The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's right inguinal hernia had arisen out of and in the course of his employment. A hearing was held on May 15, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On September 23, 2013, the worker filed a claim with the WCB for lower abdominal pain that he first noticed at home on August 30, 2013. The worker said the sharp pain in his groin area lasted the entire weekend but he went to work on the following Monday. By Thursday, September 5, he was in so much pain he had to leave work. The worker noted in his claim that he could not recall one specific incident either at work or away from work where he felt instant pain.

The worker reported that in the course of his job duties, he covered for people who were sick so every day his job was different. In the two weeks before the groin pain began, he had to physically roll train wheels because the crane was down for about two weeks. The train wheels weighed around 2000 lbs. each and were 3 x 6 feet in dimension. Sometimes it took awhile to get the wheels going. He also rolled wheel axles on 2x4s towards a forklift.

The Employer's Accident Report indicated that the worker was feeling discomfort in his groin area on August 30, 2013 and that it would increase/subside through the days. On September 5, 2013, the worker reported that he was in severe pain and was going to see a doctor. The worker later reported to the employer that his doctor told him the hernia was caused by a birth defect, but that the doctor would report it as a work injury to expedite surgery. The employer reported the worker was very clear that there was nothing he did at work that he could associate with a hernia.

On October 21, 2013, a WCB adjudicator spoke with the worker to gather additional information. The worker reported he was fine prior to his shift on August 30, 2013 and that he was doing a lot of heavy work during this shift. He had to hand-operate a crane and move the heavy wheels manually. He could not remember a specific pain or task to account for his symptoms. When he was sitting on the couch at home later that day, he felt pain and cramping on his lower right side. There were no new accidents and he was unable to do anything on the weekend. His symptoms progressively worsened with no activity. The worker said he reported the injury to the employer first thing on Monday morning.

The worker advised the adjudicator that he had been told he had a birth defect associated with the hernia; however, he believed that the hernia itself was caused by his activities at work. The worker reported that his doctor told him the heavy moving he had to do at work likely caused the hernia at the point of a hole that was a birth defect.

On November 13, 2013, the adjudicator spoke with the worker's direct supervisor who indicated that the worker reported his injury to him on August 30, 2013. He remembered the worker having ongoing problems after that. He came to work one day and could not walk. He left work without punching in and went to see his doctor. The supervisor indicated that the axles sit on boards and weigh about 700 lbs. per axle. They are rolled in pairs. The wheel sets weigh 2200 lbs. and are also rolled.

In a note to file dated November 13, 2013, the WCB adjudicator recorded that she spoke with the treating physician who indicated that the worker misunderstood his explanation as to how a hernia is formed. The physician stated that the worker's hernia was definitely work-related and that he had no pre-existing congenital problem.

On November 13, 2013, the worker was advised by telephone that his claim for compensation was accepted. A letter confirming the decision was issued to the worker and his employer on November 21, 2013.

On December 2, 2013, the employer appealed the WCB's decision to accept the worker's claim. The employer took the position that there was a lack of evidence of a specific work incident on August 30, 2013 and absence of timely symptoms, which supported a non-occupational cause for the worker's diagnosis.

On January 10, 2014, Review Office found that the worker's job duties on August 30, 2013 contributed to the development of his right groin difficulties. It concluded that the worker's injury occurred as a result of an accident arising out of and in the course of his employment.

On March 5, 2014, the employer appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Reasons:

The issue to determine is whether or not the claim is acceptable.

Applicable Legislation

In considering this appeal, the panel is 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.

Accident is defined in subsection 1(1) of the Act as including any event arising out of and in the course of employment, as a result of which a worker is injured.

WCB policy 44.05 Arising Out of and in the Course of Employment clarifies when an injury arises out of and in the course of employment. The policy states that:

Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

Employer's Position

The employer took the position that the evidence does not establish that the worker suffered a personal injury by accident arising out of and in the course of employment. The employer noted there was no evidence of a traumatic incident, the worker continued to work in the days following August 30, 2013 and there was a delay in seeking medical attention and reporting the accident.

The employer did not dispute the diagnosis of right inguinal hernia but took the position that there was no evidence that it was caused by accident arising out of and in the course of employment.

The facts, the employer suggested, point to alternate causes for the diagnosed injury, whether a pre-existing injury or injury incurred in the course of the worker’s construction business outside of his employment.

