APPEALS RESOLUTION OFFICER DECISION
decision number:
20220034
OBJECTING PARTY:
employer
REPRESENTED by:
employer representative
RESPONDENT:
worker (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
Sujethra nadarajah, appeals resolution officer
ISSUES
The employer objects to two issues:
The Case Manager’s (CM) July 3, 2018 decision that allowed initial entitlement to an umbilical hernia, and
The CM’s October 22, 2018 decision that allowed ongoing entitlement for the hernia surgery and related Loss of Earnings (LOE) benefits.
BACKGROUND
On February 13, 2018, this worker, a team member, felt a pop sensation in their abdomen area as they leaned into a van to grab wires to pull them out. Entitlement was granted for an abdomen strain.
On July 3, 2018, entitlement was clarified and allowed for an abdominal (umbilical) hernia.
On July 6, 2018, the worker’s hernia was repaired surgically and they lost time from work from July 6, 2018 to August 13, 2018.
The October 22, 2018 decision letter determined the surgery and related lost time was allowed for healthcare and LOE benefits.
The employer representative (ER) submitted an Intent to Object Form (ITO) dated November 9, 2018 objecting to the October 22, 2018 decision and another ITO dated January 7, 2019 objecting to the July 3, 2018 decision. Upon review and reconsideration, there were no changes in the decisions. On September 27, 2021, the ER submitted the Appeal Readiness Form (ARF).
The employer’s objection to initial entitlement for the hernia, the surgery and related LOE benefits form the basis of this appeal.
AUTHORITY
Operational Policy Manual
Published
11-01-01 – Adjudicative Process
15-02-01 – Definition of an Accident
15-04-08 – Hernia
18-03-02 – Payment and Reviewing LOE Benefits (Prior to Final Review)
November 3, 2008
October 12, 2004
November 3, 2008
January 2, 2008
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. I do not find in favour of the employer. As I will explain, entitlement for the hernia, along with the surgical repair and related LOE benefits are in order.
In reaching my conclusion, I also reviewed the ARF and ER submission dated September 27, 2021. It is opined that entitlement be rescinded for the hernia, related surgery and LOE benefits. The ER argued there is insufficient information to establish proof of accident, compatibility and personal injury, as required by policy 11-01-01, Adjudicative Process. In addition, the ER argued the hernia was pre-existing due to a congenial weakness and outweighed any ostensible work-related contribution. Further, they provided, should the diagnosis be accepted, there was no basis for allowance of benefits to the hernia surgery noting it was not emergent, and rather, the worker elected to proceed with surgical intervention.
The worker was not a participant in the appeal; thus, no information was submitted for consideration.
1. Initial Entitlement to Hernia
According to Policy 15-02-01, Definition of an Accident, an accident includes:
a willful and intentional act, not being the act of the worker
a chance event occasioned by a physical or natural cause, and
a disablement arising out of and in the course of employment.
Disablement
The definition of disablement includes
a condition that emerges gradually over time
an unexpected result of working duties.
In this case, the worker’s accident history is neither a wilful and intentional act nor a chance event (i.e. an identifiable unintended event causing an injury). The accident history described by the worker is that of a disablement, which was an unexpected result of working duties. Specifically, the worker is claiming a disablement from bending while reaching into a van to pull some wires when they felt a pop in their abdomen area.
To accept initial entitlement in a disablement case, decision makers must establish that the injury both arose out of and in the course of the employment. The standard of proof applied is the “balance of probabilities”, which requires a causal link to be “more probable than not”. In this case, I must determine whether the action of bending while reaching for wires caused the worker’s umbilical hernia.
WSIB Policy 11-01-01, Adjudicative Process, states that all decision makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the “five point check system.” The Policy states, in part:
An allowable claim must have the following five points
an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.
Employer and Worker
In this case, there is no dispute regarding the worker and employer relationship, and so both criteria are met.
Personal Work-related Injury
The personal work-related injury criterion looks to establish the worker had a personal injury resulting from an accident that happened because of the worker’s job (arising out of employment) while they were working (in the course of employment). The worker was on the employer’s site at the time of the accident, performing their regular duties when they experienced pain while at work. Although the employer argued, “there is no evidence of injury at the alleged time”, the employer does not provide any additional evidence to support their position. Given the worker was able to identify a specific moment in which they experienced pain while at work performing work-related duties, on the balance of probabilities, I find this criteria is established.
Proof of Accident
The proof of accident criterion considers circumstances to establish a work-related accident happened as described and was the cause of the worker’s diagnosed injuries. Circumstances that support an accident occurred and caused a work-related injury can include witness statements, an immediate onset of symptoms, and an immediate need for medical attention or stoppage of regular or all work duties.
