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 right inguinal hernia was not acceptable. A hearing was held on April 14, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On November 5, 2014, the worker filed a claim with the WCB for a hernia injury that he related to his employment on a production line.

When speaking with a WCB adjudicator on November 10, 2014, the worker advised that he started to notice symptoms in 2010. He could not recall a specific incident but believed that his symptoms started at work. He initially thought his condition was related to a complication from non-work related surgery which was done a few years ago. The worker indicated that his job was fairly repetitive and involved lifting products on a production line. The worker believed that his condition was work-related as he does not do anything outside of work.

The Employer's Accident Report dated November 12, 2014 indicated that the worker reported pain to his groin on March 18, 2014. He told the nurse that he had a hernia for the last 2 to 3 years. He had abdominal surgeries in 2011 and 2012. The worker indicated that he noticed the lump after surgery in 2012 and had had episodes of pain ever since.

A Doctor First Report dated November 16, 2014 indicated that the worker had right groin pain/bulge with heavy lifting, pushing and pulling. The diagnosis was a right inguinal hernia.

In a decision dated December 2, 2014, the worker was advised that his claim for compensation was not acceptable based on the following findings:

While your employer confirmed that your job duties do involve some lifting and that you felt these symptoms at work, there is no evidence - given the absence of a reported traumatic workplace incident - that your job duties specifically caused the development of your hernia…[W]e also considered the evidence that you have continued to perform your full regular duties without complaining of inguinal difficulties to your employer - despite various opportunities to do so. Under the circumstance, Compensation Services is unable to establish, on a balance of probabilities that your inguinal hernia has "arisen out of" or is causally connected to your employment…

On March 2, 2015, the Worker Advisor Office submitted clinic notes from February 18, 2010 until January 23, 2015 to support a causal relationship between the onset of an inguinal hernia and the worker's job duties.

In a decision dated May 1, 2015, Compensation Services remained of the opinion that the claim for compensation was not acceptable. The adjudicator noted the medical information indicated that the worker complained of lower abdominal discomfort as early as March 18, 2010 and that his right inguinal hernia was only diagnosed on March 19, 2014. The employer was also not aware that the worker sustained an injury from a traumatic incident at work. The WCB was therefore unable to establish an accident arising out of and in the course of employment or that there was a causal connection between the worker's right inguinal hernia and his employment.

On June 30, 2015, a worker advisor asked Review Office to reconsider the May 1, 2015 adjudicative decision. The worker advisor stated, in part, that the worker had abdominal surgery late in 2009 and returned to his regular duties in March 2010. According to a clinical note, the worker complained to his doctor about abdominal discomfort on March 18, 2010, March 27, 2013 and March 19, 2014. The worker advisor opined the combination of lifting with a weakened abdominal wall made the worker more susceptible to the development of an inguinal hernia. Therefore, there was a causal relationship between the onset of the worker's right inguinal hernia and his work duties.

On July 13, 2015, Review Office determined that the worker's claim was not acceptable. Review Office placed significant weight on the worker not knowing when he developed the hernia. He claimed that it could have occurred anywhere from 2010 to 2014, and there was no specific accident at work that he could relate his inguinal hernia to.

Review Office considered the employer's information as to when the worker first reported a hernia and the medical notes from January 15, 2015 when the worker questioned the doctor as to whether heavy lifting was the cause of the hernia and was told that while lifting could be related to his work, the physician was not sure it was the case. Review Office was unable to substantiate that the worker suffered an accident that arose in the course of his duties or in the workplace as defined in the Act. On July 21, 2015, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral 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 WCB's Board of Directors.

Subsections 1(1) ("accident") and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an accident has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.10.20.10, Pre-existing Conditions, ("the Policy") applies where a worker has a pre-existing condition.

The Policy gives the following definitions:

Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's Position

The worker was self-represented at the hearing. The worker made a presentation and answered questions from the panel with the assistance of an interpreter.

The worker's position was that there was a relationship between the onset of his hernia and his work duties which involved lifting and turning 10 kg product. He had had 2 surgeries in 2009, and spent half a year in hospital. When he returned to work, he had lost a lot of weight and did not have much energy.

The worker described his work duties in detail. He explained they involved lifting and turning product over at a conveyor belt and cutting the product as it moved along, then lifting it towards his shoulder and flipping it over like a somersault to the other side. He said there are 10 people on the line, and they rotate jobs every half hour. He clarified that only one of those jobs involves flipping, and he would rotate back to that job every hour and a half.

It was the worker's evidence that when he returned to work in 2010, he came back slowly, alternating 2 hours on the line and 2 hours in the cafeteria for about a month, then went back to 8 hours on the line. The worker said that it is a very hard job, and he was very tired all the time when he came back to work.

