The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) which determined that the worker’s hernia condition was not related to an accident as defined under subsection 1(1) of The Workers Compensation Act (the “Act”). The worker disagreed and an appeal was filed with the Appeal Commission through his union representative. A hearing was held on June 9, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a hernia/groin injury that he related to repetitive and rapid lifting, pushing and pulling on Friday, September 12, 2008. With regard to the onset of his symptoms, the worker reported that he completed his shift and left work on Thursday, September 11, 2008 and did not notice any pain. While driving home he was involved in a motor vehicle accident. It was a very minor accident and no air bags went off. When he got home he did not notice any problem until he was relaxing in bed and noticed a tingling sensation in his groin.

When he reported for work on September 12, he worked from 7:30 a.m. to 1:45 p.m. on regular duties and the tingling continued. He left work to see a doctor and was diagnosed with two hernias, one was more severe than the other. The worker noted that he had been on restricted duties since May of 2008 because of a sports injury, a torn right knee anterior cruciate ligament.

The employer’s incident report signed on September 16, 2008 indicated the following:

“(As per Green Card): Noticed strange sensation in groin region. (As per Injury Investigation report); Employer has no idea how injury occurred, [worker] has been accommodated for the last 4-6 weeks from a baseball injury and he has had a clean bill of health from his doctor for the week of September 8, [the worker] also mentioned to me on Friday that he was in a traffic accident on Thursday after work and that he had a vibration feeling on his side and he got to see his doctor on Friday.”

When speaking with a WCB adjudicator on September 19, 2008, the worker stated that on Thursday afternoon he was feeling some tingling in his groin. He thought it might be related to stress or something.

On the way home from work he was in a car accident. He was going less than 30 kms an hour and was hit from the right side. He did not seem to have any injuries or whiplash. That evening he felt a rhythmic tingling like a cell phone on vibrate. He does not notice it as much when working as it's not so painful but annoying. He got a doctor’s appointment for Friday and it was the doctor who told him that he suffered a work related injury from heavy lifting.

The worker indicated that the onset of his symptoms started on the afternoon of September 11. The worker said he had been accommodated for about 1-2 months and had just come back to his regular duties. Nothing intense until he returned to the floor and full duties on September 4 – 100 cases per hour. The worker indicated it was hard to determine what specific duties caused his symptoms and that it could have been picking stock, or taking a pallet down 3 high that could weigh up to about 80 lbs. (On October 28, 2008, the worker advised his adjudicator that he lifts about 3500 lbs. per hour).The worker indicated that he mentioned his symptoms to a co-worker on Thursday and to his supervisor on Friday but he did not know what it was.

A doctor’s first report showed that the worker was treated on September 12, 2008. The diagnosis outlined was a right inguinal hernia. On November 3, 2008, a WCB adjudicator spoke with the treating physician by phone for details regarding the worker’s description of accident. The physician indicated that the worker did not mention a specific accident but noticed numbness and tingling in his groin like a cell phone vibrating in his pocket. When he pulled out the worker’s chart, he indicated that the worker had felt pain prior to the car incident but did not relate it to a specific incident.

A surgeon's report dated November 12, 2008 indicated:

This 45 year old warehouse man . . . developed a lump in the right groin on September 11. On that day he was lifting heavy loads at work. . .

Examination revealed an easily reducible right inguinal hernia.

His final diagnosis was a right direct inguinal hernia.

In a decision dated December 3, 2008, primary adjudication advised the worker that his claim for compensation was denied as there was insufficient evidence to conclude that the onset of his hernia was related to an accident at work given that there was no specific accident identified and the conflicting information as to the onset of his symptoms.

On September 4, 2009, a union representative appealed the above decision to Review Office. The union representative submitted that the worker’s injury was causally related to his employment and was “arising out of and in the course of his employment” based on the following factors:

· the worker had a clean bill of health for the week of September 8, 2008 so he could return to his regular duties in the warehouse;

· the worker was working full duties which included lifting up to 100 cases per hour or 3500 lbs. Strenuous physical effort which causes intra-abdominal pressure is a known risk factor for the development of a hernia;

· prior to the motor vehicle accident and on the day the worker believed that he injured himself, a co-worker corroborated that the worker had complained about “something not feeling right” and a “tingling” sensation in his groin area; and

· the treating physicians concluded that the worker’s injury was related to the type of work he performed, i.e. heavy lifting.

On November 3, 2009, Review Office ruled that the worker’s claim for compensation was not acceptable. Review Office noted that the worker did not know what caused his hernia, he could not provide a date of accident nor could he identify a work act where he immediately felt discomfort. Based on these findings, Review Office found insufficient evidence to support an accident as defined under subsection 1(1) of the Act. On December 22, 2009, the union representative appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.

