Worker v. Employer, 2010 CanLII 31581

OBJECTION BY: Worker

WORKER: Participating

EMPLOYER: Participating

REPRESENTATIVES: Worker, Employer

HEARING DATE: April 16, 2010

ATTENDEES: Worker, Worker representative, Employer, Employer representative, witness

ISSUE:

The worker is seeking additional entitlement for a hernia.

This was denied in the Eligibility Adjudicator’s decision letter of May 19, 2009.

HOW THE ISSUE AROSE:

On January 10, 2008 this now 49 year old worker fell a short distance, was caught by his safety harness, but hit his mid back on a skid. Entitlement was allowed for a mid back strain. There was no medical indication for lost time. The employer was able to provide regular worker not involving heights.

Further medical investigations due to hip pain indicated mild degenerative changes bilaterally. Osteoarthritis is greater in the right hip. Mild sclerosis involved the acetabulum bilaterally. A CT scan was performed on his head due to possible involvement of a synocopal episode. The scan was normal when compared to a prior CT scan of the head in May of 2006.

In September of 2008, the worker was diagnosed with a hernia which he related to the mid back accident. Entitlement was denied. This was surgically corrected in December 2008. The worker had additional surgery on April 8, 2009 for an unspecified condition. This was followed by return to work negotiations through the union.

AUTHORITY:

Policy: 15-04-08 Hernias

11-01-01 Adjudicative Process

EXHIBITS:

Modified duty return to work program letter to attending physician with restrictions, limitations, and doctor recommendations signed September 29, 2008.
Note from the family doctor dated October 2, 2008 indicating a hernia, the need for surgery, and work limitations.

ASSESSMENT OF THE EVIDENCE:

It is the worker representative’s position that there is medical confirmation that the hernia arose from the work injury of January 2008. The worker had ongoing complaints of pain and when referred to a specialist, the hernia was documented in October 2008.

The worker representative noted that the worker performs heavy lifting. The hernia that he experienced on the day of accident was exacerbated by the warehouse work in September of the same year. The worker vaguely described some conveyer belt pushing incident that brought the hernia to the forefront. After that the condition became apparent and he required surgery.

According to the worker representative, the fall at work in January 2008 caused the hernia. The medical note from the family doctor supports that the right inguinal hernia resulted from work. When the hernia was aggravated in September 2008 the worker needed medical restrictions. The employer provided the worker with forms to complete in relation to the medical limitations therefore something must have occurred at that time.

The employer claims additional medical forms were given to the worker in September to see if he could return to his usual job. There was never any mention of a hernia or a new injury. The worker had been unable to return to his usual job due to some dizziness and this required clarification and updating.

The employer representative notes that on January 10, 2008, the worker experienced a minor injury. He was cleared to return to his regular work with no lost time. The reason the worker did not do so was due to an underlying medical condition which the employer respected and accommodated. Modified work was not needed in relation to his claim.

The employer representative was surprised that the doctor related the hernia to the January work incident. This was not diagnosed until 10 months after the work incident. There is no medical continuity about a hernia. The doctor has not accurately documented any history of hernia or its development. Nor was there any mention of an accident in September. There was notification of a new work injury and there were no medical forms completed documenting any incident. There is no contemporaneous medical data to support a new accident or any aggravating incident.

I am unable to substantiate that any new work injury or aggravating incident occurred in September 2008. The worker is a poor historian and was unable to provide any accurate or convincing evident of an event that supposedly happened in September 2008. There is no report of a new injury or a recurrence of a prior injury. The employer has no records of a new work event. There is no claim file data to support such a view.

It is also unlikely that the worker experienced a hernia on the day of accident on January 10, 2008. On that day the worker injured his mid back. He did not require time off work or medical precautions. It was a minor incident without permanent impairment.

This view is supported by the objective medical observations of the rheumatologist, dated October 24, 2009. This is one of the few medical reports that is legible, documents a physical examination, clearly notes the history, and provides his impressions and recommendations. This specialist states that the worker discovered a small soft lump over the right inguinal area two weeks ago. That would be the beginning of October 2008. The hernia did not arise from the workplace incident in January. It developed in the autumn of 2008 several months later.

It was noted that this worker had a prior, non-compensable hernia in the same location a number of years ago. There are no medical reports concerning what type of surgical repair occurred in 2008 in relation to what is being claimed. There are no medical reports as to what was seen during the surgery and what procedures were performed. I was troubled by the lack of medical information that would normally be required to support what is allegedly being claimed as a workplace injury.

The worker is now presenting with a plethora of medical concerns. These problems include dizziness, hip pain, osteoarthritis, hernia, swollen feet, and leg pain. There are numerous complaints about a number of things other than the mid back which is the only area accepted as compensable. It is curious to note that the worker had a CT scan of his head two years prior to the work accident. There is insufficient data to medically connect the hernia to the work accident.

CONCLUSION:

The worker’s objection is denied.

There is no entitlement for a hernia.

DATED: June 3, 2010

P. Puhl

Appeals Resolution Officer

Appeals Branch