The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing two decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claim. A hearing was held on September 7, 2016 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's left inguinal hernia surgery; and

Whether or not the worker is entitled to benefits after April 1, 2011.

Decision

That responsibility should be accepted for the worker's left inguinal hernia surgery; and

That the worker is entitled to benefits after April 1, 2011.

Background

The worker filed a claim with the WCB for left groin symptoms that commenced on October 15, 2008 which he related to his work activities as a truck driver. His claim for compensation was initially denied by the WCB but was accepted by the Appeal Commission on January 29, 2010. For further information regarding claim details, please see Appeal Commission Decision No. 10/10.

In a WCB decision dated March 4, 2011, the worker was advised that wage loss and medical aid benefits would be paid up to and including April 1, 2011, based on the WCB's decision that he had recovered from the effects of his October 15, 2008 compensable left groin injury. The case manager noted that the WCB accepted that he suffered a left inguinal strain from his compensable injury and that various test results related to his hip failed to show material structural or physiological based pathology or physical impairment. The decision was also based on the opinion expressed by a WCB medical advisor dated March 3, 2011, that the worker was capable of returning to work as a full time truck driver even though he still appeared to be symptomatic about the left hip.

On July 6, 2011, a worker advisor wrote Review Office requesting reconsideration of the case manager's decision of March 4, 2011. The worker advisor submitted that the evidence on file showed that the worker's signs and symptoms had remained consistent since their onset and that his ongoing difficulties were more likely than not, causally related to his compensable injury.

On August 31, 2011, Review Office confirmed that the worker was not entitled to benefits beyond April 1, 2011 as it was unable to determine that the worker had a loss of earning capacity in relation to his compensable injury beyond that date. Based on its review of the file evidence which included tests results and examinations by previous healthcare professionals, Review Office concluded that the medical information did not provide a conclusive diagnosis for the worker's current difficulties and that the worker's need for medical treatment beyond April 1, 2011 was not acceptable in relation to his claim.

The worker's file was again reviewed by WCB case management in June 2015 based on medical information which showed that the worker underwent left inguinal hernia surgery on May 21, 2015. The case manager advised the worker that he was not entitled to further WCB benefits based on the following rationale:

Medical information on file indicates you underwent imaging regarding a possible left inguinal hernia via a CT scan in January 2009 which did not note any abnormality in relation to the left inguinal region or femoral canal. Furthermore, you were reviewed by two surgeons (November 2008) and (April 2010) both indicating there was no material clinical evidence of a left side inguinal hernia. Finally, reported pain throughout your file/medical has not been isolated to the left inguinal region and has also incorporated the lateral hip, thigh, and gluteal region.

On July 20, 2015, based on review of the medical report dated July 6, 2015, the worker was advised that no change could be made to the June 18, 2015 decision which denied further WCB benefits.

On September 28, 2015, the worker was advised that medical reports dated July 6, 2015 and July 24, 2015 had been reviewed by the WCB and no change would be made to the July 20, 2015 decision.

On January 21, 2016, the worker advisor wrote Review Office asking reconsideration of the previous WCB decisions based on the medical evidence added to the file since their previous August 31, 2011 decision as well as additional medical information supplied by the worker advisor.

In a decision dated February 24, 2016, Review Office determined that no responsibility should be accepted for the left inguinal hernia surgery and that there was no entitlement to benefits beyond April 1, 2011.

Regarding the first issue related to the hernia surgery, Review Office placed weight on the evidence in the closest proximity to the worker's accident that a hernia was not detected. When seen at the hospital on October 24, 2008, the worker reported that he had no palpable mass and that this differed from the worker's report in November 2014 which stated, "he feels he has noticed a bulge there previously." Then in 2014, the worker was diagnosed with a hernia for which surgery was performed. Given the duration of time since the date of accident with normal examinations for a hernia, Review Office was unable to find a relationship between the presence of a hernia in 2014 and the workplace accident from 2008.

Review Office also confirmed that the worker was not entitled to benefits beyond April 1, 2011. Review Office found that the compensable injury involved a left inguinal strain and based on the diagnosis of strain, the time that had passed since the onset of the injury and the medical treatment provided, there was no loss of earning capacity or need for further treatment beyond April 1, 2011.

On March 1, 2016, the worker advisor appealed Review Office's decisions to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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.

In this case the worker has an accepted claim for a left inguinal strain. The worker was subsequently diagnosed with a left inguinal hernia. The worker is appealing the WCB decision that his left inguinal hernia is not acceptable. The worker is also seeking wage loss benefits after April 1, 2011, the date upon which his benefits were terminated.

Worker's Position

The worker was represented by a worker advisor, who provided an oral summary of his previously filed written submission. He submitted that:

• the worker had not fully recovered from the effects of his 2008 workplace accident by April 1, 2011
• the worker's surgically repaired left inguinal hernia was caused by the October 15, 2008 workplace accident
• the worker is entitled to benefits after April 2, 2011
• responsibility should be accepted for the worker's left inguinal hernia surgery

In support of the position that the worker's hernia is related to the 2008 accident, the worker's representative noted that the worker continuously reported symptoms in the same anatomical area, notwithstanding that some medical professionals and diagnostic tests did not confirm a hernia injury.

He submitted that the worker's surgically repaired left inguinal hernia was caused by the October 15, 2008 workplace accident and that responsibility should be accepted for the repair of the worker's inguinal hernia.