The Oral Hearing

During the course of the hearing, the worker's representative highlighted the strenuous demands of the workplace. It was noted that the worker was required to lift more than 3500 pounds per hour for the duration of his shift.

Speaking specifically of his activities on September 11 and 12, the worker confirmed this representation. He noted that he had to lift about one hundred cases an hour with weights ranging from 35 to 60 pounds. He observed that some of his work activities involved awkward lifting and pulling. These activities included dead lifting pallets from the ground up, twisting the glue bond off fifty pound cases and picking up cases which might only be six inches off the ground:

So you could be taking from six inches, picking up a 60-pound case, getting it high enough to lift it up again to chest height, as you're pivoting . . . .

The worker's representative focused on the morning of September 11, 2008. The representative suggested that the worker had been recently provided a clean bill of health and that he arrived at work symptom free. Heavy emphasis was placed on a statement by the worker to a fellow employee on September 11, 2008 suggesting he was experiencing a strange sensation in his groin area. In the representative's submission, the confirmation of that statement by a co-worker provided corroboration that the onset of the worker's symptoms can be traced to his workplace and his workplace duties.

The worker's evidence provided additional details with regard to the events of September 11, 2008. He indicated that everything seemed fine at the start of the day but that as the day went on he felt a vibration in his groin area that increased in frequency. While he did not attribute the discomfort at that point in time to a workplace injury, he suggested that he did mention the concern to a couple of co-workers at the breaks.

Well I just told him, I said my groin's feeling very weird. I say it's like I've got a cell phone going off on my, in my - - I have a pocket over my crotch. It's really weird.

And I mean I took some ribbing for it because, you know, it's kind of funny.

The worker's representative noted the October 30, 2008 report between a WCB staff person and the co-worker in which the co-worker indicated:

On September 11 worker told him that he was concerned because something didn't feel right. He felt some tingling . . . in his groin/abdominal area. Something under his stomach was hurting.

The worker's representative suggested that the worker's symptoms were exacerbated when he returned to work on September 12, 2008:

He continued to perform his heavy lifting duties as a warehouse worker and he noticed the vibratory sensation in his groin area intensified.

The worker echoed this assertion.

The feeling was kind of gone in the morning. And as I started picking again on the 12th, I noticed it started up again and, as you got to about midday, it really intensified and I started to get concerned about it, not that I thought it was an injury, I thought it was just blood pressure or something . . .

The worker indicated that he spoke to his supervisor about this sensation and went to his doctor. According to the worker, it was on his doctor's recommendation that he file a WCB claim.

The worker went on to discuss a car accident that he was involved in on September 11, 2008. He indicated that his car was clipped by a vehicle leaving a parking lot and entering his lane. His car was pushed against the curb and guardrail. He asserted that no injuries resulted from the accident. No injuries were reported to MPI.

In his representative's submission, the worker suffered a workplace injury. The representative emphasized the following points:

•  there was a causal relationship between the increased pressure in the abdomen due to the physical activities associated with the work;
•  there were symptoms at the workplace on September 11 and 12;
•  there is corroboration of these symptoms through the statement from the worker to his co-workers on September 11, 2008;
•  the worker promptly sought medical attention and reported the injury to the WCB;
•  there was immediate physical evidence of a hernia.

The employer's representative noted that the worker did not immediately correlate his injuries with his workplace duties. She also observed that the worker's incident report did indicate that he finished his shift and did not notice any pain on September 11. Another representative of the employer noted that he thought the worker “has given a pretty good description of what took place” on September 12, 2008.

Subsequent Information and Representations

Following the hearing held on June 9, 2010, the appeal panel requested information from the worker's treating physician. A report from the treating physician was later received dated June 18, 2010 and was provided to the interested parties for comment. The physician indicated that he could not say with certainty where the injury occurred. In his view since the worker “had no clear other opportunity it is most likely work related.”

In submissions dated August 3, 2010, the employer's representative implied that the playing of baseball (slow pitch) might have caused the worker's injury.

On August 4, 2010, the panel met and made its decision.

Reasons

The Legal Framework

Subsection 1(1) of the Act defines an accident as:

a chance event occasioned by a physical or natural cause including:

…

(b) any

(i) event arising out of and in the course of the employment

Subsection 4(1) states:

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...

Overview

Based on a balance of probabilities and considering the evidence as a whole, the Panel finds that the worker suffered an injury by accident arising out of and in the course of his employment. More particularly, the panel finds that as a consequence of his heavy lifting duties at work on September 11, 2008, the worker suffered a right direct inguinal hernia.

Background information regarding hernias

Before turning to the specific findings of the panel, it would be helpful to consider a general background regarding hernias which the panel has acquired through its duties and institutional expertise.

