Decision #11/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that his medical condition diagnosed as bilateral inguinal hernias and an umbilical hernia was not related to his work activities in early December 2010.

A hearing was held on November 29, 2011 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 24, 2010, the worker filed a claim with the WCB for a right inguinal hernia that he related to his employment as an electrical journeyman. The worker advised that his symptoms started in early December 2010 and he did not think anything of it. On December 22, he noticed a huge lump while taking a shower and that was when he decided to seek medical attention. The worker believed that his hernia was caused from the following job duties:

I was in the crawl space at the [name] building early December. In the crawl space you can't stand up and I was putting up conduit pipe for a fire alarm. You had to make a complete circle. There is a lot of pipe. You have to screw the pipe to the beams and make sure it's straight and you have to bend it with a bender. You have to use proper back and foot pressure to bend the pipe and in the crawl space there is not enough room and this is where it might have happened. There is also a lot of heavy lifting of pipe.

On December 24, 2010, the employer's representative advised the WCB that they laid the worker off on December 17, 2010 and he was not working for them on December 19, 2010.

On December 24, 2010, the worker provided the following information to a WCB adjudicator:

  • He did not know the exact date when the hernia occurred.
  • The worker believed that the injury was from crawling in a crawl space for 3 weeks and carrying pipes.
  • He did not get a chance to report the hernia to his employer because he didn't know he had it and he was laid off on December 17 due to a work shortage.
  • He had a sore stomach that was getting worse. It prompted him to seek medical attention so he went to a walk-in clinic. He was told that it was a hernia and he would need surgery.

Medical information revealed that the worker sought medical attention on December 22, 2010 after noticing a lump in the groin area. The diagnosis was a right inguinal hernia.

On January 10, 2011, the worker advised the WCB that he never had a prior hernia. He did not suffer additional aggravations or injuries at home or at work that could have caused his difficulties. He does not do anything strenuous unless he is at work. The hernia could have occurred when he was working in the crawl space or from moving a ladder. The ladder is made of fiberglass and it could have been the way he grabbed it. The worker said he told his co-workers that he was not feeling good. He thought his stomach was tightening up because of the work but in hindsight it must have been due to the hernia.

The employer's representative advised the WCB on February 7, 2011 that she talked to the worker's foreman, co-worker and site supervisor and the only complaint the worker made was that he "was getting too old for this." The employer confirmed that the worker was working in early December and was doing all types of electrical work. He would have been working in a crawl space without room to stand and he would have been putting up conduit pipe for a fire alarm. The worker would have to bend the pipes which were no greater than 40 pounds. There was no lifting greater than 40 pounds on the job.

A decision was issued to the worker dated February 2, 2011, stating that the WCB was unable to accept responsibility for his injury. The letter stated that there were three conditions that must be met in order for a hernia to be considered compensable. They were:

1) The condition must be diagnosed as a clinical hernia.

2) Its primary and most recent cause must be work related.

3) It must be immediately preceded by a strain or other traumatic incident.

The adjudicator was unable to establish that the worker's hernia arose out of and in the course of his employment based on the following rationale:

  • there was no change in job duties that preceded the onset of the worker's symptoms,
  • there was no traumatic incident at work to account for his hernia.
  • the worker delayed in reporting a work related injury to his employer and seeking medical attention.
  • the worker continued to work his regular duties.

On March 3, 2011, a worker advisor, acting on behalf of the worker, provided the adjudicator with additional information that he obtained from the worker in regard to his work environment in the crawl space along with other work tasks, his use of the electrical metallic tube bender, and his reporting of his difficulties to co-workers. The worker advisor submitted that while the circumstances of the worker's injury did not clearly meet the adjudicative criteria noted in the February 2, 2011 decision letter, the evidence supported that the worker sustained an accident as defined by subsection 1(1) of The Workers Compensation Act (the "Act"). In the event that the adjudicator disagreed with this position, the worker advisor submitted that the claim should be accepted on the basis that the worker's work duties likely aggravated and enhanced what would be considered a pre-existing condition.

Primary adjudication conducted a further investigation into the claim which consisted of phone calls with the worker's foreman and a co-worker. It also sought medical advice from a WCB medical advisor dated April 6, 2011. In brief, the medical advisor concluded:

"Although the activity of December 2010 would be associated with events resulting in increased intraabdominal pressure, review of the documentation on file does not provide evidence that a specific event occurred during the reported activity in December 2010 that was associated with a history of acute symptomology of [the worker's] diagnosed hernias…establishing a causal relationship between [the worker's] bilateral inguinal hernias and umbilical hernia and the activity of early December 2010 cannot be made."

By letter dated April 7, 2011, the worker was advised that the WCB was unable to establish a causal relationship between his bilateral hernias and umbilical hernia and his work activities in December 2010. With regard to the WCB's policy on pre-existing conditions, although the WCB acknowledged that his work activities may have brought his condition to light, the WCB was of the opinion that his job duties did not cause an aggravation to his hernias. On April 18, 2011, the worker advisor appealed the decision to Review Office.

On May 10, 2011, Review Office considered the file evidence which included a submission from the employer's representative dated May 4, 2011 and a further submission from the worker advisor dated May 12, 2011. Review Office confirmed that the worker's claim for compensation was not acceptable. Review Office was of the opinion that the initially diagnosed right inguinal hernia which became symptomatic on December 22, 2010 and the later diagnosed left inguinal and umbilical hernias cannot reasonably be found to have been caused, or aggravated by, the

work performed by the worker in the early part of December 2010. On September 13, 2011, the worker advisor 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 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 claims 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 was represented by a worker advisor who made a submission on behalf of the worker. The worker answered questions posed by the worker advisor and the panel.