The employer suggested that the delay in development of the hernia doesn’t support the worker’s claim that it arose as a result of a workplace injury, and noted that experiencing pain at work doesn’t equate to incurring an injury due to an accident at work.

The employer advanced the position that the claim is not acceptable because the evidence does not establish on a balance of probabilities that the worker’s injury was caused by accident arising out of and in the course of his employment.

Worker’s Position

The worker did not participate in the hearing.

Analysis

The issue for the panel to determine is whether the worker’s diagnosed injury of a right inguinal hernia arose by accident arising out of and in the course of the worker’s employment. If so, the claim should be accepted. The panel was able to make the finding.

The evidence with respect to the worker’s job duties on and in the days leading up to August 30, 2013 established that the worker was engaged in heavy physical labour, rolling pairs of train axles weighing approximately 700 lbs. each along boards, as well as wheel sets weighing approximately 2200 lbs. each. The worker noted that he also had to hand-operate a crane.

The worker reported his last activity in his renovation business took place on August 27, 2013 and that he did not injure himself at that time.

The worker noted in conversation with the WCB adjudicator on October 21, 2013 that he was feeling fine before his shift on August 30, 2013, but that later that day, after work, he had pain and cramping on his lower right side that got progressively worse without activity over the weekend. Through the weekend following August 30, 2013 he noticed some swelling and on September 3 he noted a lump the size of a tennis ball.

With respect to when the injury was reported to the employer, the worker recalls that he reported the injury to his employer first thing Monday morning, September 3, 2013. The worker’s supervisor, in a conversation with the WCB adjudicator indicated on November 13, 2013 that he thinks the worker reported his injury to him on August 30, 2013 and that he remembers the worker having ongoing problems after that date. He also recalled that the worker came in one day and couldn’t even walk, leaving the workplace without punching in and going to see his physician.

A report from the worker’s physician dated September 5, 2013 confirms that the worker attended for treatment on that date and reported that he developed pain on August 30 after he left work. The worker was diagnosed with a right inguinal hernia and use of a truss was prescribed. One week later, the physician described the injury as a “large right inguinal hernia” and noted that the worker required hernia repair surgery.

The employer suggested that the evidence does not establish either a causal or a temporal link between the worker carrying out his job duties and the reported symptoms, pointing to a delay in symptom onset and a delay in reporting the injury to his employer.

There is no dispute that the worker was engaged in heavy-duty physical labour on August 30, 2013. The worker noted that he began to experience symptoms of pain, cramping and swelling in the right groin area that evening.

The panel finds that the worker’s evidence of onset of symptoms after leaving work on August 30 provides a proximal link between the job duties and the reported symptoms.

The symptoms and the mechanism of injury are consistent with the development of a right inguinal hernia, as diagnosed by the worker’s physician on September 5, 2013. The fact that the worker did not report a specific workplace incident to his physician but that the physician told the worker that the symptoms he was experiencing were work-related is not determinative of the matter.

The employer took the position that the evidence does not establish a work related cause for the injury, suggesting that there may have been alternate causes for the injury. The employer suggested that the worker’s hernia may have been the result of a pre-existing condition rather than the result of an accident arising out of and in the course of employment. There is no evidence before the panel of any pre-existing condition. The worker’s predisposition to a hernia, as described by his physician, is not equivalent to a pre-existing condition.

While the evidence suggests that the worker may have initially misunderstood the information provided to him by his physician in terms of the cause of the hernia, this was clarified by the worker’s physician in a November 13, 2013 conversation with the WCB adjudicator. The physician explained that the worker misunderstood the explanation of how a hernia is formed and gave the opinion that the worker’s hernia is definitely work-related and that the worker has no pre-existing congenital problem. The fact the worker did not at first understand the process of development of a hernia accounts for his initial failure to report to his employer that the injury occurred as a result of a workplace accident.

We accept the evidence that the worker reported this injury to his employer on the next workday and that he continued to work for two more days while complaining of worsening of symptoms until September 5, 2013 when he attended work and immediately left to see his physician. On this basis, we conclude that there was neither a delay in symptom onset nor a delay in reporting the injury to his employer.

We find that the evidence establishes on a balance of probabilities that the worker’s diagnosed injury of a right inguinal hernia arose by accident arising out of and in the course of the worker’s employment. The employer's appeal is declined.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 27th day of June, 2014