The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that his hernia condition was not related to his compensable accident of May 9, 2013. A hearing was held on June 19, 2017 to consider the worker's appeal.

Issue

Whether or not the diagnosis of a hernia is causally related to the May 9, 2013 accident; and

Whether or not the worker is entitled to benefits in relation to the diagnosed hernia.

Decision

That the diagnosis of a hernia is not causally related to the May 9, 2013 accident; and

That the worker is not entitled to benefits in relation to the diagnosed hernia.

Background

On May 9, 2013, the worker suffered an injury to his left groin when he was impaled with a piece of wood while operating saw machinery. The claim for compensation was accepted by the WCB and various benefits were paid to the worker. The compensable diagnosis was an impaled left groin, and surgery to remove the foreign body was performed on May 9, 2013. On January 27, 2014, the worker returned to his pre-accident job duties.

On March 17, 2015, a WCB medical advisor reviewed the worker's file with respect to permanent partial impairment ("PPI") eligibility and stated:

[Worker] sustained a penetrating injury to the left groin exiting through the left perineum while at work…

The piece of wood was removed and [worker] was transferred to Winnipeg where investigations revealed no injury to the urethra, bowel or vascular structures…

[Worker] underwent an incision and drainage with debridement of the wound on May 9, 2013 and the groin wound was allowed to heal by secondary intention.

On September 8, 2015, the worker was examined by the WCB medical advisor regarding his entitlement to a PPI award. At the examination, the medical advisor noted obvious swelling of the left scrotum and groin which the worker advised had been present since the time of his injury. There was obvious scarring along the side of the swelling and in the left perianal region. Following the examination, the worker was assessed a cosmetic PPI rating of 2% whole person impairment.

In late September 2015, the worker advised the WCB that he required hernia surgery which he related to his compensable injury of May 9, 2013.

On October 8, 2015, a WCB medical advisor was asked by the case manager to provide his opinion as to whether or not the worker's left inguinal hernia was medically accounted for in relation to the May 9, 2013 workplace accident. In a response dated October 14, 2015, the medical advisor opined that the left inguinal hernia was not medically accounted for by the workplace accident based on the following rationale:

To create an abdominal wall hernia a foreign body such as a spear of wood would have to penetrate and transgress the abdominal wall fascia (the strong layer of the abdominal wall) such that an opening would be created in the abdominal wall fascia. Such an opening in the abdominal wall fascia would allow abdominal contents such as omentum or intestine to protrude and present as a bulge in the area of the fascial opening.

The evidence to support that the identified left inguinal hernia was not medically accounted for by the May 9, 2013 workplace accident is as follows:

i. Review of the May 9, 2013 operative report indicated that the tract of the spear of wood did not transgress the abdominal wall fascia.

ii. Review of the May 9, 2013 CT scan report documented that the tract of the spear of wood, indicated by innumerable small air bubbles that were identified throughout the subcutaneous soft tissues at the left inguinal region, extended caudally along the medial aspect of the leg into the soft tissues of the medial left buttock.

This description on CT imaging would support that the tract of the spear of wood did not transgress the abdominal wall fascia.

iii. Review of the September 10, 2015 PPI photographs indicated that the spear of wood entered the left medial proximal thigh anteriorly and exited the left medial buttock posteriorly. In that regard the PPI photographs would support that the spear of wood did not transgress the abdominal wall fascia.

iv. Of note, the May 9, 2013 urology consultation indicated that [worker] had a past history of a left groin hernia and solitary right testicle. The May 14, 2013 hospital discharge summary also indicated that [worker] had a past history of a left inguinal hernia with scrotal swelling.

On the matter of a solitary right testicle, a solitary right testicle would be indicative of an undescended left testicle which is often associated with an ipsilateral (left) inguinal hernia.

In a decision dated October 20, 2015, the worker was advised that the WCB was unable to relate his hernia condition to the workplace accident based on a review of his claim and the WCB medical opinion.

On November 14, 2016, a worker advisor wrote Review Office and requested reconsideration of the decision dated October 20, 2015. The worker advisor referred to medical evidence on file to support that the worker's inguinal hernia was associated with the May 9, 2013 injury.

On January 12, 2017, Review Office determined that the diagnosis of a hernia was not a compensable condition and the worker was not entitled to benefits in relation to the hernia.

Review Office found the evidence on file did not support that the worker sustained an inguinal hernia or that a structural change occurred to the pre-existing inguinal hernia as a result of the workplace accident. Review Office's decision was based mainly on the WCB medical opinion that was outlined on October 14, 2015. On February 6, 2017, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On September 18, 2017, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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."

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy") addresses the issue of pre-existing conditions when administering benefits. The Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The following definitions are set out in the Policy:

Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.

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 assisted by a worker advisor and accompanied by a friend at the hearing. The worker advisor made a presentation to the panel on the worker's behalf, and the worker responded to questions from the worker advisor and the panel.