The worker advised that he has worked as an electrician since 1979-1980. He described some of the projects he has recently worked on. He attributed his injury to work he did in the crawl space of a building. He described the crawl space and noted that, in some areas, it was less than 3 feet in height so he was required to work in a bent over posture. He advised that he had to move his tools into the crawl space.

The worker said that his duties in the crawl space included the installation of conduit pipe and cables for an alarm system. He was required to bend and hang the pipe and pull cable through the pipe.

The worker explained that he had to use a pipe bender. The worker brought in various lengths of pipe to demonstrate the bending technique. This was beneficial for the panel. He said it was difficult to use this tool in the crawl space.

The worker was asked when he first noticed something was wrong with his abdomen. He responded:

"Well it seems every time you have to lift something heavy, like for example, when you’re carrying a bundle of one inch pipe, it comes in a bundle of ten and I don’t know the exact weight of a bundle of one inch because nobody ever weighs anything, but we had to carry quite a distance when it was unloaded.

It was the first week I was there, in November I believe, it was just before Remembrance Day last year and we were carrying it to the elevator, the service elevator, to go up to the 7th or 8th floor. And what you notice is you always think your muscles, like your stomach is tightening, like as if you’re doing sit-ups. That’s the actual feeling always."

The worker also referred to an incident where he was pushing a cart. He noted that he complained to a co-worker about having a sore stomach and the co-worker did not witness the incident but confirmed that the worker complained to him.

With respect to December 19, the worker said "Well that’s when I woke up and I felt pain. And as the days went on, Wednesday was unbearable, and that’s the day I saw the lump. The lump might have been there before, I just never noticed it. It’s like the shape of a tiny pear."

When asked which duty he was attributing his injury to, the worker responded "All of the duties." When asked which duty he performed caused him to have a sore stomach, he replied: "The bending of the pipe on my knees. Not using proper foot pressure would have gave the greatest stomach pains."

The worker said that he does not participate in sports or other physical activities outside his employment.

The worker advisor disagreed with the criteria applied by the WCB and Review Office.

He stated:

"It is our position that the nature of work as described by the worker to the WCB from co-workers acknowledging that he reported pain while at work in relation to the work that he was doing. These symptoms were reported before his lay-off and while he was still employed with the employer. It’s our position that on the balance of probabilities, [the worker's] hernias were caused, but if not, then likely aggravated or enhanced by his work.

The worker advisor submitted that the worker's claim for a workplace injury is acceptable. He attributed the injury to unusual work demands in a confined space.

The worker advisor provided a copy of a decision by a panel of the Appeal Commission which accepted a claim for a work related hernia. He indicated this decision suggests that any activity causing intraabdominal pressure can cause a hernia. He submitted that there were a lot of activities unique to this particular job, between November and December, that "required and caused intraabdominal--increased intraabdominal pressure and that, as a consequence to that, the onset, if not the progression of the hernias."

The worker advisor also submitted that the evidence establishes that the worker's hernias were aggravated by the demands of the work. He said that the hernias required surgical intervention and suggested that if the conditions were not caused by the work duties, they were enhanced.

Employer's Position

The employer was represented by an advocate who made a presentation to the panel. The advocate indicated that based on the evidence the employer agrees with the Review Office decision. He said that the evidence indicates that the worker had pre-existing hernias that eventually required surgical intervention. He said there has been no compelling evidence to demonstrate that the hernias were caused by specific accidents incurred as the worker was working for the employer.

The advocate referred to the opinion of a WCB medical advisor who indicated that an accident could cause hernias but that there is no evidence that an acute accident occurred. He said there is no evidence to relate the hernias directly to the employment with the employer.

The employer advocate noted that the Appeal Commission decision referred to by the worker advisor involved very different facts from the present case.

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 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, including the job duties, onset of symptoms and worker's evidence at the hearing we are unable to find, on a balance of probabilities, that there is a causal connection between the hernias and the worker’s employment. We are unable to find that his duties as an electrician over a two month period caused or aggravated his hernias.

In arriving at this decision, we rely on the following:

  • The worker was not able to point to a clear cause of the hernias. At the hearing the worker attributed the injury to all the duties performed over the approximately 2 months that he worked on the project. In answer to a question from the panel, he said that the duty which caused his sore stomach was bending the pipe on his knees. He said "Not using proper foot pressure would have gave the greatest stomach pain."
  • While the worker complained to his co-workers on three occasions about stomach pain, he did not attribute the pain to the bending of the conduit pipe. One involved incident was with respect to pushing a cart up a ramp. He also complained about carrying heavy pipe in the crawl space. There was no immediate physical evidence of a hernia after these incidents. As well, the worker did not complain or report any symptoms or discomfort from the duties to the employer.
  • With respect to the umbilical hernia and left sided hernia, the worker advised that he did not know he had these hernias until his physician advised him.

We are unable to connect the onset or the worsening of the hernias to the worker’s job duties. The evidence does not establish a work-related precipitating event or a specific time over which the hernias developed. Although his job involved physical work, the evidence does not specifically link the performance of job duties to the development of the hernias. In the circumstances, we are unable, on a balance of probabilities, to find a causal connection to the employment.

We note the worker advisor referred to an Appeal Commission decision in support of the worker's claim. The Act requires that the Appeal Commission consider the real merits and justice of the case and provides that the Appeal Commission is not bound by legal precedent. However, we have considered this decision and note the facts of this case differ from those before us. In the case referenced by the worker advisor, the panel found that as a consequence of performing specific duties on a specific date the worker suffered a hernia. This is not the same as the situation before us.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 16th day of January, 2012

Back