The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The worker was employed as a retreading technician with this employer since 2006. The Employer’s Accident Report filed on October 30, 2008 indicated that the worker reported a hernia injury to the retreading manager at work on September 5, 2008. In the description of the accident the employer wrote:

“He didn’t actually injure it that day. It is something that occurred over time. Part of his job, is lifting heavy tires, which he does a lot of. He also repairs big tires. This caused him to have a hernia.”

The worker saw his family physician on October 10, 2008 and was diagnosed with an umbilical hernia. He was referred to a surgeon. The worker continued to work until October 27, 2008.

The worker filed an Incident Report with the WCB on October 28, 2008 noting an incident date of September 5, 2008. In the box asking for a description of the incident, the worker wrote that he felt a pull or snap when he went to lift tires. In the box asking for the reason that he delayed reporting, the worker wrote that he thought he had pulled a muscle and that he would be alright and could continue to work through it. He also explained that he went to see a doctor in October when he noticed a protrusion from his abdomen and that was when the doctor advised that he had a hernia.

On November 6, 2008, a WCB adjudicator contacted the worker to obtain additional information. According to a memo on file, the worker advised that he first began to feel symptoms in July 2008 but could not remember a specific incident. He did not report these symptoms to his employer. By September, the worker indicated he was vomiting and he noticed a lump about the size of a golf ball and at this time he decided to see his doctor. He described his job duties as including lifting of heavy tires weighing 200-300 pounds and that he kept working his regular duties as best he could until October 27, 2008. The worker advised that he never had a hernia before this time and that he did not do any activities outside of his workplace that could have aggravated his injury.

On November 7, 2008, the WCB adjudicator advised the worker by telephone that the claim was denied. According to the notes on file, the adjudicator was of the opinion that the WCB guidelines prevented him from accepting the claim when there was no unaccustomed exertion, no unusual happening, no particular pain, the worker was able to continue working the same job for a period of time, there was no initial complaint to co-workers and there was a delay in reporting. The Adjudicator’s letter dated November 10, 2008 denying the claim referred to these factors as the basis for concluding that the information did not establish the hernia was sustained as a result of the worker’s job duties.

The worker filed an appeal to the Review Office on November 10, 2008, which included a letter from the worker’s physician dated November 25, 2008 advising as follows:

“The above named developed symptoms related to an umbilical hernia starting in mid July 2008. He had progression of his symptoms through summer and fall and was seen on October 10, 2008, demonstrating an umbilical hernia… [The worker] does a lot of lifting at work and this would likely be the cause of the progression of his hernia. He does not do a significant amount of lifting outside of work.”

The worker underwent surgery to repair his hernia on November 28, 2008.

In a decision dated January 26, 2009, Review Office denied the claim. Review Office’s reasons for concluding that the evidence did not support a causal relationship between the development of the worker’s hernia and an accident at work were stated as follows:

The worker could not recall a specific incident where following a heavy lift he felt immediate pain or discomfort. The worker could not provide a date of injury. The worker first noticed symptoms in July 2008 but did not notice a lump until September 2008. The worker did not report the injury to his employer in July 2008. The worker continued to work his regular duties with no ongoing complaints made to the employer or to co-workers.

On February 12, 2009, a worker advisor appealed the Review Office’s decision to the Appeal Commission and a hearing was held on May 5, 2009.

At the hearing the worker explained that he was an “off the road” retreading technician working on large tires used primarily on farming and mining equipment. These tires weighed up to 2,000 – 3,000 pounds and he often manually lifted and turned tires weighing between 200 – 300 pounds in order to complete repairs. He estimated that he spends 1 to 1.5 hours each day lifting and turning heavy tires. He also spends 4 to 5 hours each day “skiving” a tire to prepare it for patching. This work requires that he bend on his knees leaning inside large 12-14 foot high tires with his weight on his abdomen pressing on the tire while he twists and reaches in different locations inside the tires.

The worker testified that he first noticed what felt like a pulled muscle in July 2008 while lifting a tractor tire weighing approximately 300 pounds. He testified that he advised the office manager at the time this happened that he hurt himself but that he didn’t think it would be a problem. The worker described how the symptoms gradually worsened over the summer with increased cramping, vomiting and diarrhea. By the end of August and early September he noticed a lump about one inch wide near his bellybutton. This was when he decided to make an appointment to see his physician. The worker explained that the incident date of September 5, 2008 noted on the Employer’s Accident Report and the Worker’s Incident Report reflected the date that he reported his worsening symptoms to the retreading manager and contacted his physician to make an appointment. The first available appointment that the worker was given was October 10, 2008. The worker saw his physician on October 10, 2008 and was immediately diagnosed with a hernia requiring surgery.

The worker also testified that he didn’t want to leave work and thought he could continue working until his surgery that was scheduled for December 10, 2008. On October 27, the worker was sent home by his employer due to increased vomiting and pain. At this time the worker

testified that his hernia was approximately 2 inches wide. The worker contacted his physician and his surgery was advanced to November 28, 2008. The worker testified that he was unable to return to work until February 15, 2009 due to complications following surgery.

Reasons:

Subsection 4(1) of The Workers Compensation Act (“Act”) provides for compensation “where personal injury by accident arising out of and in the course of employment is caused to a worker”. An “accident” is defined under subsection 1(1) of the Act as including “any thing that is done and the doing of which arises out of, and in the course of, employment.” The panel must therefore determine whether, on the balance of probabilities, the worker’s hernia was causally related to the performance of his duties at work. In the circumstances of this case, the panel has determined that the worker’s hernia was causally related to the performance of his job duties as a retreading technician.

The panel is of the view that the evidence indicates that the worker’s hernia was caused by the strenuous physical efforts and heavy lifting that were part of the worker’s job duties. The worker initially reported that he felt a pull or snap that he thought was a pulled muscle. The evidence supports a finding that this episode occurred in July 2008 when he was lifting a heavy tire. The worker also reported this incident to the office manager at the time it occurred and the employer’s report confirms their understanding that the hernia developed over time and was caused by the worker’s job duties. Hernias often progress with worsening symptoms over a number of months and the delay in reporting the initial incident in July 2008 is not unreasonable given the fact that the worker thought he had only pulled a muscle and wanted to continue working.

In our opinion, the balance of evidence supports a finding that the worker’s hernia was precipitated by the lifting of heavy tires while at work in July 2008 and his symptoms continued to progress until he stopped working on October 27, 2008. We therefore find that the worker’s claim is acceptable and the appeal is allowed.