A hernia can be defined as a protrusion of an organ or tissue outside of its normal body cavity. Abdominal hernias are protrusions through weaknesses in the abdominal wall. Inguinal hernias are the most common type of abdominal hernia. There are two types of inguinal hernias involving different anatomy. There are:

Direct inguinal hernias are less common that indirect inguinal hernias. They are limited to the groin area and do not extend into the scrotum or labia. Unlike inguinal hernias, they are not the result of a congenital anomaly. They are a herniation through an area of relative weakness in the abdominal wall. Abdominal walls tend to weaken in middle to old age.

There are a number of factors that increase intrabdominal pressure and can cause or contribute to the development of a hernia or the progression of an existing hernia. These include chronic coughs, obesity, strenuous physical effort, heavy lifting and prolonged standing.

The majority of hernias develop insidiously with no single precipitating event. A minority of hernias are precipitated by a single identifiable episode. It is important to understand that even if they are precipitated by a single event, the onset of a hernia may go unnoticed. After the onset of a hernia, the majority of persons have no further symptoms for a variable time. The minority have continuing discomfort or pain.

Overall, almost all hernias enlarge over time. As the hernia enlarges, pain and discomfort are more likely.

Key Findings

Based on a balance of probabilities and considering the evidence as whole, the panel makes the following key findings:

•  the worker suffered a right direct inguinal hernia as confirmed by the surgeon's report of November 12, 2008;

•  the worker's workplace duties on September 11 and 12, 2008, involved heavy lifting, strenuous physical effort and prolonged standing. The panel bases this conclusion on the worker's evidence on this point which it considers to be credible. It notes that the employer did not take issue with the worker's description of his duties on the days in question;

•  strenuous physical effort, heavy lifting and prolonged standing are conditions that increase intrabdominal pressure and can cause or contribute to the development of a hernia;

•  the worker's injury was a consequence of his workplace duties of September 11, 2008. In drawing this conclusion, the panel relies heavily on the worker's evidence that he felt fine when he arrived at work on September 11, 2008 and that as his heavy lifting continued he began to feel discomfort as represented by a tingling in his groin.

Given the onset of the symptoms at the workplace and the fact that the worker's strenuous work activities are well recognized as conditions that increase intrabdominal pressure and can cause or contribute to the development of a hernia, it is the panel's view that the abdominal injury was an accident arising out of and in the course of the worker's employment.

The panel acknowledges that the worker did not feel a sharp pain or something immediately give. However, the panel is aware that in many cases the onset of a hernia may be unnoticed and that the pain and discomfort may only emerge over time or in the face of further aggravation.

The panel also is aware that the worker's incident report suggested the onset of symptoms did not take place during work on September 11, 2008. However, the panel carefully assessed the demeanor of the worker during oral evidence and considers him to be credible. In the panel's view, based on a balance of probabilities and considering its assessment of the worker's demeanor, it prefers the direct oral evidence of the worker to the information provided in the incident report.

The panel places heavy reliance on the corroboration of the worker's discomfort at the workplace on September 11 through the statement of his co-worker. The panel notes as well that the worker's statement of September 19, 2008 is consistent with his oral evidence.

•  the worker's duties of September 12, 2008 furthered the injury suffered on September 11, 2008. In drawing this conclusion the panel accepts the unchallenged evidence of the worker that he was engaged in heavy lifting on September 12, 2008 and that his condition worsened as his day continued. It again notes that strenuous physical effort and heavy lifting are conditions that are recognized as contributing to the progression of an existing hernia.

•  While the worker was involved in a motor vehicle accident on September 11, the accident was not a factor in the worker's injury. In making this conclusion based on a balance of probabilities, the panel notes that the uncontested evidence that the accident was a relatively minor “clip” followed by a “rub” on a curb and guardrail. In the panel's view, based on a balance of probabilities, the side to side nature of this accident is unlikely to have exacerbated intrabdominal pressure to the degree that it would cause a hernia. The panel notes that no injury claim was filed with MPI as a result of the motor vehicle accident;

•  While the worker did play slow pitch, his participation in the sport was not a factor in the worker's injury. The panel notes the worker's evidence that his primary duty in slow pitch was batting and that he had a substitute runner. In the panel's view, based on a balance of probabilities, the nature of his slow pitch activities are unlikely to have exacerbated intrabdominal pressure to the degree that it would cause a hernia.

Conclusion

Based on a balance of probabilities and considering the evidence as a whole, the worker suffered a personal injury by accident arising out of and in the course of the employment. The appeal is allowed.

Panel Members

B. Williams, Presiding Officer
R. Koslowsky, Commissioner
D. Zirk, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 1st day of October, 2010