The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is presently appealing a decision by the Workers Compensation Board ("WCB") that his left inguinal hernia did not arise out of and in the course of his employment on February 3 or 4, 2003. The worker disagreed and an appeal was filed with the Appeal Commission. A hearing was held on May 1, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On December 30, 2011, the worker filed a claim with the WCB for an abdomen/groin injury. The worker described the accident as follows to the WCB's claim centre:

I was pulling on a chain that was attached to a crane that was moving a load. The chain released from the sprocket and I would have to pull on the chain to reset it into the sprocket. While pulling on the chain I felt a sudden sharp pain to my abdomen.

The worker reported that he was not sure of the exact date of accident. He said he did not report a specific incident to his employer but he did go for hernia surgery and he worked up until his surgery date of April 4, 2003. The worker noted that he had constant ongoing pains from the injury and that a recent MRI showed scarring which he thought was the cause of his pain.

On January 5, 2012, the employer advised the WCB they had no record of the worker being injured while in their employ. The worker had not worked with the company since March 4, 2003.

On February 2, 2012, the worker advised a WCB adjudicator that he did not report the injury to his employer at the time it occurred as he was unaware of the compensation system because he had only been in Canada for one and a half years. The worker provided the name of a co-worker who he thought could verify that an incident occurred and he was going to call the adjudicator back with a phone number for the co-worker. As of February 10, 2012, the worker had not provided the WCB with the co-worker's phone number.

In a decision dated February 10, 2012, the worker was advised that the WCB was unable to establish a relationship between the development of his hernia condition and a specific incident or injury "arising out of and in the course of" his employment. Based on these findings, the WCB was unable to accept responsibility for the claim.

On April 27, 2012, the worker provided the WCB with additional information which included the telephone number for the co-worker. The worker indicated that the date of accident was February 3 or 4, 2003. He was attempting to move an overhead crane by pulling on a chain and he felt immediate discomfort in his groin and abdominal area. There was no lump visible shortly after the incident but he noticed increasing discomfort. He did not want to report the incident to his employer as he was new to the company and did not want to lose his job.

The WCB adjudicator spoke with the co-worker on April 27, 2012. The co-worker confirmed that he knew the worker. He said the worker told him that he injured himself at work and that he was going to see a doctor. The worker did not provide details of the accident. The co-worker was unable to recall the specific month, year or area of injury. The co-worker confirmed that there was a lot of heavy lifting involved in the area where the worker worked.

Medical information consisted of an operative report which showed that the worker underwent laparoscopic repair of a left indirect inguinal hernia on April 4, 2003.

In a report to the WCB dated June 5, 2012, the treating physician reported that he saw the worker on February 7, 2003 because of pain in the left groin. At this visit, the worker was diagnosed with a left inguinal hernia and he was referred to a surgeon for hernia repair. The physician stated that one complication related to the surgical procedure was chronic pain in the left groin which may be related to entrapment or scarring of the left femoral nerve. He commented that the worker was sent for surgical and neurological consultations but he still complained of pain in the left groin area with radiation to the testicle.

On August 1, 2012, the worker was advised that the WCB considered the medical information and it was unable to establish that the worker's injury arose out of and in the course of his employment. The adjudicator's decision was based on the finding that the co-worker was unaware of the manner in which the worker was injured and the treating physician did not provide a mechanism of injury in his report.

On August 13, 2012, the treating physician advised the WCB that he did not submit a report to the WCB in 2003 as the worker did not want to pursue a claim.

The treating physician submitted a doctor's first report for an examination dated February 7, 2003. The worker's description of injury was "During pulling heavy object developed pain in the left groin." The diagnosis was a left inguinal hernia.

On August 17, 2012, the WCB advised the worker that the additional information was considered; however, the WCB was unable to approve his claim for a hernia sustained in 2003. The worker was advised that no one from his place of employment was aware of the manner in which he was specifically injured and therefore the WCB was unable to confirm that his injury was work-related. On September 19, 2012 the worker appealed the decision to Review Office.

