The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was fit to perform modified duties from December 12, 2012 to March 13, 2013 while awaiting surgery to repair his left inguinal hernia. A hearing was held on August 15, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits from December 12, 2012 to March 13, 2013.

Decision

That the worker is entitled to wage loss benefits from December 12, 2012 to March 13, 2013.

Decision: Unanimous

Background

On December 6, 2012, the worker filed a Worker Incident Report stating that he injured his left groin on December 5, 2012 from the following work-related accident:

When I was turning my jig around 360 degrees and I tried to stop it and I grabbed the jig and I felt a pain in my left groin. The jig is very heavy and it is hooked to a machine and I had to turn it and I was pulling it towards myself and I tried to stop it.

The worker said he reported the accident to his foreman on the day of the accident.

On December 12, 2012, the employer advised the WCB that according to the worker's supervisor, the alleged injury may have occurred when the employee was attempting to push a jig back into position. The employer indicated that the worker was offered modified duties on December 6, 2012 and that they arranged for temporary parking adjacent to the work area and a work station where the worker could sit and perform small parts assembly in a sedentary fashion. On December 10, 2012, however, the worker called to say that he had a medical appointment on December 11, 2012 and that he would not be in to work. The employer then consulted with an occupational physician and he confirmed that the modified duties were reasonable and appropriate for the worker.

A Doctor's First Report dated December 5, 2012 indicated that the worker had left groin pain and he was being referred to a specialist for treatment. The physician outlined the opinion that the worker was not capable of performing alternate or modified duties.

On December 11, 2012, the treating specialist diagnosed the worker with a left reducible inguinal hernia resulting from the work-related accident. The physician noted that the worker was capable of light duty work and that this was available to him at his place of employment.

On December 13, 2012, a WCB adjudicator called the treating physician to discuss the worker's return to modified duties. The physician noted that the worker could try modified work but emphasized that the duties had to be sedentary with very limited walking and with the ability to sit. He said the worker had a sizeable hernia and too much activity could result in an emergency situation. On December 17, 2012, the worker returned to modified duties but only worked two and a half hours and left due to increasing groin pain.

On December 20, 2012 a WCB medical advisor outlined the opinion that the worker's hernia condition was not typically associated with total disability. He agreed that sedentary duties offered at the workplace would be safe and appropriate. He noted that the recent advice by the treating physician to stop work appeared to be in response to the worker's anxiety and reported inability to tolerate symptoms associated with the hernia.

On December 28, 2012, the worker was advised that the WCB was accepting his claim for a groin injury sustained on December 5, 2012 and that the WCB would only pay for wage loss benefits up to December 11, 2012 inclusive. The decision stated that the file evidence supported that there were no objective findings to confirm that the pain was preventing the worker from being able to perform the sedentary duties offered to him by his employer. Given that he was considered capable of performing modified duties starting December 11, 2012 and he did not participate in the modified duties that were offered to him, it was felt that the worker failed to mitigate his loss of earnings and therefore he was not entitled to benefits beyond December 11, 2012.

On January 8, 2013, the worker advised the WCB that his hernia was causing him significant discomfort and pain and that he was having trouble walking because of it. The worker noted that he was having trouble sleeping and that he was taking pain medication. By letter dated January 8, 2013, the WCB confirmed to the worker that the WCB considered him capable of light sedentary work duties and that wage loss benefits would not be issued after December 11, 2012.

Both the worker and the employer submitted appeals to Review Office. The worker disagreed with the decision that he was not entitled to wage loss benefits beyond December 11, 2012 and the employer appealed the decision that an accident occurred on December 5, 2012.

In a report to the WCB dated January 14, 2013, the attending surgeon reported that the worker's left inguinal hernia was quite symptomatic and it affected his walking and the ability to sit.

On January 24, 2013, a WCB medical advisor reviewed the January 14, 2013 report and stated:

As noted in my memo of Dec 20 12, performance of modified duties in the presence of an inguinal hernia while awaiting repair is safe and appropriate in the majority of cases. In [the worker's] case it appears that for undetermined reasons the hernia is more painful than is the norm and according to his and the surgeon's report, symptoms limit his ability to sit and to walk. It is noted that [the worker] did attempt a rtw ("return to work") at m/d's ("modified duties") but felt unable to continue due to his reported symptoms. Based on the additional report from the surgeon, on balance, time off work would be appropriate while surgical repair is awaited.

Progress reports from the family physician dated February 13, 2013 and March 1, 2013 indicated that the worker was not capable of alternate or modified work due to left groin pain.

In a WCB letter dated March 19, 2013, the worker was advised that the WCB considered the report from the surgeon dated January 14, 2013 and the opinion expressed by the WCB medical advisor on January 24, 2013. It was felt, however, that while the worker had a hernia that impacted on his physical abilities, the medical information supported that he was able to participate in a return to work involving light sedentary duties. As such, there were no findings to support total disability for the period December 12, 2012 to March 13, 2013.

On April 4, 2013, Review Office denied the employer's appeal and confirmed that the worker's claim for compensation was acceptable. Review Office indicated that it accepted the worker's description of the accident that occurred on December 5, 2012 and that he suffered a hernia as a result of performing his work duties. Review Office indicated that the worker consistently reported the hernia to his employer, the WCB and his treating physicians. There was also no delay in seeking medical treatment.

