WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100106
OBJECTION BY: Worker
EMPLOYER: Participating
HEARING DATE: December 2, 2009
PARTICIPANTS: Worker, Worker Representative, Employer Employer Representative
ISSUES
The worker objects to the January 19, 2006 decision that denied entitlement for hernia surgery in claim xxxx3191.
In addition, the worker objects to the denial of entitlement to a hernia under claim xxxx6816 on an aggravation basis and the denial of associated surgery.
HOW THE ISSUES ARISE
In claim xxxx3191, on April 11, 2000 this then 44 year old caretaker slipped and fell on ice in the parking lot and injured her left knee and low back. She was diagnosed with a left knee sprain and low back (sacroiliac) sprain. Treatment for her compensable injuries was delayed due to non compensable hysterectomy surgery performed April 13, 2000. Loss of earnings benefits did not commence until June 2000, when it was determined the worker would have recovered sufficiently from non compensable surgery.
The worker noted a lump in her abdomen mid to late August 2000. The file information suggests she first noted the lump after an episode of coughing and sneezing. However the worker attributed the hernia to strenuous back exercises performed while in physiotherapy. A diagnosis of ventral hernia was made.
Entitlement for the hernia and subsequent surgery performed on October 3, 2000 were accepted in memorandum 12 dated October 27, 2000 on the basis that it was precipitated by physiotherapy treatment. Loss of earnings benefits continued noting the worker’s primary injury was to her low back.
On January 13, 2003, the worker was pulling a large garbage bag from a bin at work and sustained a recurrent umbilical hernia. Entitlement was accepted for a umbilical hernia as a recurrence of the original hernia in xxxx3191. The surgical repair, performed February 13, 2003, was also approved and she received LOE benefits.
This decision was later reversed when following a review by the Workplace Safety and Insurance Board (WSIB) medical consultant it was concluded that the first umbilical hernia was not caused by treatment and therefore not compensable. The decision to allow the October 2000 hernia and surgery was reversed. As well, since the original hernia was non compensable the recurrence on January 13, 2003 and the associated repair were similarly considered non compensable. An overpayment for the LOE benefits was created but not made recoverable.
Claim xxxx6816 was established for a May 20, 2005 work incident resulting in immediate abdominal pain. The worker was throwing garbage in a bin when she noted sudden pain that was medically confirmed to be a recurrent umbilical hernia. The worker was able to perform modified duty and referred for surgical consultation. Eventually the worker underwent surgical repair on January 31, 2006. Despite a new work related incident causing a recurring hernia, entitlement in the claim was denied on the basis that the recurrent hernia repair did not qualify as emergency surgery.
The worker objected to the adverse decisions and the files were referred to the Appeals Branch for independent review and consideration.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-15 Aggravation Basis
15-03-01 Recurrences
15-04-08 Hernia
15-05-01 Secondary Conditions
15-05-02 Accidents Resulting from Treatment
18-03-02 Payment of LOE Benefits
ASSESSMENT OF THE EVIDENCE
The worker’s representative submitted that the decision to accept entitlement to a hernia as the result of physiotherapy treatment was correct as was the decision to allow the surgery in October 2000. The worker’s representative submitted the October 2000 surgery was not elective because it was needed according to the treating physician given the propensity for such hernias to become strangulated. It was also submitted that the worker did not have ongoing difficulty with her hernia for years and then sustained a new hernia on January 13, 2003 subsequent to a specific lifting incident. It was submitted the second hernia should stand as a new claim and surgery accepted as it was not elective. The worker’s representative submitted a Workplace Safety and Insurance Appeals Tribunal (WSIAT) discussion paper entitled “External abdominal Hernias” dated January 2006 and a WSIAT decision 1911/98 as support for his submission that the hernia surgeries on February 13, 2003 and January 31, 2006 were necessary and ought to be allowed.
In opposition, the employer’s representative submitted the decision to deny entitlement for the hernia and surgery in claim xxxx3191 was correct as it cannot be established that it occurred during treatment and further submitted the evidence strongly suggests the hernia was the result of several non compensable factors. Also, it was submitted that the hernia surgeries in both files were elective and therefore do not meet policy criteria for allowance.
Worker’s Testimony
The worker provided her sworn testimony. She started working for the accident employer in 1990 as a caretaker.
On April 11, 2000 she slipped on ice and hit her left knee and twisted her low back. She saw the doctor the next day and reported the incident. On April 13, 2000, she had prescheduled partial hysterectomy surgery. She was discharged after three days but couldn’t start physiotherapy treatment for her compensable injuries until June 2000. Her back was very sore.
