Decision #59/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a hernia condition that he related to a workplace accident on June 17, 2008. In early November 2008, the employer appealed the acceptance of the claim to Review Office on the grounds that the worker’s injury was related to playing hockey and not to a workplace event. On November 26, 2008, Review Office reversed the decision to accept the claim as it was unable to establish that the worker sustained personal injury by accident arising out of and in the course of his employment. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on May 12, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On September 16, 2008, the worker filed a claim with the WCB for a left groin injury which he related to his work duties on June 17, 2008 when he lifted a heavy wall with three others and felt a pull in his groin region. The worker indicated that he told KD (crew boss) of his discomfort and pain but continued lifting and completed his shift. During June, July and August 2008, he continued working his regular work duties and then went to see a doctor because the lump which developed in his groin did not go away and became bigger.

The employer’s injury report indicated that the worker reported the June 17, 2008 work injury on August 5, 2008 to KS (the owner of the company). The report stated, “At first described as a groin injury that occurred at hockey – following doctors appointments was discovered hernia – was able to work until Aug 25 at which time lifting became problem and pain to abdomen.”

A Doctor’s First Report showed that the worker attended for treatment on August 28, 2008 and was diagnosed with a left inguinal hernia. The worker’s description of accident was documented as follows: “Lifting triple header wall, unable to do it in 1st few trys, felt sharp pain in groin.”

On September 23, 2008, a WCB adjudicator contacted KD who recalled that the worker told him that he was in pain after he tried to lift a wall. He recalled that it was a very heavy wall with triple headers and they were lifting the wall with three people. They tried to lift it three times and got it on the fourth try. The worker did not tell him specifically where he was hurt but he did mention that he was in pain. KD indicated he was not a safety rep but did basic supervision and checked to ensure that the jobs were done correctly.

On September 23, 2008, the worker told the WCB adjudicator that he felt a brief aching sensation after he helped to lift the wall. Later that week, he noticed swelling but thought it was a bruise and that it would clear up. He did not bother to see a doctor as it was not really painful. Over the next couple of months, it was poking out more and more and in August it became more painful and he saw a doctor. He mentioned groin pain to JD [a co-worker]. The worker indicated that he coached hockey and skated with the team but did not do hard skating. He denied hurting himself at hockey. He said the first practice was near the end of August and could not recall the exact date. The worker advised that he broke his right arm while playing hockey on September 11, 2008 when he was checked by a player.

In a letter to the WCB dated September 25, 2008, the employer representative reiterated the position that the worker’s injury was not work related but occurred while playing hockey. The employer stated that around August 5, 2008, the worker told crew members when he arrived on site that he hurt himself at hockey over the weekend. After seeing a doctor shortly afterwards, he informed them that he had a hernia. “At no point did he mention to KS that it may have been from work.”

In a decision dated October 23, 2008, the adjudicator decided that the worker’s claim for compensation was accepted based on the following rationale:

· the worker reported his injury to his crew chief who confirmed the report and the details of the accident that led to the injury;

· the hockey coach was contacted and he was unaware of the worker sustaining an injury while playing hockey;

· the doctor’s report of August 28, 2008 confirmed that the worker related the accident as described in the worker’s report;

· the initial conversation with the worker and the adjudicator’s conversation with KD.

On October 24, 2008, DK (a co-worker) told the WCB that the worker acknowledged that he pulled a muscle playing hockey but denied the hernia was hockey related. DK was skeptical as he did not believe that the worker did any work that could have led to a hernia. DK was not on the job site at the time of the accident and was not aware of what duties the worker was performing at that particular job site.

On November 3, 2008, the employer appealed the acceptance of the claim to Review Office. The employer indicated that they spoke with KD who stated to them that he was asked by the worker to say that he had injured himself at work and that there must have been miscommunication between the WCB and KD as this injury claim never took place. The employer noted that the worker continued to play competitive hockey since claiming that he was unable to work due to his injury. The employer indicated that KD and DK could confirm that the worker told them it was a hockey injury.

In another letter dated November 10, 2008, the employer provided the WCB with the name of another co-worker (BC) who was aware that the worker continued to play hockey after claiming that he could not work. It also stated that KD should be contacted as he can confirm that there was no injury report made to him as the worker had previously stated.

Prior to considering the employer’s appeal, Review Office contacted KD, BC and a hockey coach for additional information.

On November 26, 2008, Review Office determined that the worker did not suffer personal injury by an accident arising out of and in the course of his employment on June 17, 2008. In reaching its decision, Review Office relied on the following evidence:

· information obtained from KD on November 21, 2008 that the worker did not report an injury on June 17, 2008. He stated the worker came to him around the time he stopped working in August 2008 and asked that he say the worker reported an injury due to lifting a wall in June 2008;

· the worker’s report that although he experienced a pull in his groin area, he reported that it was not very painful and that he did not notice the hernia until later during the week; and

· the fact that the worker continued to work his regular work duties until August 28, 2008 when he sought medical treatment for his left inguinal hernia.

In the opinion of Review Office, there was a significant delay in the worker seeking medical treatment and it was unable to establish that the worker reported an accident to the co-worker as he reported on his Worker’s Report of Injury. On January 14, 2009, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged. The co-workers KD, JD, DK and BC were subpoenaed by the panel to give evidence.

