Decision #71/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on May 21, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker filed an accident report with the WCB on May 21, 2019 indicating that he injured his lower abdomen in an incident at work on May 8, 2019, reported to his employer on May 20, 2019. He reported that after a day of using a heavy-duty power drill, he felt “…lots of pain in my lower abdomen. I can feel something is wrong, like something has popped out. I felt a tearing feeling in my lower abdominal.”
The employer filed an Employer’s Accident Report with the WCB on May 21, 2019 advising that a “Note was left on desk for employer between May 17-20 stating the worker had injured abdomen. No other details.”
A Physiotherapy Initial Report was received by the WCB on May 22, 2019 noting the worker’s report of left groin and testicular pain. The physiotherapist reported objective findings of a positive cough test for hernia and bulge palpable at inguinal ring and diagnosed a left inguinal hernia and abdominal strain. The worker was referred to a physician for confirmation and possible surgical consult.
On May 22, 2019, the worker discussed his claim with the WCB. He advised that on May 8, 2019, he and a coworker were working extended hours to complete work that was outside of their regular duties. He stated he felt fine at the start of his shift but some time during the afternoon, he felt a sudden tearing pain, which make him buckle over. He told his coworker about the sudden onset of pain, which was in the same area as a previous WCB injury he had in 2018. He carried on working, completing the rest of the day and did not notify his employer about the incident. The worker confirmed he and his coworker continued to work together for the following two days, with his coworker doing more of the work, as the worker’s heavy lifting abilities were limited. After taking a couple of extra days off work, he returned to work on May 15, 2019 and May 16, 2019 but struggled to perform his regular duties. He reported feeling unwell to his employer on the evening of May 16, 2019 after finding a lump in his left groin area and advised he would not be in to work the following day, May 17, 2019. The worker left a note for his employer on May 20, 2019 and attended for physiotherapy assessment on May 22, 2019.
The worker saw his family physician on May 28, 2019, reporting a painful left groin area. The physician diagnosed a left inguinal hernia and referred the worker for surgery, recommending the worker perform light duties until the surgery.
The WCB advised the worker on June 5, 2019 that his claim was not acceptable. Because the worker delayed in reporting his injury to his employer and seeking medical treatment, the WCB was unable to establish a relationship between his abdominal difficulties and a workplace accident.
On June 19, 2019, the worker requested reconsideration of the WCB’s decision to Review Office, indicating that the employer did not dispute that he was injured at work. The worker provided a further chronology of events to Review Office on July 8, 2019 and advised that he been referred for surgery but no date had been established.
Review Office determined on July 30, 2019 that the worker’s claim was not acceptable. Review Office found the worker’s delay in reporting the workplace accident to the employer, reporting it to the WCB and in seeking medical attention, made it difficult to establish the worker sustained an injury on May 8, 2019. Review Office also found the information provided by the worker to be inconsistent and did not support that a workplace accident occurred on May 8, 2019. As such, Review Office could not establish a relationship between the worker’s abdominal difficulties and a workplace accident on May 8, 2019.
The worker filed an appeal with the Appeal Commission on August 23, 2019. An oral hearing was arranged and was held via teleconference on May 21, 2020.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
The Act sets out the definition of an accident in s 1(1) as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful 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….
When it is established that a worker has been injured as a result of an accident at work, the worker is entitled to benefits under s 4(1) of the Act.
The WCB has established Policy 44.05, Arising Out of and in the Course of Employment which sets out that 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.
The worker was represented in the hearing by a worker advisor, who made submissions on the worker’s behalf. The worker provided answers to questions put to him by the worker advisor and by members of the appeal panel.
The worker’s position, as outlined by the worker advisor, is that as a result of the more strenuous than usual duties he undertook in the course of his employment on May 8, 2019, the worker was injured. The injury, later diagnosed as an inguinal hernia, occurred as a direct result of the tasks the worker was engaged in on that day. At the time of the injury, the worker experienced a sudden tearing pain in his lower left abdomen, which he mentioned to his coworker that same day. As this occurred late in the day, the worker completed his shift. He continued to report to work as required in the following days, working with pain. The worker reported the injury to his employer on May 19 or 20, 2019 when he realized the injury was not resolving on its own, and then sought medical attention on May 22, 2019.
