Decision #138/99 - Type: Workers Compensation
An Appeal Panel hearing was held on August 11, 1999, at the request of legal counsel, acting on behalf of the claimant.
Whether or not the claim is acceptable; and
Whether or not the claimant is entitled to payment of wage loss benefits.
That the claim is acceptable; and
That the claimant is entitled to payment of wage loss benefits.
On May 11, 1998, the claimant filed a workers compensation claim for an injury which occurred on April 28, 1998 during the course of his employment as a ramp equipment operator. The claimant described the injury as follows:
- "I was working my night shift from 28/4/98 to 29/4/98 when I felt fairly sharp pains in my lower abdomen. At the time I was hand loading a cargo airplane, but continued working until the end of my shift at 4:00 am. Upon returning home, I saw and felt a bulge in my lower abdomen (groin) region. I went to the doctor that day and was diagnosed with a hernia. I have been referred to a surgeon, whom I will see July 7, 1998."
The Employer's Report of Injury or Occupational Disease form dated May 6, 1998, indicated the April 28, 1998, accident was reported on May 4, 1998. The report stated the following:
- "(Claimant's name) was cut off company benefit insurance and forced back to work. (Claimant's name) felt this was unfair and if the company benefit insurance would not continue his claim he would apply for WCB. WCB not claimed until May 5/98."
On May 29, 1998, a Field Representative from the Workers Compensation Board (WCB) obtained a signed statement from the claimant indicating the following:
- the only past history of right groin symptoms was from December 1997. The claimant indicated that he worked through to January 30, 1998 and then submitted a claim through group insurance. “I thought it was going to be short term and I just went that route instead of compensation.” The claimant stated he was diagnosed with rectus spasm/strain and he was off work until April 20, 1998. He then returned to modified duties right up until the April 28, 1998, incident.
- on April 28, 1998, the claimant said he was hand loading a cargo plane when he felt a sharp pain in his right groin. After the initial sharp pain the symptoms were not that bad unless he lifted something heavy. He never told anyone before the end of his shift at 3:00 am.
- after he got home from work, the claimant said he felt a bulge in his right groin and later that day he went to see his doctor. He explained to the doctor that he was lifting cargo and felt a sharp pain. The doctor then made a hernia diagnosis. The claimant stated that he went to see his supervisor and gave him the doctor’s note. He explained to the supervisor how he got hurt on the previous shift. The claimant told him this was a new condition which was not related to the previous one.
- the claimant advised the field representative that he reported the injury to his supervisor on April 29, 1998, and not May 4, 1998 as was previously noted on the employer’s report of injury form.
- the claimant stated that initially his group insurance benefits ended April 17, 1997. After he was off work with the hernia, group insurance decided to pay until the date of the hernia injury. The claimant stated he was not upset with group insurance and he pointed out that he notified them that he was submitting a compensation claim for his hernia condition.
On June 4, 1998, a signed statement was obtained from the claimant’s supervisor and the following was noted:
- prior to this claim, the claimant had a groin injury around Christmas 1997 which happened while playing handball. The claimant was off work for quite some time and would occasionally call to say he had a relapse when doing an activity such as walking his dog, etc. When mutual insurance finally said they would be cutting him off, the claimant returned to work with a doctor’s note “saying he was 100%, but told me he wasn’t and asked for lighter duties. We accommodated this.”
- the supervisor indicated that the claimant made no complaints of symptoms during his return to work however he would not gradually increase the amount of time spent doing physical work. On April 27, 1998, the claimant said he had a follow-up appointment with his doctor on April 28, 1998 and he never said if his condition was getting worse.
- on April 28th the claimant produced a doctor’s note which stated he had a bulge in his lower groin. No mention was made of a work related injury at that time.
- between April 28, 1998 and May 1, 1998 a meeting was held with the claimant as his insurance was running out. The supervisor said there was still no mention of a work injury. On May 1, 1998, the claimant filled out a green card and this was the first time the supervisor knew about a work injury. “He was looking for another source of income because insurance was running out. He came right out and said this.”
