Decision #21/12 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker's claim was acceptable. A hearing was held on January 25, 2012 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for a left groin injury that he related to his work activities as a production worker with the accident date of September 27, 2010. The worker's accident report was translated as follows:
"I got a groin hernia on the left side. I am not sure when I got it. When I was working, I felt pain in my left side. I went to see the doctor and he said that I need an operation. I received a written statement from the doctor telling me to do lighter work. I don't know when I will have an operation."
The employer's accident report dated October 4, 2010 indicated that the worker's claim was being filed with exception. The employer noted that the worker stated that his injury occurred four months ago with no prior reporting and that the mechanism of injury was being questioned as there was no specific incident.
A medical report from the treating physician dated September 29, 2010 stated:
"This 34 year old gentleman comes in with an interpreter…He works at [employer's name] where they do a lot of lifting of heavy boxes, etc. He developed a painful lump in his left groin and he said for the last 2 days it has been quite painful. On examination, he has a fairly large inguinal hernia which is reducible at this stage but it is not particularly tender on examination. A very positive cough reflex as well…I am going to refer him to [surgeon's name] on an urgent basis. He is not to do any heavy lifting at work and a medical certificate was given as such…"
Primary adjudication obtained additional information from the worker and the employer regarding the worker's onset of symptoms, a description of his work duties, reporting of the accident, etc.
The worker underwent surgery on December 1, 2010 to repair the left inguinal hernia.
On December 17, 2010, a WCB medical advisor reviewed the worker's file and stated:
"No incident is described as being the start of the left groin pain. The worker reported to the nurse on September 30, 2010 that he had a lump in his left groin for 4 months. The worker reported to his attending physician that he developed the left groin pain after lifting boxes. Lifting boxes is not part of the worker's job duties. I do not see a probable cause and effect basis that a workplace injury caused the worker's current left inguinal hernia. Hernias can appear spontaneously."
On December 20, 2010, a decision was issued to the worker that his claim for compensation was not acceptable as the WCB was unable to establish that his hernia condition was the result of his workplace activities. The case manager noted that the worker felt some symptoms in his left groin area approximately two months prior to reporting it to the employer. The worker continued working and on September 28, 2010, he reported to his employer that he had been feeling symptoms for four months. The worker felt it was related to his workplace duties but he did not identify a specific accident.
In a January 5, 2011 report to the WCB, the treating surgeon outlined the opinion that the worker's hernia was a result of his workplace environment. He stated that the worker did a moderate amount of heavy lifting in his job and he had noticed a lump in the late summer and subsequent pain in the region on September 28.
On February 16, 2011, a worker advisor, acting on behalf of the worker, submitted to Review Office that there was a causal relationship between the worker's left inguinal hernia and his work duties and that the claim should be accepted. The worker advisor opined that the repetitive flipping of product with the left hand can put more stress on the left abdominal wall and that the dumping of large buckets of product once a week would qualify as an occasional activity that the worker would not be accustomed to. She noted that the worker notified his employer the day following the onset of his groin pain and sought medical treatment the next day.
The worker advisor's submission was provided to the employer's representative for comment. On May 18, 2011, the employer's representative submitted to Review Office that there was no evidence to show that the worker's hernia condition arose out of and in the course of his employment. The representative noted that contrary to what the worker told his treating physician, the worker does not lift heavy boxes at work. She noted that there was nothing unusual about the worker's duties that could have contributed to the development of the worker's hernia. The worker delayed in reporting the problem to the employer and he did not seek medical treatment when he noticed the hernia while showering at home. She noted that the worker did not do any activity at work which he was not accustomed to and he did not experience severe and immediate discomfort related to any workplace activity. It was concluded that in the absence of evidence of a workplace accident or any specific incidence of pain on bending, crouching or lifting at work, the worker's hernia was not caused by his job duties.
On May 25, 2011, Review Office determined that the worker's claim was acceptable for an accident occurring on September 27, 2010 based on the following factors:
- the worker said he noticed a lump a few months prior to September 27, 2010 while in the shower. It did not cause him any discomfort. Review Office accepted this information as evidence that on a balance of probabilities, the worker had developed a hernia.
- based on the worker's statement "I got a groin hernia on the left side. I am not sure when I got it", Review Office determined that the worker's hernia was a pre-existing condition of an unknown cause.
- there was evidence on file to support that the worker had an enhancement of his pre-existing hernia condition on September 27, 2010 as a result of his work duties.
