The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The worker’s incident report noted a date of injury of October 15, 2008. The worker described the incident to a WCB representative as follows:

“I drive a five-ton truck. I was delivering goods. The average poundage that I lift is between 50 and 80 pounds per item. I felt like I strained something. It was not so bad and it did not feel bad at all. I had to get in and out my truck often. By the following week, I was experiencing quite a bit of pain. I had to lift my left leg into the vehicle because of pain. The pain was very sharp. I ended up going to the hospital on Oct. 23/08.”

The worker reported that he delayed seeking medical treatment because he thought it was minor and he used pain relievers to treat the pain. He advised that he reported the injury to his supervisor at work before he went to the hospital. He also indicated that he wasn’t sure what caused the injury but thought it could have been from jumping in and out of his vehicle.

The Employer’s Accident Report indicated that no injury was reported by the worker.

When contacted by a WCB case manager, the employer’s representative confirmed that on October 17, 2008 the worker had notified the employer that he pulled a muscle. The worker indicated that he did not know if he had injured himself that day or the week before. The employer stated that the worker did not relate the injury to his employment.

The WCB received medical reports from the hospital that indicated that the worker sought treatment on October 24, 2008. The triage assessment report states as follows:

“Complaints of left groin pain one week ago, no trauma to area, has been getting worse since “feels like pulled muscle” has tried flexril and Difenac 4/7 at bedtime with relief. Wakes and feels okay but as day continues worsens. Patient feels as though it happened at work.”

The attending hospital physician noted that: “43 year old male in re 2 weeks ago onset left quadrant pain thought was a groin pull…now increased pain and feels tight up in left lower quadrant.” Possible hernia was noted. X-ray results were normal and pain medication was prescribed.

The worker attended at his physician’s office on October 27, 2008 with complaints of left groin pain that he related to lifting heavy objects at work. He was diagnosed with a left inguinal hernia and referred to a surgeon. The surgeon examined the worker on November 3, 2008 and was of the opinion that there was no hernia. The surgeon’s report notes that the worker related the injury to lifting at work. The surgeon noted left inguinal tenderness and diagnosed the worker as suffering from a left inguinal strain. Rest and anti-inflammatories were prescribed and the worker was referred to his physician for follow up.

The WCB case manager contacted the worker and asked if he lifted anything heavy on October 15, 2008 that resulted in pain immediately after. The notes state that in response the “worker indicated it was tolerable and manageable and he continued to work throughout his shift. The pain progressed over a week.”

In a letter dated December 1, 2008, the WCB case manager denied the worker’s claim on the basis that there was insufficient evidence to conclude that his left groin difficulties were related to an accident at work given his inability to identify a specific event and the delays in reporting the accident and in seeking medical attention.

The worker appealed the decision to the Review Office. The Review Office was provided with a medical report dated February 16, 2009 from the worker’s physician that stated as follows:

“[The worker] presented to my office with complaints of left groin pain which he related to a movement he made when lifting 80 lb onto a truck. Examination shows tenderness over the left groin region with severe discomfort if pressure is applied on the left femoral canal. The pain increases when he coughs. Flexing the left hip increases the pain as well. A CT scan of the abdomen failed to demonstrate a hernia which was my first consideration. Dr. [surgeon] also support (sic) the idea of a ligament/tendon injury versus a hernia. The onset of his pain and the absence of other obvious aggravating incidents during the time of the onset of his symptoms, makes an injury at the workplace the only possible reason for his disability. [Worker] has trouble lifting anything heavier than ten lb. and has difficulty flexing his left hip. These restrictions make his job as a trucker impossible to perform.”

On April 2, 2009, Review Office denied the worker’s claim pointing to inconsistencies and confusion regarding the date the worker attended the hospital for treatment; confusion as to the cause of injury whether from lifting or jumping out of his vehicle; failing to seek medical treatment until 8 days following October 15, 2008 and failing to report a work related accident to his employer. Review Office was of the opinion that there was insufficient evidence relating to the circumstances surrounding the left groin injury to conclude that the injury was work-related.

Appeal Hearing

At the hearing the worker described the significant amount of heavy lifting that he performed during the course of his employment duties. He was required to manually load and unload heavy food products consisting primarily of frozen meat weighing between 70 to 80 pounds and to hoist himself up and down four or five feet onto the back of the truck each time he unloaded product from the back of the truck. The product could only be unloaded at a rate of 3 – 4 items at a time, requiring repeated climbing in and out of the back of the truck. In an average day he climbed in and out of his truck hundreds of times loading and unloading heavy product.

The worker testified that he initially felt tightness in his buttocks and back that did not improve with his regular stretching exercises. Over a few days this developed into a sharp pain in his left groin area that made it difficult for him to lift his leg up to climb in and out of his truck. He testified that he was in pain and unable to lift or carry heavy items for approximately 4 to 5 months following his attendance at the hospital.

The worker testified that he went to his employer on October 17, 2008 during the course of his shift after returning to take the last load for the day and reported that he injured himself. He asked for a helper to assist him to deliver the last load of his shift. The employer advised that no helper was available and the worker finished the shift alone. The worker testified that he assumed that it was evident to the employer that he was reporting an injury that had occurred at work.

Analysis

Subsection 4(1) of The Workers Compensation Act (the “Act”) provides for payment of compensation benefits where “personal injury by accident arising out of and in the course of employment is caused to a worker”.

In accordance with WCB Policy 44.05.10, the definition of “accident” is given a broad interpretation and includes “the gradual onset of a personal injury, including an injury resulting from a gradual process or repetitive injurious motion”.

In order for the worker to succeed in this appeal, it is not necessary to identify a single specific event giving rise to his injury. In this case, as long as the panel is satisfied that the gradual onset of the injury arose out of the conditions of the worker’s employment, the appeal will succeed.

After considering all of the evidence, the panel finds, on a balance of probabilities that the gradual onset of the worker’s left inguinal strain was causally related to his employment duties. In reaching this decision, the panel took into account the following factors:

· The worker’s duties involved repetitive lifting and carrying of heavy items and his description of the gradual onset of increasing pain and difficulty raising his leg is consistent with the type of strain injury that was diagnosed by his physician and surgeon;

· It would not be unusual for a worker in these circumstances to be unable to pinpoint the specific onset of the injury given the repetitive nature of his duties and gradual onset of the injury. The worker’s delay in not reporting the injury to his employer or seeking medical treatment is understandable in the circumstances;

· We are also of the view that the worker’s description of the onset of his injuries as starting with tightness, pulled muscle and developing into a sharp pain with an inability to lift his leg was consistent with the type of injury involved. The fact that he was not sure if the injury arose from lifting or from excessive jumping in or out of his truck was not material, given that his duties required him to climb in and out of his truck as well as carry and lift heavy loads repeatedly throughout a shift; and

· There is no dispute that the worker reported an injury to his employer on October 17, 2008. The employer confirmed that the worker reported that he pulled a muscle. The fact that the injury was reported during the latter half of the worker’s shift suggests that the worker was reporting an injury that occurred at work, notwithstanding that the worker may not have specifically stated so. We find that the worker’s evidence that he assumed that the employer understood that he was reporting a work-related injury to be credible in these circumstances.