Decision #65/10 - Type: Workers Compensation

Preamble

The employer is presently appealing a decision made by Review Office of the Workers Compensation Board (“WCB”) which confirmed primary adjudication’s decision that the worker suffered a hernia at work on March 16, 2009. A hearing was held on May 25, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On March 19, 2009, the worker filed a claim with the WCB for a hernia injury that he attributed to his work duties on March 16, 2009. The worker reported that he felt a strange pull in his upper groin area on March 4, 2009 so he attended a physician for treatment and was prescribed medication. Then, on March 16, 2009, he was installing a couple of flow meters and felt a horrific pain in his right groin which he described as an intense burning pain. The worker indicated that his supervisor asked him if he was okay and he said no. He told his boss that he was going to the hospital. When seen for treatment on March 17, 2009, the worker was diagnosed with a right inguinal hernia and surgery was performed to repair the hernia on March 18, 2009.

The employer’s accident report dated March 23, 2009, stated that the worker reported non-work related groin pain and that he was leaving work to see his doctor. It stated that the worker told them that his hernia injury occurred at home and that it was non-work related.

On March 25, 2009, a WCB adjudicator spoke with the worker by telephone and the following information was obtained:

· while at work on March 4, 2009, the worker felt a pain under his belly button into his groin area and into his penis. He thought he had kidney stones. He immediately saw a doctor for treatment and was told he had strained his muscles. There was no hernia identified. The worker said he had no prior hernias and was fine prior to March 4.

· on March 16, 2009, he was installing 2 flow meters overhead and he had his left arm out supporting the feeders on his forearm at chest level (weighing about 35 pounds each) when he felt the pop and burning sensation in his groin. He dropped his tools and left. His boss asked him what had happened and if it was work related. He told the boss that he was not sure but needed to go to the hospital. He said a safety representative jumped in front of his vehicle and asked him what happened and if it was work related. He told him that he was not sure and that he needed to go to the hospital because of the pain.

On April 6, 2009, the worker spoke with a different adjudicator. The worker indicated that no specific incident occurred on March 4 but the duties he did involved a lot of awkward reaching/lifting. He started to notice pain to his penis and was uncomfortable with mentioning the pain from that area to anyone at work so he never said anything. He did not know what the pain was related to given the area of discomfort. He continued to work his regular duties after that with no further issue until March 16 when he was installing flow meters and felt a sharp pain/pop and burning sensation to the right side of his groin. This was a totally different area of symptoms as compared to March 4. The worker provided the adjudicator with the names of several co-workers/employees who he had spoken with on the day of the alleged accident.

On April 7, 2009, the adjudicator spoke with the employer’s safety representative who stated that the worker appeared to be in pain when he spoke to him on March 16. He asked the worker what had happened and why he was leaving work. The worker said he was not feeling well. When he asked whether it was work related, the worker answered no.

On April 21, 2009, the worker’s direct supervisor advised the adjudicator that on March 16, the worker finished off what he was doing that morning and he was setting him up for another task. The worker told him that his groin was sore and wanted to know if he would need a harness. He told the worker that he would have to climb an 8 foot ladder and would have to couple and clip some cables. The worker said he was okay with doing the job. The worker did not tell him why his groin was sore and he did not specifically ask him why it was sore. He just asked him if he was okay with working on the ladder. He also had the worker installing two flow transmitters and said the worker would have to hold the flow meters with one hand and drill with the other. The supervisor indicated that this was definitely not strenuous work especially for the groin area.

On April 30, 2009, another co-worker advised the WCB that the worker came into the work trailer and seemed to be in a lot of pain and was holding his mid-section. He asked the worker if he was okay and what was wrong. The worker said he did not know what was wrong. He gave the worker a ride to his truck and asked him if he would be okay to drive and the worker said yes. The co-worker indicated that he does not work directly with the worker. He advised that the worker never mentioned any prior difficulties.