The worker's position was that his hernia condition is associated to the May 9, 2013 compensable injury, and he should be entitled to benefits and services in relation to that condition.

It was submitted that the worker did not have an inguinal hernia condition prior to the May 9, 2013 workplace injury. His evidence was that he noticed the hernia right after the accident; that it was sore when he went back to work and had gotten bigger over time.

The worker advisor submitted that the medical information supports a causal relationship between the worker's left-sided inguinal hernia and the May 9 compensable injury. The advisor referred to an October 8, 2015 letter from the worker's family doctor to the WCB, where he stated that the worker came to see him shortly after the accident with a large swelling involving the scrotum, that clinically the differential at that time was between a hydrocele or an inguinal scrotal hernia, and that the worker had no similar history prior to the date of the accident. The family doctor noted that no intervention had been discussed at that time because of the worker's extensive perianal injury; that the hernia had enlarged over time and become much more uncomfortable now, and he was being referred for a surgical consultation.

The worker advisor noted that the CT scan at the time of the injury revealed a massive left-sided inguinal hernia. The worker was examined by a WCB medical advisor on September 8, 2015, who reported that he had obvious swelling of the left scrotum and groin which the worker described as being present since the time of the injury. In his report dated September 22, 2015, the surgeon stated that the worker had a huge left inguinal hernia into the scrotum.

The worker advisor stated that the hernia was surgically treated on October 14, 2015, following which the worker made a good recovery and returned to regular duties. In a further letter dated September 29, 2016, the treating surgeon wrote that "looking at the doctor's note we treated him for his injury in 2013. It seems as if he already had a small hernia on the left side which could well have been aggravated by the penetrating injury." The surgeon further wrote that "Such an injury can certainly cause an inguinal hernia and in his case it could have contributed to progression of the inguinal hernia."

The worker advisor confirmed that their position was that the hernia was causally related to the workplace injury. She indicated that they had not argued that there was a pre-existing condition which was aggravated due to the accident, as they had no medical evidence prior to the injury of a pre-existing inguinal hernia. The advisor noted that there had been the suggestion of a pre-existing condition, and it was certainly open to the panel to apply the pre-existing conditions policy if the panel believed there was evidence to support its application. The advisor submitted that if there was a pre-existing condition, the injury definitely altered the worker's condition to the point that it became symptomatic and eventually required surgical repair.

Employer's Position

The employer was represented by legal counsel. The employer's position was that the left groin hernia is not related to the May 9, 2013 compensable injury, and as such, the hernia is not a compensable condition and there is no entitlement to benefits.

Counsel relied on the medical evidence as outlined by the WCB medical advisor on October 14, 2015 and referred to extensively in the Review Office decision.

Counsel noted that the September 29, 2016 letter from the treating surgeon seemed to support that the worker's condition was a pre-existing one, but submitted that the opinion itself was speculative. It was further noted that there appeared to be some conflict in the medical evidence from the surgeon, who indicated in 2013 that the worker had a pre-existing condition, and the family doctor who stated otherwise. It was also significant, in the employer's view, that the original operative report in 2013 did not refer to the hernia, which suggested that this was not relevant to the injury in the circumstances.

The employer did not dispute that the worker suffered a very serious injury. It was submitted, however, that the medical evidence on file supported that a causal relationship between the diagnosis of an inguinal hernia and the May 9, 2013 accident could not be established. Counsel noted that the medical evidence seemed to suggest that where the wood caused damage was not the abdominal wall fascia, such that it would have led to an aggravation of a pre-existing hernia condition or caused such a condition. The employer believed it was significant that the worker had returned to work and was working without difficulty for some time. It was submitted that this and the fact that there did not seem to be a concern with respect to the hernia at the time of the initial operation were significant indicators that the hernia was not causally related to the workplace injury.

It was submitted that to the extent that doctors seemed to be indicating that this was not a pre-existing condition, there was no medical evidence to support such a position. Counsel noted that this could be the result of the worker self-reporting that he had not noticed anything, notwithstanding that such a condition was already present.

In summary, counsel stated that the employer supported the Review Office decision based on the medical evidence, and believed that the appeal should be dismissed.

Analysis

Issue 1. Whether or not the diagnosis of a hernia is causally related to the May 9, 2013 accident.

For the worker's appeal on this issue to be successful, the panel must find that the worker's left inguinal hernia condition was a consequence of the May 9, 2013 workplace accident. For the reasons that follow, the panel is unable to make that finding.

The panel questioned the worker at the hearing with respect to the circumstances and nature of his accident and injury. Based on our review of all of the information before us, on file and at the hearing, the panel finds, on a balance of probabilities, that the puncture and injury to the worker as a result of the accident, were geographically close to, but separated from and not in the same location as, the inguinal hernia.

