The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that their claim is not acceptable. A file review took place on February 19, 2025 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is acceptable.

Background

On March 24, 2023, the worker provided a Worker Incident Report to the WCB describing an injury to the left side of their stomach that occurred at work and which they reported to the employer the same day. The worker did not recall the date of the incident, but described having a hernia on the left side, opposite their hip and that this occurred twice while at work with the employer. The worker provided further detail with their report, noting the first time it occurred, they completed a green injury card with the employer and attended a local hospital for treatment. The second time the injury occurred, the worker reported they again filled out a green injury card and attended another hospital for treatment. The worker also outlined that between September 2021 and September 2022, while working for a different employer, the injury occurred again, and they attended a third hospital for treatment. The worker confirmed the employer terminated their employment on the basis they were not capable of doing their job.

On April 6, 2023, the WCB received information from the first hospital the worker stated they attended, noting the worker had not been seen at that hospital since June 1987. On April 13, 2023, the WCB received a response from the second hospital the worker reported being seen at advising the worker had not attended for treatment on March 23, 2023.

The employer submitted an Employer Incident Report to the WCB on April 24, 2023 indicating no incident was reported and the worker was no longer employed. On May 2, 2023, the WCB spoke with the worker to gather further information, but the worker could not provide the dates of when they had symptoms nor the names of the hospitals where they attended for treatment. On the same date, the WCB advised the worker by letter that the claim was not accepted as injury was not reported to the employer and there was no medical information to support an injury occurring.

The worker contacted the WCB on May 10, 2023 to advise that their hernia occurred on October 3, 2019 and provided the name of the hospital where they attended for treatment that day. On May 16, 2023, the worker confirmed they attended for medical treatment at a local hospital for an onset of abdominal pain while lifting materials at work on October 3, 2019. The worker stated they reported their pain at work to their supervisor and left early to seek treatment, and on their return to work on October 4, 2019, met with the employer to discuss their injury. The worker stated they continued working while still experiencing symptoms, until laid off due to the COVID-19 pandemic, and then returned to work with the employer in September 2022. The worker further advised that on their return, the employer was aware of their difficulties, and at times would see them pushing on their stomach to put the lump from the hernia back in place. The worker stated that when they returned to work, they felt okay but soon after lifting heavy materials again, their symptoms returned, and they began wearing a hernia belt for support. The worker advised that the employer terminated their employment due to their being unable to perform their job duties. The worker provided the name of their treating family physician and the surgeon they were referred to. The WCB advised the worker that further investigation was required.

On May 17, 2023, the WCB received a copy of a May 25, 2022 report from the worker's treating surgeon, with a copy of a referral letter dated January 29, 2020, an Emergency Visit Summary dated October 3, 2019, a second referral letter dated February 23, 2022, a February 9, 2022 ultrasound report, and a March 21, 2023 CT scan report. The surgeon’s report indicated they saw worker for a "…a history of a bulge to the left lower quadrant, which has been causing significant pain" and which the worker reported first noticing 7 to 8 years previously, with experience of an episode of pain approximately once per year, which had increased to once a monthly recently. The worker further reported during times of exacerbation, they would experience nausea, and then the bulge would self-reduce, and the pain would subside. The worker advised the surgeon that the episodes caused them to modify their job duties to reduce their workload, with any reaching or twisting exacerbating their symptoms. The surgeon outlined that a February 2, 2022 ultrasound indicated "…a small 1.8 cm hernia sac" and an examination of the worker in clinic on May 25, 2022, found a "…reducible ventral hernia to the left lower quadrant…" at the site of the worker's symptoms and recommended open repair of the hernia. The WCB spoke with the surgeon's assistant who confirmed the worker was first seen for consultation on May 10, 2022 and that a surgery was booked for July 7, 2023. The January 29, 2020 referral letter from the worker’s family physician indicated the worker was referred for a left inguinal hernia, and that the worker attended for emergency treatment “last Oct for hernia pain.” The Emergency Visit Summary of October 3, 2019 outlined that the worker attended hospital at 9:45 a.m. presenting with a painful lump in their left abdomen/groin, which the worker stated began at work while lifting and noting that the worker “…does a lot of heavy lifting” for work. The report outlines that while waiting for treatment, the worker was able to reduce the hernia on their own, so that no treatment was needed, and was aware of the precautions to take to avoid exacerbating the hernia and should return if symptoms worsened or they could not self-reduce the hernia, or experienced other symptoms.

