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 compensation was not acceptable. A hearing was held on August 18, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker filed a claim with the WCB for an injury to his abdomen that occurred on May 6, 2015. The worker reported that he was building picnic tables and felt a pinch in his right lower abdomen when he flipped the table over. The worker said he continued to work until May 13, 2015. He stated "I didn't report it immediately. It wasn't until I contracted a cold when I was coughing, I felt the excruciating pain."

When speaking with a WCB adjudicator on September 3, 2015, the worker reported that:

* He had a non-work related inguinal hernia which was surgically repaired approximately 10 years ago. * He was symptom-free prior to May 6, 2015. * He did not notice a lump at the time of the accident, but the discomfort gradually increased over the next several days.

The WCB obtained medical information which showed that the worker was treated by a nurse on May 18, 2015 for right-sided lower abdominal pain. The nurse noted a history of left inguinal hernia and that the worker reported it felt the same way on his right side. A palpable small lump in the worker's right groin area was noted and a possible hernia was questioned.

An employer accident investigation stated that the date of accident was May 6, 2015 and it was reported on May 13, 2015. The accident was described as "while constructing picnic tables…[I] over exerted myself in the course of rotating the table during the construction process." The worker stated he felt only slight pain at the time and did not feel the extreme pain until one week later.

On September 28, 2015, the worker was advised that his claim for compensation was not accepted as the WCB was unable to establish a relationship between his groin difficulties and his work duties. The basis for the decision was as follows:

* There was no specific incident preceding the onset of his symptoms. * No visible signs or symptoms of a hernia presented directly after the incident. * The worker did not report it to his employer or make any complaints to co-workers until May 13, 2015 when he started to notice pain because of a cold he had contracted.

The worker appealed the WCB decision of September 28, 2015 to Review Office. On October 16, 2015, Review Office returned the case to primary adjudication to further investigate the points which had been raised in the worker's submission.

On October 19, 2015, the case manager advised that the worker had indicated in his recent submission that he developed a sharp pinching pain in his right groin area while flipping picnic tables on May 6, 2015. He was working alone and confirmed that he did not report anything to anyone at the time. Given his delay in reporting and the fact that he did not seek medical treatment until after a coughing episode on or around May 13, 2015, Compensation Services was unable to establish the necessary link between his diagnosis and an accident occurring at work on May 6, 2015. On October 25, 2015, the worker appealed the decision to Review Office.

On December 30, 2015, Review Office determined that the worker's claim was not acceptable. Review Office stated that it was unable to find evidence to establish that the work event on May 6, 2015 caused the worker's right inguinal hernia. While it was possible the worker had suffered a minor injury from what he did that day, he did not advise the only other person there that day who was working in the office, of what occurred until after he "doubled up from coughing" from a cold while in the bathroom on May 13, 2015. The facts showed that it was that excruciating pain that caused him to double up and prompted him to report an injury and seek out medical attention.

Review Office also indicated that the medical notes from May 18, 2015 documented that the nurse suggested the worker have a second pillow to allow for more comfort during coughing spells. This supported that the worker experienced a persistent cough. The notes did not indicate a work event as a cause for the diagnosed possible hernia.

Review Office stated that it was unable to confirm an injury on May 6, 2015. Review Office found that the worker's complaint was proximal to the event of coughing and not to a lift that had occurred one week earlier.

On February 29, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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 injury has been established, the worker is entitled to the benefits provided under the Act.

Worker's Position

The worker was self-represented at the hearing. The worker made a presentation and responded to questions from the panel.

The worker's position was that his right inguinal hernia was directly related to the workplace incident on May 6, 2015. The worker briefly described what occurred on May 6, 2015 and in the days that followed, as well as the nature of his duties and the workplace itself.

The worker stated that they had been working on a project of building 5 or 6 picnic tables, each of which was approximately 7 by 4 feet (2.13 x 1.2 meters) in size. By May 6, 2015, there were only 2 tables to finish. On that date, he was working on his own on the second last table, which was substantially built by then. He had to rotate the table to put bolts and screws in the bottom, and was trying to flip it by himself when he felt a little pinch in his right groin area. He said that he did not think much about it at the time. It was not until about a week later, with the onset of a cold, that he coughed and immediately felt a stabbing pain in the groin.

The worker said that he continued working in the week following the May 6 incident, but that this did not involve any stressful activity. He explained that the shop was not fully functional at the time, as additional machinery was being set up. They were therefore only doing a number of small repair type projects.

Up until May 13, the worker noted he was not stressing the groin area or overexerting himself. It was not until he felt the severity of the pain after coughing on May 13 that he realized that something was terribly wrong, and that he needed to have it looked at.

The worker noted that prior to seeing the nurse, he had not noticed any lump or bulge. When he saw the nurse on May 18, 2015, she noted through palpation that there was a small lump, but even then he could not see one.

Employer's Position

The employer was represented by its WCB coordinator.

The employer's position was that they agreed with Review Office's decision that it was unable to establish from the evidence that the worker suffered a personal injury by accident arising out of and in the course of employment.

The employer's representative noted that it was clear that the worker had a right inguinal hernia, and the only issue was what caused that hernia.

The representative referred to information on file which showed that the worker had experienced only a slight pain on May 6, 2015; that he did not notice a lump or feel that there was an issue at the time; that he continued to do his regular work and did not report or mention an injury to anyone at the time; that he did not feel extreme pain until a coughing episode one week later; that it was at that point that he sought medical attention.

The representative made specific reference to the causes of inguinal hernias, one of which was chronic coughing or sneezing. He submitted the evidence suggested that it was the excruciating pain from coughing on May 13, 2015 that prompted the worker to report his injury.

The representative submitted that, on a balance of probabilities, it was more likely that the coughing due to the cold was responsible for the worker's inguinal hernia, not the lifting. He noted that this was supported by the fact that the worker's complaints were proximal to the event that occurred on May 13.

In conclusion, it was submitted that it was the worker's coughing, and nothing more than the worker's coughing, that caused his hernia, and the appeal should be dismissed.

Analysis

The worker is appealing the decision that his claim for a work-related injury is not acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained an injury by accident arising out of and in the course of his employment. The panel is able to make that finding.

Overall, the evidence is consistent throughout that the worker felt a pinch in his right groin area when he flipped a picnic table on May 6, 2015. The worker continued to perform his work duties after that, but the evidence shows that those duties were much lighter at that point due to other work that was being done in the shop. He was therefore not stressing or aggravating the area or overexerting himself. Then, one week later, when he coughed, the worker felt excruciating pain and a strangulated hernia was ultimately identified.

The panel notes that while the nurse found a small lump in the worker's right groin area by palpating that area on May 18, the worker's evidence was that he had not seen a lump earlier and could not see one at that point.

It is the panel's view that the progression of the worker's symptoms and injury is, in this case, consistent with the natural progression of a hernia injury.

The panel finds, on a balance of probabilities, that the specific job duties performed by the worker in flipping a heavy picnic table on May 6, 2015 were consistent with and caused the worker's hernia, and that the subsequent cough on May 13, 2015 brought it to treatment and surgical status.

In light of the foregoing, the panel finds, on a balance of probabilities, that the worker was injured while performing his employment duties, and that the claim is therefore acceptable.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of October, 2016