Reasons

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 left indirect 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 hernia occurred at work on June 17, 2008 when he and two co-workers were lifting an unusually heavy wall. He felt a pull in his groin at the time and mentioned it to his two co-workers at the time. He had a small bulge in the area of his groin, but it was not too painful so he continued to work his regular duties. He reported that approximately 5 to 6 weeks later, he blew his nose one morning and the bulge protruded out further. He tried to continue to work for a few weeks, but the bulge became increasingly more painful. On August 28, 2008, he went to a physician and he was diagnosed as having suffered a hernia. The worker attributed the hernia to the work he was performing on June 17, 2008 and denied that it was caused by playing hockey. He asserted that his surgeon told him that an inguinal hernia is: “89 percent unlikely” to occur during hockey, especially non-contact spring league hockey, and that in any event, he did not start to play any competitive hockey until early September. He did play in a recreational hockey league over the summer, but it was not particularly strenuous.

The employer’s position:

Two representatives from the employer were present at the hearing. They submitted that there was no indication that the worker suffered a groin injury until early August when they were at a job out of town. It was after a weekend and the worker was complaining that he had injured his groin during hockey on the weekend. Previous to that, there was no injury report and the supervisor (KD) had not mentioned anything about the worker being injured. A little later in August, the worker said that he was still hurt and he was going to see a doctor. He was given light duties but soon after stopped coming in to work. The employer representatives alleged that when they asked KD about whether there was an injury report, KD said that the worker had just asked him to say that to the WCB so that he could get coverage. It was the employer’s position that a non-work related cause, likely hockey, was the cause of the worker’s hernia injury.

Analysis:

The issue before the panel is whether the worker’s left indirect inguinal hernia which was surgically repaired in November 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 late August 2008, is attributable to the job duties the worker performed on June 17, 2008.

At the hearing, in addition to hearing the evidence of the worker and the employer representatives, the panel also subpoenaed four witnesses. Unfortunately, one of the witnesses, KD, did not attend. After reviewing the evidence as a whole, we find on a balance of probabilities that the hernia is related to the June 2008 incident. In coming to this conclusion, we rely on the following:

  • At the time of the incident, the worker was lifting a heavy wall. Strenuous physical effort which causes an increase in intra-abdominal pressure is a known risk factor in the development of a hernia. The panel accepts that the job which the worker was doing could cause him to suffer a hernia.
  • At least one of the co-workers (JD) who assisted in the lift that day confirmed that he recalled the worker complaining of groin/abdominal pain after the lift.
  • JD also confirmed that after the hernia bulged out further, the worker told him about the bulge and related the bulge back to the June 2008 incident.
  • The worker’s evidence was that the location of the hernia was in the exact same area of the groin as where he felt the pull when he was lifting the wall.
  • It is the panel’s understanding that after a hernia develops, the hernia may remain completely asymptomatic for months and even 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.

As noted earlier, at the hearing, the panel did not hear evidence from the witness KD. The WCB placed significant weight on KD’s evidence and its initial adjudication of this claim turned largely on the fact that on September 23, 2008, KD advised the adjudicator that the worker told him (as supervisor) that the worker was in pain after he tried to lift a wall. Later, on November 21, 2008, KD recanted and stated that the worker: “never mentioned an injury or pain due to a lift on June 17, 2008 or any other date for that matter.” After receiving this information, the WCB denied the claim.

In the panel’s opinion, even if KD had appeared to testify, it would be difficult to determine which of KD’s versions is accurate. In September, 2008, when KD gave his first statement, KD was no longer employed by the accident employer and had parted on less than ideal terms. Subsequently, shortly after KD recanted his statement, he was rehired by the accident employer. Given the differing versions of his testimony, the panel would be inclined to place limited weight on KD’s evidence, even if he had appeared at the hearing.

Instead, the panel found the evidence of the other co-worker, JD, to be credible. JD was very conscientious when giving his testimony. He also appeared to have a good relationship with both the worker and the accident employer, so there was no question of bias in the giving of his evidence. JD was able to confirm that the worker complained of pain the day of the lift, and that subsequently the worker related the increased bulge in his groin to the original injury he suffered during the lift.

The panel received evidence from two other witnesses, but were not able to place much weight on their evidence. DK gave evidence that the worker attributed his injury to playing hockey, but he was unable to provide much detail as to when this information was conveyed. BC gave evidence that the worker advised him of the hernia injury, but this appears to have occurred later in the summer, and does not assist the panel in determining when the hernia first developed.

The employer representatives gave evidence of a conversation which occurred at an out of town work site where the worker related his groin injury to playing hockey, but neither JD nor DK, who were allegedly present during this conversation, were able to confirm the conversation occurred. The worker outright denied that the conversation ever took place. The panel finds that there is insufficient evidence to support that the worker incurred the hernia injury from hockey, particularly given the fact that he did not become involved in competitive (and therefore strenuous) hockey until early September, 2008, after the hernia diagnosis had already been made. While the worker was involved in summer league hockey, this was played at a recreational level and was non-contact.

For the foregoing reasons, we find that the worker’s left indirect inguinal hernia was caused by his workplace duties on June 17, 2008, and therefore his claim is acceptable. The worker’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 5th day of June, 2009

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