On May 17, 2023, the employer provided the WCB with contact information for some of the witnesses noted by the worker. On the same date, the WCB spoke with one of the worker's coworkers who advised that they were aware the worker was suffering from a hernia but could not recall when they first became aware, and that they had seen the worker holding their stomach in pain on a couple of occasions but could not provide dates and did not know if the worker took time off work due to their difficulties. In a conversation with the WCB the same day, the worker's supervisor advised that the worker noted they had stomach issues for a long time prior to their employment with the employer, with the supervisor advising the worker to have their issues checked out as they were concerned it could be something serious. The supervisor further advised that after the worker returned to work, they were aware the worker had a hernia. The supervisor provided details of the worker's job duties and advised the worker did not lift anything heavy, just pieces of the items they assembled, noting the availability of equipment to move the assembled pieces and lack of time constraints. The supervisor advised the WCB the worker's employment was terminated for employment related matters.

On May 18, 2023, the WCB spoke with the employer's health and safety officer who advised that the worker first mentioned having a hernia when they were let go in December 2022, at which time they advised they had had the hernia for years. There was no indication at the time that the hernia occurred at work and no incident reports were completed. The health and safety officer further advised they spoke with the worker's coworkers who confirmed the worker had spoken about having a hernia and having to push on their lower abdomen every now and then, but that none of the coworkers were advised that it was caused at work and none witnessed an aggravation. The officer confirmed that when the worker was initially hired in 2015, there was no indication the worker had an injury, and their work production was not affected by one. They confirmed the worker had not missed much time from work or had missed any time specifically for any injury, and that all employees were laid off at the end of March 2020 due to the COVID-19 pandemic, with the worker being re-hired in September 2022 and terminated in December 2022 before the end of their probationary period in December 2022 due to employment-related reasons.

Chart notes from a local hospital were received by the WCB on May 18, 2023. The notes included a report from the worker's treating surgeon dated September 28, 2020, indicating the worker had been referred from their treating family physician due to complaints of long-standing heartburn and a recent episode of vomiting. The report noted the physician had found evidence of a hiatal hernia. The included Emergency Visit Summary noted the worker attended the local emergency department on December 7, 2020 due to abdominal pain, reporting a two year history of abdominal pain, with worsening episodes, with the current episode beginning the previous day. On May 23, 2023, the WCB received a report from the worker's treating family physician which indicated the worker presented at an emergency department in November 2021 with pain in their left lower quadrant and reported bulging and pain that went away with pressure. The physician reported they then saw the worker 2 days after the hospital visit and referred the worker for an ultrasound to confirm the presence of a hernia, after which the worker underwent hernia repair surgery. The physician advised the WCB they reviewed the emergency visit notes and their chart notes and did not find any reference to a work-related injury associated with the worker's reporting of a hernia.

The WCB advised the worker on May 25, 2023 that their claim was not acceptable as the information received did not support the worker’s claim that they sustained an injury in the course of and arising out of their employment.

On August 9, 2023, the worker requested Review Office reconsider the WCB's decision, noting they previously developed two hernias while at work, which were accepted by the WCB, and their current difficulties occurred while they were performing their job duties.

Review Office determined on August 17, 2023 that the worker's claim was not acceptable. Review Office found the evidence confirmed the employer was aware the worker had a hernia but indicated the worker had this condition before starting employment with the employer. Review Office also found there was no medical evidence from any hospital relating to treatment sought in October 2019, and as such, Review Office could not relate the worker's current difficulties to a work-related cause and determined their claim was not acceptable.

The worker's representative filed an appeal with the Appeal Commission on October 29, 2024 and a file review was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The applicable provisions of the Act and policies are those in effect as of the dates of accident.

Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Accident is defined in s 1(1) of the Act as a chance event occasioned by a physical or natural cause, which includes any 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, and an occupational disease, as a result of which a worker is injured.

Section 19 of the Act provides that an application for compensation shall by filed within one year after the date of an injury, subject to s 109 of the Act, which permits the time for making any application to be enlarged or extended, where “an injustice would result” unless allowed.

Worker’s Position

The worker represented themself in this appeal, providing a written submission dated August 30, 2023.

