Decision #132/11 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") which denied his claim for compensation in relation to a bilateral hernia condition that he related to his employment duties as a drywaller. A hearing was held on September 12, 2011 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB on November 15, 2010 for a groin injury that he attributed to his employment activities as a drywaller. Attached with the worker's incident report was a Doctor's First Report for an examination that occurred on November 12, 2009. The physician reported that the worker's hernia was caused by strenuous lifting and repetitive movements as a drywaller. The worker was scheduled for a bilateral laparoscopic hernia repair on November 23, 2010.
A WCB adjudicator spoke with the worker by telephone on December 3, 2010 to gather additional information. The worker indicated that he was unable to recall any specific incident that preceded the onset of his hernias. He just noticed it increasing over the last couple of years. He did not know he had a hernia until he saw the doctor. The worker thought that he noticed the right side around September 2009. He thought his hernias came about from lifting drywall or pails of mud, and he did not feel any ripping or have any sudden pain or nausea. It just came on and increased in size over time.
On December 3, 2010, the worker was advised that the WCB was unable to accept responsibility for his claim as it was unable to establish that his bilateral inguinal hernias were the result of a specific work-related incident or trauma or that it arose "out of and in the course of" his work duties. On December 27, 2010, the worker appealed the decision to Review Office and submitted a report from his treating physician dated December 22, 2010 for consideration.
On February 4, 2011, Review Office confirmed the adjudicator's decision that the worker's claim for compensation was not acceptable. Based on a review of the file documents, Review Office indicated that there was no evidence of a work-related precipitating event that would lead to the development of one or both of the worker's hernias. Although the worker's job involved physical work, Review Office felt there was no evidence to specifically link the performance of his job duties to the development of one or both of his inguinal hernias. On March 7, 2011, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
This appeal deals with claim acceptance. The key issue to be determined by the panel deals with causation and whether the worker’s hernias arose out of and in the course of his employment.
Worker's Position
The worker attended the hearing and explained the reasons for his appeal.
The worker said that he first felt a lump in his right groin area but did not see his doctor for about a month. He explained that he delayed in seeing the doctor because he does not like attending doctors. He decided to see his doctor because he was concerned that the lump was a symptom of a serious illness.
The worker said that he could not point to any particular event or incident that might cause the injury. He could not remember anything acute. He relies upon his physician's opinion that his employment duties could cause his injury. He said that his physician said that he would not have a hernia if he had a desk job.
Regarding other activities, the worker advised that he curls and sometimes goes fishing. He said that he had no cough or colds. He said his work involves heavy lifting of drywall and pails of mud.
The worker advised that he was not aware that he had a second hernia until his physician advised him that he had a second hernia.
The worker said that he is unable to point to any other cause than his physical job duties.
Employer's Position
The employer attended the hearing and advised the panel that he believes the worker's injury could have been caused by the worker's employment. He advised that the worker has worked for him for about 16 years. Regarding work activities, the employer advised that 25% of the work involved installation of drywall with taping, mudding and finishing being the remaining 75%. He said typically they use 12 foot sheets of 5/8 drywall. Most of the drywall is delivered to the site. They manually transport about 5% of the drywall. He said that usually they work together when transporting and installing drywall but do the taping and other duties alone. In addition to the worker, the employer often employs a third person as a helper, especially to assist with the heavier duties.
While he talks to the worker every day, he said that the worker is not a complainer. He advised that the worker did not advise him of the injury until after he had seen his physician.
Analysis
The issue before the panel is whether the worker’s hernias 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 hernias were caused or enhanced by the worker’s job duties.
We found the worker and employer to be very credible and forthright; however, in reaching our decision, we must rely on evidence which relates the injury to employment.
After reviewing the evidence as a whole, we are unable to find, on a balance of probabilities, that there is a causal connection between the hernias and the worker’s employment. In arriving at this decision, we rely on the following:
- The worker was unable to link his initial detection of lump in his right groin area to the performance of any job duties. He did not recall experiencing specific pain or injury at work. He could not relate the incident to an identifiable event. We are therefore unable to find evidence of a single precipitating event which arose out of and in the course of employment.
- The worker noticed that the lump would protrude as the day progressed and would get smaller after work when he was less active, but there was no instance reported by the worker that a lift or other heavy job had an effect on the hernia either in terms of causing pain or a change in size of the hernia.
- With respect to the left sided hernia, the worker advised that he did not know he had this hernia until his physician advised him.
- The worker’s job duties had not changed significantly when he first noticed the right sided hernia in September 2009. He had been performing the same job duties for 16-17 years.
The panel was unable to connect the onset or the worsening of the hernias to the worker’s job duties. There was no evidence of a work-related precipitating event. Although his job involved physical work, there was nothing to specifically link the performance of job duties to the hernias. In these circumstances, we are unable, on a balance of probabilities, to find a causal connection to the employment. We are not able to accept the worker's physician's opinion that had the worker been employed in a position which entailed "desk type" work, the worker would not have suffered a hernia.
The worker’s appeal is therefore denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 27th day of September, 2011