On June 5, 1998, another statement was obtained from the claimant with regard to the information obtained from his supervisor. The claimant stated the following:
- he was not previously injured while playing handball as indicated by his supervisor. When he returned to work following the injuries of December and January 1998, he felt that he was not conditioned enough to handle full duties.
- the claimant said he had a pre-arranged appointment with his doctor on April 28 to see how he was doing during light duties. In the meantime he had the hernia injury.
- the claimant was asked about the doctor’s note concerning the hernia and why this had not been reported to the employer earlier. The claimant replied that as far as he knew, he told his supervisor that he found the bulge in the shower after he got home from work and that the doctor had diagnosed a hernia. The claimant said he could not remember if he told him at that time it happened when lifting the box the previous shift. He could not remember what they had discussed. The claimant said when they had the meeting he told them that his insurance claim was running out and it would have only covered him to the middle of May 1998 if he hadn’t had the hernia injury which ended the claim sooner. “I certainly mentioned workers compensation to them during the meeting. Whether I specified when I got the hernia, I can’t recall. I definitely recall saying that I found the “bulge” while in the shower after my shift, but I can’t recall if I got more specific than that.”
Medical reports stated the following:
- on April 17, 1998, the attending physician indicated the claimant had been pain free 10 days and had been doing some jogging with physiotherapy. He was ready to try light work again, for short periods.
- on April 29, 1998, the attending physician indicated that the claimant noted an inguinal (groin) swelling this week. He now had an inguinal hernia and was being referred to a surgeon and is not to do heavy lifting until he had been assessed.
- in a letter dated July 29, 1998, the attending physician noted that the claimant had lower abdominal pain aggravated by lifting packages at work in January 1998. The pain eventually resolved with a course of anti-inflammatories and physiotherapy but recurred with minimal trauma such as taking his dog for a walk or sneezing. The pain recurred March 17th after he went back to work and he was re-referred to physiotherapy and was prescribed anti-inflammatories. On April 13, 1998, the claimant had no point tenderness and was working out on a treadmill with no pain for one week. He was advised to try part time work. On April 29th the patient presented again when he noticed a bulge in his groin while showering.
On August 14, 1998, Claims Services determined that the claim did not meet the requirements of Sections 4(1) and 1(1) of the Workers Compensation Act (the Act). Claims Services stated that the WCB could find no evidence that an injury occurred on April 28, 1998. There was no mention of an employment-related injury to the employer until May 1, 1998, even though there were many opportunities to do so. The claimant discontinued his physiotherapy program from his previous injury when he found out his benefits from the mutual group had ended.
On December 30, 1998, the claimant appealed the above decision to the Review Office. On March 19, 1999, the Review Office confirmed that the claim was not acceptable and that the claimant was not entitled to wage loss benefits.
In light of the statements made on June 5, 1998, the Review Office found it difficult to establish that the claimant sustained a personal injury by an accident both arising out of and in the course of his employment. The claimant did not recall what was said to the employer nor whether he had made any direct reference to a work related accident during any of the discussions he had between April 28th and May 4, 1998. “In the absence of such clarification and taking into consideration the employer’s comments, Review Office find that the claim is not acceptable.
On May 5, 1999, the claimant and his solicitor appealed the Review Office’s decision and an oral hearing was held.
The issues under appeal are whether or not the claim is acceptable and whether or not the claimant is entitled to wage loss benefits.
After considering the evidence on file and presented at the hearing, we find on a balance of probabilities that the claim is acceptable, and that wage loss benefits are thus payable to the claimant.
Subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) define a compensable accident for which benefits may be payable.