In this claim, the ER contended due to the delay in reporting the injury, the proof criterion could not be established as, “anything could have happened outside of work during the intervening period to cause the issues she attributed afterwards to work”. The delay in reporting is seven days. Although workers are expected to report injuries immediately, I find the delay reasonable as the worker indicated they self-medicated with ibuprofen and reported the injury when symptoms increased. In addition, as the worker was consistent in their reporting to the employer and doctor on February 20, 2018 with regard to the date of injury and accident history details, I find this supports, on the balance of probabilities, the accident happened on February 13, 2018 as reported by the worker. Therefore, I find the circumstances around the accident establish a work-related accident happened, and the proof of accident criterion is established.
Compatibility of Diagnosis to Disablement History
The final criterion, compatibility of the diagnosis to the accident relates to whether the diagnosis of an umbilical hernia is compatible with the disablement history. In this case, the ER argued compatibility cannot be established as
Bending over is not a muscular effort; it is a normal human movement; an act of everyday living and would not cause hernia. Likewise, leaning is a normal human movement and an act of everyday living and not a specific muscular effort. She said she grabb[ed] wires; however the wires were light in weight and grasping them with her hand is not a specific muscular effort involving the stomach. There was no muscular effort under the hernia policy or compatible with umbilical hernia
While I acknowledge there wasn’t a significant muscular effort involved, the employer did not provide any objective information or alternative explanation for the onset and progression of the hernia to support their position. In addition, policy 15-04-08, Hernia, states, “If a specific work-related muscular effort or incident causes or aggravates a hernia, workers are entitled to benefits.” Accordingly, given the awkward movement of bending while reaching, along with the worker’s statement that clearly indicated they felt an immediate ‘pop’ sensation in their abdomen when they performed this activity, I find an umbilical hernia is compatible with this accident history.
The ER also argued, “[an] umbilical hernia is fundamentally a pre-existing condition and is not an injury-based diagnosis” and indicated information on the Mayo Clinic webpage on “Umbilical Hernia” confirmed “umbilical hernia exists from birth”. This is not an accurate understanding of the information on this website. The Mayo Clinic provides, instead, “during gestation, the umbilical cord passes through a small opening in the baby's abdominal muscles. The opening normally closes just after birth. If the muscles don't join together completely in the midline of the abdominal wall, an umbilical hernia may appear at birth or later in life.” In other words, while some people may be more susceptible to have hernias later in life because their muscles at the abdominal wall did not completely join just after birth, it does not mean these individuals have had a hernia from birth. Accordingly, while there may be a genetic component underlying an umbilical hernia, I do not accept that all umbilical hernias have a congenital basis.
In this case, the Health Professional’s Report (Form 8) of February 20, 2018 diagnosed a supraumbilical hernia and it did not indicate the worker had any related pre-existing concerns. Further, the consultation report from the surgeon dated June 28, 2018 and the Ultrasound of February 23, 2018 did not clearly indicate the hernia was pre-existing. In addition, the worker did not advise that this was a concern for them prior to the workplace incident. In the absence of any evidence, to the contrary, I do not find the medical evidence in the claim supports the ER’s position that the hernia was pre-existing.
Accordingly, I find the diagnosis is compatible with the work injury.
Thus, I find the five criteria under policy 11-01-01, Adjudicative Process, are met and there is entitlement to an umbilical hernia.
2. Ongoing entitlement to the Hernia repair on July 6, 2018 and related LOE benefits
Policy 15-04-08, Hernia, states, in part:
Initial health care
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.
Recovery after surgery
Recovery may take up to 8 weeks for an uncomplicated repair.
This policy provides WSIB is responsible for the treatment required for a work-related hernia. In this case, as I have determined the hernia was caused while performing work-duties, I find the surgery to repair the hernia is reasonable and is allowed under this claim.
I look to policy 18-03-02, Payment and Reviewing LOE Benefits (Prior to Final Review), for guidance on payment of LOE benefits. This policy states, in part:
Full LOE
If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the work reintegration process.
The worker’s surgery took place on July 6, 2018. The pre-operative report dated June 27, 2018 indicated post-surgery, the worker would be off work for four weeks to prevent developing a recurrent hernia. The family doctor completed a Functional Abilities Form (FAF) dated August 8, 2018, which cleared the worker to return to modified duties as of August 13, 2018.
Based on the medical evidence, I find that the worker was fully impaired from July 6, 2018 to August 13, 2018, as they were recovering from their surgery. The worker lost five weeks from work and I find it is reasonable given the hernia policy indicates recovery for an uncomplicated surgery can take up to eight weeks.
Therefore, healthcare benefits for the hernia surgery on July 6, 2018 and LOE benefits from July 6, 2018 to August 13, 2018 are in order.
CONCLUSION
The issues are concluded as follows:
Initial entitlement to an umbilical hernia remains in order.
Ongoing entitlement for the hernia surgical repair and related LOE benefits from July 6, 2018 to August 13, 2018 remain in order.
The employer’s objection is denied.
DATED March 17, 2022
Sujethra Nadarajah
Appeals Resolution Officer
Appeals Services Division