The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that his job duties where not causative of a right inguinal hernia. A hearing was held on January 26, 2016 to consider the worker's appeal.

Issue

Whether the claim is acceptable.

Decision

The claim is acceptable.

Decision: Unanimous

Background

The worker is a 54 year old self-employed owner/operator of a painting and drywall business.

On or about July 27, 2015 he was working at a jobsite which was a house under construction. He was finishing some drywall and painting work on the second floor of the house. During the course of his work, the worker made six (6) trips carrying paint and drywall mud from his truck into the house and up to the second floor. At some point during this process, he felt discomfort in his right abdomen. Later on that night in the shower, he noticed swelling in his right abdomen, the next morning he woke up and saw a bulge.

The worker was assessed by a doctor who provided a diagnosis of a right inguinal hernia. This was confirmed by an ultrasound on August 5, 2015. The worker was subsequently referred to a medical specialist to be scheduled for a laparoscopic total extra-peritoneal hernia repair. A surgery report of November 9, 2015, identified that the worker had both a right inguinal and, unknown at the time, a pre-existing umbilical hernia. Both of these were repaired.

Review Office

Review Office provided its decision on November 25, 2015. In deciding not to accept the claim, it placed much weight upon the WCB’s medical consultant’s opinion of September 16, 2015 which stated that:

Typically an increase in the abdominal pressure is required in conjunction with a weakness in the abdominal wall [and] will result in the formation of a hernia. This is seen in activities where a heavy weight is lifted or carried. Occasionally it occurs in the environment of a direct trauma or blow to the abdominal wall. Hernias are also seen post operatively through the surgical incision. The described mechanism of injury of descending a ladder is not concordant with the typical forces applied to the body that will result in the formation of a hernia.

Review Office held that in order to meet claim acceptance criteria the inguinal hernia would have to be accounted for by a specific event and that event would typically have to be associated with a significant increase in intra-abdominal pressure (such as an activity that would involve abdominal straining). There would also need to be a close temporal relationship between the event and a diagnosis or description consistent with an inguinal hernia. As such, Review Office was unable to establish that the worker’s pain and diagnosis are a result of his employment. Therefore, based on the information obtained, it could not be determined that the worker’s right inguinal hernia or his umbilical hernia was the result of his employment.

The worker appealed Review Office’s decision and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act, (the "Act"), Regulations and policies of the Board of Directors.

Accident

For the worker’s appeal to be successful, the Panel must be satisfied that there has been an accident within the meaning of subsection 1(1) of the Act, which states the following:

1(1) In this Act, “accident” means a chance event occasioned by a physical or natural cause; and

Includes:

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

And as a result of which a worker is injured;

Arising Out of and in the Course of Employment

Policy 44.05 provides guidance with respect to “arising out of and in the course of employment” and whether the worker’s personal injury was caused by an accident which both arose “out of employment” and “in the course of employment”:

Under The Workers Compensation Act, benefits and services are available to workers who suffer a compensable workplace injury or illness. To be compensable, it must have been the result of an accident arising out of and in the course of the worker’s employment.

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.

The Workers Compensation Act provides that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven. […]

Pre-existing Conditions

The Panel must also take into account Policy 44.10.20.10 which states:

[…] The Workers Compensation Board will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment. […]

The Worker’s Position

The worker was represented by a worker representative. It was the worker’s position that the onset of his hernia symptoms on July 27, 2015 are related to his workplace activities.

The Employer’s Position

The employer did not appear at the hearing.

Analysis

At the hearing, the worker provided considerable evidence as to his workplace activities. He attended the worksite at around 2:30 in the afternoon. He had, in the back of his truck two (2) boxes of drywall mud and four (4) five (5) gallon pails of paint. The worker gave further evidence that since the worksite was a house that was still under construction it did not have a completed residential stairway. Rather, the house had what the worker referred to as a construction stairway, describing it as a higher than normal step to enter the home. In total the worker made six (6) trips from his truck, into the home and up to the second floor and doing so while carrying the weight away from his body. According to the worker, it was on his third (3) trip into the home when he felt discomfort. Despite this fact, he continued with the balance of the trips and finished the drywall and painting.

The panel notes that the worker was carrying weight away from his body for six (6) trips into the house and up to the second floor. In the panel's view this can cause significant abdominal pressure leading to a hernia. The worker felt discomfort within minutes while carrying the paint and drywall mud up and down the stairs, seeking treatment in a matter of days thereafter. Therefore, in accordance with subsection 1(1) of the Act and keeping in mind Policy 44.05, the panel therefore finds that the job duties as described by the worker (i.e. going up and down stairs carrying paint and drywall mud) were, on a balance of probabilities, causative of the right inguinal hernia.

The panel only accepts the claim with respect to the right inguinal hernia. The panel does not find that the worker’s umbilical hernia was caused by an accident that arose out of and in the course his employment. Rather, based on the evidence in front of the panel, we find that the umbilical hernia was a pre-existing condition.

The panel therefore accepts the claim with respect to the right inguinal hernia.

Panel Members

C. Monnin, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

C. Monnin - Presiding Officer

Signed at Winnipeg this 23rd day of March, 2016