Decision #19/02 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 24, 2002, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on January 24, 2002.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Decision: Unanimous

Background

On January 2, 2001 the claimant filed a claim with the Workers Compensation Board (WCB) for a hernia condition that he related to his employment activities in August 2000. On his application for benefits, the claimant stated he was moving heavy steel and a few weeks later he started to get sore and thought nothing of it at the time. After a period of being sore, he finally went to see a doctor.

Medical information on file consisted of two medical reports. The report from a specialist dated January 26, 2001, revealed that the claimant had been treated for a right groin mass, which he related to lifting at work over six months ago. The diagnosis rendered was a right inguinal hernia. The report received from the attending physician dated February 1, 2001 outlined the claimant's complaint of gradual onset of pain and swelling in his right groin area while at work. The date of accident was recorded as August 2000.

Following her contact with the claimant, the employer and several co-workers, a WCB adjudicator notified the claimant on February 2, 2001 that his claim for compensation was not acceptable. The letter stated, in part, the following rationale for the decision:
    "It is noted that you relate your hernia to a specific accident occurring at work in August 2000. Following this incident, you continued to perform your regular duties without medical treatment. You did not make any complaints until several weeks after your injury occurred. In December 2000, you attended a physician but did not provide a consistent accident history. Additionally, you did not report the accident to your employer until December 2000. Given the weight of evidence: the delays in reporting and medical attention and the fact that you were able to do your regular duties with no appreciable problems, we are unable to establish that you suffered a personal injury due to an accident arising out of and in the course of your employment. As such, your claim for compensation benefits is not acceptable."
In a letter dated April 2, 2001, the claimant's friend/supervisor appealed the WCB's decision to deny the claim. The case was forwarded to Review Office for consideration.

On May 4, 2001 Review Office upheld the decision to deny the claim based on the following rationale:
  • the claimant did not officially relate his injury to his employment until December 1, 2000 even though the file documentation supported that the worker sustained an injury in August 2000.

  • it was acknowledged that the claimant made mention of his difficulties to two of his co-workers in September 2000, however, they were not aware of how these problems resulted.

  • one of the co-workers advised the claimant in September 2000 that if his difficulties were related to a work related accident then he should complete a green form. This was not undertaken until December 1, 2000.

  • the claimant has a prior claims history with the WCB which gave support to the fact that he should have been aware of proper reporting procedures for a workplace injury.

  • combined with the delay in reporting a work related injury there was a significant delay in the worker's seeking medical attention.

  • varying histories of complaints were given to the physicians.
On October 20, 2001 Review Office's decision to deny the claim was appealed by the claimant's union representative. On January 24, 2002 an oral hearing was arranged.

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 keeping 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. An accident is defined as,
    "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 occupation disease
    and as a result of which a worker is injured."
The claimant testified at the hearing that on the day of his alleged injury he was not performing his regular job duties, but rather, he was working in what was known as the 'bone yard'. He was lifting heavy augers with the use of a forklift when an auger slipped off of the machine. The claimant attempted to lift and move the auger at which time he felt pain in his groin area. He didn't report the incident because he initially thought it was not that serious at the time and that his discomfort would eventually go away. It was not until a few months later as the pain became progressively more and more bothersome that the claimant decided to seek medical attention.

We found the claimant to be an extremely credible witness. The events surrounding the claimant's injury were entirely corroborated by his supervisor in an April 2nd, 2001 letter addressed to a WCB adjudicator. We noted in particular the following comments:
    "While doing extra work at [name of employer] last August, his [i.e. the claimant] time and dates were not recorded because this was extra work and this was a favour to me. I asked him to help 2 temporary students in the bone yard moving old equipment, pipes, steel and parts. Some of this work was done with a forklift, however some parts had to be moved by hand. We talked in September about his groin hurting, and at that time he was hoping it would heal on its own. He said it did not hurt enough to go see a doctor or pursue a compensation claim. Near the end of November it started to hurt more while doing his regular duties at [name of employer]. This is when he went to see Dr. [name] and found out that it was a bigger problem then (sic) he originally thought."
Based on the weight of evidence we are satisfied, on a balance of probabilities that the claimant's inguinal hernia arose out of and in the course of his employment. Accordingly, we find the claim to be acceptable and the claimant's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 19th day of February, 2002

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