She told her physiotherapist about her hysterectomy and was required to get medical clearance to commence physiotherapy, which she did. At physiotherapy she did a lot of abdominal stretches to strengthen her back. She went to treatment for two or three weeks. One day she experienced stabbing pain on the left side of her abdomen which lasted only a few minutes. She states she did tell the therapist and was given easier stretches to do. A few days later she noted a lump on the left side beside her belly button. She was able to push it back in but it didn’t stay in. As cancer runs in her family she was concerned and saw her doctor. She was told she had a hernia and was referred to Dr. Mohan who confirmed the diagnosis.
It was put to the worker that there is nothing in the medical record about her having stabbing pain. She stated she did tell her doctor about it.
Regarding symptoms, she had occasional pain. The lump stayed popped out. Dr. Mohan explained to her what it was and told her that because it involved her bowel, it could be life threatening as her bowel could twist or pinch or bend. She decided to have it repaired.
The worker confirmed she fell at a fast food restaurant on November 24, 2000. She slipped and landed on her left knee which pressed up into her abdomen. She could not recall much of the details. She denied suing the restaurant or hiring a lawyer.
The worker denied having any further symptoms or problems or need for treatment of her hernia after surgery in 2000 up to the new incident in January 2003.
On January 13, 2003, she pulled a bag out of a bin and noted a sharp pain lasting two to three minutes on the left side of her stomach. It was the same location as before. She reported the incident and made an appointment to see her doctor within a couple of days. She is unsure why there is no report on file of this first visit.
Again, she was referred to Dr. Mohan who confirmed another hernia which would have to be repaired. The doctor again explained the risks of not getting it repaired. After surgery, she had no further problems. She returned to work on modified duty in April 2003 for her back, knee and hernia.
The worker was stated she had a new incident in May 2005 when she lifted heavy bags of garbage into the outside bin. She had sharp pain and just knew she developed another hernia. She reported it and was referred to the surgeon again. She had sharp pain again in August 2005 while bent over at work and couldn’t straighten up. She saw the doctor again and was told she needed surgery as the opening was becoming larger and tearing more. She ended up having surgery end of January 2006. This time the surgeon put in a mesh to make it more stable. She returned to work in May 2006 and has needed no further follow up and is doing fine.
On cross questioning, the worker confirmed her surgeries were scheduled in advance and her last one was postponed twice by the doctor. She confirmed all her hernias have been on the left side, just below her belly button. The site of her hysterectomy surgery is lower down, in the middle of the abdomen. She has a vertical scar about three to four inches long. She confirmed her hernias were surgically repaired using the same incision line created by her earlier hysterectomy surgery.
The worker denied ever having any prior hernias before April 2000. The worker confirmed she still smokes about one pack per day. She denies having a smoker’s cough. She cannot recall whether or not at the time of onset of her hernia lump in 2000 she had a bad cough or was sneezing as the medical report on file suggests. She cannot recall being told by the physiotherapist she was de-conditioned she was just told she had to strengthen her muscles. She did not recall her specialist, whom she saw for her knee injury in September 2000, stating she needed to lose weight or that she was given a diet to follow. She recalled Dr. Mohan telling her to bring her weight down.
In 2000, she lived with her daughter. She performed all her activities of daily living but had some help from her daughter.
The worker was given memorandum 12 to read concerning her statement to her adjudicator about noticing the lump two weeks after starting physiotherapy treatment and that she stated she initially did not think anything of it. She recalled speaking to her adjudicator but could not recall now having a specific conversation about her hernia onset.
On cross questioning, she confirmed her therapist was aware when it occurred because she recalled that after she performed a specific exercise she recalled exclaiming “that hurt”. She recalled the therapist saying she may have overstretched and changed the exercise. She recalls noticing the lump a few days after that.
She confirmed she did not have pain at her hysterectomy incision when doing the exercises. When she went to the doctor, he noticed the lump and asked her what happened. That is when she told her doctor it happened at physiotherapy and her doctor said he thought it was a hernia. She continued to attend therapy and told her therapist what her doctor said and the therapist told her she would have to take it easy. The worker’s representative pointed out that her recollection today appears to differ from the statements she made to her adjudicator at the time as outlined in memorandum 12.
The worker denied ever having laparoscopic surgery to her abdomen as Dr. Mohan suggested. She did have it for her left knee surgery with Dr. Woolford.
With respect of her hobbies in 2000, she stated she enjoyed walking her dog and denied any outside injuries/incidents that could have caused her hernia.
Analysis
Policy 15-02-02
A worker may have entitlement if a second accident results from treatment for a work-related condition or if a second accident occurs while a worker is travelling at the direction of the WSIB.
Policy 15-04-08
If a specific work-related muscular effort or incident causes or aggravates a hernia, workers are entitled to benefits.
