WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100172
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: April 13, 2010
ATTENDEES:
Worker, Employer, Worker Representative, Employer Representative, Witness, Observer
ISSUES
The worker requests:
Recognition that his umbilical hernia arose from the heavy lifting associated with his work duties for the employer on or about March 27, 2009.
The payment of associated benefits for health care and loss of earnings.
HOW THE ISSUES ARISE
The worker commenced his employment with the employer, a manufacturer of vitamins and nutritional supplants on March 3, 2003 and he performed work duties as a blender of these products from that point. He first reported injuring his stomach area (umbilical hernia) to the employer on June 1, 2009. At that time he alluded to a date of accident in late March 2009 and explained he would require surgery for the condition on June 9, 2009.
The employer expressed concerns over the delay in reporting; it noted the worker had provided several different dates of accident and he was familiar with his reporting obligations. The operating area gathered additional information from the worker by telephone and it concluded that he had not established proof of a workplace accident. The claims adjudicator advised the workplace parties of this decision on July 9, 2009. The worker appealed this decision on July 23, 2009; his representative submitted an objection form on October 7, 2009 and the operating area referred the issues to the Appeals Branch on November 6, 2009.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
11-02-02 Lost Time Claims
ASSESSMENT OF THE EVIDENCE
The worker provided testimony at the hearing about:
His employment history with the employer and the work duties he performs as a blender.
How blenders normally work in teams of two.
Working with the witness as part of a blender team on the afternoon shift in 2009.
Experiencing a sharp pain in his stomach area on one particular shift during the last week of March 2009 when he handled a 110 pound container; mentioning it to the witness and continuing with his work duties as the pain subsided.
Making an appointment to see his family doctor on March 30, 2009 when he had an onset of severe vomiting over the weekend.
The family doctor identifying that he had an umbilical hernia and making a referral to a specialist for a surgical opinion.
Not having pain or discomfort; being able to continue with his normal work duties and opting not to report the matter to his employer at this time, even though he understood his reporting obligations.
Receiving initial training on the workplace accident reporting on hiring by the employer and on a yearly follow-up basis with all other employees.
Having reported workplace accidents previously to the employer, including a left inguinal hernia on October 5, 2004 which also involved surgery and LOE.
Not initiating the formal reporting process until after he saw the specialist in May 2009 and was told he required surgery to treat his umbilical hernia.
The employer's HR administrator asking him when the injury occurred; his family doctor’s secretary advising him that he saw the doctor about the condition on February 24, 2009 and the HR administrator providing him with forms for benefits under the insurance carrier.
His local union representative advising him that he needed to make a workplace injury claim and not an insurance carrier claim, if it was work-related.
The HR administrator asking him to provide a medical note from his family doctor about the situation, which he did on June 1, 2009.
Realizing at this time that he has attended his family doctor about the umbilical hernia on March 30, 2009 and not February 24, 2009, as previously reported.
Understanding the employer's concerns about the delay in reporting, the inconsistencies in dates and resolving to report all incidents in future, no matter how innocuous they might seem at the time.
The witness provided testimony at the hearing about:
Being employed as a blender by the employer for three years.
Working in a blender team with the worker on afternoon shift in March 2009.
Recalling the worker making a complaint of stomach pain while handling a 110 pound container on one particular shift that month.
The worker making no further complaints or having any difficulty with the work duties to his recollection after this incident.
The worker's representative acknowledges the employer's concerns regarding the delay in reporting a workplace accident and the confusion over the date of accident. However, he submits that the worker is a good employee; he has a good attendance history and he did not want to make a fuss about his umbilical hernia until surgery became necessary.
The worker's representative asserts that the worker is a credible individual. He notes that the co-worker substantiates the onset of stomach pain in the workplace while handling a 110 pound container in March 2009 as does the family doctor. If I accept that his testimony is truthful, I should rule in his favour and allow the appeal. In that circumstance, the worker becomes eligible to receive benefits for the associated health care and LOE.
The employer's representative does not dispute that the worker developed an umbilical hernia in March 2009. However, she notes that he did not fulfil his reporting obligations; he provided several different dates of accident and the hernia could have just as easily developed outside of the workplace. Perhaps most importantly, the worker has experience with the reporting of workplace accidents and receives training on the correct process to follow, yearly.
Lastly, the employer's representative notes the worker made no mention of a possible witness until after he initiated the appeals process. This should lead one to question the veracity of this individual’s testimony. For all of these reasons, the employer's representative submits that there is good reason to doubt if the worker's umbilical hernia is work-related and she requests the confirmation of the operating area decision as correct.
I do understand the employer's concerns about the worker's delay in reporting his umbilical hernia as work-related, as he was aware of its presence on March 30, 2009. The family doctor made the diagnosis on that date and initiated a referral to a specialist to determine if the condition would require surgical treatment. The employer has also pointed out that it stresses the importance of immediate reporting of workplace accidents to all of its employees and the worker acknowledges this too.
In his defence, the worker notes that other than the initial discomfort on March 27, 2009, he was able to continue with his work duties that day and right up to his surgery on June 9, 2009. The only reason he went to see his family doctor on March 30, 2009 related to the onset of severe vomiting at home after the incident at work. That is when the doctor discovered he had an umbilical hernia and made the referral to a specialist. He decided to await the review by the specialist before advising the employer, as perhaps surgery and LOE would not result.
As to the mix up with dates, the worker attributes the mention of February 24, 2009 to the employer's HR administrator to the incorrect information provided by his family doctor’s secretary. He also acknowledges that he provided a date of February 27, 2009 on his report of accident and this date is also incorrect.
I am satisfied that the worker's umbilical hernia was not present before March 30, 2009. The question remains whether it arose from his workplace duties for the employer. There is no question about the physical requirements of the work duties of blender. The employer's own physical demands analysis confirms the need to handle and lift heavy weights. In fact, these requirements led to the worker's prior left-sided inguinal hernia on October 5, 2004.
So, did workplace activities on or about March 27, 2009 cause the worker's umbilical hernia? I have his sworn testimony and that of the witness about him experiencing a sharp pain in his stomach area while twisting and handling a heavy container. Neither of them is certain as to the exact date but he saw his family doctor about unusual gastrointestinal symptoms on
March 30, 2009 the doctor identified an umbilical hernia on this date.
I note that the worker and the witness provided their testimony in a straight forward and consistent way. It is also in keeping with the evidence as a whole. As such, I accept their testimony as truthful. This leads me to conclude that the worker’s umbilical hernia arose from his work duties for the employer on or about March 27, 2009. The worker will receive benefits for the associated health care and LOE.
CONCLUSION
I conclude that:
The worker’s umbilical hernia arose from his work duties for the employer on or about March 27, 2009.
The worker will receive benefits for the associated health care and LOE.
The worker's objection is allowed.
DATED April 20, 2010
L. J. Vaccarello
Appeals Resolution Officer
Appeals Branch