Decision #55/11 - Type: Workers Compensation

Preamble

The worker is appealing a decision made by Review Office of the Workers Compensation Board ("WCB") which determined the evidence on file did not support that his hernia condition was related to an accident arising out of and in the course of his employment. A hearing was held on March 31, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On March 5, 2010, the worker filed a claim with the WCB stating that he was wheeling a stack of food product on February 4, 2010 when he slipped. He was going to fall back and he caught his balance and lurched forward. He said he felt a bit of a pop but did not think anything of it and continued working. Approximately February 22 or 23, 2010, he was leaning against the sink at home and as he bent forward he felt a bulge that could be pressed in and out. When he attended a physician on February 24, 2010, it was suspected that he had a hernia. The doctor questioned him and he related the accident history. He returned to the doctor on March 4, 2010, and reported that he had pain and it was decided that he should not be lifting products at work.

The employer's accident report dated March 31, 2010 indicated that the worker was lowering a stack of product trays to the ground from the back of his truck using a wheeler. He slipped and felt pain in his left lower abdomen/groin area. The injury had been reported to them on February 23, 2010.

A Doctor's First Report for an examination that took place on February 25, 2010, indicated "left groin pain from slipping at work." The diagnosis was a left inguinal hernia versus a groin strain.

On March 8, 2010, the worker told his adjudicator that he was not sure when he actually injured himself but it was around February 4. He confirmed that he was wheeling a stack of product and he slipped. When catching his balance he lurched forward and felt an immediate pull in his groin area. He knew something happened but was able to complete the remainder of his shift. The worker confirmed that he was washing his hands at home on February 23 and while leaning on the counter, he felt something like a sponge feeling in the left groin area. He started to feel around and noticed a bulge that he could press in and out. Prior to this, he noted that the area was swollen and he would have difficulties putting on his socks. The worker indicated that he did not have prior groin difficulties.

The adjudicator spoke with the worker's co-worker on March 8, 2010. He said he knew that the worker had a hernia and said it was probably a month ago when the worker said his groin hurt. The worker did not say how he was injured, only that it hurt.

In a March 8, 2010 decision, the worker was advised that there was not enough evidence to conclude that the onset of his groin difficulties was directly related to a workplace injury and therefore his claim was disallowed. The information used to make the decision was outlined as follows:

  • the worker was unable to confirm when his injury took place and there were no witnesses to confirm that he sustained injury;
  • the co-worker was unable to confirm that the worker's difficulties were due to a work related injury;
  • the delay in reporting his claim to the employer and in seeking medical attention.

On March 8, 2010, the worker appealed the above decision. He indicated that at the time of his injury, he thought he had pulled a muscle. He continued working like he had in the past. He worked for 3 weeks before realizing the extent of his injury. At that time he reported to his supervisor that his groin injury was not going away and made an appointment with a doctor.

On April 7, 2010, Review Office stated that it was unable to find that the worker suffered personal injury by accident arising out of and in the course of his employment. The reasons outlined by Review Office were as follows:

  • the worker could not identify the date that he injured his groin.
  • the worker continued to work at his regular work duties and his complaints were not corroborated by his co-worker.
  • the employer was not aware of the accident or any injury at the time of its occurrence.
  • the worker sought medical attention three weeks post injury.

In a submission dated June 10, 2010, a worker advisor acting on the worker's behalf, submitted new medical information to Review Office for consideration. The worker advisor submitted that the worker's claim was acceptable because the evidence supported that he suffered an injury arising out of and in the course of his employment. In the event that Review Office disagreed with this position, it was contended that the worker's claim was acceptable as a pre-existing condition enhanced by the work duties performed in February 2010.

In a second decision dated July 2, 2010, Review Office confirmed that the claim was not acceptable. Review Office stated in its decision that the worker had numerous opportunities to report his injury to his employer. It found that the worker did not report the injury to his employer as soon as was practicable as required in subsection 17(1) of the Act. Based on the worker's delay in reporting the injury and seeking medical attention, it was unable to find that the worker's hernia was causally related to a slip that occurred at work around February 4, 2010. It noted that although the worker's surgeon stated that the hernia was a classic case of a strain related hernia, the surgeon did not provide evidence to support that the strain occurred in the workplace as described by the worker. Review Office indicated that it was premature for it to rule on the issue of enhancement of a pre-existing condition as this issue had not been addressed by primary adjudication. On July 9, 2010, the worker advisor appealed Review Office's decision to deny the worker's claim and a hearing was held at the Appeal Commission on March 31, 2011.

