WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090058
OBJECTION BY: Employer
WORKER: Participating
REPRESENTATIVES: Employer, Worker
ISSUE
Entitlement to Second Injury and Enhancement Fund (SIEF) relief.
HOW THE ISSUE ARISES
The worker was employed as a machinist with the employer since August 1990.
On November 20, 2006 he reported a strain to his lower abdomen from lifting and turning over a heavy casting that weighed approximately 200 pounds. The worker explained on his Worker’s Report of Injury/Disease (Form 6) that he had been asked to work an overtime shift on a different machine that required crouching and lifting.
The initial diagnosis was right groin strain with evidence of a small right inguinal hernia; however, the diagnosis was never medically confirmed. The worker was also being treated for coexisting prostate cancer.
The claim was denied until the medical condition could be clarified.
In September 2008 the worker objected to the denial of initial entitlement but the Appeals Resolution Officer who reviewed the matter returned the file back to the operating area for further investigation of the diagnosis.
Recently, the condition was confirmed as a right inguinal hernia and the worker underwent surgical repair on June 16, 2009. The claim was approved for the right inguinal hernia and the lost time resulting from the surgical repair.
The employer’s representative objected to the initial entitlement of the claim and challenged the compatibility of a hernia diagnosis with the accident history reported by the worker. The employer’s representative also requested entitlement to cost relief under the SIEF and submitted a report from an internist dated October 29, 2007 to support their position.
The case manager denied the request for SIEF as there was no evidence of a pre-existing condition which prolonged the recovery or enhanced the injury.
The employer objected to the denial of SIEF as well as the initial entitlement, payment of loss of earnings (LOE) benefits and payment of recurrence and the matter was referred to the appeals branch for further consideration.
AUTHORITY
Relevant Operational Policies:
11-01-03 – Merits and Justice
14-05-03 – Second Injury and Enhancement Fund (SIEF)
15-04-08 – Hernia
RESOLUTION METHOD AND PROCESS
The claim was referred to the Appeals Branch to review the employer representative’s objection to the initial entitlement, denial of SIEF relief, payment of LOE benefits and allowance of the recurrence from June 16, 2009.
On September 24, 2009 I received a telephone call from the employer’s representative requesting that I proceed only on the issue of SIEF relief in light of the NEER (New experimental Experience Rating) deadline of September 30, 2009. The remaining issues were withdrawn.
The employer’s representative written submission is dated September 25, 2009.
ASSESSMENT OF THE EVIDENCE
The WSIB’s policy for hernias indicates that decision-makers can consider cost relief for Schedule 1 employers under the SIEF if a worker needs emergency surgery for a pre-existing non-work-related hernia that is aggravated through work.
The employer representative’s letters of January 7, 2008 and September 25, 2009 outline their position that the combined effects of the worker’s prior right groin injury after lifting furniture, colon condition, repetitive golfing and prostate cancer may have had a major role in the aggravation of his current disability. They submitted a report from an internist dated October 29, 2007 which they commissioned to support their position. The internist did not physically examine the worker but provided his opinions based on reports from the file provided by the employer representative.
The internist was asked regarding the family physician’s mention that the worker had possibly injured his right groin while lifting furniture compared to his work activities in November 2006. The internist replied that it was possible that the worker had strained a muscle or ligament in the right groin that was initiated by moving furniture and that the work performed in October and November 2006 aggravated the prior injury.
The worker denied making any mention of moving furniture to his physician. When he was contacted for a statement on January 8, 2007; he stated he never reported this accident history to his physician and believed his doctor had confused him with someone else. In that same statement, the worker referred only to the heavy lifting at work on November 20 and November 24, 2006 as the causes for his right groin strain.
The evidence supports the primary reason he sought treatment on November 27, 2006 was because of an injury occurring at work. The physician’s chart notes of January 2 and 3, 2007 document this as well. It is not reasonable to draw conclusions on the effects of “lifting furniture” when there is no evidence to support the event occurred.
The internist was asked whether the worker’s disability from November 27, 2006 was substantially related to playing golf as was alluded to in a WSIB memorandum. The internist replied that playing more golf may have been a contributing factor to his groin and more widespread discomfort.
There is no evidence the worker played any golf whatsoever in October 2006 and the suggestion that an increase in this activity resulted in a pre-existing right groin strain is purely speculative particularly without supporting evidence. In his statement to the claims adjudicator on January 12, 2007 the worker indicated that he had agreed to a job change because it allowed him to play golf during the week but he later switched back to his previous job when he found the new job was too physically demanding. Playing more golf, even if there was evidence of this, does not inherently cause a pre-existing a groin condition.