The worker’s position is that the evidence supports their claim that they sustained an injury at work and in the course of work on October 3, 2019, which they reported to the treating hospital and to the employer. The worker’s position is that the employer failed to keep a record of their report, which was made to a supervisor and another member of staff.

The worker explained that they did not initially report the injury to the WCB as it made no sense to do so when they might not require treatment or that treatment might take place years later. The worker stated their belief there was no time limit for them to file a claim, although noting the employer had a time limit and failed to report the injury within that time.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal is whether the worker’s claim is acceptable. For the appeal to succeed, the panel would have to find that the worker sustained a personal injury as a result of an accident arising out of and in the course of employment. As detailed in the reasons below, the panel was able to make such a finding and therefore, the worker’s appeal is granted.

In this case, the adjudication of the worker’s claim is more challenging because the worker did not report the injury to the WCB until March 2023, despite the events giving rise to their claim having taken place in October 2019. Then, the worker was unable to provide the date of injury to the WCB until May 10, 2023, by which time the WCB had already determined the claim was not acceptable. In addressing the delay in reporting their injury, the worker explained they did report the injury to the hospital and their employer, but believed there “was no sense in reporting this injury years before the surgery, if there was going to be surgery. I had always hoped I wouldn’t have to have surgery but if I did, when the time came to get my hernia fixed I was planing (sic) to go on disability for 2 months and then back to work.” It was only after the worker was terminated from their employment in December 2022 and they realized their benefits would not extend to the date of surgery, that they made a claim. The panel noted that despite the worker’s assertion to the contrary, the employer denies having received any report of an injury from the worker but there is little doubt that the employer was aware of the worker’s ongoing hernia complaints, as described below. We also noted that although the hospital report confirms the worker reported a work-related injury, this was not reported to the WCB by the healthcare provider. As such, the panel is satisfied with the worker’s explanation for the delay in reporting this claim to the WCB and we are satisfied that, as required by s 109 of the Act, “an injustice would result” if the one year time limit for filing a claim is not increased.

The adjudication of the worker’s claim is further complicated by evidence of the worker’s diagnosis with other similar health conditions that do not relate to the present claim, but appear to have been considered by the WCB, including the prior compensable umbilical hernia diagnoses, and a subsequent hiatal hernia which is not claimed to be related to work. While the panel would not expect the worker to have the expertise to differentiate between the various hernia diagnoses received and treated over a period of years, we would expect that the WCB would be aware of the differences in these diagnoses or at least would have availed itself of the expertise of its medical advisors in this regard.

The panel also finds that the evidence from the employer and the worker’s colleagues is unclear in terms of whether the information is referencing the worker’s prior compensable umbilical hernia condition, the later hiatal hernia condition, or the relevant inguinal hernia condition, all of which are generally referenced in the file under the umbrella term “hernia”. Witness reports describe the worker advising they had “a hernia,” pushing on their lower abdomen every now and then, holding their stomach in pain and being capable of working through pain but are not specific to the type of hernia or dates at which these concerns were noted. Given the WCB did not discern any difference in the worker’s various hernia conditions, it is not surprising that the worker’s colleagues and supervisors also did not do so. Furthermore, the panel noted the WCB did not ask any specific questions of the witnesses or employer in relation to the incident described by the worker as occurring on October 3, 2019.

The panel accepts and relies upon the October 3, 2019 medical reporting which confirms the worker’s timely report of an inguinal hernia that occurred in the course of their employment that very morning. In conversation with the WCB on May 16, 2023, the worker described leaving work early due to onset of abdominal pain while lifting materials on October 3, 2019 and going home where their pain increased, and they called a family member to drive them to hospital. The worker further confirmed that after being assessed and while waiting for treatment, they pushed the hernia back into place. The worker returned to work the next day. The panel is satisfied that the described mechanism of injury could have caused injury to the worker, or could have aggravated or enhanced a prior condition, if there is any evidence that it was a pre-existing condition. The panel noted it does not appear that this evidence was considered at any time by either the WCB or Review Office.

Based on the evidence and on the standard of a balance of probabilities, the panel is satisfied that the worker was injured as a result of an accident arising out of and in the course of their employment on October 3, 2019. Therefore, the claim is acceptable, and the worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 24th day of February, 2025