The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 19, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on June 19, 2003 and again on September 24, 2003.

Issue

Whether or not the claimant's periumbilical hernia is related to the July 29, 2001 compensable injury.

Decision

That the claimant's periumbilical hernia is related to the July 29, 2001 compensable injury.

Decision: Unanimous

Background

On July 31, 2001, the claimant contacted the call centre at the Workers Compensation Board (WCB) to report a right lower back and groin injury while attempting to transfer a patient from a bed to a wheelchair. The date of accident was recorded as July 29, 2001.

A Chiropractor's First Report dated August 24, 2001, noted that the claimant was examined on July 30, 2001 with subjective complaints of lower back, groin, hip and pelvis pain along with tingling of her left foot. The diagnosis rendered was a lumbar strain.

On August 29, 2001, the WCB accepted the claim as a lumbar strain injury and wage loss benefits were paid to the claimant between July 30, 2001 and November 2001, when the claimant went on maternity leave.

In a progress report dated November 29, 2002, the treating chiropractor reported that the claimant had shooting low back pains since returning to work on November 2, 2002. On December 10, 2002, a WCB chiropractic consultant reviewed the case and he opined that the claimant's current complaints were unrelated to the compensable injury. On December 16, 2002, the claimant was advised that no responsibility would be accepted for her current difficulties.

In late November 2002, the claimant spoke with her WCB case manager, indicating that she was having difficulty working because of a hernia. The claimant felt that because the hernia was not there before the compensable injury, it was definitely related. The claimant first noticed the hernia about three months following her accident.

A report was obtained from the family physician dated January 9, 2003. The physician indicated that the claimant was seen on May 16, 2002 with complaints of an abdominal lump above her umbilicus. The physician noted that during the claimant's pregnancy in 2001, she sustained a back injury on July 30, 2001 and was treated by a chiropractor. He further went on to state: "At the time of that injury she did note some abdominal and periumbilical pain. She indicates that she had discussed that with me at the time and that I had indicated that it was secondary to the baby's position and the pregnancy. Unfortunately I do not have any specific documentation in my chart with regard to this. As she now has evidence of a periumbilical hernia I feel it is possible that the onset of the hernia would have coincided with her injury of July 30, 2001 which occurred while lifting a patient. As she is to be booked for her hernia repair by Dr. [doctor's name] I would request that Workman's Compensation Board consider accepting responsibility for the surgery."

On January 13, 2003, the WCB adjudicator sought the advice of a WCB medical advisor with respect to the following query: "Given the stage of clmt's (claimant's) pregnancy, the delay in noticing pain or a lump, is it reasonable to relate the hernia to her CI of July 29/01?" The medical advisor's response to this query is dated January 16, 2003. In that response the medical advisor commented on the lack of information on the file from the surgeon who was to perform the hernia surgery and further questioned the relationship between the claimant's hernia and her original injury.

In a letter dated January 17, 2003, the claimant was advised that after reviewing the case and after consulting with a health care advisor, the case manager was unable to establish a cause and effect relationship between the periumbilical hernia and the July 29, 2001 work injury. The case manager was of the opinion that the claimant's present disabling condition involved a different part of the body than was injured at the time of the July 2001 work accident. On February 6, 2003, a union representative appealed this decision to Review Office on behalf of the claimant.

On February 21, 2003, Review Office determined that responsibility should not be accepted for the worker's periumbilical hernia. The reasons given for its decision were as follows:

• the claimant confirmed that she had no symptomatology suggestive of a periumbilical hernia until 3 months following the July 29, 2001 accident.
  
  
• the claimant did not seek medical attention for her hernia condition until May 2002, more than 9 months following her accident at work, and she did not advise the WCB of such an injury until November 2002.
  
  
• periumbilical hernias are common in pregnant woman. The worker was pregnant at the time of her July 29, 2001 back injury and gave birth to a baby on November 15, 2001.

On March 20, 2003, the union representative appealed Review Office's decision and an oral hearing was convened.

On June 19, 2003, the Appeal Panel met to discuss the case following the oral hearing and it decided that additional information was required from the claimant's treating surgeon. The surgeon's report was requested on June 24, 2003 and was received at the Appeal Commission on September 2, 2003. The report was then forwarded to the interested parties for comment. On September 24, 2003, the Panel met to render its final decision with respect to the issue under appeal.

Reasons

The issue on this appeal is whether the claimant's periumbilical hernia is causally related to the compensable injury of July 29, 2001.

The Review Office determined that issue in the negative and denied the claimant's appeal. This Panel has decided to reverse the Review Office's decision for the following reasons.

At the hearing of this appeal, the Panel heard testimony from the claimant herself and from a worker representative who gave a submission on behalf of the clamant. No one from the claimant's employer attended the hearing.

At the end of the hearing, the Panel agreed that further medical information was necessary before it could render a decision. The Panel therefore requested information from the doctor who performed surgery on the claimant to treat her periumbilical hernia condition.

That surgeon ultimately advised the Panel by letter dated August 26, 2003, that the claimant told him she developed the hernia while lifting a patient at work. The surgeon went on to advise that "Periumbilical hernia could be congenital or acquired. Heavy lifting could produce a periumbilical hernia."

At the hearing of this matter, the claimant testified that her original compensable injury occurred during the course of a difficult transfer of a patient from bed to wheelchair. After the transfer, she immediately noticed a pain in her lower back area which translated through her buttocks and down into her legs. She went to see her chiropractor the day after that injury.

The claimant's chiropractor reported in a letter dated January 15, 2003 that his notes indicate the claimant advised she was experiencing pelvic and abdominal discomfort at the same time that she came to see him complaining about lumbar complaints. He also indicated that in his opinion it was possible that she had sustained a hernia injury at that time.

At the time of the accident, the claimant was pregnant. Several weeks after the accident, when the claimant saw her family physician she reported feeling "a hard ball in the belly button area." She also indicated that she was very sore in that area. The claimant testified that even after her child was born the area around her belly button felt like it had a hard ball on top of it and continued to be very tender and sore.

The claimant's family physician in a letter dated January 9, 2003 confirmed that at the time of her original injury, the claimant says she noted abdominal and periumbilical pain. The physician advised that the claimant indicated she had discussed that pain with him at the time but that he had felt it was secondary to the baby's position in the pregnancy. However, as the claimant did indeed prove to have a periumbilical hernia he felt it was possible that the onset of the hernia coincided with her injury of July 29, 2001.

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.

In order to find a claim acceptable, the Panel must also be satisfied that the claimant has sustained an "accident" within the meaning of section 1(1) of the Act. That section defines "accident" 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 occupational disease

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

The claimant testified that coincidental with the lifting injury which occurred on July 29, 2001, she felt a hardness around her belly button which was accompanied by abdominal pain and tenderness. The reports of her physician and chiropractor confirm that the claimant reported such abdominal pain at that time.

All the medical reports provided on behalf of the claimant indicate that a periumbilical hernia such as that suffered by the claimant can indeed be caused by heavy lifting.

The evidence, therefore, leads to the conclusion that the claimant's periumbilical hernia was related to the lifting injury which occurred on July 29, 2001.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of October, 2003