The worker explained to the panel that he continued to work after the injury but at a slower pace. His work is physical in nature and it is not unusual to work with pain, as it is common to get “banged up” in the course of his duties. Initially, the worker believed that he had reinjured his left abdominal muscle and therefore believed it would again resolve as it had previously. On May 16, 2019, after completing another work task that required significant physical effort as he was working alone in conditions of strong wind, the pain increased significantly such that he felt he could not work. After that, the worker discovered an abdominal lump on self-examination. A few days later, he notified the employer of the injury by leaving a note in the office on or about May 20, 2019 and sought treatment from a physiotherapist on May 22, 2019.
The worker advisor referred the panel to the treating physician’s report dated May 7, 2020 with respect to the worker’s May 28, 2019 assessment, noting that examination revealed a left inguinal hernia and that the worker was immediately referred to a surgeon for further assessment.
The worker advisor also referred the appeal panel to information on inguinal hernia from the Mayo Clinic website, submitted in advance of the hearing as confirming that strenuous activity can result in such an injury. The worker advisor highlighted that there is no evidence of any factors not related to the worker’s employment that could have caused the injury.
In sum, the worker’s position, as outlined by the worker advisor, is that as a result of the unusually strenuous job duties undertaken by the worker on May 8, 2019, the worker experienced a sudden onset of abdominal pain that was later diagnosed as a left inguinal hernia. The injury arose out of and in the course of the employment and therefore the claim should be acceptable.
The employer did not participate in the appeal.
The issue for determination is whether or not the claim is acceptable. In order to find in favour of the worker, the panel must determine that the worker was injured as a result of an accident arising out of and in the course of his employment. The panel was able to make that finding, as outlined in the reasons that follow.
The definition of accident under the Act requires there to be evidence of a chance event, including an event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment. Additionally, the definition requires that the worker be injured as a result of such an event. Where an accident resulting in injury has occurred arising out of and in the course of employment, the claim is acceptable.
The worker’s report to the WCB on May 21, 2019 describes the mechanism of injury as occurring in the course of undertaking his work duties on May 8, 2019. The worker’s report noted his duties that day were more strenuous than usual, and this is confirmed on file by the information provided by the employer. The panel noted some inconsistencies in the worker’s story, primarily in his recall of dates. While this is of concern, and was noted in particular by the Review Office in its decision, the panel accepts the basic facts provided by the worker as related to the mechanism of injury. The worker’s description of how the injury occurred is consistent with that provided to the treating physiotherapist and the treating physician, as well as to the appeal panel in answer to questions by panel members and the worker advisor. The panel accepts that while using a heavy hammer drill at chest height and standing in a raised bucket over the course of the day on May 8, 2019, the worker experienced injury to his abdomen.
The earliest medical findings relating to this injury are from the physiotherapy assessment of May 22, 2019. The worker complained of left groin and testicular pain and the physiotherapist noted objective findings consistent with a left inguinal hernia and abdominal strain. The worker’s treating physician confirms these findings on May 28, 2019, when the worker is referred for surgical consultation.
Although the worker did not immediately report the injury to the employer he did do so within two weeks of the injury occurring. The employer does not dispute that the worker would have carried on with his work duties despite injury, noting this was consistent with the worker’s usual work ethic. The worker explained to the panel that he did not report the injury at first because he did not believe the injury was significant. Further, he was able to complete his duties that day and over the next two days, with assistance of his colleague and in spite of the injury. He then had a few days off and it wasn’t until after he completed his duties on May 16 that he felt so much pain he could not work. At that point, the worker did report his injury to the employer and the WCB and sought medical attention.
The panel accepts the worker’s explanation with respect to the delay in reporting the injury to the employer and to the WCB. Based upon the worker’s prior experience with a prior injury with similar symptoms, it is reasonable that initially he believed this injury would resolve on its own. When it did not, the worker advised the employer of the injury and sought appropriate medical attention from the physiotherapist who treated the prior injury.
On the basis of the evidence before us the panel is satisfied on a balance of probabilities that the worker was injured as a result of and in the course of completing his ongoing job duties. The claim is therefore acceptable.
The worker’s appeal is allowed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of July, 2020