The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") which determined that the worker's ventral hernia is related to his compensable injury of August 5, 2009. A hearing was held on February 26, 2013 to consider the matter.

Issue

Whether or not the worker's ventral hernia is related to the August 5, 2009 compensable injury.

Decision

That the worker's ventral hernia is related to the August 5, 2009 compensable injury.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a left abdominal injury that occurred at work on August 5, 2009. The worker reported that he was closing the emergency roof vent while standing in a vehicle that was stuck and while pulling down on the handle with both hands, his fingers slipped and he fell. This was when he felt a sharp pain on the left side of his abdomen.

On August 6, 2009, the worker attended for medical treatment and was diagnosed with an abdominal wall strain. The physician reported that the worker's injury occurred when "closing roof vent/suddenly closed and patient fell back - hit seat behind - felt pain on getting back up." The findings were tenderness in the upper abdominal wall and left lower costal margin. The physician also noted that the worker had a previous ventral hernia repair in 2006.

On August 7, 2009, the worker returned to his regular work duties. His claim for compensation was accepted based on the diagnosis of a strain/sprain type injury.

On March 9, 2012, the worker advised the WCB that he started to have ongoing issues with his hernia on the left side of his abdomen which he related to the injury of August 5, 2009. The worker reported that in 2009, he was standing up to close a bus vent and while doing so he felt a strain to his abdominal area.

The WCB requested and received medical reports from the worker's treating physicians along with two hospital reports and a CT scan report dated January 28, 2011. The findings on the CT scan identified a large recurrent ventral hernia.

On March 21, 2012, the family physician reported that the worker underwent surgical repair of his abdominal wall hernia in 2006 resulting from a work-related injury. He later returned to work but still complained of abdominal wall symptoms aggravated by repeated bending and lifting. In the spring of 2009, the worker commenced work for a different employer and was seen on August 6, 2009 for an incident that occurred the day prior. He was closing a roof vent and slipped and fell against a seat. He developed left upper abdominal pain, aggravated by sneezing or reaching. When seen on September 12, 2009, he complained of continued upper abdominal pain, tenderness and "bulging" and a change in bowel habit. At that time, a recurrent symptomatic hernia was suspected and a review with a surgeon was planned. The family physician noted that the worker was seen for abdominal complaints between December 2009 and June 2011. The physician summarized her report by stating: "…[the worker] had initial repair of abdominal wall hernia resulting from WCB injury in 2006. He had continued to have some symptoms but was significantly aggravated by work-related incident of August 2009. Symptoms have progressed. It is my opinion that his initial ventral hernia and recurrence is related to workplace injuries."

In a report to the family physician dated March 23, 2011, a specialist reported that the worker was fine until one year prior when he developed a recurrence of his hernia. Due to the worker's body habitus, bariatric surgery followed by an interval hernia repair was suggested.

In a report to the family physician dated January 16, 2012, a gastroenterologist reported that the worker presented with a recurrent abdominal wall hernia and it appeared his bowel was getting caught into it. He stated: "I would speculate that the symptoms that he experienced in mid December were due to a partial obstruction of his colon and I think his only hope is to have consideration given toward reducing his weight and then having the hernia repaired."

On May 4, 2012, a WCB medical advisor reviewed the new medical reports and outlined the opinion that the worker's present abdominal issues, diagnosed as a ventral hernia, likely developed as a result of the fall which occurred in 2009. He noted that the worker's prior hernia condition from 2006 was repaired and did not appear to have recurred (at the site of the repair). He stated that the presence of the prior hernia would not, of itself, predispose to the development of subsequent hernias. The worker's pre existing adverse BMI (body mass index) predisposed him to the development of abdominal wall hernias.

Based on the May 4, 2012 medical opinion, the case manager advised the employer on May 9, 2012, that the WCB was accepting responsibility for the worker's present hernia condition as being related to the 2009 compensable accident.

On August 13, 2012, the employer's representative appealed the adjudicator's decision of May 9, 2012. The representative referred to evidence on file and an independent medical opinion dated August 3, 2012 to support that the worker's hernia recurrence and ongoing problems were not related to the compensable accident of August 5, 2009 but were due to other risk factors.

On September 5, 2012, a WCB surgeon reviewed the file information and answered questions posed by the case manager. The medical advisor stated:

…It would be reasonable that straining at a stuck roof vent and/or resistance to the act of falling when the stuck roof vent gave way, would result in a sudden increase in intra-abdominal pressure. [The worker's] report of experiencing the immediate onset of pain at the time of the event and the findings of tenderness the day after the event, at the area that would correspond to a clinically evident abdominal wall hernia, would meet the aforementioned criteria. It would be reasonable that initially a relatively small hernia may have been difficult to identify at the time of the Doctor First Report of August 6, 2009 as a consequence of [the worker's] increased BMI.

Documented in the operative report of July 24, 2006…[the worker] underwent primary closure of two midline abdominal fascial defects, buttressed with an onlay mesh.

