The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 7, 2000, at the request of a worker advisor, acting on behalf of the claimant. The claimant was appealing a decision of the Review Office of the Workers Compensation Board (WCB) which determined that his claim for compensation was not acceptable. The Panel discussed the appeal on September 7, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On November 10, 1999, the claimant submitted an application for compensation benefits which stated the following: "I was lifting a box of books weighing approximately 75 lbs. on to a cart approximately 4 feet high when I felt a pain around my groin area." The claimant recorded the date of injury as being January 1999. The claimant stated that he did not report the injury immediately to his employer as he did not think his injury was that serious.

On December 6, 1999, a Workers Compensation Board (WCB) adjudicator contacted the claimant to obtain additional details about his claim. The claimant described the injury as noted above and thought that it happened in the middle of January 1999. He stated that he had pain but continued to work and did not think too much about it. As the pain did not go away, the claimant sought treatment in February 1999. He told the doctor what happened at work and the doctor asked him if he had a noticeable lump which he did not. The claimant advised the adjudicator that he continued working and didn't mention it to anyone. The claimant works as a shipper/receiver. The claimant stated he attended his doctor again in September who thought he may have a hernia which was later confirmed by a specialist on November 4, 1999. The claimant advised that he then forwarded this information on to his employer. Surgery had been scheduled for January 7, 2000.

Medical information from the attending physician dated February 9, 1999, showed that the claimant complained of right suprapubic right sided lower abdominal discomfort usually occurring between 1 and 4 in the afternoon. Physical examination showed a right inguinal hernia.

On December 14, 1999, the WCB's Rehabilitation & Compensation Services division determined that the claim was not acceptable based on sections 4(1) and 17(5) of the Workers Compensation Act (the Act). On February 28, 2000, a worker advisor appealed the decision and referred to medical reports dated February 1, 2000 and February 7, 2000. The worker advisor indicated that the reports supported a presumption that the onset of the claimant's symptoms occurred in the course of his employment.

In a letter to the worker advisor dated March 29, 2000, the WCB's Rehabilitation & Compensation Services confirmed its earlier decision that the claim was not acceptable based on the following factors:

• the claimant did not report an accident until nearly 11 months later;
• there was no medical evidence of a hernia during his February 1999 examination;
• no history of having lifted a box which initiated the pain was provided to his doctor;
• the claimant continued to perform his regular duties after the incident.

The case was then referred to Review Office for further consideration.

On April 7, 2000, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that the historical evidence must support a finding that the claimant's hernia condition was occasioned by a lift in the workplace that caused the hernia condition to develop. Review Office noted that the claimant's initial report to the physician was of generalized groin discomfort, not localized to the right side and he provided no history to the physician of lifting books at any point. It was not until the diagnosis of the hernia condition was made that the claimant related this condition to lifting a specific box of books sometime during the month of January 1999. Review Office did not believe it had been established that the claimant's right hernia condition was occasioned by an accident arising out of and in the course of his employment. On May 12, 2000, the worker advisor appealed Review Office's decision and an oral hearing was arranged.

Reasons

The Appeal Panel is of the unanimous decision that this claim is acceptable. The claimant at the hearing of this matter provided a history detailing the onset of pain in his groin area through to the resolution of the pain by way of a hernia operation that is entirely consistent with a hernia having been caused by an "event arising out of and in the course of employment, and as a result of which" he was injured.

For the past 28 years the claimant has worked for the employer receiving books, unpacking books and shipping books. Such work necessarily involved lifting book boxes weighing approximately 40 to 75 pounds several times a day. He recalled an event sometime in January of 1999 when he lifted a 75 pound box onto a four foot high cart and subsequently felt pain and discomfort in his right groin. He did not immediately report the event to his employer as he never felt it was serious enough at the time.

The claimant first sought medical attention due to ongoing discomfort in the groin area in February of 1999. The doctor who saw him at that time felt that he suffered from gastritis and never actually examined the groin area. However, evidence was given by the claimant at the hearing that he was given instruction by the doctor on how to self examine for a hernia. This evidence certainly lends credibility to the claimant's case and appears to suggest that the doctor at that time had turned his mind to the possibility of the existence of a hernia.

Over the next several months, the claimant suffered bouts of pain on and off in the groin area. He mentioned his difficulties to his co-workers who provided evidence of this by way of letters dated April 26, 2000, and May 2, 2000, which specifically confirm that the claimant mentioned to his co-worker that he hurt himself while "lifting a box or something while doing mail."

The claimant also testified at the hearing of this matter that he had never had difficulty with his right groin before and that he was not involved in any activities outside of work that would have caused his January 1999 injury.

The claimant returned to the doctor on September 2, 1999 at which time he was examined for the first time in the groin area. At this time it was reported by his doctor in a report dated February 7, 2000 that "he complained specifically of recurrent discomfort in the right inguinal area, particularly while at work". The doctor confirmed that the claimant was positive for a hernia and further postured that "the type of hernia that he has certainly may be the result of lifting a heavy object."

The claimant was subsequently surgically treated for a right inguinal hernia. In a report dated February 1, 2000, the surgeon stated that "the type of hernia that [the claimant] has was what is called direct inguinal hernia. This is not a congenital hernia and can be found in people who do lifting and labor, because it is essentially a weakness of the posterior wall of the abdomen. I think that it is valid that this is a work place related problem, mainly because of the findings at the operative time. Therefore, I would say the impression is that this could very well be a work related injury."

This Panel found the claimant to be a most credible witness. Given the history of the injury provided by the claimant, the description of his job duties and extra curricular activities, the comments offered by his co-workers and the conclusions of his medical doctors, we find that the claimant did suffer an accident "arising out of and in the course of employment" and in "circumstances consistent with and reasonably essential to" his employment. The claim is therefore allowed as the preponderance of the evidence overwhelmingly supports the claim for compensation.

As a final note, this Panel does agree that it is of "paramount importance that a worker report any accidents or injuries on the job to the employer as soon as possible after the accident has occurred", as found by the Review Office of the WCB. However, there are rare circumstances where the nature of the injury does not become readily apparent in a timely fashion that would allow for immediate reporting. This particular case is just such an example of where such a circumstance might occur.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of November, 2000