The WSIB pays initial health care benefits to workers if their work
- causes a hernia, or
- aggravates a pre-existing, work-related, or non-work-related, hernia.
Elective surgery If a worker's pre-existing, non-work-related hernia is aggravated through work and the worker elects to have it repaired, decision-makers do not allow benefits for surgery and related lost time unless one of the entitlement criteria (described following) for emergency repair are met. Emergency surgery Decision-makers allow benefits for emergency surgery for both work-related and non-work-related hernias aggravated by work if the hernia is
- incarcerated (irreducible), or
- strangulated (incarceration with compromised blood supply), or
- associated with, or is apt to cause, rupture of the bowel wall.
Recurrent hernia + new accident = new claim. If a definite new work-related incident causes a pre-existing hernia to recur, decision-makers set up a new claim. Recurrent hernia + no new accident = original claim. If workers have a recurrence of a work-related hernia with no new incident, entitlement is considered under the original claim.
With respect of entitlement to a hernia in claim xxxx3191, I find the evidence does not support the worker sustained a hernia as a result of a specific muscular effort or incident during physiotherapy treatment. The following is a summary of the relevant information and the rationale for this conclusion.
At the time physiotherapy began on June 28, 2000 the work was already overweight and de-conditioned, two of the most common risk factors for the development of umbilical hernias. Of particular note also is that the initial physiotherapy assessment report documents the worker is tender along the abdominal scar due to recent hysterectomy surgery. Therefore, from the outset, even before stretching and strengthening exercises began, the worker is overweight and de-conditioned with abdominal tenderness. I note these are non compensable and pre-existing conditions.
The worker’s progress report of July 18, 2000 makes no mention of a hernia or of abdominal swelling and/or lump or of any concerns with treatment which she was receiving daily. She is also seen by family physician the same day and the associated report does not mention a hernia. Therefore it may be assumed her hernia was not yet present.
The physiotherapy report of August 24, 2000 indicates the worker’s low back pain symptoms continued with reduced mobility. She also reported increased pain symptoms with coughing and sneezing. The worker’s hysterectomy scar remained tender and she was noted to have low endurance and weak abdominals as she was still noted to be recovering from her hysterectomy. There is no suggestion of other abdominal findings (lump or swelling) to suggest the presence of a hernia. There were no complaints listed from the worker of abdominal discomfort other than a tender hysterectomy scar. However, when she was seen by surgeon Dr. Mohan on September 6, 2000, she reported having had a lump on her abdomen for the past four weeks.
Dr. Mohan’s September 6, 2000 report indicates the worker’s lump is present “all the time she is standing and is sometimes painful”. The report goes on to indicate “she recently had a back injury and was doing exercises for it, and also in addition, had a recent bout of excessive coughing and sneezing and after started observing the lump.” Clearly, the worker did not specifically relate to Dr. Mohan that her lump was caused from a specific exercise/incident during physiotherapy as Dr. Mohan does not make that causal connection in his report.
During testimony, the worker was surprisingly able to recollect specifics about when she noticed a lump. She recalled that she specifically told her physiotherapist, after a particular exercise, that she felt a sudden and sharp pain following which her physiotherapist told her she may have overstretched. Yet, during a lengthy conversation with her adjudicator on October 27, 2000, the worker did not mention having experienced a sharp pain and denied a specific incident or lift to account for the hernia. The worker instead indicated that after two weeks of commencing physiotherapy, when the back exercises started, she notice swelling or muscle tissue in her abdomen which got bigger as time went on. She indicated the thought nothing of it at first. She also denied mentioning anything specific to the therapist until after her doctor confirmed she developed a hernia. In conversation with the therapist, the adjudicator essentially confirmed the worker’s statements that there was no specific reporting of an injury. The therapist confirmed the worker did have abdominal complaints since the beginning of July 2000 (when physiotherapy commenced) and this is confirmed in the reports when the worker’s abdomen is reportedly tender due to hysterectomy surgery.
The therapist also confirmed the worker was watched carefully to ensure she did not perform strenuous exercises. There is no confirmation in the therapist’s records that the worker reported a specific incident that could have caused the hernia. The therapist commented the worker could have been susceptible to developing a hernia as she was de-conditioned and also confirmed the worker had been sick and sneezing a lot in September 2000 which might be a factor.
Policy on hernias is very clear that if a specific work-related muscular effort or incident causes or aggravates a hernia, workers are entitled to benefits. In weighing the above evidence, I am not persuaded there is sufficient basis to accept the worker sustained the hernia as a result of a specific incident or specific muscular effort. It appears the worker gradually noticed the abdominal swelling and lump and was unsure or could not define a specific incident or action that precipitated it. I do not agree that entitlement should be accepted because there was nothing else that could have caused the hernia. I find, on the contrary, that there were several non compensable conditions that were more likely the precipitating cause of her hernia; namely, her de-conditioned state, weak abdominal muscles, obesity, recent hysterectomy and excessive coughing and sneezing.