Should recurrence occur following this hernia repair, the mechanism of recurrence is that the primary closure breaks down and the hernia protrudes around the onlay mesh. The CT scan report of January 28, 2011 identified the prior ventral hernia repair and indicated that a recurrent hernia had recurred just above the site of the past repair. This description would be consistent with a recurrent hernia and also consistent with the aforementioned mechanism of recurrence rather than be suggestive of a new hernia.

[The worker] developed a significant wound infection following the July 24, 2006 hernia repair…This, combined with his elevated BMI would predispose him to a recurrence of his hernia. In her narrative of March 21, 2012 [the worker's] attending physician indicated that following the July 24, 2006 hernia repair [the worker] complained of abdominal wall symptoms aggravated by repeated bending and lifting to the point of eventually prompting him to pursue an alternative occupation. This history would be consistent with the development of a recurrent, (albeit subclinical), abdominal wall hernia.

The recurrence of the hernia is likely as a result of a failure of the surgical repair of July 24, 2006. The workplace event of August 5, 2009 likely enhanced the subclinical recurrent abdominal wall hernia.

On September 10, 2012, the employer was advised that his submission of August 13, 2012 was referred to a WCB surgical medical advisor and the decision to accept responsibility for the worker's current difficulties as related to the injury of August 5, 2009 remained unchanged. On October 23, 2012, the employer appealed the decision to Review Office.

On November 30, 2012, Review Office determined that the worker was entitled to benefits after September 11, 2009 and that the worker's ventral hernia was related to the compensable injury of August 5, 2009. Review Office noted that it gave significant consideration to the first documentation of a hernia (reports from the attending physician dated August 6, 2009 and subsequent follow up reports) and the diagnosis of the same which could be causally related to the compensable injury through a continuity of complaints and medical information. Review Office reviewed the report of March 21, 2012 and the attending physician's chart notes for appointments in August, September and December 2009 and they all provided continuity of complaint and relationship to the compensable injury.

Review Office acknowledged that the worker had a history of hernias and a difficult previous repair and post-surgical complication. The incident of August 5, 2009 did occur however at work and whether the worker was pre disposed to easily occurring or recurrent hernias would not render his claim for compensation benefits void. Review Office indicated that the worker was entitled to benefits as per WCB policy 44.10.20.50.10 Recurring Effects of Injuries or Illness. It found that the evidence on file supported that the worker suffered a hernia on August 5, 2009 and his current loss of earning capacity and his relapse of an injury were directly related to his previous compensable injury. The worker's recurrence of injury in February 2012 and the diagnosed ventral hernia was directly related to his compensable injury of August 5, 2009 and he was entitled to benefits after September 11, 2012. On November 30, 2012, the employer's representative 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 ventral 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 when the medical information was carefully examined, the documents did not establish the necessary nexus between the worker's recurrent ventral hernia and the compensable incident of August 5, 2009. First and foremost, it was noted that there was no activity between the worker/his healthcare providers and the WCB during the period August 6, 2009 to February 28, 2012. The worker did not incur any related time loss until February 24, 2012. The history related by the surgeon of record suggested that the recurrence occurred sometime in 2010 and the recurrence was not actually confirmed until the CT of January 28, 2011. If a recurrent hernia was caused by the 2009 workplace incident, the employer questioned why the worker and his healthcare providers failed to establish any further contact with the WCB and why a surgical consult did not occur until March 23, 2011, some 18 months later. The worker had been seen by the attending physician on three separate occasions in early 2010 with no mention being made of a suspected recurrent hernia or symptoms related to same. The employer noted that the worker presented with multiple risk factors associated with recurrence of ventral hernias and relied upon the independent medical opinion dated August 2, 2012 which concluded that the hernia recurrence developed well after the workplace injury on August 5, 2009 and could be attributed to the multiple risks for recurrence.

The worker's position:

The worker attended the hearing and was accompanied by a union representative. It was submitted that although the worker had a previous ventral hernia, after it was repaired in 2006, he had no further issues with it. He worked without incident or concern until the compensable accident in August 2009. On the date of the accident, he was closing a roof vent at the rear of the bus and was pulling down with force when his fingers slipped and he fell backwards towards a seat. As he fell, he reached out to brace himself and in doing so, felt a sharp pain in his stomach and abdomen. He reported the incident to his supervisor and later that day, started feeling more pain from it. The next day was supposed to be the start of his four days off, but he had been scheduled to fill in for another operator. He was not able to work that shift and he went to go see his attending physician to let her know what happened. At the time, he had some swelling and a bulge in his abdomen. He rested during his four day break, then returned to his regular work.

The worker's evidence was that after the fall in August 2009 and up to the time of his surgery in November, 2012, he saw his doctor regularly and whenever he felt that his hernia was a problem, he would report it to her. He did not know why it was not reported to the WCB. Due to his size and weight, his medical providers wanted him to try and lose weight before the surgery and that was why things took so long. They did not want to operate unless the hernia affected his lifestyle. The worker continued to work his regular duties until 2012 when he had to stop due to symptoms caused by the hernia.

