Decision #157/08 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (WCB) for a hernia condition which he related to lifting a bundle of drywall in early January 2002. The claim for compensation was denied as both primary adjudication and Review Office were unable to establish that the worker’s injury arose out of and in the course of his employment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on October 29, 2008 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On February 29, 2002, the worker filed a claim for a hernia condition that he related to his work activities as a drywall carrier. In a written submission attached with his application for benefits, the worker stated the following:

“On or about January 2nd I was at work when I felt a pain in the stomach when lifting a 12 foot bundle of drywall. At that time it just felt like something popped. It didn’t bother me enough to go home so I finished the day working. The nexted (sic) day I was having cramps in the stomach so I called in sick. Well, after missing a day I proceeded to work everyday until February 1, 2002. I started getting pains in my stomach. So I took a few days off work. While in the shower while off work, I noticed that I had a lump in my belly button. I didn’t have a family doctor so I phoned [name of medical clinic].”

In a WCB memorandum dated March 13, 2002, it was indicated that the worker was still off work and had hernia surgery performed on March 11, 2002. It was also documented that the worker had been fired from employment on February 27, 2002.

On March 22, 2002, the worker’s supervisor told the WCB that he was not aware of the worker missing time from work between January 2, 2002 to February 2, 2002 or that an accident occurred to the worker on or around January 2, 2002.

Subsequent file records indicate that a WCB unit supervisor spoke with the worker, his supervisor and several co-workers to obtain additional information surrounding the claim. The following is a brief summary of each conversation.

On April 2, 2002, the worker indicated that he worked 9.5 hours on January 2, 2002 and that his normal work hours are from 7 to 3:30. He stated that he and several other people were in the office on January 2, 2002 when he reported to his supervisor that he felt something pop in his stomach. The supervisor’s nephew was in the office at the time and he said he had a hernia from work as well. The worker doubted that the supervisor’s nephew would support him as it was a family run business. The worker stated that he continued working after January 2, 2002 and that everyone knew he had a hernia because he kept saying it hurt. The worker provided the name of a co-worker who was not a family member and who would support his complaints. The worker stated that on February 14, 2002, his supervisor asked him what happened after his doctor’s appointment and the worker told him that he had a hernia and it was work related. The worker said he did not fill out a form 3 because he thought by telling his supervisor, everything had been done and he assumed the supervisor would notify the WCB.

With regard to the onset of his symptoms, the worker stated that he first noticed a lump in his belly when he was off work between February 4 and 6, 2002 while in the shower. He stated that since his last hernia did not cause him any pain and this hernia did cause pain and was in a different area, he didn’t suspect it was a hernia. When the lump came out he got worried and decided to get medical treatment.

On April 2, 2002, the accident employer’s general manager stated that the worker was fired on February 27, 2002 due to an incident that occurred on February 26, 2002. He noted that the worker approached his supervisor in mid February 2002 and advised him that he had a “bump in his belly”. The worker did not know how it occurred but said it didn’t hurt and he was able to continue working. After coming back from a doctor’s appointment, the worker told his supervisor that he had a hernia and would need surgery.

On April 3, 2002, the worker’s supervisor confirmed the information provided by the general manager dated April 2, 2002.

Contact was made with the co-worker identified by the worker on April 2, 2002. He guessed that the worker complained about belly pain in mid January, a few weeks before he actually went to see a doctor. Once the worker returned from the doctor he told everyone that he had a hernia. The co-worker advised that throughout the time the worker complained of belly pain he never once related it to a work incident. He never mentioned an incident occurring in early January or that he hurt himself while lifting drywall.

The WCB unit supervisor contacted a second co-worker on April 4, 2002. The co-worker indicated that the worker came to him in the early part of January 2002 and asked him what a hernia was, how it felt, how painful they were, and what medical treatment was necessary. The worker told him that he might have a hernia but he was not sure. He stated that the worker never indicated what had caused his hernia.

On April 9, 2002, another co-worker told the WCB that he and the worker had a conversation about the worker’s belly button but he was not sure of the exact date. The worker said he was pretty sure he had a hernia because he had one before. The worker never indicated that his problems were due to any particular work activities.

In a decision dated April 11, 2002, the worker was advised that his claim for compensation was denied as the WCB was unable to establish that an injury occurred at work. In reaching this decision, the WCB unit supervisor relied on the employer’s evidence that they were not aware that the worker had a hernia condition until after his doctor’s appointment in mid February 2002. The supervisor indicated that she was unable to confirm that the worker reported a work related injury to his employer or to anyone on or around January 2, 2002. On April 19, 2002, the worker appealed the decision to Review Office.

On May 3, 2002, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that neither the worker’s supervisor or his co-workers were able to confirm the worker’s story that he promptly advised them of his condition or of his claim that his condition was caused by lifting drywall. Review Office accepted the evidence provided by co-workers that the worker was not aware of the cause of his hernia condition. Review Office was not satisfied that an injury occurred to the worker in early January 2002 which produced an abdominal injury.

