The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 22, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on August 22, 2001.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

On October 20, 2000, the claimant submitted an application for compensation benefits with respect to a hernia condition that he related to his employment activities on October 13, 2000. At the time of accident, the claimant indicated that he was pushing sand down chutes with a big metal scraper when he felt discomfort in his groin.

In speaking with a Workers Compensation Board (WCB) adjudicator on October 24, 2000, the claimant indicated that he continued working from the date of accident up to October 24, 2000 as his employer was unable to accommodate him with light duties that respected his restrictions. When the accident occurred, he was pushing sand down chutes with a large bar. This activity was considered fairly heavy work. He was in an awkward position while doing this task. Immediately following the accident, the claimant felt a sharp burning sensation in his groin region. He reported the injury to his foreman and told him that he would be going to the hospital for treatment. The claimant did not notice a lump of any kind but only swelling and pain that worsened as the week went on.

A Doctor's First Report dated October 13, 2000 indicated that the claimant had no injury history per se. The claimant noted bilateral groin pain, worse with heavy lifting at work. The claimant had been seen by his attending physician on September 18, 2000 for bilateral inguinal hernias. At the October 13, 2000, examination the claimant was considered partially disabled, but at the same time capable of light work which involved no lifting and no straining against resistance.

In a memorandum dated November 1, 2000, a WCB adjudicator noted the claimant had seen his doctor on September 18th because of ongoing back problems from a non-work related injury he suffered approximately two years ago. While attending the September 18th exam the claimant mentioned to the doctor that he had pain in his groin. It was at this time when the claimant was diagnosed with an inguinal hernia. The adjudicator questioned the claimant about the onset of groin pain prior to September 18, 2000. The claimant could not remember anything specific about the onset of pain but felt that it was "quite possible" the hernia could be work related. In a telephone conversation later the same day, the claimant told the adjudicator that he remembered an incident prior to September 18, 2000 where he was bent at the waist, pulling on large moulds that were used for making train wheels. The claimant indicated that there were no witnesses to the event and that he may have mentioned the incident to his supervisor. On further questioning, however, the claimant remembered that perhaps he hadn't told his foreman that he was in pain until October 13, 2000.

In speaking with the attending physician on November 2, 2000, a WCB adjudicator was advised that the physician mistakenly dated his initial report as October 13, 2000 rather than October 20, 2000 which was, in fact, the claimant's initial visit. The physician said that he saw the claimant on September 18, 2000 regarding a pain in the groin area and that the claimant was diagnosed with an inguinal hernia. He was not, however, aware that the claimant's injury was work related. The physician stated that it was entirely possible for a hernia to develop over time. The claimant may not have known that he had suffered a hernia prior to September 18, 2000 and kept working until the pain became so unbearable on October 13, 2000, it became necessary to attend a hospital emergency facility.

In a letter a November 9, 2000 letter, primary adjudication advised the claimant that there was insufficient evidence to conclude that his condition had been caused by an accident occurring in the workplace. The letter stated, "You did not initially report a work related injury and were not able to relate a specific work related event leading to the diagnosis of bilateral inguinal hernias on September 18, 2000. You continued to work with ongoing groin pain and did not report a work-related event until October 13, 2000. Given the lack of reporting of the initial injury I am unable to establish that your condition is as a result of an accident in the workplace. As such your claim for compensation has been denied."

In a submission dated January 17, 2001, a worker advisor requested reconsideration of the above decision. The worker advisor indicated that the pushing of sand down a chute on October 13, 2000 resulted in an injury. This was reported to the claimant's supervisor and thus constituted a causal connection between the employment and the injury. The worker advisor believed that it was a moot point the claimant had previously been diagnosed with a medical condition. Whether the diagnosis was related to a work incident or a preexisting condition should not have any bearing on the acceptability of the October 13, 2000 claim. In the event there was still uncertainty about the specific incident, the worker advisor suggested that a field investigation be conducted. On February 9, 2001, primary adjudication advised all interested parties that no change would be made to its previous decision of November 9, 2000.

On February 12, 2001, a different worker advisor appealed primary adjudication's decision of November 2000. The worker advisor believed that it was very clear the activity of pushing sand down a chute at work had caused the claimant's loss of earning capacity. Reference was made to WCB policy 44.05 and section 4(5) of the Workers Compensation Act (the Act). The worker advisor contended that an "accident" recognized by the Act had occurred on October 13, 2000. The worker advisor further stated that regardless of whether or not the September 18, 2000 condition had been caused by work or outside of work, the claimant's October 13, 2000 workplace accident was the dominant cause of his loss of earning capacity. WCB policy 44.10.20.10 was referenced in this regard.

In a February 16, 2001 decision, Review Office determined that the claim was not acceptable. Review Office indicated that the medical documentation clearly established that the claimant's hernia injury was present at the time of his initial doctor's appointment on September 18, 2000. As such, it could not be said that the claimant sustained an accident resulting in an injury on October 13, 2000. Review Office pointed out that the claimant's own physician suggested that the claimant suffered a hernia prior to September 18, 2000 and that he kept up with work until the pain became too severe to continue on October 23, 2000. The employer advised the adjudicator on November 2, 2000 that the claimant had been experiencing pain in his groin prior to his initial doctor's visit on September 18, 2000. There was no verification of any accident occurring in the workplace prior to September 18, 2000 to account for the claimant's hernia injury.

Review Office further indicated that the worker advisor misquoted section 4(5) of the Act supplanting the term "symptoms" in place of "injury". Review Office indicated that the presumption clearly did not apply as it had been established that the injury was present prior to the alleged accident on October 13, 2000. Review Office believed that the worker advisor's reference to policies 44.05 and 44.10.20.10 were not applicable to the case. On April 17, 2001, the worker advisor appealed Review Office's decision and an oral hearing was then arranged with the Appeal Commission.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.

"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."

In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured."

The evidence confirms that the claimant had been seen by his treating physician on September 18th, 2000 and diagnosed with a bilateral inguinal hernia. There is no doubt that this condition clearly existed prior to the claimant's alleged workplace incident of October 13th, 2000. The evidence further confirms that the claimant attended at an emergency hospital facility on the date of the alleged accident. We are satisfied that the claimant's work duties were consistent with his incurring an aggravation of this pre-existing condition on the date in question. We find therefore, on a balance of probabilities, that a compensable event or accident did occur on October 13th, 2000, which resulted in personal injury to the claimant. Accordingly, we find the claim to be acceptable and the appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of September, 2001