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)

Analysis:

The issue before the panel is claim acceptability. In order for the appeal to be successful, the panel must find that the worker’s inguinal hernia injury arose out of and in the course of his employment. On a balance of probabilities, we are able to make that finding.

The worker's position:

The worker was represented by a worker advisor who made a presentation on his behalf. It was submitted that the employer's report to WCB confirmed the February 4, 2010 injury date and a co-worker had confirmed he suffered a hernia injury at that time. He had attended a physician within 15 days of the injury who confirmed the diagnosis of a left inguinal hernia. The worker's surgeon, in a letter dated April 27, 2010, then provided an opinion that the workplace injury led to a classic case of a strain related hernia.

The worker clarified the mechanism of injury (MOI) noting he works alone as a sales/delivery driver. While unloading food products from a 5 ton truck with a hand cart, his feet slipped on some ice accumulated at the rear of the deck. The delivery was a small order so he did not use the truck's power tailgate lift but instead used a 6 foot tall hand cart loaded with 7 trays that he would slide down at an angle until it contacted the ground, four and one half feet down. He estimated the weight for the hand cart was 40 pounds, the product weighs 1 pound each with 10 on a tray, which weighs about 2 pounds, so the load was 124 pounds.

The worker's evidence was that when the cart went off the edge of the deck, his left foot slid forward and his right foot turned out and sideways causing him to lose his balance. His weight was on his left side with his right foot behind him and he was pulled forward by the weight of the falling cart when he felt a pull in his left groin. In order to prevent himself from being pulled off the truck, he let go of the hand cart and regained his balance. His groin hurt for a little bit but he continued working, thinking it would get better.

Responding to questions from the panel, the worker testified that he has daily routes to service his 22 customers in retail outlets and some restaurants. He begins with his Winnipeg customers and then travels on different circular routes to rural towns on specific days. Some customers required daily deliveries while others were once or twice per week. When asked specifically by panel members why he was certain that he was injured on February 4, 2010 he noted that he recalled the exact customer by their order and he only delivers that route on Thursdays. He also testified that he does not participate in sports or other strenuous activity away from work.

The worker explained that he uses the power tailgate lift on his truck for 90% of his deliveries based on the size of the order. He noted that he delivers from 1200 to 2500 pieces of product per day. For the smaller deliveries that take 6 or 7 trays stacked about four feet high, he would not use the power tailgate but would slide the cart manually as described in the MOI. The worker testified that since the injury he no longer manually lowers the hand cart, but rather uses the power tailgate 100% of the time.

When asked about his symptoms, he explained that after feeling the original pull, he felt sore and stiff that evening but was able to go to work on the Friday. He had an uncomfortable pain but later he started to feel increased discomfort whenever he bent over. As far as his work duties, his evidence was that he worked much slower the rest of that day and had avoided heavy lifting since then. He testified that when he noticed the lump in the same area as the pain on February 23, 2010, he phoned his doctor the next morning for an appointment and reported the injury to his employer.

In reaching our conclusion the panel relies upon the following:

  • The worker's detailed testimony at the hearing of the MOI and the slipping incident.

  • The fact that the worker works alone and would not have a witness to the injury but did mention it to a co-worker who provided corroboration when contacted on March 8, 2010.

  • The worker was able to identify with sufficient certainty that he sustained an injury in the workplace on February 4, 2010. In our view, there was nothing uncertain from his evidence, of the details of the incident, that it occurred during a delivery.

  • The delay in reporting was adequately explained by the worker's evidence that he did not realize the significance of the injury until he noticed the bulge, at which point he immediately reported the matter to his employer and sought medical attention.

  • The totality of the medical evidence supports that an injury occurred which is causally related to the incident. The surgeon's letter of April 27, 2010 describes the MOI and the diagnosis of a "classic case of strain related hernia."

The panel therefore finds, on a balance of probabilities, that the worker suffered an inguinal hernia injury in an accident which arose out of and in the course of his employment. The claim is acceptable.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

S. Walsh - Presiding Officer

Signed at Winnipeg this 5th day of May, 2011

Back