On the evidence I am not satisfied the policy criteria requiring evidence of a specific incident or specific force has been met. I find the evidence, at best, demonstrates only a possibility that physiotherapy exercises precipitated the onset of the umbilical hernia and this is not a sufficient test for causation. The fact the worker could not pin point a specific exercise/incident that caused the onset of her hernia which is confirmed in more reliable contemporaneous conversations directly with her and with her therapist, a causal connection has not sufficiently been established to merit allowance as a secondary condition. It follows that if the hernia is not found to be compensable, then the associated hernia repair is also not allowable.
With respect of entitlement to the January 13, 2003 incident, the worker noted a sudden onset of abdominal pain when she pulled a bag of garbage from a bin. She reported the incident and sought immediate medical attention and was diagnosed with a recurring hernia. I note the worker had no ongoing symptoms subsequent to her previous non compensable surgical repair in October 2000. I note the operating area accepted the incident of January 13, 2003 as a recurrence under claim xxxx3191.
According to policy, if it is established that a recurrent hernia, which is one that occurs at the site of a previous hernia repair, has been caused by a specific new accident then a new claim is established. This is consistent with the circumstances above. Therefore, a new claim ought to have been established and accepted for the January 13, 2003 workplace accident causing a recurrent hernia. The substantive issue is whether or not the hernia repair performed on February 13, 2003 meets the policy criteria for allowance.
The WSIB shall make its decisions based upon the merits and justice of a case and is not bound by legal precedent.
According to WSIB policy, benefits are allowed for surgery of both work-related and non-work-related hernias aggravated by work if the surgery is considered an emergency. Policy lists three criteria in which a hernia repair would be categorized as an emergency repair; when the hernia is incarcerated (irreducible), or strangulated (incarceration with compromised blood supply), or associated with, or is apt to cause, rupture of the bowel wall.
The worker’s surgery was schedule one month post accident which would support the surgery was not urgent and that there were no complications evident. Dr. Mohan, in a report dated January 15, 2003, indicated the worker’s hernia was reducible. The worker testified that she did not have pain in the time prior to the surgery only that the lump was “an annoyance”. The operative report of February 13, 2003 did not indicate the hernia was strangulated or incarcerated or threatened a bowel rupture. On the evidence therefore, I submit the surgery of February 13, 2003 was elective surgery, not urgently required due to an emergency.
Similarly, subsequent to the May 2005 incident under xxxx6816, the worker’s hernia surgery was not scheduled until eight months later. There are no further relevant medical reports on file. Given the length of time between the occurrence of the hernia and when it was repaired it is reasonable to conclude the surgery was not urgent.
Applying the relevant policy on hernia, I cannot allow benefits for the above surgeries and related lost time unless one of the entitlement criteria for emergency repair is met. Having carefully reviewed the medical evidence summarised above, I find that none of the above three entitlement criteria are present in this case. Specifically, there is no evidence that the hernia was incarcerated (irreducible), strangulated or associated with, or apt to cause, rupture of the bowel wall. In fact there is some evidence to the contrary in that Dr. Mohan’s post-accident observation was that the hernia was reducible.
I find the evidence is clear that the worker sustained recurrent umbilical hernias for which she chose to have recommended surgery. While the worker followed her doctor’s recommendation to have surgery, the specific circumstances following each incident support the conclusion that the surgeries were not an emergency, as required in the policy. Accordingly, I conclude that the worker is not entitled to LOE benefits due to the surgical repair of her umbilical hernias on February 13, 2003 and January 31, 2006.
CONCLUSION
There is insufficient evidence for entitlement to the hernia under xxxx3191 as a secondary condition resulting from physiotherapy treatment. I confirm the decision to deny entitlement to the hernia and associated surgery in October 2000.
The worker sustained a recurrent hernia as a result of a specific work related injury on January 13, 2003. As such, a new claim ought to be established and appropriate benefits paid. Entitlement was previously accepted as a recurrence under claim xxxx3191 but later reversed. However, given the surgery of February 13, 2003 was not considered emergency surgery, there is no entitlement to the repair and associated LOE benefits.
The recurrent hernia on May 20, 2005 under claim xxxx6816 was appropriately accepted as a new accident according to policy. However, given the surgical repair of January 31, 2006 was not emergency surgery, I confirm denial of LOE benefits for the surgery.
The objection is denied.
DATED January 29, 2010
D. DeRose
Appeals Resolution Officer
Appeals Branch