WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20170002 DATE: March 23, 2017 OBJECTING PARTY: Worker REPRESENTED by: WSIB Representative RESPONDENT: Employer HEARING: Hearing in Writing
ISSUE
The worker is requesting initial entitlement for a hernia.
BACKGROUND
On March 17, 2016, this then 41 year old community support worker was using a Hoyer lift with an approximately 300 pound patient. While the patient was in the sling of the lift, the worker pulled backwards and held the patient in position. As the worker was holding, she felt a "pop" and instant pain. The worker was able to get the client down into the bed and left right away. Shortly afterward, the worker realized that she had huge lump in her abdomen, began to vomit and could barely walk. A massive ventral hernia was diagnosed on March 18, 2016.
The administrative decision dated February 7, 2017 determined that the criteria for an oral hearing have not been met. The issue is now before me as a hearing in writing.
Eligibility Adjudicator's decision
The Eligibility Adjudicator's decision letter of April 20, 2016 denied entitlement to an abdominal injury on the basis that there is no medical evidence to support that a personal work-related injury occurred on March 17, 2016.
The reconsideration letter dated June 6, 2016 upheld the decision of April 20, 2016 on the basis that the diagnosis of a ventral hernia is not compatible with the accident history.
Worker's position
The worker argues that a chance event injury occurred and that all of the required 'immediates' are met.
It is the worker's position that while the approximately 300 pound totally non-weight-bearing patient was in a Hoyer lift, she was required to pull and hold the swing backward while supporting the patient's weight as the patient pressed a button to slowly raise the bed.
AUTHORITY
Workplace Safety and Insurance Act, 1997 Section 13
The following Operational Policies apply:
11-01-01 Adjudicative Process
15-02-01 Definition of an Accident
15-04-08 Hernia
ANALYSIS
I find for the reasons outlined below that initial entitlement is not in order.
Initial entitlement
I accept that policy requires the evidence to clearly show that the work duties caused the injury.
Policy 15-02-01 defines the term 'accident' as including both a 'chance event' and a disablement. Thus, an accident is not required to be a 'chance event'.
Policy defines a chance event as an identifiable unintended event causing an injury. For example, falling from a height would be considered to be a chance event. Policy 15-02-01 confirms that the term 'disablement' includes a condition that emerges over time or is an unexpected result of the job duties.
It is important to differentiate between a chance event and a disablement. The presumption listed under Section 13(2) of the Workplace Safety and Insurance Act does not apply to a disablement.
A chance event injury occurring during the course of employment is presumed to be an injury that also arose out of the employment provided that the contrary has not been shown. In contrast, this presumption does not exist with a disablement injury. Therefore, in cases of a disablement injury, the onus is on the worker to demonstrate that the injury both occurred in the course of employment and also arose out of the employment.
I find that the incident history of March 17, 2016 does not represent a chance event. In particular, it is my view that there is insufficient evidence of an identifiable unintended event causing an injury. I note that policy 15-02-01 states that an injury itself is not a chance event. The worker indicates that the injury occurred while she was holding the worker close to her body while he was in the sling. Thus, I accept that the worker is claiming a disablement as an unexpected result of her working duties.
Policy 11-01-01 outlines that an allowable claim requires proof of accident as well as compatibility of diagnosis to disablement history. There is general agreement that the worker is requesting entitlement for a ventral hernia. Therefore, I will now review proof of accident prior to considering the question of clinical compatibility.
Proof of accident
I find that proof of accident is not established. Policy 11-01-01 allows decision-makers to consider factors such as if a disablement situation exists and if there are any witnesses.
I observe that the Intent to Object form of July 13, 2016 enclosed a written statement provided by the worker stating that "I have never been trained on this particular lift". However, I must consider that the worker informed the Eligibility Adjudicator on August 24, 2016 that there were four to five people being trained on the Hoyer lift with her.
I acknowledge that the worker also informed the Eligibility Adjudicator that "they really didn't get trained" on the Hoyer lift. Nevertheless, the worker informed the Eligibility Adjudicator that she signed a document indicating that she had been trained. I also note that the employer had previously informed the Eligibility Adjudicator on August 15, 2016 that the worker had training on the Hoyer lift two weeks prior to March 17, 2016.
The worker informed the Eligibility Adjudicator on April 6, 2016 that the patient was on a sling located above his bed. The worker explained to the Eligibility Adjudicator on May 13, 2016 that as the sling is in the centre of the bed, she must pull the patient backwards closer to her body. A separate Intent to Object form dated June 10, 2016 indicates that pulling the patient backward and holding requires the worker to bear the patient's weight as well. The worker suggested to the Eligibility Adjudicator on April 6, 2016 that while the sling was bearing some weight she was bearing most of it.
In weighing the evidence, I am not persuaded that the worker was required to bear most of the patient's weight while using the sling (Hoyer lift). The employer indicates that holding the patient for a few minutes while in the sling would not represent more than 30 – 40 pounds of weight. The employer contact also informed the Eligibility Adjudicator that she herself has serviced this particular patient numerous times and confirmed that the lift can bear all of his weight. Finally, the employer confirmed that the Hoyer lift has been reviewed and deemed to be in good condition.
Additionally, I note that the employer's correspondence of March 23, 2016 documents the patient's confirmation the worker had not reported any incident nor expressed any pain. The Eligibility Adjudicator then spoke with the patient on May 25, 2016 who confirmed that to the best of his knowledge he cannot recall an accident or incident occurring to the worker.
Based on the above reasons, it is my view that the criterion of proof of accident is not met.
Compatibility of diagnosis with incident history
I find that the policy requirement of clinical compatibility is not met.
I afford the most weight the specific expertise of the assessing surgeon. The consultation report from April 13, 2016 outlines that the worker had emergent surgery in June of 2012 for an incarcerated hernia with enterocutaneous fistula and associated skin necrosis, necessitating bowel resection and precluding the use of mesh.
I observe that the assessing surgeon states "not surprisingly, her hernia has recurred" and that "this has likely been gradual in onset" but that the worker describes an acute antecedent event one month ago while working as a personal support worker.
I acknowledge that policy 15-04-08 outlines that workers are entitled to benefits if a specific work-related muscular effort or incident causes or aggravates a hernia. I recognize that the surgeon's report of April 13, 2016 documents that the worker described lifting a patient. Similarly, I observe that the clinical medical note of March 18, 2016 documents a massive hernia "after lifting at work" and that the date of injury was March 17, 2016. Notwithstanding, for the reasons discussed above, I find that there is insufficient evidence that the worker lifted the patient on March 17, 2016 or was required to support most of his weight.
Therefore, it is my opinion that the diagnosed hernia was not caused or aggravated by the work duties performed on March 17, 2016. As a consequence, I find that initial entitlement for a hernia is not in order.
CONCLUSION
I conclude the following:
The incident history does not represent a chance event.
Proof of accident is not established for a disablement unexpected result.
Clinical compatibility is not evident.
Initial entitlement for a hernia is not in order.
The worker's objection is denied.
DATED March 23, 2017
K. MacMillan
Appeals Resolution Officer
Appeals Services Division