The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his hernia condition was not the result of an accident arising out of and in the course of his employment.  A hearing was held on March 25, 2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On July 4, 2014, the worker filed a claim with the WCB for a right hernia condition.

On July 8, 2014, the Employer's Accident Report stated: "This is a personal injury that employee does not relate to employment. We were unaware that WCB was involved until July 7/14 when WCB requested an Employer's Report. As such, [the employer] protests the acceptance of this claim as the diagnosis is not due to any work activities. The employee states that this is a long term condition over the years. This cannot be attributed to any work activity or work incident."

In a report to the WCB dated January 7, 2014 regarding an office visit on January 3, 2014, the treating physician reported that the worker's right inguinal hernia was enlarging and becoming increasingly symptomatic. The worker was advised to perform light duty work until he had his hernia repaired.

In a letter to the WCB dated July 8, 2014, the employer stated: "Given the lack of objective evidence that a specific work incident occurred on January 07, 2014, followed by timely symptoms, the available evidence supports a non-occupational cause for [the worker's] diagnosis. It is well known in the medical literature that hernias are pre-existing underlying conditions that develop as a result of weakness in the abdominal walls. As the statutory requirements to allow this claim have not been satisfied, it is the employer's position that his claim should be disallowed."

On July 17, 2014, the worker advised the WCB that he was diagnosed with a right inguinal hernia about two years ago and he did not apply for WCB at the time as he did not give it much thought. The worker said he never knew that he had a hernia until the doctor told him about two years ago. He had no signs, pain or bulging. The worker noted that he had a high pain threshold and that his work duties were heavy/physical and that no specific incident occurred.

In a decision dated July 22, 2014, the WCB advised the worker that his claim for a hernia condition sustained on or around January 7, 2014 was denied. The decision was based on the worker's delay in reporting a workplace accident to his employer and the lack of a confirmed specific event. It was concluded that a relationship between the development of his hernia and a work-related accident had not been established.

On August 6, 2014, the worker argued that his hernia condition was caused over a period of a few years due to heavy manual labour. He could not pinpoint one specific date but did note that the only place he did any heavy labour was his workplace.

On September 12, 2014, Review Office confirmed that the claim was not acceptable as it was unable to establish that the worker's hernia injury was caused by an accident arising out of and in the course of his employment. On October 12, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 is appealing the Review Office decision that his claim for a right inguinal 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 explained his reasons for appealing the decision and answered questions from the panel.

The worker advised that in approximately 2012, his physician advised him that he had a right inguinal hernia. He said the physician discovered this during a routine annual examination. In 2014, at his annual examination the physician advised him that his hernia had worsened and that he required surgery. The worker said that he was referred to a surgeon and recently had the surgery.

With respect to symptoms, the worker advised that he never had symptoms in the abdomen. He said that the only reason he knows he had a hernia is because his physician told him about the hernia. In answer to a question, the worker said that even the day before the surgery he had no symptoms.

The worker advised that he has spoken with 3 physicians who have informed him that hernias can be caused by physical work. He said his family physician, the treating surgeon and a family member (who is a physician) have all told him his hernia is work-related. His family physician and surgeon have provided letters of support.

The worker gave a detailed description of his work duties with the employer. He described numerous physical tasks which were part of his regular duties. The tasks included throwing switches, repairing large blowers, and performing carpentry work.