Medical information was obtained from the physician who treated the worker at the beginning of March 2009. In his report dated May 4, 2009, the physician stated that the worker called the clinic on March 4, 2009 complaining of groin pain for some time and that an appointment was made for March 5, 2009. When seen on March 5, the worker complained of right groin pain for the last couple of weeks. The examination did not reveal a hernia but the physician suspected that the pain was myofascial in nature. The worker was prescribed medication and told to monitor his symptoms. The physician also clarified that in his earlier report to the WCB, he provided an accident description of the worker falling at work on April 17. He indicated that he mis-recorded the information and that this error had followed through on all the paperwork surrounding this incident.

On May 6, 2009, a WCB supervisor accepted the worker’s claim for an inguinal hernia.

In a decision dated May 22, 2009, the employer was advised that the worker’s claim for a groin injury sustained on March 16, 2009 was accepted. The adjudicator noted that the worker’s supervisor confirmed that the worker was installing 2 flow transmitters weighing 25-50 lbs. on March 16 and that the safety rep and site superintendent confirmed that the worker notified them that he was having groin pain and would be seeking medical treatment. The groin injury diagnosis was consistent with the mechanism of injury and there was no indication to suggest that the diagnosis was present prior to March 16, 2009. On July 2, 2009, the employer appealed the decision to Review Office.

On July 9, 2009, Review Office confirmed that the worker’s claim was acceptable. Review Office noted that although the worker was experiencing problems with his lower abdomen prior to the incident on March 16, 2009, he was capable of carrying out his regular work duties. He left work immediately after the incident and sought medical attention. Prior to March 16, 2009, there was no diagnosis of hernia and medical examination did not report any finding of a hernia until after the incident on March 16, 2009. On August 25, 2009, the employer appealed Review Office’s decision to the Appeal Commission and a file review 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 right inguinal hernia arose out of and in the course of his employment.

The employer’s position:

In a submission to Review Office dated July 2, 2009, the employer asked that the following points be considered:

  • There is evidence that the worker had sought medical attention for groin injury/ pain on March 5, 2009 and that he continued to have symptoms leading up to March 16, 2009. This would indicate that there was a pre-existing hernia;
  • If the worker was experiencing work-related abdominal pain prior to March 16, 2009, the employer questioned why he would not report his condition to his supervisor;
  • The transmitters being installed by the worker were very light and it was argued that they would not weigh more than 30 lbs combined;
  • The employer had modified work in a stationary office position and the worker could have been accommodated in an early and safe return to modified work duties.

The Appeal of Claims Decision form submitted by the employer asked for appeal of two decisions: (1) Allowance of Claim, and (2) Allowance of loss of earning benefits. The Review Office, however, only addressed the issue of claim acceptability. As the Appeal Commission has only the jurisdiction to consider matters previously considered by the Review Office, this appeal is limited to the issue of claim acceptability. The employer has been informed of this via correspondence from our office. The issue of entitlement to wage loss benefits remains an appealable issue, but must be considered by Review Office first.

Analysis:

The issue before the panel is whether or not the claim is acceptable. In order for the employer’s appeal to be successful, the panel must find that the worker’s right inguinal hernia, which was surgically repaired on March 18, 2009, was not related to the job duties the worker performed on March 16, 2009. We are not able to make that finding.

After reviewing the evidence as a whole, the panel finds on a balance of probabilities that the job duties the worker performed on March 16, 2009 did contribute to his right inguinal hernia and the immediate need for surgery. In coming to this conclusion, the panel relies on the May 4, 2009 analysis of the WCB medical advisor, particularly where he states: “Whether a hernia or congenital weakness was present prior to March 5 and/or March 16, it appears that the more acute development of the hernia occurred in the course of carrying out work duties on March 16.” We agree with this statement. In the panel’s opinion, the job duties which the worker was performing were sufficiently strenuous so as to cause the hernia to become acute in an already weakened abdominal wall. The worker was in severe disabling pain, for which he sought immediate medical treatment, and surgery was performed on the hernia two days later. The panel has no difficulty relating the urgent need for surgery with the worker’s job duties.

For the foregoing reasons, we find that the worker’s right inguinal hernia was caused by his workplace duties on March 16, 2009 and therefore his claim is acceptable. The employer’s appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of July, 2010

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