The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction:

This appeal deals with a claim from the worker that his workplace duties caused or aggravated a left inguinal hernia that developed in October, 2002 and ruptured in April, 2004. Central to this appeal are the worker’s duties and the onset of his symptoms.

Background:

The worker immigrated to Canada in early 2001. His second language is English. Shortly after his arrival to Canada, on May 29, 2001, the worker began employment with the accident employer as a “casual” laundry aide I worker.

The worker described his duties as a laundry aide I worker as generally quite heavy and fast paced as he needed to stay on target for production quotas. A laundry aide I worker has two main tasks: the first is to load and unload laundry machines. The second is to transport bins of soiled mops which weigh between 300 and 400 lbs. to the batch washer. The worker said that this was the hardest part of the job as it required him to push and pull very heavy loads.

The worker testified at the hearing that he wanted to secure permanent status in his employment. He therefore worked very hard, often working overtime. Then, in late October, 2002, near the beginning of his shift, the worker pulled a mop bin toward him, then pushed it in a sort of u-turn toward the batch washer. Immediately, he felt a strain in his left side, which he described as both a numbness and a pulling. He finished his shift and went home. The feeling stayed with him overnight but upon waking it was gone.

Over the next days, the worker felt the same type of symptoms. When he went to his doctor on October 24, 2002, he mentioned the symptoms. He was diagnosed with a hernia but was told that nothing could be done until it ruptured. The doctor advised him to continue working but pace himself to avoid it rupturing. The worker was seen by his doctor for his hernia once again in November, 2002.

The worker continued to work at his regular duties without advising his employer about his hernia. In November, 2002, he got permanent status as a laundry aide II worker. This job entailed receiving, sorting and dumping soiled laundry bags. The soiled laundry bags are deposited in a large wire cage which typically weighs between 170 and 450 kgs.. The cages are then moved by pushing and pulling them to an area where the bags are dumped and the contents sorted. The laundry bags weigh between 10 and 70 lbs.

The worker continued in this job. It is his evidence that during the course of 2003 he continued to feel hernia symptoms when he pushed or pulled too much. He did not tell his employer about his symptoms or seek medical attention. Then at the end of 2003, the worker was talked to by his supervisor about performance and absenteeism. The worker advised his supervisor that he had “body pains” and back pains. He did not specifically mention his hernia. The worker testified that this was mainly because he was shy about his condition. The supervisor told the worker that if he could not handle his job he could resign. The supervisor also thought that the worker’s absenteeism and performance issues were the result of a second job the worker took on in 2003.

The worker then requested a transfer out of the laundry aide II position, back to the laundry aide I position. An October 19, 2003 letter states his reasons for the request as follows:

“This enable [sic] my physical capacity to go down causing major stress physically, mentally and even psychologically, that for your information I’d been in Chiropractic therapy for the past few months…”

The worker’s request for a job transfer was refused. He was told he would have to apply specifically for a laundry aide I worker position, which he did not do. He therefore continued on as a laundry aide II worker. His absenteeism continued as did his performance issues. Then on Monday April 12, 2004, the worker was called into his supervisor’s office where he was disciplined for his absenteeism.

On April 13, 2004, the worker continued at his normal duties. The worker testified that Mondays and Tuesdays are typically heavy laundry days. The employer disputes that April 13, 2004 was an abnormally busy day. However a WCB memorandum to file indicates that it was not “busier than normal”. The worker stated that he was receiving laundry bag cages. He felt some numbness, pain in the hernia and pain in his body but he continued with his duties which he described as stressful due to the extent of the workload. He finished his shift at 3:15 p.m., got home at 4 p.m. and immediately lay down. Right away, he felt a huge “muscle”. He couldn’t move his body. He felt pain and numbness from his left chest down to his groin to the point that it brought tears to his eyes.

He attended his doctor on April 14, 2004, who advised him that the hernia had ruptured. He opined that it was probably work related given the acute onset.