The internist was asked about the effect of the pre-existing prostate cancer and the exacerbation of the disability from November 27, 2006. He replied that the cancer was not likely responsible for his groin discomfort or any widespread aches and pains, but felt there may have been a significant psychological affect with the diagnosis of cancer which may have led to sleep disturbance and anxiety which would potentially have magnified his many complaints. Objectively, however, there is no supporting evidence of an anxiety-related impairment directly contributing to the hernia or directly enhancing its recovery.
The internist was also asked for an opinion on the relevance of the worker’s pre-existing conditions of Paget’s disease, hepatitis A, duct surgery, sigmoid diverticulosis and hypothyroidism to the disability from November 2006; however it was not felt that these were contributing factors.
The internist’s report does not provide a compelling argument for any notable pre-existing condition for the purpose of SIEF entitlement.
The medical literature submitted to the claim defines a direct inguinal hernia as a protrusion of the intestines through a weakness in the abdominal wall. The discussion paper titled “External Abdominal Hernias” prepared for the Workplace Safety and Appeals Tribunal (WSIAT) dated January 2006 states that single specific incidents or prolonged and strenuous activity can be the primary cause for hernias.
The employer representative submitted WSIAT decisions where SIEF relief was allowed on the basis that inguinal hernias would not occur if it weren’t for the congenital defect found in abdominal walls. However, WSIAT decision 484/08 stated that SIEF should not be automatically granted in all cases but that each case must be judged on their own merits, including the onset of hernia in any given case and it’s work-relatedness versus the general propensity in the population to experience a hernia for non-work-related reasons.
The worker and employer both reported the worker complaining of abdomen pain after manoeuvring heavy castings weighing between 60-200 lbs. When asked by the Claims Adjudicator on January 8, 2006 if it was normal that he handle that much weight by hand the worker replied there was no other way to do it. This is sufficient weight to be the primary and sole cause of the hernia in November 2006.
The employer’s reference to the worker’s pre-existing and coexisting conditions and their belief that they played a role in the development or recovery of the worker’s hernia is not supported through the medical information on file. It is not sufficient for a worker to simply have a pre-existing condition for cost relief to be applied. The evidence must show that the pre-existing condition contributed to the development of or enhanced the recovery of the accepted work-related condition; however, there is no evidence of such a condition in this claim.
The worker’s family physician indicated in his first medical report that he had not treated the worker for a similar condition in the past and did not identify any complicating factors which may have enhanced or prolonged the recovery of this injury.
The CT scan from May 5, 2009 also noted the small inguinal hernia and diverticula in the colon with no evidence of diverticulitis. No abnormalities were noted in the liver, gallbladder, common bile duct, pancreas, spleen, kidneys, adrenal glands or lymph nodes. A previous surgical consult from April 2009 referred to a 12 year history of hepatitis for which the worker took iron.
The surgical reports confirm the worker had a direct hernia bulge, not an indirect sac. The surgeon’s report from June 1, 2009 described it as a “very small hernia” but it had been causing the worker discomfort so he elected to have it repaired.
The family physician completed a Progress Report on July 10, 2009 indicating the worker was recovering from his hernia surgery. He did not identify any complicating factors affecting the worker’s recovery or his anticipated return to work. The surgeon wrote to the WSIB on June 24, 2009 and reported the worker was recovering normally from his hernia surgery and was expected to return to regular duties within about six weeks.
The hernia policy indicates the recovery from an uncomplicated hernia can take up to 8 weeks.
The indication is the worker worked his regular duties from January 2007 to June 15, 2009 when he stopped to have hernia surgery then returned to regular duties on July 27, 2009. There is no evidence the presence of a hernia required any additional treatment in the years between the onset in 2006 and when he elected to have surgery in 2009. His recovery occurred after 6 weeks after surgery which is within the usual healing time for this surgery.
I do not find this claim has sufficient evidence of a pre-existing condition which contributed to the onset of the worker’s hernia or prolonged its recovery. For these reasons, the employer’s request for SIEF cost relief is denied.
CONCLUSION
The employer’s request for SIEF cost relief is denied.
DATED September 29, 2009
D. Giannobile
Appeals Resolution Officer
Appeals Branch