Decision #144/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on November 13, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker initially filed a Worker Incident Report on February 23, 2019 indicating he developed a hernia over a period of time while unloading heavy products from a truck as part of his job duties. An updated Worker Incident Report was provided to the WCB on March 7, 2019 noting an incident date of February 21, 2019.
In a discussion with the WCB on March 7, 2019, the worker advised that he first felt the symptoms of a hernia about a year ago,"…he felt a weird feeling, thought he just pulled a muscle and would go (sic) just go away." He further advised that he went for his annual physical checkup with his family physician who told the worker that it was a "…slow progressing type hernia" and referred him to a specialist. The worker did not mention his injury to anyone at work as he felt it did not affect his work and wanted clear direction from his doctor before he talked to his employer.
The WCB requested and received a copy of the May 15, 2018 report from the worker's treating family physician on March 8, 2019. The worker had reported groin pain, "mostly right, however also noting mild to left" and advised his physician that he "was told in past he had a small hernia on right". The family physician's examination noted "no obvious hernias…" but did refer the worker for an ultrasound for further assessment. A CT scan was conducted on June 9, 2018 and noted a "tiny fat-containing right inguinal hernia of questionable clinical significance." On August 20, 2018, the worker was seen by the surgeon. The worker reported to the surgeon that he was "…quite physically active in his spare time…" and had noticed a bulge in his right groin area over the past few months "…while playing beach volleyball." The surgeon further indicated "On examination of both inguinal regions, there is an obvious right inguinal hernia, easily reducible, likely direct. No obvious hernia in the left." The worker was then placed on a surgical waiting list.
The worker underwent bilateral inguinal hernia repair surgery on March 12, 2019.
On March 18, 2019, the worker's family physician provided the WCB with a letter confirming that he had seen the worker for his regular physical examination on May 15, 2018 when the worker reported bilateral groin pain, more on the right side and was referred for an ultrasound. The physician noted that the worker presented at an urgent care centre in June 2018, where a CT scan was conducted. It was further noted that the physician had not seen the worker again until February 2019 when a preoperative form was requested to be completed.
The worker's file was reviewed by a WCB medical advisor on April 1, 2019. The WCB medical advisor opined that a hernia could develop over time with no specific event or activity, or could be asymptomatic, but development of a hernia in relation to a factor or factors present over a period of time would be difficult to establish. The WCB medical advisor further opined that if a specific event or activity did cause the development of a hernia, the event would have had to involve a "…sudden material increase in intra-abdominal pressure" and may be caused by work or non-work related activities.
On April 10, 2019, the worker was advised that his claim was not acceptable. The WCB determined that a relationship between the worker's diagnosis of a hernia and a "…specific provocative workplace factor" could not be established.
The worker requested reconsideration of the WCB's decision to Review Office on April 21, 2019. The worker noted in his submission that his job duties were more physically demanding than reported on his file and provided several photographs of various equipment used and product being lifted while he worked. He indicated that he felt his hernia developed because of the heavy lifting he did at work and that there were no other activities in his life that he felt would lead to the development of a hernia.
Review Office determined on May 7, 2019 that the worker's claim was not acceptable. Review Office found that the worker's delay in reporting the accident and seeking medical attention made it difficult to establish a relationship between the performance of the worker's job duties and the development of a hernia. Review Office noted that the worker did not report his symptoms to his employer or his co-workers and that the hernia did not cause him pain. Review Office found that if the worker's hernia was due to his job duties, the worker would have experienced difficulties while he was working but continued to work his regular duties until the surgery on March 12, 2019. Review Office further noted the surgeon's report dated August 20, 2018 indicated that the worker noted a bulge while playing beach volleyball and did not note a work related mechanism of injury or cause.
The worker filed an appeal with the Appeal Commission on May 24, 2019. An oral hearing was arranged.
Applicable Legislation and Policies
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of the 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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a willful and intentional act that is not the act of the worker,
(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.
WCB Policy 44.05, Arising Out of and in the Course of Employment, states, in part:
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.
WCB Policy 188.8.131.52, Pre-Existing Conditions, states, in part, that:
The Workers Compensation Board (WCB) 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 the employment." The WCB 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 following definitions are set out in the Policy:
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.
The worker was self-represented and provided the panel with a presentation as to why he believed that the claim should be accepted by WCB. The worker reviewed the information contained in his file, he described his job duties as well as answered questions from the panel. In particular, the worker asked the panel to review the various pictures of his workplace that he had previously submitted to the WCB that he believed supported his position that the claim should be accepted.
The worker described his work duties as being physically demanding. He was employed on a night shift stocking shelves in a grocery store which involved using a hand operated jack to move pallets of product from where they were dropped off by the delivery vehicles in the back of the store into the retail area of the store and then transferring the product onto the store shelves. The loaded pallets could be, at times, quite heavy and difficult to push/pull with the hand jack. The worker explained that unloading the product from the pallets onto the store shelves was also physically demanding as some of the individual products (such as a large bag of flour) could weigh 26 kilograms or more. The worker described stocking shelves as involving a lot of repetitive lifting and bending over.
