Decision #80/11 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker suffered a personal injury by an accident arising out of and in the course of his employment on April 23, 2009. The employer disagreed with this decision and an appeal was filed with the Appeal Commission. A hearing was held on April 28, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable as a right inguinal hernia injury.

Decision

That the claim is acceptable as a right inguinal hernia injury.

Decision: Unanimous

Background

The worker filed a claim with the WCB on October 16, 2009 claiming that he suffered an injury to his right lower abdomen on April 23, 2009 while lifting a pan weighing about 200 pounds. He said he had to squat and lift the pan about four or five feet. The worker said he felt an uncomfortable burning pain but finished his shift. The accident was reported to the employer on September 24, 2009 and he sought medical attention on September 29, 2009. The worker noted that he felt a sharp pain over the weekend and he could not walk. He did not notice a lump but it was sore to the touch. When he did see the doctor, it was thought that he had a hernia and he was sent for an ultrasound.

The employer's report of injury indicated that the worker reported on October 3, 2009 that the April 23, 2009 incident occurred while installing a brake line and bottom guards. The worker alleged that he did not immediately report the incident as he thought the injury was not severe at the time.

In a report dated September 23, 2009, the physician noted that the worker presented with pain and discomfort which occurred during a non-work related activity. He noticed some tenderness and possibly a mass in the right posterior scrotum. Following the assessment, it was felt the worker had a moderate inguinal hernia on the right side.

In a doctor's first report dated October 13, 2009, the treating physician described the worker's injury as right inguinal pain after lifting a truck pan.

On October 20, 2009, the worker advised the WCB that he did not miss time from work due to his injury. He noticed symptoms immediately and he kept working as he thought it would go away.

In a decision dated October 20, 2009, the worker was informed that his claim for compensation was denied as the medical information showed that when he first noticed pain and discomfort he was not performing job duties. As a result, the WCB was unable to confirm that an accident occurred as defined in subsection 4(1) of the Act based on the information provided from the physician, the delay in reporting and the delay in seeking medical treatment.

The worker underwent a right inguinal hernia repair on November 3, 2009.

On November 26, 2009, the worker provided the WCB with new information to support his claim, which consisted of the following information:

  • a statement from a co-worker who confirmed that the worker, on April 23, 2009, started to complain of lower abdominal pain after he lifted and bolted heavy pans.

  • a report from the specialist who stated that he erred in his remarks of September 23, 2009. He noted that the worker's pain occurred at work while lifting and not during a non-work related activity. The specialist stated that the worker had corrected this information and he had no reason to doubt the worker.

  • a report from the family physician dated October 27, 2009 stating that the worker mentioned he sustained an injury with heavy lifting on April 23, 2009 and was not able to see him right away and this gradually became worse. The physician outlined the opinion that the worker's right inguinal hernia was caused by his repetitive job action and heavy lifting as a heavy duty mechanic.

On January 8, 2010, the WCB case manager spoke with the person who was working with the worker in April 2009. He noted that the worker moved several pans by himself. He dragged them about 5 to 10 feet across the floor. One worker would lift the pan and then the other would bolt it into place. They installed 3 pans that day and also lifted an old battery and installed a new one. The worker told him half way through his shift that his stomach was bothering him down low and the worker complained of this during the remainder of his shift. He helped the worker with some of his duties and the worker completed his shift. He worked with the worker the next day and the worker performed all of his regular duties. From that day on, the worker stated that he was in pain. He noted that co-workers were doing all of the heavy lifting for the worker, as the worker could not lift anything anymore.

The case manager spoke with a different co-worker on January 14, 2010. The co-worker indicated that he did not know the exact date that the worker injured himself. He noted that the worker would tell him that he was having pain in his leg/groin area.

On February 2, 2010, the case manager spoke with the worker's supervisor. He stated that he first heard about the injury somewhere near the beginning of the summer. He noted that the worker strained himself. The worker told him on several occasions that "something was not right."

Further medical information showed that the worker was seen on May 12, 2009 with complaints of bilateral scrotal tenderness for approximately three weeks. The diagnosis was "query epididymal orchitis." At a follow-up visit on June 2, 2009, the diagnosis was abdominal pain NYD (not yet diagnosed). At a further visit held on September 25, 2009, the treating physician noted that the worker presented with right lower quadrant (abdominal) discomfort and was diagnosed with a small inguinal hernia by a specialist.

A WCB medical advisor reviewed the file on February 15, 2010. He noted that hernias develop as a result of sustained episodes of increased intra-abdominal pressure as produced with heavy lifting and straining. The clinical manifestations of an inguinal hernia may be difficult to detect in the initial/early stages and it seemed likely that, in the worker's case the presence of the hernia, while symptomatic, was not detected on the initial assessment by the family physician. The medical advisor commented that epididymal orchitis can result from infection and equally can be associated with straining as with heavy lifting.

