Decision #117/15 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB")that his diagnosed condition of a direct left inguinal hernia was not theresult of his compensable accident and therefore he was not entitled tobenefits beyond September 2009. Ahearing was held on June 18, 2015 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to benefits beyondSeptember 16, 2009.
Decision
That the worker is not entitled to benefits beyond September16, 2009.
Decision: Unanimous
Background
The Employer's Accident Report dated April 28, 2008 indicated that the worker suffered a lower stomach/groin injury on September 12, 2007 based on the following incident: "Employee was lifting a grease barrel...It was about 3 or 4 feet off the ground, about 50 pounds. When lifting he felt a slight pain in his stomach. He finished his shift that day."
When speaking with the WCB on June 23, 2008, the worker reported that he was assisting a co-worker lift a grease container weighing 70 to 80 pounds from waist level. He lifted it upwards/sideways at an 80 degree angle. As he lifted, he felt a pop/tear. He felt pain immediately and thought the pain would subside. Later that day, he felt a shock in the same area of injury when he coughed. The worker said he reported the accident to his employer the following day and sought medical attention.
On June 27, 2008, a WCB medical advisor reviewed the file information which included hospital and chiropractic reports and CT/ultrasound results. He opined that the current diagnosis was a muscle strain of the groin and it was consistent with the mechanism of injury. He felt that no further treatment was required and there were no compensable restrictions.
On July 9, 2008, the accident employer advised the WCB that the worker still identified continual pain and a bulge in his stomach area.
On July 28, 2008, the worker was seen at the WCB for a call-in assessment. The WCB medical advisor reported that the worker appeared to present with chronic left groin pain secondary to what appeared to be a muscle strain and/or myo-tendinous tearing. The examination was marked by significant tenderness and diminished range of motion. There were no abnormal masses or muscle defects.
When seen by a physiotherapist for an initial assessment on September 19, 2008, the worker was diagnosed with left rectus abdominus/pyramidalis strain.
The worker was then seen by a physical medicine and rehabilitation specialist (physiatrist) on September 25, 2008 regarding left groin pain. The physiatrist stated: "In summary, this patient has a presentation that sounds a lot like a hernia symptomatically. Nevertheless, he has a normal CT, ultrasound and MRI scan, and a surgical opinion that this is not an inguinal hernia. I will defer to the surgeon as to whether he believes that the CT scan has definitively ruled out an abdominal wall hernia. Other diagnostic possibilities included a chronic osteitis pubis. Given his relative resolution and the minimal findings on clinical examination, it is reasonable to proceed with a reconditioning exercises program."
In October 2008, a hospital physician diagnosed the worker with a hernia.
On December 24, 2008, a general surgeon reported that the worker suffered from a musculoskeletal injury of the left rectus abdominis muscle with no evidence for any abdominal wall or groin hernias. Physiotherapy was recommended as a form of treatment.
On January 13, 2009, a WCB medical advisor opined that the current diagnosis was chronic musculoskeletal abdominal wall strain and it was consistent with the reported mechanism of injury. The diagnosis was supported by the opinion of two different general surgeons. The medical advisor noted that a variety of reliable imaging studies failed to uncover an alternate diagnosis such as an abdominal wall or groin hernia, soft tissue infection or inflammatory bone conditions. It was felt that a reconditioning program was appropriate and that the anticipated recovery range from a single lift injury would be three to six months.
In March and April 2009, the worker underwent further testing which included an abdominal ultrasound and a bone scan.
On April 17, 2009, a WCB senior medical advisor commented that the March 27, 2009 abdominal ultrasound outlined the diagnostic possibility of a left inguinal hernia. The medical advisor suggested that a radiologist compare the 2008 and 2009 ultrasounds side by side to clarify if there had been an interval change in the left groin.
On June 2, 2009, the worker underwent laproscopic surgery and the post-operative diagnosis was a small left direct inguinal hernia.
