The Appeal CommissionThe Workers Compensation Act of Manitoba

Worker’s Position and Evidence at the Hearing

The worker attended the hearing with legal counsel who made a submission on his behalf. The worker answered questions from his representative and the panel.

The worker’s representative noted that the worker was the sole owner of a business in the drilling and blasting field which included the operation of a quarry. The worker used heavy equipment as a part of his work duties.

The representative reviewed the worker’s attendance at various doctors and submitted that the worker “was shunted from one doctor to the other and there was never anything that was well done or done properly.” The worker ultimately had to go out of province to have his hernia properly repaired.

The representative submitted that the hernia was caused by the workplace accident. He said the worker was unable to work for the period from August 2004 to July 2007 and is only now okay.

The worker described the accident. He indicated that he was unloading drilling equipment from a trailer at approximately 5:00 PM. He stepped on a slippery spot on a piece of wood and slipped backwards with a drill rod in his hands in front of him. He said he fell backwards and the drill rod came across his stomach. He indicated that after he fell, he laid on his back for a while and then got up and drove to his home which was a short distance away.

The worker indicated that initially, he did not think the injury was that bad. He thought it had knocked the wind out of him and that it felt like he was punched. As it was a Friday evening, the worker did not get to see a doctor until Monday. He advised that he felt bad over the weekend.

In answer to questions the worker advised that he told his physician that he was working at the time of the injury and that he advised his physician that he thought he had ‘busted a gut”. He advised that he was referred to a specialist (gastroenterologist) and that he told the specialist about the injury and that he thought he had “busted a gut”. The specialist arranged for a gastroscopy and treated him for a stomach condition. As his stomach pain did not improve, the worker was referred back to the specialist who then diagnosed a hernia. The worker thought he had advised the specialist about the accident at work.

The worker advised that he was then referred to a hernia specialist who performed hernia surgery which was not successful. He saw other specialists and eventually had further surgery at a clinic in another province.

The worker was asked if he had any stomach problems prior to the incident. He advised that he was taking some medication for a sore stomach. He was asked if his stomach condition was under control at the time of the accident and he responded “Yes. That was fine. I was perfect.”

The worker was asked why he delayed contacting the WCB about the injury for several months. He advised that he had no intention of going to the WCB and that he did not realize he was badly injured.

In closing, the worker’s representative noted that he often received calls from people who did not know about WCB coverage for work injuries. He also commented that there had been no critique of the worker’s credibility.

Analysis

Subsection 4(1) of The Workers Compensation Act (the Act) provides that where a worker suffers personal injury in a workplace accident, compensation is payable. Compensation can include wage loss benefits and the cost of medical treatments. In this case, the fact that an accident occurred in August 2004 has been accepted by the WCB. However the WCB has not accepted that the accident caused the worker’s hernia condition.

The issue before the panel was whether the worker is entitled to compensation benefits. The worker is seeking compensation benefits in relation to his hernia condition that was first diagnosed in April 2005. For the appeal to be successful, the panel must find that the worker’s hernia condition was related to the August 13, 2004 workplace injury. The panel was not able to make this finding.

The panel is unable to relate the hernia to the workplace injury. The panel finds that the weight or evidence does not support that the medical treatment the worker received after August 13, 2004 was related to the workplace injury. Accordingly, the worker is not entitled to compensation benefits.

In arriving at this decision, the panel relies upon the following:

• the panel notes that the treating physician advised that the worker attended on August 16, 2004 with complaint of chronic epigastric pain, not related to meals. In response the physician referred the worker to a specialist for a gastroscopy. This physician advised in a report dated February 3, 2006 that “up till now, [worker’s name] had no evidence of a supraumbilical hernia and nor did he mention any work related injuries which could have caused his symptoms.” The physician’s report is at odds with the worker’s evidence that he told the physician about the work injury and that he thought he “busted his gut”. The panel prefers the physician’s evidence that the worker did not mention any work related injuries.

• the worker was seen by a gastroenterologist in October 2004, March 2005 and April 2005. It was not until April 2005 that a hernia condition was diagnosed. The panel considers that the late diagnosis of a hernia by this specialist supports the panel’s finding that the hernia did not result from the workplace injury.