Prior to considering the worker's appeal, Review Office requested 2002/2003 medical information related to the worker's left groin region. Review Office also contacted the employer on November 26, 2012 for additional information. The employer indicated that the worker was employed with the company for one to two years. The owner recalled that the worker returned to work following his groin surgery and that he stopped working after that but he could not remember the reason why as it was too many years ago. The employer indicated that the worker never reported a groin injury.

On November 26, 2012, Review Office confirmed that the claim was not acceptable as it was unable to establish that the worker's hernia condition was the result of an event arising out of and in the course of his employment on February 3 or 4, 2003. Review Office referred to the medical evidence on file and the information submitted by the worker and the co-worker to support its position. On December 12, 2012, 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 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 left hernia arose out of and in the course of his employment.

Worker's Position

The worker represented himself at the hearing with assistance from a translator. The worker answered questions posed by the panel.

The worker advised the panel that he was working as a welder in 2003. He said there was an overhead crane for moving heavy materials. To maneuver the crane into position, he had to pull a heavy chain which had significant resistance when pulled laterally. He recalled moving the crane one day and feeling a sharp pain. He continued to have pain. While the worker could not identify an exact date and time that the injury occurred, he advised that he sought medical attention shortly after the incident. He was diagnosed with a left inguinal hernia and subsequently had surgery to correct the hernia.

The worker said that he told his employer about the injury and that he needed to see a doctor, but the employer did not give him any form to complete or mention WCB. As for dealing with his physician, he did not talk to him about WCB coverage as he did not know he had coverage.

The worker advised that he finally filed the claim after he was told by a WCB representative, who was dealing with another claim many years later, that he could still file a claim and that the WCB would adjudicate it.

The worker advised that he continues to have problems related to the injury.

Employer's Position

The worker's employer did not participate in the hearing.

Analysis

The issue before the panel is claim acceptance. In order for the appeal to be successful, the panel must find that the hernia, which was diagnosed in February 2003, is attributable to the job duties the worker performed in February 2003.

After reviewing the evidence as a whole, we find on a balance of probabilities that the hernia is related to the worker's job duties and the claim is acceptable.

In coming to this conclusion, we rely on the following:

• The mechanism of injury described by the worker, the pulling of a chain to move the overhead crane, is an activity which can cause an increase in intra-abdominal pressure which is a known risk factor in the development of a hernia. The panel accepts that the tasks which the worker was doing could cause him to suffer a hernia.
• The worker sought medical attention for an injury on February 7, 2003, shortly after the injury occurred. The physician's chart notes for this date indicate "heavy lifting at work." We find this information supports a finding that the incident was work related although it provides an incomplete description of the MOI.
• A co-worker confirmed that the worker complained that he injured himself at work. He also confirmed that the worker's duties involved lots of heavy lifting. The co-worker was unable to identify the specific date of the injury. This provides additional confirmation that the worker was injured at work.

We note that the worker had two prior WCB claims. The worker explained that he did not file the claims but they were opened due to notice from the employer and /or hospital he attended. In the case of his 2001 eye injury, he was treated at a hospital which gave notice to the WCB. He did not know how WCB worked or what his obligations and rights were.

The worker said that he did not know he could file a claim for the hernia until many years later when he filed a claim for hearing loss. He said that the WCB representative dealing with the hearing loss claim advised him he could file a hernia claim, so he pursued this action.

We find the worker's explanation for the delay in filing his claim to be credible. The panel notes the worker was new resident in Canada, was not fluent in English and was not familiar with the workers compensation program because such a program did not exist in the other countries where he had lived. We are aware that significant time has passed since the injury occurred and that an application was not filed within one year as required by subsection 19(1). We consider this to be an appropriate case in which to enlarge the time for filing an application pursuant to Section 109.

Although there were some inconsistencies in the information provided by the worker when the file was opened and that provided at the hearing, we are satisfied that the injury arose as stated and that the claim is acceptable.

For the foregoing reasons, we find, on a balance of probabilities, that the worker’s left inguinal hernia was caused by his workplace duties, and therefore the claim is acceptable. The worker’s appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 29th day of May, 2013