In a second decision dated February 19, 2010, it was confirmed to the worker that the WCB was unable to establish a relationship between his hernia and an accident stated to have occurred on April 23, 2009. Primary adjudication noted that the worker did not mention a work related incident having occurred during his medical appointments on May 12, 2009, June 2, 2009, September 23, 2009 or September 25, 2009. There were inconsistencies regarding complaints made to co-workers in relation to the April 23, 2009 incident date.

On March 25, 2010, a worker advisor acting on the worker's behalf, submitted to Review Office that the worker's described incident that occurred April 23, 2009 had been confirmed by witnesses and the worker's diagnosis matched the mechanics of the injury. The October 27, 2009 report provided medical support for a causal relationship.

In a submission dated May 10, 2010, the employer's representative agreed with the decision made on October 22, 2009. The employer submitted that on a balance of probabilities, a relationship had not been established between the worker's right inguinal hernia and a workplace incident. While it was acknowledged that the purported accident mechanics of April 23, 2009 could produce the condition, it was submitted that the preponderance of evidence contradicted such a relationship.

In a memo dated June 11, 2010, Review Office called the family physician's office and spoke with his nurse. After checking with the doctor, it was confirmed that the worker's symptoms on May 12, 2009 were right sided and not left sided as noted in his initial reports.

In decision dated June 16, 2010, Review Office determined that the worker's claim for compensation was acceptable. Review Office placed weight on the following information in making its decision:

  • co-workers confirmed the worker lifted significant weight on April 23, 2009 and complained of lower abdominal pain thereafter;
  • the worker's supervisor confirmed that the worker complained of stomach pain which started in early spring and confirmed the worker's lifting duties;
  • on May 12, 2009, the worker's entrance complaints to his doctor were tenderness of three weeks duration. A hernia was not detected at this time but later a urologist diagnosed the worker with a right inguinal hernia;
  • the worker did not report the accident to his employer because he did not know the medical cause for his symptoms. He reported the accident to the employer in October 2009 after he was informed by the urologist that he had a right inguinal hernia; and
  • the opinion expressed by the WCB medical advisor on February 15, 2010.

On June 29, 2010, the employer appealed Review Office's decision to the Appeal Commission and a hearing 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:

A representative from the employer appeared at the hearing. It was submitted that the preponderance of evidence called into question the relationship of the hernia condition to the workplace. Although some complaints of abdominal discomfort to various co-workers could be confirmed, it was submitted that attributing the hernia to the workplace or the incident of April 23, 2009 was an afterthought. It was only after the worker was made aware that lifting could cause a hernia that he consulted his log book to identify an appropriate situation in and around that point in time. The representative also noted that the worker saw his attending physician on May 12, 14 and June 2, 2009 but did not tell him about the onset of pain during the lifting incident that would have occurred just three weeks prior. It was only after the diagnosis of a hernia was made did the worker identify the work related accident history. It was submitted that the specialist's initial report of September 23, 2009 which identified onset of discomfort during a non-work related activity was more credible.

The worker's position:

A worker advisor appeared at the hearing to represent the worker's interests. It was submitted that the worker's regular job duties included lifting heavy objects and the mechanics of the injury correlated with the diagnosis of a hernia. Co-workers were able to confirm complaints of pain, and the treating physicians provided medical reports in support of the position that the hernia was caused by the action of heavy lifting. As the evidence supported that the claim met the requirements of the Act, the WCB's decision should not be overturned.

Analysis:

The issue before the panel is whether or not the claim is acceptable as a right inguinal hernia injury. 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 November 20, 2009, is not related to the job duties the worker performed on April 23, 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 April 23, 2009 did contribute to his right inguinal hernia and the corresponding need for surgery.

Although there was a gap of five months between the performance of the job duties and the formal diagnosis of a hernia, the panel finds that this was due to a delay in diagnosis of the hernia condition. The lack of a distinct lump or bulge may have led to other differential diagnoses being investigated before the inguinal hernia was finally identified by the specialist. It was clear, however, that the worker consistently complained of abdominal pain from the time of the lifting incident and onwards. The co-worker who worked alongside the worker on that date was able to confirm that the worker was complaining of pain during that shift, and other co-workers corroborate ongoing complaints of abdominal pain commencing around the time of the incident.

With respect to the correction made by the treating specialist to his report of September 23, 2009, the panel accepts the revision as explained by the specialist and we find that the pain and discomfort first occurred when the worker was at work, while lifting.

The panel notes the February 15, 2010 opinion of the WCB medical advisor who stated that: "Clinical manifestations of an inguinal hernia may be difficult to detect in the initial/early stages, and it seems likely that, in [the worker's] case the presence of the hernia, while symptomatic, was not detected on initial assessments by [the family physician]." We accept that this is what occurred in the present case, and while there was some delay in diagnosis, we are satisfied that the hernia occurred during the heavy lifting performed by the worker in the course of his employment on April 23, 2009.

For the foregoing reasons, we find that the worker’s claim is acceptable as a right inguinal hernia injury. 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 21st day of June, 2011

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