On August 10, 2009, a WCB medical advisor responded to questions posed by WCB case management as follows:
"...it is my conclusion that the diagnosis of the September 12, 2007, workplace injury is musculoskeletal abdominal strain and left groin strain. It is the anticipation that that diagnosis should resolve in perhaps two to three months. The fact that no other specific diagnosis was determined other than 18 months post-injury, it is fair to assume, and in my opinion, correct to assume that the left inguinal hernia determined by the March 2009 ultrasound is not a compensable injury. It therefore follows that the claimant's current status is not as a result of the workplace injury; rather, as a result of a non-compensable issue....whether there is a possible pre-existing condition, again, it does not appear that a pre-existing condition is identified following this most recent review of the claimant's file and medical information contained therein."
By letter dated September 8, 2009, the worker was advised that the WCB was unable to accept further responsibility for his claim beyond September 16, 2009 on the basis that his compensable injury was a muscle strain and that the hernia diagnosis was not related to the workplace accident. On April 26, 2010, the worker appealed the decision to Review Office.
File records showed that an independent radiologist reviewed the ultrasounds from 2008 and 2009 and concluded that the left inguinal mass noted in the 2009 ultrasound was not present in the 2008 ultrasound examination.
On June 23, 2010, Review Office determined that the worker was not entitled to benefits beyond September 16, 2009. Review Office accepted that the compensable injury involved a left-sided lower abdominal and groin strain and that the worker had recovered from the effects of his compensable injury. Review Office stated that it placed significant weight to the numerous medical reports on file to support that the left-sided hernia was not related to the workplace accident. The diagnosis of the left-sided hernia was not confirmed until some 18 months post injury and therefore the diagnosis was not compensable.
On August 13, 2013, the worker requested Review Office to reconsider its decision of June 23, 2010 based on a medical report from an occupational health physician dated July 4, 2013.
In a decision dated October 9, 2013, Review Office confirmed that the worker was not entitled to benefits beyond September 2009. Review Office noted that the worker was seen by an occupational health physician on May 30, 2013 who stated:
"By my assessment there appears to be lower left abdominal muscle wall, left thigh adductor and left psoas muscle involvement in his chronic pain pattern since his 2007 work injury...The picture is complicated by past injuries affecting the left lower hip and back which were also work related."
Review Office stated that it placed weight on the file information that was proximal to the worker's accident in September 2007. Given the diagnosis of a strain, Review Office could not account for the worker's ongoing difficulties as reported by the occupational health physician which was six years following the workplace injury. It was felt that the strain injury caused on September 12, 2007 would have long since resolved. On January 27, 2014, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel met to discuss the case and requested additional information prior to rendering a decision on the worker's appeal. The additional information consisted of medical information from two treating physicians, a nurse practitioner and a physiotherapist. The requested information was later received and was forwarded to the worker for comment. On September 9, 2015, the panel met further to discuss the case and rendered a decision on the worker's appeal.
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.
Subsections 4(2), 39(1) and 39(2) of the Act provide that wage loss benefits are payable where an injury results in a loss of earning capacity and are paid until such a time as the loss of earning capacity ends. Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
This appeal deals with the provision of benefits on an accepted claim. The worker is seeking benefits beyond September 16, 2009.
Worker's Position
The worker was self-represented and participated by teleconference. He told the panel:
"Well, I’m having a hard time getting back to work, and I can’t lift. And I’m having trouble, every day I’m having trouble with my injury. And it’s not a new injury, it’s the same injury I sustained at work at 2007, September 12th. And it’s been bothering me ever since. I’ve been back and forth to hospital and I’m seeing a pain specialist right now, ...And this injury has caused my life a horrible time, so I’d like to get some help, if I can, to get through this and to make -- my doctor is sending me to go see a surgeon too, so I’m getting all kinds of pain treatment right now, and I’m also going through physiotherapy.
And I can’t work due to this injury I have because it’s been pretty rough, rough life for me for the past seven, eight years. And I tried to go back to work too, but nothing didn’t (sic) seem to help it. I think it made it more, more pain for me. Everything’s been documented. I wrote down everything."
The worker advised that he has seen two pain specialists and has received needle treatments. He said the needles "numb" him. He believes the needles contain a liquid which is injected. The needling treatments provide some temporary relief. He has also received physiotherapy treatments. He is awaiting a referral to a surgeon.
