The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on March 23, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

The self-employed worker filed a Worker Incident Report with the WCB on November 21, 2018 indicating they injured their groin arising out of repetitive job duties including lifting heavy objects and working overhead with the date of incident reported as November 21, 2018. They noted “3 – 4 months ago, I could feel on my lower abdomen on my right side and then felt it on both sides.”

In a discussion with the WCB on November 27, 2018 regarding their claim, the worker reported the initial onset of their symptoms approximately a year before, with a pulling sensation while doing any reach or lifting, which had progressed to a constant dull ache in their lower abdomen/groin area. The worker confirmed there was not a specific task that caused the difficulties, but that it was the result of repeated heavy lifting and overhead work. The worker noted they had sought medical treatment from their family physician approximately a year ago and was told to limit heavy lifting due to a possible inguinal hernia.

On December 28, 2018, the WCB received a copy of the chart notes from an appointment with the worker’s treating family physician on November 14, 2018. At that appointment, the physician noted the worker’s abdomen was soft, non-tender, with no mass with bilateral inguinal tenderness/mild bulge and queried whether the worker had a hernia. The physician diagnosed an inguinal hernia. At a follow-up on December 17, 2018, the physician referred the worker for an ultrasound study that took place on January 7, 2019 and did not identify any hernia.

On January 21, 2019, a WCB medical advisor reviewed the worker’s file and provided that a diagnosis of a hernia to account for the worker’s groin pain was speculative and further, a specific event related to the onset of the worker’s groin difficulties was not indicated in the file. On February 15, 2019, the worker contacted the WCB to advise they would like to cancel their claim as it had been found their difficulties were not work related. The WCB sent a letter to the worker on the same date confirming the WCB would take no further action on their claim.

The worker contacted the WCB again on October 18, 2019 to advise they had undergone surgery on September 30, 2019 after being diagnosed with a sportsman’s hernia. The worker requested the WCB further review their file.

The WCB received a copy of the treating physician’s July 24, 2019 referral to a surgeon on October 23, 2019. On August 7, 2019, the surgeon examined the worker and noted “…some point tenderness in the right groin” with difficulty determining a definite hernia. The surgeon opined as to two possibilities: one, an “…overt hernia which is subclinical” or two, a sportsman’s hernia. The surgeon recommended a laparoscopic total extraperitoneal hernia repair, which was conducted on September 30, 2019. The surgery report noted the pre-operative diagnosis of a right inguinal hernia but noted the post-operative diagnosis of a right sportsman’s hernia. At follow-up with the surgeon on October 30, 2019 the worker was healing well from the surgery and was cleared to resume exercise and physiotherapy.

A WCB medical advisor again reviewed the worker’s file on November 19, 2019 and opined, based on the medical evidence, a diagnosis of a true hernia could not be medically accounted for in relation to the worker’s groin difficulties. The medical advisor noted the medical definition of a hernia as being “…an organ, portion of an organ, or tissue, protrudes through an abnormal opening” and found no evidence clinically, radiologically or from the laparoscopic surgery indicated the worker had a hernia.

On December 4, 2019, the WCB advised the worker their claim was not acceptable as it could not be determined the worker sustained a hernia arising out of or in the course of their duties.

The worker requested reconsideration of the WCB’s decision to Review Office on January 22, 2020. In support of their request, the worker provided a December 19, 2019 letter from the treating surgeon opining a sportsman’s hernia “…does not have a definitive pre-operative objective finding” and is “…a constellation of symptoms including pain in the groin, worsening with exercise and aggravation that responds to hernia repair.” Review Office requested a WCB medical advisor review the surgeon’s December 19, 2019 letter and on February 19, 2020, the WCB medical advisor opined that while the opinion provided by the worker’s treating surgeon agreed with medical literature involving studies of people involved in high-level athletics, it did not change the previous opinions provided on January 21, 2019 and November 19, 2019. Review Office provided a copy of the WCB medical advisor’s opinion to the worker on February 19, 2020 and the worker’s further response was received on February 26, 2020.

