The Appeal CommissionThe Workers Compensation Act of Manitoba

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 abdominal ventral hernia arose out of and in the course of his employment as a warehouse technician.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. The worker's position was that there was a causal relationship between his pre-existing abdominal condition, the mechanics of his work duties and the onset of a ventral hernia in June 2005. In March and September 2004, the worker had abdominal surgery. He returned to work in November, 2004. Around June 2005, he experienced the onset of abdominal pain on his left side. As the pain was in the same area as the September 2004 surgical procedure, the worker initially thought that it was related to the surgery. As the pain progressively became more severe, the worker sought medical attention and was diagnosed with a ventral hernia. The worker's job duties required him to lift and carry product boxes and move them to racks for storage. While the weight of the boxes was not excessive, it was submitted that the awkward positions the worker had to use while moving the boxes put stress on his abdominal muscles. A report from the worker's physician provided medical information which supported a relationship between the onset of the ventral hernia and the worker's duties. It was therefore submitted that the claim should be accepted.

The employer's position:

A representative from the employer participated in the hearing. The employer was in support of the decisions previously made by the WCB and submitted that because there was a very limited description of the accident, it did not feel that the worker met the requirements of the Act. In the worker's report of incident, the injury was reported as nonspecific, so there was no detail of an accident ever occurring. With respect to the physical demands of the job, the employer noted that there was no evidence of heavy lifting at work, as the product boxes weighed only 5 lbs each, and the worker's evidence was that he would only be carrying four to six boxes at one time. The physical demands of the job were considered to be only at a medium level. The employer denied having cramped quarters as the shelving aisles measured about 40 inches wide. There were carts and other equipment available for technicians to use.  Finally, the job description indicated that crouching/bending/stooping/kneeling/ crawling and twisting were done at a "seldom" basis, which under the National Occupational Classification meant less than 5 percent of the day in total. Overall, it was submitted that there was no compelling evidence to support a compensable accident arising out of or in the course of employment.

Analysis:

The issue before the panel is whether the worker’s abdominal ventral hernia which was surgically repaired on November 4, 2005 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 relationship between the hernia and the worker’s employment. At the hearing, the worker described only a gradual onset of pain which he first noticed in June 2005, approximately seven months after he returned to work following his abdominal surgery. He was not able to link his detection of the hernia to the performance of any particular job duty. The worker's specific evidence was: "I noticed my increased symptoms at the beginning of June of 2005 and the pain got worse, and by beginning of July 1^st I had a hard time laughing, coughing, even getting out of bed." It is notable that the worker did not identify any of his work duties as activities which tended to elicit pain. He also could not point to a precipitating event where he was lifting or otherwise exerting himself at work and felt a distinct onset of symptoms.

The panel has considered the report of the worker's physician which suggests a relationship between heavier lifting, especially in difficult positions and cramped quarters, and strain of the abdominal muscle and fascia. He opines that this may have advanced the worker's reoccurrence of abdominal ventral hernia. While the physician's report suggests a possible relationship, it does not support a probable relationship between the work duties and the development or worsening of a hernia.

Unfortunately, with the physician's report only supporting a possible relationship, and in the absence of evidence of any specific incidence of pain on bending, crouching or lifting at work, the panel is unable to satisfy itself on a balance of probabilities that the worker's hernia was caused or enhanced by his job duties. We therefore find that the claim is not acceptable. The worker's appeal is dismissed.