That same day, the worker contacted the Workers Compensation Board (WCB) and his employer to report his injury. The worker’s April 14, 2004 accident report states in part:

“What do you believe is the cause of your injury? My hernia is caused from repetitive lifting and pulling of cages. The cages are about 270 kgs. I lift more than 100 per day. I am a dumper one week and scaler the next week. I do the dirty laundry…

When did you first notice your symptoms? I had asked my supervisor to put me on lighter duties but he did not. I first noticed symptoms a while back, last year some time.

Where were you when you first noticed your symptoms? At home.

How did your symptoms progress and develop from the time they started? I noticed a soreness in my groin. I continued to work and eventually when breathing hard, I could feel pressure in my groin area. I could feel soreness and it was getting worse.”

The worker remained off work until after his surgery. On September 26, 2004, he returned to work as a laundry aide I worker and later secured employment as a housekeeping assistant.

The WCB has refused to accept responsibility for the worker’s hernia. This position was upheld by Review Office on May 27, 2005, on the basis that there was insufficient evidence to conclude that the worker’s hernia, first noted in 2002, was work-related. Review Office noted that the worker did not report it initially to either his employer or to the WCB and his attending physician did not provide a history of injury at work. It is this May 27, 2005 decision that the worker appeals.

Worker’s Position

The worker says that his work duties caused him to develop a hernia in October, 2002. In the alternative, he says that his work duties on April 14, 2004, enhanced a pre-existing condition.

Employer’s Position

The employer disputes that the worker’s hernia was caused by his work duties. It says that hernias are congenital in nature and can be brought on by the simplest of actions. It says that in the worker’s case, all of the evidence points in this direction:

• He did not report his hernia or a workplace accident to the employer before April 14, 2004;
• The worker’s accident report notes that he noticed the symptoms at home;
• The worker was talked to about his absenteeism the day prior to his April 14, 2004 accident report.

Analysis

To accept the worker’s appeal, this panel must find that the worker’s hernia arose out of and in the course of employment.

In carefully reviewing and weighing the evidence with due regard to the fact that the worker’s first language is not English, the panel finds that the worker’s heavy lifting duties contributed to the formation of his hernia in October, 2002, and its subsequent rupture on April 13, 2004, and that therefore he suffered a workplace accident within the meaning of section 4 of The Worker’s Compensation Act (hereafter the “Act”).

While hernias are congenital, we accept that heavy lifting, pushing and pulling may contribute to their formation. The undisputed evidence in this case, is that the worker’s duties comprised pushing, pulling and lifting extremely heavy loads. The worker’s evidence is that his hernia symptoms first occurred at work while in the course of his duties. We accept this evidence. This was his advice to the WCB adjudicator in a July 29, 2004 letter and it was also his evidence at the hearing.

We have turned our minds to the worker’s accident report that indicates that he first noticed the symptoms at home. As we read this accident report, the symptoms at home refer to the worker’s symptoms at 4 p.m. on April 13, 2004. When one reads the report further however, the worker also indicates that he felt a soreness in his groin while at work that progressively got worse to the point that when breathing hard, he felt pressure. This reporting of an initial onset of symptoms at work is consistent with the worker’s evidence at the hearing.

The employer asks the panel to find that the worker’s symptoms are not work-related. It points to a myriad of other factors that could be at play. It also points to the fact that the worker never mentioned his hernia to his employer even though he had been disciplined on a couple of occasions. The employer questions why the worker was silent about his hernia when he was not silent about his back.

The worker has explained his silence in several ways. Initially he did not want to tell his employer anything because he did not want to jeopardize obtaining permanent status. When he did get permanent status, he wanted to maintain it because he wanted job security. He was also embarrassed about the location of the hernia and thought, with the advice of his doctor, that he could avoid rupturing it if he paced himself adequately. He had also tried to change his job position in October, 2003, albeit for reasons in addition to his hernia.

In our view, the worker’s lack of reporting is not pertinent in this case. The medical reports are clear that the worker first developed a hernia in October, 2002. Further, the worker’s doctor opines that the hernia is probably related to his job duties. On this point, the employer notes that the doctor did not initiate a WCB claim. While it would have been better for the doctor to have initiated a claim in October, 2002, we do not find that this in anyway detracts from his opinion that the hernia is probably work-related.