It was submitted that it was clearly established that an accident did occur in August 2009 and that the worker did attend his attending physician. Although there was not continuity in reporting the hernia to the WCB file, there was medical record of concerns regarding the presence of a hernia. The WCB made a proper decision in this case and it was submitted that the claim should continue to be accepted.

Analysis:

The issue before the panel is whether or not the worker's ventral hernia is related to the August 5, 2009 compensable injury. In order for the employer’s appeal to be successful, the panel must find that the worker’s ventral hernia, which was surgically repaired on November 22, 2012, is not related to workplace accident which occurred on August 5, 2009. We are not able to make that finding.

In this case, mechanism of injury is not an issue. The panel accepts that the events described by the worker of reaching overhead to close a vent and then losing his grip and falling backwards could cause a recurrence of his previously repaired ventral hernia. The question in this case concerns proximity of symptoms and whether the panel is satisfied on a balance of probabilities that the recurrent hernia condition was present in the period immediately following the accident, or whether it was a condition which only developed well after the workplace injury.

The attending physician initially reported the workplace accident as an abdominal wall strain for which she provided a Doctor First Report to the WCB on August 6, 2009. No further reports were submitted in 2009, 2010 or 2011. When the worker reactivated his WCB claim in 2012, the attending physician provided a narrative report dated March 21, 2012 which opined that the worker's initial ventral hernia and recurrence were related to workplace injuries and that the work related accident of August 2009 significantly aggravated the symptoms which had since progressed.

Following the hearing, the panel contacted the attending physician to request a copy of her chart notes. The attending physician was also asked to identify when she first noted a "discernible bulge" in the worker's abdomen. The worker's evidence at the hearing was that following the accident, he had an egg-sized lump on his abdomen and while it did change in size over time, the lump was always present until his surgery in November 2012. The presence of a lump is not specifically noted in the attending physician's notes until June 15, 2010. The attending physician was asked to clarify the evidence in this regard.

In response to the panel's inquiry, the attending physician advised as follows:

Regarding visit of Sept 12, 2009 my notes refer to [the worker] complaining of more episodic abdominal pain and cramps and "feeling more bulging." My examination comments refer to tenderness and suspected hernia recurrence. Therefore, it was on September 12, 2009 visit that I first identified a discernible bulge in his abdomen.

After reviewing the evidence as a whole, the panel is satisfied on a balance of probabilities that the recurrent ventral hernia was caused and/or enhanced as a result of the August 2009 workplace incident. In coming to this conclusion, we rely on the following:

• The worker's evidence was that an identifiable lump was present in his abdomen immediately following the accident.
• Although the attending physician's chart notes from August 6, 2009 state: "no obvious hernia" the panel notes the WCB medical advisor's September 5, 2012 opinion that a relatively small hernia may have been difficult to identify as a consequence of increased BMI and we accept that the worker's body habitus may have interfered with the detection of a bulge on that date.
• The attending physician's September 12, 2009 chart notes upgrade the diagnosis to an abdominal wall strain/recurrent hernia and follow-up includes referral to a surgeon.
• The attending physician's response to the panel's inquiry indicates that on the September 12, 2009 visit she identified a discernible bulge in the worker's abdomen. The panel accepts this evidence and therefore finds that the hernia was clinically evident in the time period immediately following the workplace accident.
• There was concern raised by the employer that a surgical consult was not made, but after receiving further documentation from the attending physician, it would appear that in fact, a referral to the surgeon was made soon after on October 10, 2009. It is not known why this referral was never followed through. It was only after the worker experienced increasing symptoms that a second referral letter was sent to the surgeon on August 23, 2010.
• The panel's understanding is that the status of hernia conditions may fluctuate and we find that the worker's evidence that the hernia condition was manageable until late 2011 is reasonable. We accept that the recurrent ventral hernia developed as a result of the workplace accident, but did not cause the worker to incur wage loss or require surgical treatment until years later as the symptoms progressed.
• The WCB medical advisor's opinion of September 5, 2012 concludes that the workplace event of August 5, 2009 likely enhanced the subclinical recurrent abdominal wall hernia.
• The independent medical opinion obtained by the employer concludes that it is likely that the hernia recurrence developed well after the workplace injury but in coming to that conclusion, the medical expert cited: "[The attending physician] notes that her assessment on August 6, 2009 was that of an abdominal wall strain. She provides no physical exam evidence to document whether or not a hernia was present, either on this visit or on the September 12, 2009 visit." This is contrary to our findings above, and we therefore place less weight on this report.
• The fact that there was another surgical referral in 2008 (which also was not followed through) does not change our conclusion. We accept that the worker may have already had the beginnings of a recurrent ventral hernia, but after the August 2009 compensable injury, a discernible bulge was identified, and therefore the hernia condition, if it was already present, had been enhanced.
• We do not place great emphasis on the fact that the history set out in the surgeon's March 23, 2011 letter refers to being "fine until about a year ago." This was only an estimate, and we place greater weight on the chart notes of the attending physician, which sets out specific dates.

Based on the foregoing, the panel finds that the worker's ventral hernia is related to the August 5, 2009 compensable injury. The employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 19th day of June, 2013