In answer to a question, the worker advised that he attempted to return to work but was not able to continue working. He has not worked since he stopped truck driving in 2013. He has not looked for work "Because I can’t bend down, I can’t walk long distance, I can’t sit upright too long and I feel strained."
The worker said that he believes he has a rip or tear in his muscles.
Employer's Position
The employer did not participate in the appeal.
Analysis
To assist with the adjudication of this appeal, the panel obtained additional information from the worker's treating medical professionals.
The worker is seeking benefits beyond September 16, 2009. For the worker's appeal to be approved, the panel must find that the worker continued to suffer from the effects of his workplace injuries after September 16, 2009. We are not able to make this finding.
In reaching this decision, the panel has considered the evidence on file and the evidence provided at and after the hearing, and places significant weight upon the more contemporaneous evidence to the injury date, specifically the opinions of the WCB medical advisor who examined the worker in July 2008 and July 2009, and reviewed his file in August 2009.
At the July 2008 examination, the WCB medical advisor opined that the worker:
"...appears to present with chronic left groin pain secondary to what appears to be a muscle strain and/or myo-tendinous tearing. Today's examination is marked by significant tenderness in the above noted areas as well as diminished range of motion. Strength appears to be maintained. No abnormal masses or muscle defects are apparent on today's examination."
After examining the worker in July 2009, the WCB medical advisor reported that he found only reported evidence of disability without confirming clinical evidence on examination. In August 2009, the WCB medical advisor commented that:
"Based upon the reported mechanism of injury that is a sudden strain, as well as the various negative diagnostic imaging studies, including CT, ultrasound and MRI, as well as the opinions of two general surgeons and approximately five other physicians, it is my opinion that the mass imaged in March 2009 does not bear a relationship causally to the September 2007 workplace accident. The diagnostic tests performed prior to March 2009 abdominal ultra sound are sensitive and specific tests which in combination performed over 18 months are unlikely to all be false negative examination. The clinical impression by a number of the consultant specialists was well, helped to corroborate that diagnostic impression.
I am presently unable to offer an alternative diagnosis, although clearly, as a result of either inter-current activity or some other process, the claimant did develop a left inguinal hernia. Subsequent operative repair was undertaken in June 2009. The claimant's current status therefore, relates to that entity, i.e., a left inguinal hernia, which in my opinion, is not a compensable illness; rather, a non-compensable diagnosis which, again, for the reasons previously stated, does not bear a causal relationship to the September 2007 workplace accident."
The WCB medical advisor concluded that the diagnosis of the workplace injury was musculoskeletal abdominal strain and left groin strain. He stated that the worker's current status is not as a result of the workplace injury, but rather is the result of a non-compensable issue.
In August 2009, the WCB medical advisor again reviewed the worker's file and in reply to specific questions answered:
"1. I am not able to account for his present pain complaints based on the September 2007 workplace injury.
2. There was no evidence at that examination of left inguinal or abdominal wall hernia.
3. In my opinion the surgery for the left inguinal hernia is not compensable.
4. There is no convincing evidence of a pre-existing condition..."
The panel also notes that the worker was examined on December 24, 2008 by a general surgeon regarding his left groin pain. The physician reported:
"On examination he looks healthy, he was moving around very easy and very comfortable. He did not have any trouble getting on the examining table and seemed to be pain-free doing this. Examination of the head and neck, heart and chest were unremarkable. Abdominal examination revealed mild tenderness over the external inguinal ring and this extended over the lower third of the left rectus abdominis muscle. The patient was examined in the supine and upright position and there was no clinical evidence of any groin hernias...I see that he had extensive testing with abdominal CT scan and MRI and abdominal ultrasound and these all did not show any evidence of abdominal hernias."
Based upon the above information, the panel finds, on a balance of probabilities, that by September 16, 2009 the worker's work related abdominal injury had resolved. The panel also finds that the left inguinal hernia found approximately 18 months after the accident is not related to the workplace accident.
The panel notes that since September 2009 the worker has seen numerous physicians, including an occupational health physician, pain specialist and physiatrist, and received differing diagnoses for his ongoing pain. The panel is not able to relate these more recent diagnoses to the workplace accident.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 9th day of October, 2015