In a submission dated August 16, 2002, a worker advisor asked Review Office to reconsider its decision of May 2, 2002. The worker advisor referred to medical reports and file evidence to support that the worker did report his injury to his employer and that he did sustain an accident and a personal injury which arose out of and in the course of his employment.

On October 25, 2002, Review Office indicated that after reviewing all the file evidence, the actual reporting of the accident and the lack of confirmation from co-workers of knowledge of any accident is a situation that was not in the worker’s favour and was not altered by the medical report from the surgeon dated July 15, 2002. The position taken by the worker advisor in her submission of August 16, 2002 did not alter the prior Review Office decision. On September 4, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In adjudicating this appeal, the panel is bound by The Workers Compensation Act (the Act), regulations and policies of the WCB’s Board of Directors.

As this appeal deals with claim acceptance, subsection 4(1) is applicable. It provides that compensation is payable where a worker is injured by an accident arising out of and in the course of employment. For a claim to be acceptable as an accident, the claim must satisfy the requirements of subsection 1(1) which defines accident as follows:

"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

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, …

and as a result of which a worker is injured;

Worker’s Position

The worker attended the hearing and explained his position to the panel.

He advised that on January 2, 2002 he was performing his usual duties which involved delivering and unloading drywall. He was carrying a load with a co-worker when he felt a “pinch or pop” in his belly. He asked the co-worker to pause for a few minutes and put the load down. They then continued carrying the load. He worked the full day. When he returned to the workplace he advised his supervisor who asked him whether he could continue to work. He agreed to do this and worked, with some absences, until February 27, 2002. The worker advised that he missed the next day of work due to cramps caused by the injury. He said that he was aware that he had a hernia when he saw the bulge in his belly button a few weeks later. He explained this was his second hernia so he thought he could continue working and did not “rush” to see a physician. He did not apply to the WCB either, as he thought he could continue working until surgery was scheduled.

Witnesses

The panel issued subpoenas to three witnesses. All attended the hearing.

The first witness, B, was a co-worker but was not with the worker when he was injured. He advised that he did not remember much surrounding the worker’s injury as it occurred about six years ago. He did not remember details of a discussion between the worker and supervisor. He confirmed that he heard the supervisor, on many occasions, ask another worker whether the worker could work or needed to go on compensation. He also confirmed that he remembers the worker being hurt but did not remember any details.

The second witness was the worker’s supervisor. He did not recall meeting with the worker on January 2, 2002. He denied any knowledge of a hernia or conversation about a hernia or workplace injury.

The third witness, K, was, according to file information, working with the worker, delivering drywall, when the incident occurred. He was unable to confirm that he was working with the worker on January 2, 2002 and could not remember any specific incident but remembers hearing that the worker had a hernia. He confirmed that carrying the drywall can involve twisting and turning the body and can be quite difficult.

Analysis

The worker has appealed the WCB’s denial of his claim. The issue before the panel is whether the worker’s claim for compensation is acceptable. For the appeal of this issue to be successful the panel must find that the worker sustained personal injury by accident arising out of and in the course of employment, or in other words that the worker had a workplace injury.

After considering all the evidence, including the evidence on the file and the evidence given at the hearing by the worker and witnesses, the panel finds, on a balance of probabilities, that the worker suffered a workplace injury and that the claim is acceptable.

The panel places significant weight upon the following:

  • file information confirms that various co-workers were aware that the worker complained of a hernia prior to his dismissal from work on February 27, 2002.
  • a co-worker advised the WCB that he heard part of a conversation between the worker and the supervisor where the supervisor is reported to have said “it’s a hard job, I can’t baby you so if your bad enough, go on comp or disability.” While this co-worker, B, was called as a witness at the hearing and could not remember the conversation because of the passage of time, he did confirm that it was consistent with the practices of the supervisor.
  • the worker and witness K agreed the job was physically difficult and could involve twisting and turning the body to move the drywall.
  • the worker’s story has remained consistent even with the significant passage of time. The panel found the worker to be honest and forthright in his presentation.
  • the supervisor who advised the WCB that the worker had not identified the injury as being work related was called as witness by the panel. The panel did not find this witness to be credible based on his current outright denials of statements he made (recorded on file) closer to the time of the incident.
  • Doctors First Report dated February 28, 2002, based upon an examination of February 13, 2002 indicates description of accident as “lifting drywall & felt a pop in abdomen”.
  • the mechanism of injury reported by the worker is consistent with the development of a hernia. This was confirmed in report from the treating surgeon dated July 15, 2002.

The panel notes there was a delay in reporting the injury to the WCB, but finds the delay was not significant as it was reported on February 29, 2002 shortly after the condition was diagnosed by a physician. Regarding notification to the employer the panel finds that the worker advised the supervisor on January 2, 2002 that he felt a pop in his abdomen while moving drywall.

The appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 3rd day of December, 2008

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