The worker also described how he would have to stack the emptied pallets on top of each other to a height of up to six feet which he described to the panel as requiring awkward lifting. He also described working with heavy bales of compressed cardboard as being very strenuous.
The worker submitted that it was not probable that his non-work activities would have resulted in the formation of an inguinal hernia as those activities were not as physically demanding as his workplace activities and therefore, on a balance of probabilities, his work duties were the only reasonable cause of his inguinal hernia.
The worker stated that the bulge was visible on his right side, although he was advised he had bilateral hernias. When asked by the panel about the left inguinal hernia, the worker stated he was not aware as to whether there had been a surgical repair to his left sided inguinal hernia as he had no further contact with his doctor since the surgery.
The worker's position was his inguinal hernia was a cumulative type of injury that developed over time due to his repetitive, physically demanding work duties.
The worker stated:
I understand that there's no clear cut moment in which we can actually say, yes, the hernia happened on this date exactly at this time, but if you take that accumulative and the probable, the weight of the evidence shows that it most likely happened because of the heavy workload that I had and wouldn't have happened anywhere else…
The employer did not participate in the worker's appeal.
For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the worker's duties stocking shelves at a grocery store either caused, aggravated or enhanced the worker's inguinal hernia. For the reasons that follow, the panel is unable to make that finding.
It is the panel's determination that, although the workplace duties the worker described are physically demanding, they did not involve the level of abdominal straining and "intra-abdominal pressure" that would be required to accept that the workplace duties caused the worker to develop an inguinal hernia and/or caused the inguinal hernia to be aggravated or enhanced.
The panel notes that the worker had been performing the same work duties regularly since the fall of 2016. The worker did not report any substantive change to those duties during that period that would result in the alteration of body mechanics required to perform his job. If the worker's job duties were placing such a strain on his abdomen that they caused an inguinal hernia to develop, then the panel would expect that the resulting symptomology would have developed much closer to the commencement of his employment performing those duties.
A file memorandum dated March 7, 2019 reports that the worker advised the WCB that he first felt symptoms about a year prior (March 2018). He stated that he "felt a weird feeling, thought he had pulled a muscle and would go (sic) just go away." The panel notes that there was a lack of reporting in the file either at this juncture or at any other point that the symptomology commenced or subsequently occurred at work.
The panel further notes that there is a lack of medical evidence in the file or provided at the hearing that established a relationship between the worker's duties and the formation of his inguinal hernia. The panel recognizes that the operative report dated March 12, 2019 from the worker's surgeon states the following with respect to the worker's bilateral hernias:
These seem to have been related to work activity as he works in [the employer] doing some heavy lifting and that is when he felt pain beginning to be aggravated.
It is the panel's position that this comment is not medical evidence of a cause and effect relationship between the worker's job duties and his inguinal hernia, but an assumption as to how the hernia could have developed. Further, the surgeon's comments are inconsistent with the information the worker provided to the WCB as well as what the worker stated at the hearing: that he was not symptomatic while performing his work duties.
Although the worker stated at the hearing that he would notice a "tennis ball" sized bulge protruding out of the herniated area after playing beach volleyball, when asked by the panel if he had ever noticed the same type of findings at any time after he had finished a daily shift at work, he stated that he had not. The worker attributed the lack of bulging at the end of his shift to wearing jeans at work which he thought would be more effective of holding the herniated area from protruding during his work activities than the shorts he wore while playing beach volleyball. Additionally, the panel notes that the previously referenced March 7, 2019 file memorandum stated that the worker advised the WCB that he did not mention the hernia to anyone at work as it did not affect his work.
The panel also finds it significant that once the inguinal hernia was diagnosed by his medical providers, the worker continued to perform his regular duties for approximately 10 months (until the date of the surgical repair). The panel concludes that the worker's ability to continue performing his regular duties during that time, without incident, or medical concern that his job duties might affect his medical condition, or any indication of the inguinal hernia actually being affected as a result of those workplace duties, further supports that the inguinal hernia was not work related or aggravated/enhanced by the worker's employment duties.
At the hearing, the worker stated that it was his belief that the inguinal hernia developed over time prior to his May 2018 medical appointment and continued to be symptomatic after his medical appointment as evidenced by the bulge protruding while playing beach volleyball in the summer of 2018. While the panel accepts the general premise that in some instances, it may be possible for a worker to be injured at work without their knowledge, the panel would still be required to consider all the information available to determine whether a workplace injury was probable in the circumstances. When all the information available to the panel is considered in this instance, the panel is unable to conclude that, on a balance of probabilities, the worker's inguinal hernia developed over time as a result of him performing his job duties.
During the hearing, the worker repeatedly asserted that his inguinal hernia was work related because he did nothing else outside of work that would have caused an inguinal hernia to develop. Such an assertion is not one that can be accepted by the panel in this instance given the totality of information contained on the file. Further, it is the panel's understanding that inguinal hernias can develop without a person being involved in strenuous activity for a number of reasons. Therefore, an argument that there was no other non-work related cause for the worker's inguinal hernia is not accepted by the panel.
For all the foregoing reasons, the worker's appeal is denied.
M.L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of December, 2019