The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The key issue to be determined by the panel deals with causation and whether the worker’s right inguinal hernia arose out of and in the course of his employment.

The worker’s position:

The worker was self-represented at the hearing. It was submitted by the worker that the injury occurred at work when he was lifting a heavy jackhammer. There was some discrepancy in the evidence on file and at the hearing as to whether the incident occurred in September 2005 or 2006. The worker was adamant that the incident occurred in 2006 and he referred to a letter dated June 24, 2008 from his co-worker which set the date of injury as September 20, 2006. Shortly after the incident, the worker filled out a “Notice of Injury” green card, which shows the date of injury as September 20, 2005. The worker explained that he must have written the wrong year when completing the form. In any event, the worker’s position was that he felt a pop in his groin at that time. Following the incident, he had pain for a few weeks. He attended at a walk-in clinic, but he could not recall which one. The pain eventually got better and he was left with some residual tightness in his right groin. Otherwise, he had no ongoing symptoms in the area. It was not until December, 2007, that the injury became sufficiently symptomatic that he sought medical attention. He stated that he was seated on his couch at home when he coughed and felt something “squish” in his right groin. He went to his family physician, who diagnosed him with an inguinal hernia, and corrective surgery was performed in May, 2008. The worker stated that the hernia was in the same location as where he had earlier felt the pop. He advised that his doctor informed him that there are a number of layers of skin and after the initial tear, it may take time for a hernia to finally come through the skin and protrude. It was therefore his position that the right inguinal hernia repair and associated time loss from work should be covered by the WCB.

Analysis:

The issue before the panel is whether the worker’s right direct inguinal hernia which was surgically repaired in May 2008 arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the hernia, which was diagnosed in December, 2007, is attributable to the “pop” which the worker experienced at work some years earlier.

A preliminary issue for the panel to address is when the incident occurred. The worker believes that it occurred in September, 2006, and if this is correct, then the hernia bulge was first detected approximately 15 months after the pop was felt. If the incident occurred in September, 2005, then it would have been approximately 27 months before the hernia bulge was detected by the worker. In the panel’s opinion, the weight of the evidence supports that the incident occurred in September, 2005. The green card which was completed shortly after the incident indicates the injury date as “Sept 20/05”. The signature date is written as “Oct 10/05”. Thus the year “2005” is written in two locations on the card. Further, the green card was signed by both the worker and by the employer’s safety representative. In the circumstances, the panel feels that the written record is more reliable than the witnesses’ recollections. Although the worker provided a corroborating letter from his co-worker, the WCB file indicates that when the adjudicator spoke with the co-worker on June 2, 2008, the co-worker indicated that he was unable to narrow down whether the injury occurred in September 2005 or 2006. This tends to cast some doubt on the accuracy of the witnesses’ recollections. The panel prefers to rely on the written record and we therefore find that the incident occurred on September 20, 2005.

The next issue to be determined is whether the hernia is attributable to the “pop” which was felt by the worker in September, 2005. On a balance of probabilities, we find that the hernia is related to the September 2005 incident. In coming to this conclusion, we rely on the following:

• At the time of the incident, the worker was lifting a 300 lb jackhammer. Strenuous physical effort which causes an increase in intra-abdominal pressure is a known risk factor in the development of a hernia. The actual injury suffered is permanent damage or weakening of the abdominal wall in the area of the inguinal canal, which can lead to symptomatic bulges in that area, either immediately or at a later date.
• The worker reported the incident and filled out a green card at work. This provides concrete evidence of a single precipitating event which arose out of and in the course of employment.
• The worker’s evidence was that he felt a distinct “pop” in his groin. His groin bothered him for a while after the incident, but eventually the pain went away. Over the next two years, the witness stated that he had no pain in his groin, but that he always felt a tightness there. It was not until December 2007 when he coughed that he first felt a bulge. It is the panel’s understanding that after development of a hernia, there can be continuing pain or discomfort, but that often there is none. When there is pain, it is described as an aching pain, rather than a sharp pain. A hernia may remain completely asymptomatic for months to years. Over time, however, an inguinal hernia will gradually increase in size and as it enlarges, it is more likely to cause pain or discomfort.
• In response to questioning by the panel, the worker confirmed that the location of the hernia was in the exact part of the groin where he felt the pop in 2005.

Although the worker’s hernia was not diagnosed by his family physician until December, 2007, the medical diagnosis simply relates to when the hernia become symptomatic. In the panel’s opinion, the evidence supports the finding that the damage to the worker’s abdominal wall initially occurred in September, 2005 and the hernia developed as of that time. We therefore find that the hernia repair surgery performed in May, 2008 is related to the earlier workplace incident and that the claim is acceptable.

The panel has given consideration to subsection 19(2) of the Act which provides as follows:

19(2) - Must be filed within one year

Subject to section 109, unless application for the compensation is filed

(a) within one year after the day upon which the injury occurred; or

(b) in case the applicant is a dependant, within one year after the death of the worker;

no compensation in respect of any injury is payable under this Part.

In view of the fact that the worker notified his employer of the injury and filled out a green card approximately 20 days after the injury occurred, we are prepared to grant an enlargement of time pursuant to section 109 of the Act for the making of an application for compensation. In the opinion of the panel, the failure to do so would result in an injustice.

The worker’s appeal is allowed.