On March 2, 2020, Review Office found the worker’s claim was not acceptable. Review Office agreed with the WCB medical advisor’s opinion and found the evidence on file did not support the worker sustained an accident in relation to the performance of their job duties.

The worker submitted additional medical information from their treating surgeon on April 1, 2020 and requested Review Office reconsider the March 2, 2020 decision. The March 23, 2020 opinion of the worker’s surgeon noted that while the diagnosis of a sportsman’s hernia was often attributed to high level athletes, a “…repetitive/sudden strain injury could lead to a Sportsman’s hernia” and the fact that the worker improved after surgery supported the diagnosis. On April 8, 2020, Review Office again advised the worker their claim was not acceptable, relying upon the opinion of the WCB medical advisor that the worker’s diagnosis of a sportsman’s hernia did not occur as a result of their job duties as those tasks were not similar to the movements performed by high level athletes. Review Office concluded the worker did not sustain an injury as the result of an accident arising out of or in the course of their job duties.

The worker filed an appeal with the Appeal Commission on July 23, 2020. A teleconference hearing was arranged and held on March 23, 2021.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by 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 a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.

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. Those benefits may include wage loss benefits where there is a loss of income earning capacity arising out of the injury or medical aid as required to cure and provide relief from injury arising out of a compensable accident or other compensation as provided for under the Act.

Worker’s Position:

The worker is self-employed and represented themselves in the appeal hearing. The worker provided an oral submission and addressed questions posed to them by members of the appeal panel.

The worker’s position is that as a result of their workplace activities undertaken in late November 2018, they sustained injury to their groin that was ultimately diagnosed as a sportsman’s hernia. The appropriate diagnosis was not confirmed until September 30, 2019, when it was diagnosed and corrected in the course of an exploratory surgical procedure.

The worker provided the panel with internet-sourced medical materials that describe the diagnosis as an injury that occurs at the junction of the leg and torso involving the area where the abdominal muscles converge to form the inguinal ligament. Injury occurs, according to these materials, when a groin muscle tear causes the archway in the external oblique abdominal muscle to open up much wider and away from the inguinal ligament, leaving the transverse abdominus muscle unsupported. The materials provided by the worker indicate that the injury may also be called Gilmore’s groin, sportsman’s groin or groin disruption.

The worker explained to the panel that initially, their treating physician thought that the worker had sustained an inguinal hernia, but diagnostic imaging ruled this out. The worker stated that in February 2019 they were also diagnosed with mild diverticulosis and explored treatment for that condition in hope that that the diverticulosis was the cause of their symptoms. When their symptoms persisted, the worker sought treatment from a surgeon who suspected the diagnosis of a sportsman’s hernia and referred the worker to another surgeon for treatment. The surgeon advised the worker that there was a 50/50 possibility that the symptoms were caused by a sportsman’s hernia, and the only way to ascertain that was by an exploratory surgery. That surgery took place on September 30, 2019 and was followed by a period of physiotherapy.

The worker referred the panel to the report from the surgeon dated March 23, 2020 which sets out that the worker had a successful repair of a right sided sportsman’s hernia. The surgeon clarifies that the name, sportsman’s hernia:

“...is a bit of a misnomer. Although the hernia is described as a Sportsman’s hernia that is only because it was in high level athletes that it was first described. In no way shape or form do you have to be a high-level athlete to get a repetitive/sudden straining injury and relative laxity of the inguinal floor. In fact, regardless of occupation, repetitive/sudden strain injury could lead to a Sportsman’s hernia. The fact that [the worker] has improved with a laparoscopic total extra peritoneal hernia repair further supports that diagnosis and its remedy.”

In sum, the worker’s position is that as a result of engaging in their work duties, they developed a sportsman’s hernia, which diagnosis was confirmed and repaired by laparoscopic surgery on September 30, 2019. This was an injury arising out of and in the course of their work duties, and therefore the claim should be accepted, and the appeal allowed.

