The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 8, 2005, at the request of a union representative, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On May 1, 2003, the worker reported that he felt a rip inside his groin region from pushing a pallet with "stock five high". The worker noted that he reported the accident to his supervisor on May 1, 2003 and that he started missing time from work on July 20, 2004.

The Employer's Accident Report dated August 12, 2004 indicated that the worker reported an accident to his groin area on August 6, 2004. The employer stated, "The worker underwent surgery for a hernia and his last day of work was July 20, 2004. The worker stated that while he was trying to retrieve a pallet, he sustained an injury to his groin area and he was diagnosed with a hernia."

In a report dated June 15, 2004, the treating physician noted that the worker complained of a right inguinal mass which was noticed about five months ago. On July 22, 2004, the worker underwent surgery to repair a "right indirect inguinal hernia."

On August 25, 2004, the Workers Compensation Board (WCB) received a Hernia Questionnaire that was filled out by the worker.

On September 27, 2004, a WCB adjudicator contacted the worker to obtain additional information regarding the mechanism of injury and the treatment he received. The worker indicated that he reported the incident to his supervisor following the injury. The supervisor asked him if he was okay and the worker said that he felt like he pulled or tore something but he was alright. The worker did not seek immediate medical attention and was symptom free from May 2003 to January 2004. In January 2004, he began to have mild pain in his right groin going into his right hip so he thought it was back pain. Sometime in February 2004, he first noticed swelling after coughing. He did not complain to anyone at work about his right groin difficulties until February 2004. The worker stated that he had no new accidents between May 2003 and February 2004.

In a decision dated October 5, 2004, primary adjudication stated that it was unable to establish a relationship between the worker's current claimed condition and an accident at work on May 1, 2003. The reasons given to deny the claim were as follows:

• the worker did not experience any groin symptoms until January 2004;
• the worker did not require medical treatment until February 2004;
• the worker did not report a work related injury to his employer until August 6, 2004.

On February 2, 2005, a union representative provided the WCB with a report from an occupational health physician dated January 10, 2005. Based on this report, the union representative contended that the worker suffered an inguinal hernia as a result of the at-work incident he described and that he was entitled to benefits and services.

In a memo dated February 10, 2005, a WCB adjudicator stated that the additional medical information provided by the union representative did not allow Short Term Claims to change the decision on the file as the decision to deny the claim was based on adjudicative grounds and not medical grounds. On February 18, 2005, the union representative appealed this decision to Review Office.

On March 18, 2005, Review Office confirmed that the claim was not acceptable. Review Office stated, "After considering the worker's delay in reporting this accident to his employer, in addition to his delay in seeking medical treatment, Review Office is of the opinion the evidence does not establish that the hernia which was diagnosed in June 2004 was related to an accident at work in May 2003. Furthermore, we note that at the time of initial treatment the worker described pain for the past five months, but did not provide a history of injury to the doctor at that time."

On April 5, 2005, the union representative disagreed with Review Office and requested an oral hearing. Included with the request for an oral hearing was a letter from the Occupational Health Centre dated March 24, 2005 for the Panel's consideration.

Reasons

Subsection 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 subsection 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 occupational disease

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

We find that the mechanism of injury together with the worker's subsequent signs and symptoms are consistent with the incidence of an indirect inguinal hernia. In arriving at this conclusion, we attached significant weight to the following medical opinions.

• January 10, 2005 letter of opinion from treating physician; "Eventually his physicians were able to diagnose the presence of a right inguinal hernia and he underwent inguinal hernia repair by laproscopic (sic) surgery. The incident at work, as described by [the worker], certainly could have resulted in an inguinal hernia. It is not unusual for symptoms of hernias to be intermittent and also it is not unusual for the hernia to increase in size as time goes on. Thus, it is entirely possible that while the initial injury resulted in the genesis of a hernia, it would not become symptomatic until many, many months later. Given that the initial symptoms resolved quickly, it is not unreasonable that [the worker] delayed seeking medical attention."
• March 24, 2005 letter of opinion from second treating physician; "Indirect inguinal hernias result from structural failures of the abdominal wall and fascia layers generally understood to be precipitated by obesity, chronic obstructive lung diseases, (positions that increase abdominal pressure), advancing age, smoking and heavy lifting. It is not uncommon that there is a delay between the incident that causes the structural defect to the opening of the processus vaginalis through which abdominal contents subsequently herniates. In my opinion, the May 2003 strain incident, as reported, was likely a tear of the abdominal wall structures around the inguinal ring associated with the increased intra abdominal pressures generated in the strain to move the heavy pallet and would be an important causal factor in [the worker's] eventual indirect inguinal hernia."

We accept the worker's evidence that he verbally reported the alleged incident to his supervisor on May 1, 2003. No evidence or argument to the contrary was presented by the employer to controvert the worker's evidence that he did in fact report the incident in question. Therefore, subsection 17(1) of the Act is not applicable in this case as was suggested by Review Office.

We find based on the weight of evidence that the worker did, on a balance of probabilities, sustain an accident arising out of and in the course of his employment which resulted in injury. Accordingly, the worker's claim is acceptable and his 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 27th day of July, 2005