous physical effort which causes an increase in intra-abdominal pressure is a known risk factor in the development of a hernia. The panel accepts that the tasks which the worker was doing could cause him to suffer a hernia.
- It is the panel's understanding that a hernia condition may be precipitated by a heavy lift, but there may be delay of onset of more serious symptoms. The hernia may start small but will gradually enlarge over months to years. In the present case, the worker's hernia was never so severe that he was prevented from working, and he continued to report for work until the time of his hernia repair surgery. As a site foreman, the worker also had the ability to modify his work to avoid heavy lifting.
- The additional information provided by the worker at the hearing gives the panel greater clarity regarding the onset of the hernia condition and we are satisfied on a balance of probabilities that the heavy lifting performed at work in March 2011 precipitated the left inguinal hernia.
For the foregoing reasons, we find that the worker’s left inguinal hernia was caused by his workplace duties, and therefore he does have an acceptable claim. The worker’s appeal is allowed.
L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
(on behalf of the panel)
Signed at Winnipeg this 20th day of June, 2012