The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for a work-related hernia condition was not compensable. A hearing was held on November 25, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On January 8, 2013, the worker filed a claim with the WCB for a hernia condition with the accident date of August 31, 2012. The worker provided the following information to the WCB's call centre:

I noticed a bit of pain in the left groin area on and off for a couple of years. I stopped working for [employer] on August 31, 2012 and on September 22, 2012 started a 6 week trucking course. During the course when driving half days the pains in the groin were getting worse. I finished the course. A month to 3 weeks before the surgery I had a constant pain. I went to [hospital] and they said I had a hernia. The older doctor that looked at me said it was a sports related hernia and the younger doctor wanted to keep me but the older one said no. I said okay and then left. I saw my doctor [name]. Not sure if it was before or after I went to the hospital. She set me up an appointment with the specialist. I had an appointment scheduled to see a specialist in February but got in on a cancelation on December 17 and then got a surgery cancellation on December 18 at the [hospital]. I saw [a specialist] again January 7. He said everything is fine and I can return to work in 4 - 6 weeks.

The worker believed that his hernia condition was caused from the following work duties:

"I was pushing and pulling skids of pop. When pulling the orders there is a lot of leaning over the pallet to pick the order. I was going up and down the ladder with heavy boxes. Pulling the skid up and down the ramp."

The worker further advised the WCB's call centre that he noticed symptoms over the last couple of years and that his symptoms would come and go while working. The worker indicated that he casually mentioned his symptoms to his supervisor and two co-workers.

The WCB contacted the worker's employer and was advised that no report was made by the worker related to a hernia condition. The co-workers identified by the worker also were contacted. They indicated that they knew that the worker had hernia surgery but they were not aware of a work-related accident that caused the hernia to develop.

Medical information showed that the worker was seen at a hospital emergency facility on November 26, 2012 for complaints of left sided inguinal pain over a few months duration. The diagnosis was abdominal pain, not yet diagnosed.

On November 16, 2012, the family physician diagnosed the worker with a left inguinal hernia. On December 18, 2012, the worker underwent a left inguinal hernia repair.

On March 28, 2013, primary adjudication determined that a causal relationship did not exist between the development of the worker's hernia condition and an accident at work. In making her decision, the adjudicator noted that no report of injury was made to the employer and the acute symptoms experienced by the worker came about after his employment with the accident employer ended.

In April 2013, the worker appealed the adjudicative decision of March 28, 2013 to Review Office. The worker submitted that the job duties he performed with his employer involved pulling and pushing heavy items along a ramp and this contributed to or caused his hernia condition. The worker noted that he quit working with the employer on August 31, 2012 to take a truck driving course and half way through the six week program, he started to feel bad pains in his stomach which turned out to be a hernia. The worker said he did not do any heavy lifting during the driving course, only sitting and driving. This was when he knew that his hernia became full blown.

On May 30, 2013, Review Office determined that the worker's claim was not acceptable as it was unable to establish that a relationship existed between the worker's job duties and the development of his inguinal hernia condition. In making its decision, Review Office noted that it was unable to establish that the worker reported an accident to his employer and that the worker experienced pain off and on for a couple of years. There was also a significant delay in seeking medical treatment. Review Office noted that the worker's symptoms increased while attending his truck driving course and by his own admission, there was no heavy lifting and his duties only involved sitting and driving. Based on review of all file documentation which included the medical information, Review Office was unable to establish that an accident occurred at work. On August 27, 2013, 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 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 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.

The worker disagrees with the WCB and Review Office decisions that his claim for a hernia is not acceptable. The key issue to be determined by the panel deals with causation and whether the worker’s injury arose out of and in the course of his employment.

Worker's Position

The worker was self-represented. He told the panel there were a few times when he worked for the employer that he felt sharp pain. He said it was in the left abdomen below the belt. He did not feel a lump at the site. He said the pain gradually worsened.

In answer to questions, the worker provided details of his work history. He has performed heavy labour through much of his lifetime. He said that he worked for the accident employer off and on for about 8 years and that his duties included lifting the heavy ramp on the cargo dock, moving skids, moving heavy vending machines, and lifting cartons of drinks. He said that the hernia could have been caused by any of the duties. He was not able to identify a specific event that caused the hernia but in reply to a question said there may have been a significant event when he was bending down to lift the ramp. He also referred to one machine that was very heavy. He could not identify when during his 8 years with the employer these events occurred.

The worker said that while he often had pain while working for the employer but the really "heavy pain" began when he was taking a truck driving course and when he got home the pain became full blown. This occurred about halfway through the course. He was able to complete the course and obtain a license.

The worker said that the hernia could be the result of years of heavy work. He described many duties which he routinely performed including lifting the heavy ramp on the cargo dock, moving skids and heavy vending machines, and lifting cartons of drinks.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker has appealed the WCB and Review Office decisions that his claim for a hernia is not acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's hernia arose out of and in the course of his employment, or in other words, was caused by his job duties.

The panel considered the evidence on the claim file and the additional evidence provided by the worker at the hearing. However, the panel is not able to find that the worker's hernia is connected to or resulted from his employment.

In arriving at this decision, the panel relies on the following:

• The worker was not able to point to an acute incident with the employer that caused the hernia or a specific time when the hernia may have occurred. He said that there were times at work when he felt a sharp pain on the left side of his abdomen and that the frequency of pain was increasing. He said that he often felt the pain while lifting.
• The worker did not feel a lump at the hernia site in the time period that he was working for the employer.
• The worker did not seek medical attention while he was working for the employer for abdominal pain.
• The worker's employer denies that the worker reported any injury or pain to the employer.
• The worker's co-workers advised that the worker did not complain or mention his injury to them.
• The worker's evidence is that the pain became significant while he was taking a truck driving course. This was after the worker stopped working for the employer. The worker also said that the most acute pain occurred at home during the period that he was taking the truck driving course.

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

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 5th day of December, 2013