In answer to questions, the worker advised that:

• he did not return to work after his benefits were terminated in April 2011
• before the surgery, he had difficulty walking; he could walk about two blocks before he had to stop and stretch, he had difficulty sitting for more than 15 minutes without "seizing up on that one side on a regular basis," his left leg had "gone into atrophy," he took painkillers
• he could not lift objects including groceries; when he lifted anything he felt a sharp stabbing pain in the left groin area
• he felt a deep pain in the left hip, "my whole left side…was affected by the injury" * he had difficulty sleeping due to the injury
• he returned to work, after the surgery, in September of 2015 as a truck operator * he started working full-time in February 2016
• "I’m pain free. I’m, like, super strong, like, I’m stronger than the average person."

In reply to a question about how long it took him to recover from the surgery, the worker advised "about six weeks." He advised that he started looking for work in July and found part-time work in August.

The worker acknowledged that he has had other abdominal issues since the hernia surgery. He also acknowledged that he has taken painkillers related to these issues.

With his written submission, the worker's representative attached 3 journal articles. He noted that:

In two of these three studies, the authors found that ultrasounds had a 96-98% positive predictive value. On the other hand, while the authors of a third study found that ultrasound had a somewhat lower detection accuracy (86% sensitivity), they were nonetheless found to be more accurate than CT scans, which was said to have a sensitivity of 80%...In our opinion, these studies lend support to [family physician's] comment about the accuracy of ultrasounds compared to CT scans.

The panel also has before it an article in the "Annals of Surgery" related to the accuracy of herniography in detecting hernias…it states that a provocative maneuver is important when performing this test noting that the study was normal with a patient at rest, but the same patient was found to have an indirect inguinal hernia when performing a maneuver.

The preceding comments appear consistent with the March 26, 2014 ultrasound that involved scanning of the left inguinal region "with challenging maneuvers," which the worker's surgeon, [name], described as a "focused ultrasound examination" showing a "small reducible, fat containing left inguinal hernia, very small indeed, which appeared to be indirect." Thus, if movement during the ultrasound was required to detect the worker's hernia, we suggest the fact that the CT scan did not identify one does not rule out its presence at that time…

In summary, the results of these studies support that not only can inguinal hernias be difficult to detect by an experienced physician, but that the absence of clinical evidence does not preclude that a patient may have an inguinal hernia that is the source of their pain…Although we contend that the actual outcome of a medical procedure should not be a factor in determining whether responsibility should be accepted for it, the fact that the worker reported essentially being pain-free post operation, and resumed working in September of 2015 as a [truck operator] supports that the procedure was a success…

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker is seeking acceptance of his left inguinal hernia and for benefits after April 1, 2011.

Issue 1: Whether or not the responsibility should be accepted for the worker's left inguinal hernia surgery.

For the worker's appeal of this issue to be approved, the panel must find, on a balance of probabilities, that the worker's left inguinal hernia arose out of and in the course of his employment. The panel was able to make this finding.

In reaching this decision the panel relies upon the following information:

• the worker was employed in a manual job where he was required to lift packages between 50 and 80 pounds
• the worker filed a claim for left groin symptoms that commenced on October 15, 2008 after lifting a package
•  the worker's claim was accepted * an attending hospital physician assessed the worker on October 24, 2008 with a possible hernia
• the worker's family physician, upon examination, noted a "tender bulge" in the worker's left femoral canal and diagnosed a left inguinal hernia on October 27, 2008
•  the worker was examined by the operating surgeon on January 27, 2014 who noted the worker was tender in the inguinal canal. He "organized a focused ultrasound examination of his groin"
• a Soft Tissue Sonogram Left Inguinal Region With Dynamic Scanning was performed on March 26, 2014 and noted "Scanning of the left inguinal region with challenging maneuvers shows a small reducible fat-containing left inguinal hernia that appears to arise lateral to the inferior epigastric artery"
•  May 21, 2015 operative note indicates a post-operative diagnosis of "left inguinal hernia"
•  July 6, 2015 report from the operating surgeon indicates "…we did a laparoscopic repair of a left indirect inguinal hernia, which contained predominantly preperitoneal fat. Seeing him today in clinic, he is well. His pain is actually gone."

The worker's representative argued that the hernia injury occurred in 2008 but was not confirmed until a Soft Tissue Sonogram Left Inguinal Region with Dynamic Scanning was performed with challenging maneuvers. The panel finds that the evidence is consistent with this position. The panel notes that the worker continued to report symptoms in the same anatomical area from the outset of the claim in 2008 until the surgery was performed. The panel notes that upon having the surgery, the worker reported immediate relief from his prior symptoms. The panel finds that the left inguinal hernia arose out of and in the course of the worker's employment and that responsibility for the surgery to repair the hernia is accepted.

Issue 2: Whether or not the worker is entitled to benefits after April 1, 2011.

For the worker's appeal of this issue to be approved, the panel must find that the worker sustained a loss of earning capacity and required medical aid as a result of the workplace injury. The panel was able to make this finding.

The panel finds, based upon the evidence of the operating surgeon, that the worker had a hernia which was repaired on May 21, 2015. The panel finds that this hernia was due to the workplace accident. It is noted that the worker first reported the groin pain in 2008 and continued to complain of the groin pain until the hernia repair surgery in May 2015. The panel accepts the worker's position that the hernia injury occurred in 2008 and continued to be problematic for him until the hernia repair was performed in 2015.

The panel finds that the worker sustained a loss of earning capacity as a result of the hernia condition and that wage loss benefits ought to be paid to the worker after April 1, 2011, subject to a review of the worker's restrictions from this condition and the extent of his loss of earning capacity during this time period.

With regard to the duration of benefits, the panel notes the worker's evidence that he was fit to return to work approximately 6 weeks after the surgery, was seeking employment at that time and did return to work in September 2015.

The worker's appeal of this issue is approved.

The panel notes that since first reporting the hernia, the worker has reported a variety of symptoms beyond groin pain. The panel makes no findings, at this time, on the relationship of these symptoms to the workplace injury.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 29th day of September, 2016