Review Office also determined that the worker was not entitled to wage loss benefits from December 12, 2012 to March 13, 2013. Review Office noted that the worker was initially advised to remain off work at the advice of his family physician. When seen by the specialist on December 11, 2012, the specialist had the description of the modified duties offered by the employer and he provided the opinion that the worker was fit to return to work. Review Office accepted this opinion and found that the worker was fit to perform the duties offered by his employer on December 12, 2012.

With respect to whether the worker was fit to continue working beyond December 17, 2012, Review Office considered the nature of the worker's injury, the work accommodation and the information from the physicians. Review Office stated that in its experience, the need for sedentary duties was commonly recommended following the diagnosis of a hernia. It stated that although there were some discrepancies reported in the amount of walking the worker would have to perform at the workplace, Review Office found that the duties offered by the employer were suitable. Review Office accepted that the worker's pain may have increased when he performed his work duties on December 17, 2012, but it did not feel that the continuing of these duties would have progressed the worker's hernia condition.

Review Office noted that the worker's physicians and a WCB medical advisor stated that the worker was unfit for modified duties after December 17, 2012 due to pain complaints, but it preferred to give weight to the nature of the worker's compensable hernia injury and the duties offered by the employer. On April 25, 2013, the worker 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.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was self-represented at the hearing and the services of a translator were provided. The worker described the injury he suffered in December 2012 when he was working on a jig. He felt a strong pain in his groin and was later diagnosed with a hernia. His doctor provided him with a note to stay at home and referred the worker to a specialist. On December 17, 2012, the worker came to work and tried to perform the light duties his employer provided to him. He had worked approximately three hours, but his pain become worse and worse and finally he felt that he was not able to work any more.

The worker submitted that he was not able to work during the period before his surgery as he was feeling pain and his hernia would go out. The modified duties offered to him by the employer required him to sit, stand and walk a little bit. At the time, he was not even able to dress himself because his left leg was so painful and he could not put on socks or pants or reach his foot. The worker felt that he just was not able to work at that time.

Employer's Position

The employer was represented by an advocate and a supervisor. It was submitted that the weight of evidence supported that the worker was fit to perform modified duties as of December 12, 2012 and that he was not totally disabled. While the worker may have experienced an increase in pain upon performing the light, sedentary modified work provided by the employer on December 17, 2012, there was a lack of objective medical evidence to support a true aggravation of his condition. The weight of the evidence supported the suitability of the worker's fitness to perform the available sedentary modified work and therefore the worker did not meet his obligation to mitigate the effects of his work-related accident. As a result, the worker was not entitled to payment of wage loss benefits during the subject period as any loss of earning capacity during this time was due to non-compensable factors.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits from December 12, 2012 to March 13, 2013 while awaiting hernia repair surgery. In order to determine the appeal, the panel must consider whether or not the worker's compensable left inguinal hernia disabled him from performing the sedentary modified duties offered by the employer. On a balance of probabilities, the panel finds that the worker was not capable of performing the sedentary modified duties offered by the employer and he is therefore entitled to wage loss benefits for this period of time.

At the hearing, the employer representative described the modified duties offered to the worker. The duties required the worker to sit at a table while cleaning and polishing small parts that weighed less than a pound each. The worker was encouraged to work at his own pace, take breaks and change positions as needed. Disability parking was also arranged in order to minimize the amount of walking required to get to the work station. The approximate distance was 170 meters. On December 17, 2012, the parts were picked and laid out on the steel work table for the worker so he would not have to walk to the bins to pick up his own parts. This would have been arranged on an ongoing basis.

The worker was asked about his attempt to return to work on December 17, 2012. The day before he was feeling a little bit better so he thought he would try to go to work on the 17^th. As he was driving to work, the roads were snowy and bumpy so he began to feel an increase in pain. When he got to work, he felt his hernia and found that it had become bigger. Every time he moved, he felt his hernia going out a little bit more. The worker explained that although it was only 170 meters between his parking spot and the building, it was another 200 meters to the change room and then another 200 meters to the work station. The employer confirmed that the work station was in a large building and the distances estimated by the worker were reasonably accurate. The worker's evidence was that he could feel a pulsing pain in his groin and the lump kept getting bigger and bigger. He tried to push it back a couple of times but it would still go out. Finally, he told his supervisor that he could not continue and he left the workplace.

The worker saw his family physician that day who authorized total disability from work. The worker stated that over the next two days, he continued to feel strong pain, to the point where he could not even sit anymore. He had to sit back half way, as sitting completely upright was too painful. The panel places weight on the fact that two days later, on December 19, 2012, the worker returned to see his family physician because of increased groin pain. He was noted as being very anxious and was prescribed additional medication.

After reviewing the evidence as a whole, the panel is satisfied on a balance of probabilities that the worker's hernia symptoms in this case were sufficient to warrant full wage loss benefits for the period prior to his surgery. As stated by the WCB medical advisor, although performance of modified duties in the presence of an inguinal hernia while awaiting repair is safe and appropriate in the majority of cases, in this case, the worker's hernia was more painful than the norm. The WCB medical advisor therefore supported time off work while awaiting surgical repair. Total disability was also supported by the worker's family physician and the surgeon reported that the hernia was "really quite symptomatic" and "affecting his walking and ability to sit." The panel is satisfied that the worker made a bona fide effort to attempt the modified duties offered by the employer, but due to the increase in pain and bulging with any activity, the sedentary work was still beyond the worker's functional abilities. We therefore find that the worker is entitled to wage loss benefits from December 12, 2012 to March 13, 2013 while awaiting hernia repair surgery. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of October, 2013