Subsection 1(1) states:
- (1) In this Act, "accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
- event arising out of, and in the course of employment, or
- thing that is done and the doing of which arises out of, and in the course of employment, and
(c) an occupational disease.
and as a result of which a worker is injured(1) In this Act, "accident" means a chance event occasioned by a physical or natural cause; and includes (a) a wilful and intentional act that is not the act of the worker,(b) any (c) an occupational disease. and as a result of which a worker is injured
Subsection 4(1) states:
- "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 finding that the claim is acceptable, we note the following supporting evidence:
- The claimant was working on reduced shifts as part of a return to work program organized through his group insurance program following an earlier injury to his right rectus muscle, which had had a history or recurrence with minor trauma, both on and off the job. The claimant had begun a return to work program on April 20, 1998, and started at four hours per shift, with plans to increase to his regular 5 ½ hours per shift. During his four hour shift, he worked two hours modified duties at a desk, and two hours of regular duties, lifting cargo. His shift started at midnight on April 29, 1998, and ended at 4 a.m.
- The claimant’s job duties involved hand loading a cargo plane. His job responsibilities involved heavy lifting, twisting, and turning, His evidence both in his sworn statement of May 29, 1998 and at the hearing, was that he first noticed sharp pains in his lower abdomen during his shift but was able to complete his shift. He indicated that he first noted a bulge in his lower abdomen (groin) region at home while showering, approximately 45 minutes after completion of his shift.
- The claimant had a previously scheduled doctor’s visit in the afternoon of April 29, for a routine follow-up on his return to work program. On discovering the bulge, the claimant telephoned at the beginning of the workday to move his appointment up three hours earlier in the day.
- The claimant’s statement of May 29, 1998 indicates that he was able to do his regular duties until the April 29, 1998 work shift with no difficulties or discomfort and that he had been able to resume some jogging.
- The claimant’s physician diagnosed a right inguinal hernia and provided a note to the claimant, which the claimant took to work with him that evening. A report by the claimant’s attending physician dated July 29, 1998 notes that
“the patient presented again April 29, when he noticed a “bulge” his groin while showering. On examination: he had a reducible hernial mass in his right groin with increased impulse. Since he now has a hernia, he is not to do any heavy lifting for fear of strangulation until he is assessed by a surgeon. He can do full-time sedentary work. This condition is aggravated and caused by heavy lifting and repetitive lifting, such as what he does at work.”
- We note that the diagnosis of the claimant’s injury on April 29, 1998 was different from the diagnoses provided for the January 1998 claim, which involved diagnosis and treatment of a rectus sprain/strain. The claimant’s evidence at the hearing was that the injury experienced on April 29, 1998 was a different type of pain and at a different site than the earlier injury. He describes the original injury as being at waist level, near his belt, that was typified as a swelling that felt inflamed and tight, rather than a bulge. His second injury was described as being much further down, with a pronounced bulge.
- We also note that the claimant took a doctor’s note to the employer prior to his next shift during the evening of April 29, 1998, which noted that the claimant had a hernia.
Based on the evidence, we find that the claimant suffered a new injury on April 29, 1998 which was not related to the injury of January 1998. In this regard, we place considerable weight on the claimant’s evidence of sharp pains at work, his early detection of the injury shortly after completion of his night shift, his job responsibilities which involve heavy lifting, twisting, and turning, his efforts to seek prompt medical attention for his condition, and the new diagnosis of an inguinal hernia made by the claimant’s attending physician in her examination that day. In this regard, we also accept the conclusions made by the attending physician regarding the cause-and-effect relationship between the claimant’s work duties and the diagnosed hernia.
Accordingly, we find on a balance of probabilities that the claimant had suffered a workplace accident on April 29, 1998, as defined under subsections 1(1) and 4(1) of The Workers Compensation Act, and thus the claimant’s appeal on the issue of claim acceptance is successful.
In respect of the second issue, namely wage loss benefit entitlement, we note that the claimant was not continuously employed subsequent to the compensable injury because of the lack of continued availability of modified duties. This file will be referred back to the Workers Compensation Board for consideration of appropriate wage loss benefits to which the claimant is entitled. In this regard, we would note the claimant’s evidence at the hearing that he found other employment at a higher wage rate in September 1998, prior to the completion of the full recovery period from his August 1998 hernia operation, and that he would have benefit entitlement to this return to work date.
B. Campeau, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner
Recording Secretary, B. Miller
B. Campeau - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of October, 1999