The worker said that he felt a pain in his stomach in 2010, but thought that it was a further result of his abdomen surgery. He went to his treating surgeon, who said he could not find anything wrong, but the worker felt the pain almost every day, usually during work. The worker said there was a small lump but it "was hiding" and it never appeared again.

The worker said he felt a lump in 2014 and knew it was a hernia because it was protruded. He states he went to the doctor right away. He said that the lump came out only during his work and that when he stopped working it would go away. He said that no doctor had told him that he had a hernia before that.

The worker concluded that the hernia resulted from his work because he worked a lot and never did any physical work at home. He said that he felt the pain only when he was working at work. He knew his body, and was 100% certain that he got the hernia from work.

Employer's Position

The employer was represented by an advocate. The employer's position was that the claim was not acceptable, as there was no evidence that the hernia was caused by the worker's activities at work.

The advocate submitted that for a work-related hernia, one would expect an onset of acute pain or a specific incident to have occurred. There was no question that the worker went through a difficult period of time in 2009, with surgeries, but no specific incident was identified that might have caused the hernia to develop. The worker could not even recall when the hernia might have developed. It was therefore difficult to connect the development of his hernia to a work-related condition. While the job involves physical work, that in itself does not mean that it will result in a hernia.

It was submitted that there was no link to work activities based on the medical information. The advocate noted that the worker did not inform the employer of his hernia condition despite multiple visits to the employer's health unit for other reasons. Doctors' notes and health unit forms documented other problems from 2010 on, but made no mention of a hernia or groin pain. In the Doctor's First Report sent to the WCB on November 16, 2014, the worker's treating physician identified right inguinal hernia but did not provide any mechanism of injury. The physician's clinic notes for January 15, 2015 recorded that he had explained to the worker that lifting could be related to his work, but that he was not sure if it was the case.

The advocate submitted that although the worker's job involved physical work, there was no evidence that his hernia was caused, aggravated or enhanced by that work. The advocate noted that the worker was able to work his regular duties for 4 years.

In conclusion, it was submitted that there was no strong evidence that there was any connection between the worker's hernia and his work duties.

Analysis

The issue on this appeal is whether or not the claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's right inguinal hernia arose out of or in the course of his employment, or in other words, was caused, aggravated or enhanced by his job duties. The panel is unable to make that finding.

The panel notes that the worker has not suggested that he suffered an acute injury in either 2010 or on November 5, 2014, the date he filed his Incident Report. The panel is satisfied that there is no evidence to indicate that there was any one particular event which might have caused his hernia.

The panel then considered whether the worker's hernia developed over a period of time as a result of his work duties.

The worker suggested that he first had a problem in 2010 when he returned to work after his surgeries. Based on the evidence, the panel is unable to relate the development of his hernia back to 2010. In this regard, the panel notes that the worker said he returned to work slowly in 2010 and was not doing his full regular duties right away. For at least a month, he rotated every 2 hours between his duties and the cafeteria, and therefore spent only half of his time on the line. When working on the line, he continued to rotate through the different processes and duties as noted earlier, every 30 minutes.

The evidence indicated that he returned to work on March 15, 2010, and went to see his treating physician on March 18, 2010, complaining of lower abdominal discomfort. There is no indication on the file that the treating physician identified, suspected or had any concern at that time that the worker had a hernia.

The panel notes the worker was first diagnosed with a hernia by his treating physician in March 2014. He has attributed it to his job duties of lifting and flipping product. After carefully examining the worker's duties and how he did them, the panel is unable to find his work duties caused or contributed to the development of his hernia. The panel recognizes that for a portion of the day, the worker was lifting and flipping higher than normal weights of 20 lbs. or more. While the worker described how physical the job is, the panel noted that the movements he described were not sufficiently outside the body envelope to cause concern. He also continued to rotate through the different stations, only one of which involved lifting and flipping product. He would therefore only have performed those duties 3 or 4 times a day, for 30 minutes at a time. By March 2014, he had been doing the same job steadily for 4 years, and there was no indication that anything had changed which would have resulted in the onset of a hernia.

The panel notes that in the clinic notes for the worker's visit on January 15, 2015, the treating physician recorded that the worker was there "wondering as he is lifting heavy stuff, [if] it is the cause of his hernia", and that the physician's response was that: "I have explained to the [worker] that lifting could be related to his work, but I am not sure if it is the case."

In conclusion, based on all of the evidence before us, the panel is not satisfied, on a balance of probabilities, that the worker's right inguinal hernia was caused, aggravated or enhanced by the performance of his job duties. The panel recognizes that the worker's symptoms were felt more at work, but the panel finds that his work activities were not the cause of those symptoms or his condition.

The panel therefore finds, on a balance of probabilities, that a causal connection has not been established between the worker's employment and his right inguinal hernia. The claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 10th day of June, 2016