Analysis:

The sole issue for determination by the panel is whether or not the worker’s claim is acceptable. In order to grant the worker’s appeal, the panel would have to find that the worker was injured as a result of an accident arising out of and in the course of employment. For the reasons outlined below, the panel was able to make such a finding.

The worker described to the panel the nature and kind of work duties undertaken, noting that they typically worked alone at the time the injury occurred in 2018. The worker testified to lifting heavy sheets of drywall and ladders, carrying bulky and heavy materials up and down ladders and work that involves repetitive overhead work. The worker indicated that the only sport activity they engage in is playing golf, and that in 2018, they played just 6 rounds of golf over the course of the entire season.

The panel noted that early medical reporting suggested that the injury may be an inguinal hernia, but that the diagnostic evidence soon confirmed that the worker did not have an inguinal hernia. The WCB medical advisor confirmed this to be the case, and therefore determined that the worker did not sustain an injury arising out of and in the course of their employment.

In or about February 2019, the worker requested the WCB to close the claim, as at that time the worker believed that the recent diagnosis of diverticulosis was responsible for their symptoms; however, dietary treatment for that condition did not impact the worker’s symptoms and the worker’s treating physician then referred the worker to another physician for further investigations. That physician ruled out a diagnosis of hernia and referred the worker to the treating surgeon to investigate whether the worker’s symptoms were the result of a sportsman hernia.

The panel considered the opinion provided by the worker’s treating surgeon, noting that the surgeon outlined that a diagnosis of sportsman hernia is a misnomer, in that it is neither a hernia nor limited to athletes. The surgeon outlined that such an injury can occur as a result of repetitive straining activities in any physical work, whether in the workplace or on the sports field.

The surgical report of September 30, 2019 confirms that on direct examination there was no evidence of any overt hernia in the right inguinal area but that there appeared to be a bit of weakness which may be associated with a right sportsman’s hernia. This was addressed through the surgery. The surgeon’s report of October 30, 2019 to the worker’s treating physician indicates that post-surgery, the worker’s symptoms of groin pain resolved, and the worker could resume exercise and physiotherapy,

A WCB medical advisor reviewed the file and provided an opinion on November 19, 2019 that “there is no evidence for a pathoanatomical pain generator, including that of a hernia, to medically account for [the worker’s] right groin pain symptomology.”

The treating surgeon addresses the WCB opinion in their letter to the worker of December 19, 2019 confirming that the condition of a sportsman’s hernia:

“...does not have a definitive pre-operative objective finding. Essentially, it is a constellation of symptoms including pain in the groin, worsening with exercise and aggravation that responds to hernia repair. The current belief is that there is a weakness in the abdominal wall that leads to aggravation of the nerves in that area and by twisting and reinforcing that area with mesh patch tends to alleviate the pain.”

The WCB medical advisor again reviewed the file in light of the comments from the treating surgeon and concluded that “...although the general surgeon’s comments in his December 19, 2019 letter are congruent with the medical literature of study populations of individuals involved in high-level athletic activity, these comments do not alter the opinions provided” previously. The medical advisor also noted the lack of medical information regarding the efficacy of surgical treatment for individuals with this condition who perform non-sports related activity.

The panel noted there is no evidence, medical or otherwise, to suggest any cause of the worker’s injury or symptoms other than the worker’s job duties. The panel accepts the opinion of the treating surgeon that the worker’s repetitive twisting, straining and physical work activities could result in a sportsman’s hernia.

Where their opinions diverge, the panel prefers and gives greater weight to the opinion of the treating surgeon who confirmed the nature of the injury and successfully treated it, over the opinions provided by the WCB medical advisor.

On the basis of the evidence presented in the hearing and the claim file documents, the panel is satisfied on a balance of probabilities that the worker’s sportsman hernia was sustained through and as a result of the worker’s work activities. The panel finds that this was an accident as defined by the Act, as an injury arising out of and in the course of the worker’s employment.

The panel therefore finds, on a balance of probabilities, that the worker’s claim is acceptable, and the worker’s appeal is allowed.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
R. Ripley, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of April, 2021