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. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity resulting from the accident ends. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

The key issue to be determined by the panel deals with causation and whether the worker’s left direct inguinal hernia arose out of and in the course of his employment.

The worker’s position:

The worker was assisted by a worker advisor at the hearing. It was submitted that the evidence supported a relationship between the employment duties and the injury of October 6, 2009. The worker's work duties included repetitive and heavy lifting. On the date of the accident, he was lifting a heavy object and felt a pull in his groin. This incident was reported to the employer. While the worker was able to continue with his regular work activities, he thought the initial difficulty with the lump was minor. It was submitted that his belief that his injury was minor and would resolve on its own was reasonable. Literature regarding hernias was referred to which stated: "Some inguinal hernias don't cause any symptoms, and you may not know you have one until your doctor discovers it during a routine medical exam. Often, however, you can see and feel the bulge created by the protruding intestine." It was submitted that this description of symptoms was consistent with the worker's experience.

The employer’s position:

A representative from the employer was present at the hearing. It was the employer’s position that the necessary nexus between the hernia condition diagnosed on February 3, 2010 and the compensable incident of October 6, 2009 was not supported. It was noted that the worker missed no time from work, continued to perform his full regular duties (which involved heavy lifting) and continued to play hockey. The existence of a lump the next day had never been corroborated and the employer questioned why the worker did not seek a medical explanation for the lump sooner than February 3, 2010. There are numerous causes for the onset of inguinal hernias and it was submitted that these may have been the cause of the worker's condition.

Analysis:

The issue before the panel is whether the worker’s left direct inguinal hernia arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find that the hernia, which was diagnosed on February 3, 2010, is attributable to the job duties the worker performed on October 6, 2009.

After reviewing the evidence as a whole, we find on a balance of probabilities that the hernia is related to the October 6, 2009 incident. In coming to this conclusion, we rely on the following:

• There is record of a specific incident which occurred on October 6, 2009. Although the worker considered the incident to be minor, he nevertheless filled out a green Notice of Injury card which documents that he felt a pull in the groin area that day.
• At the time of the incident, the worker was lifting a heavy piece of equipment weighing approximately 60 lbs. Strenuous physical effort which causes an increase in intra-abdominal pressure is a known risk factor in the development of a hernia. The panel accepts that the task which the worker was doing could cause him to suffer a hernia.
• The worker’s evidence at the hearing was that the next morning when he was in the shower, he detected a lump in his left groin area. The lump was new and had not been there before.
• From the time he first detected the lump on October 7, 2009, until the date the lump was diagnosed by his physician as a hernia, the worker did not experience any problems with the lump or his groin area. The lump remained the same size and was asymptomatic.
• The lump was diagnosed as a hernia on February 3, 2010 by the worker's family physician. The worker was seeing his physician for an unrelated medical condition when he asked the family physician to take a look at the lump. The lump was not bothering him but he thought he would have it examined while he was there. It was only then that the hernia was identified and restrictions of lifting maximum 20 lbs were imposed. Up until then, the worker had been regularly lifting items 20 lbs and greater.
• The worker did not see his family physician very often and estimated that he had only seen his physician once in the year prior.
• It is the panel’s understanding that after a hernia develops, the hernia may remain completely asymptomatic for months and even years. Over time, however, an inguinal hernia will gradually increase in size and as it enlarges, it is more likely to cause pain or discomfort.
• Although the worker continued to perform his physical duties and participate actively in sports from October 2009 to February 2010, the panel accepts that the hernia remained asymptomatic and caused him no problems during this four month period. The panel places weight on the fact that, despite the absence of any pain or discomfort, the lump in his groin was continually present and had been since the worker first detected it the morning after the incident.
• The panel also finds that given the asymptomatic form of hernia, it was not unreasonable for the worker to delay in seeking medical attention.