On June 6, 2011, the employer's representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation and Policy
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, and state 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 hernia arose out of and in the course of his employment.
Where the worker has a pre-existing condition, the requirements of WCB Policy 44.10.20.10, Pre-Existing Conditions may be applicable.
Employer's Position
The employer was represented by an advocate and its Health Care Supervisor. Prior to the hearing, the advocate provided an article on inguinal hernias.
The employer advocate indicated that the employer agrees that the worker's work duties did not cause the worker's hernia. However, the employer disagrees with Review Office's determination that the work duties enhanced the worker's pre-existing condition.
She submitted that there is no evidence of enhancement of the pre-existing hernia. She noted that the worker told the employer that he had pain at the site for 4 months. She said that the worker was working at the same duties without any complaints and that there was no specific incident. She noted that the worker said he was not sure when he got the hernia, other than he noticed lumps 2 months before while in the shower. She also noted that the worker said he thought it must be due to work because he is not involved in other activities.
The employer's representative stated that the opinions of the treating physician and surgeon should not be considered because they are based on the misunderstanding that the worker's duties involved heavy lifting. She noted that the WCB medical advisor commented that he could not see a probable cause and effect relationship between the worker's duties and hernia. He noted that hernias can appear spontaneously.
The employer's representative noted that hernias do not go away and require surgery to repair. She questioned how a hernia can be enhanced. She said that feeling pain does not mean there has been an enhancement. There must be an intervening activity that caused the surgery.
Regarding the worker's job duties, she said the duties do not involve twisting, bending, or lifting that would cause a hernia. She referred to a video which the employer prepared of workers performing this job. The employer representative advised that the employer has not received any claims for hernias arising from these job duties. She submitted that the claim should not be accepted.
Worker's Position
The worker did not participate in the hearing.
Analysis
The issue before the panel is whether the worker’s hernia arose out of and in the course of his employment. In order for the appeal to be successful, the panel must find on a balance of probabilities, that the hernia was caused, aggravated or enhanced by the worker’s job duties.
The evidence on the claim file is that the worker noticed a lump in his groin when showering in July 2010. The worker indicated that he did not know when he got the hernia. There was no specific event or time identified. We have considered the worker's job duties and find that there are no duties which would have been causative of an inguinal hernia. We also note the employer's evidence that it is not aware of any other reported cases of hernia arising from these job duties. We are unable to find, on a balance of probabilities, that the worker's job duties caused the hernia.
We must also consider whether the worker's job duties aggravated or enhanced the worker's pre-existing hernia as provided by WCB Policy 44.10.20.10, Pre-Existing Conditions. The evidence on file indicates that the worker reported feeling pain in the area of his groin while at work on September 27, 2010. He indicated that it was a pulsating pain that he had not felt before. He attributed the pain to his duties on that date. Specifically, he said that the pain developed when he was performing the act of overturning or flipping product which weighs approximately 20 pounds while working on a production line. We note that he was performing his normal duties and there was no change in the duties.
To accept that the worker's hernia condition was aggravated or enhanced, we must find that the worker's duties caused a worsening of the pre-existing condition. If the worsening is temporary it is an aggravation, if it is permanent or makes surgery necessary, it is an enhancement. We must be satisfied that, in addition to experiencing pain, there is a physical change to the condition which was caused by the work activity.
We have concluded that the worker's hernia was enhanced by his work duties on September 27, 2010. In arriving at this conclusion we place significant weight on the evidence that the worker felt an unusual pain while performing a specific duty, flipping product. We also place weight on the fact that the worker's pre-existing hernia did not cause him to seek medical treatment nor seek modified duties. It is only after the incident that the worker's hernia became painful and resulted in seeking medical attention. We note from video provided, that the worker's job involves standing at a table where he would manipulate and trim product, which was not uniform in size or in how it reached him on a conveyor line. A variety of movements of arms and body were utilized on the product line, some of them potentially awkward and capable of placing pressure in the area of the worker's inguinal hernia. We find that the task of overturning or flipping the product which weighs approximately 20 pounds was sufficient to cause the worsening of the worker's pre-existing hernia which resulted in him seeking immediate medical treatment and in expediting the hernia repair surgery.
We are satisfied this case meets the requirements of WCB Policy 44.10.20.10, Pre-Existing Conditions. The employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 2nd day of February, 2012