The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

This appeal deals with the issue of whether or not the worker suffered an accident within the meaning of subsections 4(1) and 1(1) of The Workers Compensation Act (the “Act”), that is, personal injury arising out of and in the course of his employment on March 19, 2001.

It is important to place this particular issue in the context of two Appeal Commission file review decisions – Decision Nos. 115/03 and 116/03 – which deal with two other accident claims and which stand as of the date of this hearing.

Decision No. 115/03 dealt with a claim for compensation for an alleged injury to the worker’s groin and lower back on August 25, 2000 after assisting in the lift of a very heavy large truck spring. The Appeal Commission held that the worker’s claim for compensation was not acceptable for several reasons. The worker’s history was inconsistent with respect to the cause of injury; there was no apparent report of accident to the employer; there was no corroborating evidence from the employer as to the alleged incident; and, there was late reporting. As of the date of this hearing therefore, the finding of the Appeal Commission is that the worker did not suffer a workplace accident within the meaning of the Act on August 25, 2000.

Decision No. 116/03 dealt with a claim for an injury to the worker’s right groin and lower back on November 16, 2000 after assisting with the lift of a 350 pound spring. The claim was accepted by the WCB. However, it is not entirely clear what diagnosis was accepted by the WCB for the groin and lower back injury. The worker was paid benefits until January 8, 2001 when he returned to work. On March 28, 2001 the worker contacted the WCB claiming that his November 2000 groin injury was bothering him. The WCB denied the worker further benefits on the grounds that the worker’s November 2000 groin injury had resolved. The Appeal Commission upheld this finding on the grounds that the worker had been cleared to return to work in January 2001 and had done so for approximately 3 months without seeking medical attention. It is important to note however that Decision No. 116/03 does not address the diagnosis of the compensable injury. As of the date of this hearing therefore, the finding of the Appeal Commission is that the worker’s March 2001 groin and lower back complaints are not a recurrence of his November 2000 workplace accident.

With this context in mind, and to reiterate, the only issue before this panel is whether the worker suffered an accident within the meaning of the Act on March 19, 2001.

Background

As indicated in the preamble, the worker contacted the WCB on March 28, 2001 complaining of groin pain since one week prior. He stated that he had been working for a new employer and was doing lighter duties with no lifting. He had begun to limp around and had noticed a lump on the right side of his groin area so he decided to see his doctor. The pain was so severe he could hardly get out of bed. His doctor told him that he had a possible hernia.

His claim for a recurrence of his November 2000 compensable injury was denied and on September 21, 2001 the worker filed a new claim for compensation. The application for compensation benefits described his March 19, 2001 incident as follows:

“My job was to wash trucks which necessitated climbing up and down off of the rigs. I strained my groin and lower back in the same area as I had injured it in the previous injuries in the proceeding August and November. I didn’t feel the pain or the strain immediately but after some activity on the rigs, after returning home I felt the onset of the injury.”

On October 9, 2001, the worker met with a WCB adjudicator to discuss the claim. A memorandum of same date summarizes that meeting. Of note, the worker indicated that he started to work for a new company in February 2001. Prior to commencing this employment, he had felt stiffness in the right side of the groin. His job consisted of light maintenance work and washing the outside of trucks and pup trucks, plugging the trucks in at night and sweeping and cleaning the area. On March 19, 2001, he began to feel sore. By March 20, 2001 he was limping and his discomfort was noticeable; his supervisor was aware of it. On March 23, 2001 he was laid off due to a shortage of work. The worker thought his injury was from climbing the trucks on a daily basis. The WCB was unable to confirm the worker’s reporting as the supervisor had left employment with the employer and no written report was made.

At the hearing, the worker provided greater detail about his job duties and the onset of his right groin and lower back symptoms.

He explained that his job duties were general maintenance and included plugging the vehicles in at night, washing them, changing headlights, taillights and side lights, fuelling, painting and wiring. These duties required a variety of body mechanics, including standing, walking, bending, reaching, lifting and pushing. The worker also testified that the parking lot and garage floor were often slippery from ice or grease and he slipped on a fairly regular basis.

The worker also testified that before commencing his employment he was suffering from right groin and lower back pain which manifested itself by a limp. The pain and the limp increased during the course of his employment. He added that the limp was apparent to his supervisor as the latter had commented on it when he came into work on March 19, 2001.

He did not seek medical treatment immediately as his treating physician at the time had told him that the symptoms he was experiencing would eventually resolve. On Tuesday March 20, 2001 he thought about calling his doctor but did not do so until Monday March 26, 2001. He saw his doctor on March 27, 2001 and, as indicated above, he called the WCB on March 28, 2001.

Several medical reports around the time of the worker’s reported complaints to the WCB record the worker’s symptoms and the clinical findings. Some of the more pertinent reports are described below.

A March 27, 2001 WCB doctor’s first report from the doctor described the worker’s injury as acute pain to the right lower quadrant after lifting and bending one week prior. Subjective complaints were swelling and pain to the back. Clinical findings were right groin and abdominal bulge. The diagnosis was a possible right inguinal hernia. The treating physician referred the worker to a surgeon for further assessment and told the worker to remain off work.

A clear and consistent diagnosis of the worker’s lower back and groin complaints was not however readily available. An April 10, 2001 report from a general surgeon opined that the worker’s right groin complaints were most likely muscular in origin though he suggested that some of the pain might originate from a lumbar injury and recommended investigation by an orthopaedic surgeon. Based on this assessment, on April 24, 2001, the doctor downgraded the worker’s diagnosis to a second degree external oblique muscle tear and an ilioinguinal nerve entrapment associated with lumbar strain. He thought that the worker would be able to return to modified duties of no lifting, carrying or climbing.

Subsequent reports show that the worker continued to seek medical attention for his groin and back pain. An abdominal ultrasound taken of both inguinal regions in January 2002 did not reveal any abnormalities. However, a CT of the lumbar spine taken March 27, 2002 revealed a broad-based right paracentral and right posterior disc herniation with compression of the right S1 root and to a lesser extent, the existing right L5 root. An orthopaedic surgeon opined in an April 8, 2002 report that this disc herniation was undoubtedly causing poor shock absorption and mechanical lumbar back pain and that as a result, the worker was to carry on conservatively. Another physician opined in an April 23, 2002 report that this disc pathology was consistent with the worker’s reported symptoms. A report from another general surgeon in October 2002 thought that the worker’s groin symptoms were likely related to a ligamentous injury, referred to as an external oblique aponeurosis strain or tear. He commented that this type of injury can be related to lifting, pulling objects or sports and he thought it was consistent with the worker’s history. He noted that the long standing nature of the worker’s symptoms could be explained by the occurrence of re-injury to the site and that this often occurred because the symptoms typically resolved before the injury to the site had completely healed, making it prone to re-injury through lesser forces than that which caused the original problem. Then in June 2005, he was diagnosed with a right femoral hernia. On March 5, 2007 a physician commented on the worker’s condition and its causal relationship to his workplace accidents.