Decision #73/09 - Type: Workers Compensation

Preamble

The worker filed a claim with the Workers Compensation Board (“WCB”) for a hernia condition that he attributed to his heavy work duties as a millwright apprentice. The claim for compensation was denied by primary adjudication and the Review Office as both were unable to relate the worker’s hernia condition to his workplace activities. 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 June 3, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On August 20, 2008, the worker filed a claim with the WCB. He reported that he noticed a small lump at his belly button site and then made an appointment to see a doctor. Hernia surgery had been scheduled for August 27, 2008. The worker advised that the injury occurred on March 7, 2005 and he reported it to his employer on August 20, 2008.

On August 22, 2008, the employer advised a WCB adjudicator that there was no accident to report, only that the worker noticed a lump from 2005 and had it checked out this year.

A Hernia Questionnaire dated August 28, 2008 indicated the following:

· The worker first noticed a little skin flap in his navel in 2005;

· The worker could not recall a specific accident happening in 2005. He does not do anything else besides work. The skin flap on his navel did not hurt and he worked the next day after seeking treatment and has never felt any pain.

· The worker advised that he has no pain even now. He could not understand why he never felt pain and thought it may be why he could not recall an accident.

· There was no lump or swelling seen until this year. The worker indicated that he did not recall an accident therefore had nothing to report. The worker indicated that he saw a doctor in 2005 but could not recall the name.

On September 3, 2008, the worker was advised that his claim for compensation was not accepted as the WCB was unable to confirm that his hernia condition was a result of an accident arising out of and in the course of his employment. This was based on the evidence that no accident was reported to the employer and the worker was unable to recall a specific accident occurring.

On January 15, 2009, a worker advisor asked Review Office to reconsider the adjudicative decision dated September 3, 2008. The worker advisor noted that the worker noticed a small lump at the side of his belly button on March 7, 2005 and was diagnosed with a small periumbilical hernia. The worker did not experience any pain or discomfort but the hernia kept getting larger. The worker saw his doctor again on December 14, 2007 and was diagnosed with a large reducible umbilical hernia and had surgical treatment September 3, 2008. The worker advisor referred to an October 9, 2008 report from the treating specialist which stated,

“Due to the repetitive nature of his employment and the physical labor involved. I feel that his umbilical hernia was aggravated by his employment, thus making it enlarged and symptomatic requiring surgical intervention.”

Based on the opinion expressed on October 9, 2008 and the heavy nature of the worker’s work duties (ie. lifting, carrying and pushing), the worker advisor contended that a causal relationship existed between the worker’s worsening hernia condition, the resulting surgical treatment and his work duties.

On January 22, 2009, Review Office outlined the position that the progression of the worker’s hernia condition was more reasonably attributable to the age related weakening of his abdominal wall referenced in medical literature, given the absence of any symptomatology when performing his work. Review Office noted that when considering claims for hernias, the WCB historically required that the onset of symptomatology be immediately preceded by a work related event and that the worker promptly attend for medical attention to confirm the diagnosis. It noted that the worker reported no identifiable event to which he could attribute his hernia and at no time had he experienced any kind of pain or discomfort.

On March 13, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and hearing was arranged.

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 umbilical hernia arose out of and in the course of his employment.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the work duties performed by the worker, which included heavy lifting, carrying and pushing, caused the onset and worsening of his umbilical hernia condition. The October 8, 2008 report of the worker’s treating specialist was relied upon in support of his claim.

Analysis:

The issue before the panel is whether the worker’s umbilical hernia which was surgically repaired in September 2008 arose out of and in the course of his employment. In order for the appeal to be successful, the panel must be satisfied on a balance of probabilities that the hernia was caused or enhanced by the worker’s job duties.

After reviewing the evidence as a whole, we are unable to find on a balance of probabilities that there is a causal connection between the hernia and the worker’s employment. In arriving at this decision, we rely on the following:

  • With respect to onset, the worker was unable to link his initial detection of a skin flap in his navel area to the performance of any job duties. He was unsure as to when the skin flap developed. He did not recall experiencing any popping or burning sensation in the area. We are therefore unable to find evidence of a single precipitating event which arose out of and in the course of employment.
  • The worker’s job duties had not changed significantly when he first noticed the hernia in March 2005. He had been performing physical work for most of his working life.
  • The worker’s evidence was that over the next two and a half years from the time of detection, the skin flap slowly and steadily developed into a larger lump. His physician continued to monitor the growth and by December, 2007, decided to refer the worker to a surgeon to have the hernia repaired. By the time of surgery in September 2008, the hernia was approximately the diameter of a baseball.
  • The worker was unable to relate any change in the lump to a particular job duty. There was no instance where the performance of a lift or other heavy job had an effect on the hernia either in terms of causing pain or a change in size of the hernia.

Overall, the panel was unable to tie either the onset or the worsening of the umbilical hernia to the worker’s job duties. There was no evidence of a work-related precipitating event. Although his job involved physical work, there was nothing to specifically link the performance of job duties to the increasing size of the hernia. In the circumstances, we are unable on a balance of probabilities to find a causal connection to the employment. The worker’s appeal is therefore denied.

Panel Members

L. Choy, Presiding Officer
R. Koslowsky, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 10th day of July, 2009

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