On October 14, 2015, a WCB medical advisor reviewed the claim file and provided his analysis and opinion that the worker's left inguinal hernia was not medically accounted for by the May 9, 2013 workplace accident. Following the hearing, the panel sought further detailed information from WCB Healthcare regarding the nature and cause of the undescended testicle condition, how a hernia condition would develop, and the typical location of this type of hernia in relation to the described location of the puncture injury. By memorandum dated August 28, 2017, the same WCB medical advisor responded to the panel's inquiry and stated, in summary:

For a penetrating injury to result in the occurrence of an inguinal hernia, the penetrating object would have to pass into the abdominal cavity and create an opening into the abdominal wall fascia (the strong layer of the abdominal wall). If such were the case, the abdominal contents (omentum/intestine) would be expected to protrude through this opening and extend through the tract of the penetrating object rather than along a natural anatomic pathway.

Insofar as the path of the wood spear passed through the medial left thigh and did not transgress the abdominal wall fascia it is unlikely that this penetrating injury would result in an inguinal hernia extending into the scrotum.

The panel accepts the WCB medical advisor's analysis and opinion that the worker's left inguinal hernia was not medically accounted for by the May 9, 2013 workplace injury, as set out in his October 14, 2015 opinion and further detailed in his August 28, 2017 memorandum. The panel notes that the medical advisor's version or understanding of the worker's compensable injury is consistent with our findings as to where and how the worker's injury had occurred anatomically. The panel finds, on a balance of probabilities, that the pathway of the penetrating injury was not consistent with the pathway that would have resulted in an inguinal hernia, and that it is not anatomically probable that the workplace accident resulted in the inguinal hernia.

The worker confirmed at the hearing that he had known about the missing testicle for many years, and therefore long before the injury. The panel is satisfied that the pre-existing condition of an undescended left testicle would have predisposed the worker to an inguinal hernia, but is not satisfied that the compensable injury was causative of his hernia condition.

In this regard, the panel notes that the worker stated at the hearing that he did not have a hernia condition in his left side prior to the injury. In response to a question as to how he knew this, he stated that it just seemed normal; that he had never felt any pain there before, but felt pain after the injury. The panel accepts the WCB medical advisor's statement in his August 28, 2017 memorandum that: "An inguinal hernia is often present in an asymptomatic fashion and as such, is often not appreciated by the individual."

The panel further finds that there is a lack of medical evidence and continuity which would enable us to relate the hernia back to the compensable injury. The panel notes that the CT scan on the day of the accident showed that the worker had a "Massive left-sided inguinal hernia containing omental fat only." The doctors would have been aware of the hernia when they were preparing to do the initial surgery on May 9, 2013, but do not appear to have been concerned about it.

File information shows that on July 15, 2013, the worker advised the case manager that he was feeling really well, that everything was healing nicely and he had no unusual symptoms. The worker was cleared to return to his full regular duties on January 9, 2014, and in a March 19, 2014 report, the family doctor reported findings of "well healed wounds / no significant disability detected" and that the worker was back at work.

At the hearing, the worker could not recall whether he had any conversations with his family doctor with respect to the hernia after he returned to work in March 2014. When asked what prompted him to go back to his doctor in the fall of 2015, he said he thought he had noticed the hernia getting bigger and that it was hurting more.

While the October 8, 2015 letter from the family doctor states that the worker came to see him shortly after the May 9, 2013 accident with large swelling involving the scrotum and refers to the worker having a hernia which progressively became worse, that panel notes that this letter is dated more than 2 years after the worker's initial surgery and there is a lack of follow-up or mention of the hernia in medical reports subsequent to the initial surgery.

Following the hearing, the panel requested copies of the family doctor's chart notes relating to the issues, but was advised that no chart notes were available.

Based on the foregoing, the panel finds, on a balance of probabilities, that the compensable injury was not causative of the worker's inguinal hernia condition.

The panel has also considered whether the worker's left inguinal hernia condition was aggravated or enhanced by the worker's May 9, 2013 workplace accident. While the treating surgeon suggested in his letter of September 29, 2016 that it was possible that the injury could have contributed to the progression of the inguinal hernia, no evidence was provided to support such a suggestion. Based on the information before us, the panel is unable to find, on a balance of probabilities, that the worker's hernia condition was aggravated or enhanced by the workplace accident.

In conclusion, the panel finds that the worker's left inguinal hernia condition is not a consequence of the May 9, 2013 workplace accident. The diagnosis of a hernia is therefore not causally related to the May 9, 2013 accident.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to benefits in relation to the diagnosed hernia.

For the worker's appeal on this issue to be successful, the panel must find that the diagnosed hernia is a compensable injury.

Given our findings on Issue #1, that the diagnosis of the left inguinal hernia condition is not causally related to the May 9, 2013 workplace accident, the panel finds that the hernia is not a compensable injury. The worker is therefore not entitled to benefits in relation to the diagnosed hernia.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 9th day of November, 2017