APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230120
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
m. haughton, appeals resolution officer
SEPTEMBER 14, 2023
ISSUE
The worker is objecting to the Eligibility Adjudicator’s (EA) decision dated November 7, 2019, which denied initial entitlement to an umbilical hernia. The CM reconsidered and upheld this decision on April 2, 2020.
BACKGROUND
On September 4, 2019, this grocery clerk experienced an onset of pain in their abdomen while performing their job duties. The worker stated they were using a manual hand jack to move skids as the power jack was not working. The worker reported they felt a sharp pain in their abdomen that they initial get was attributable to a muscle strain. The worker later notice a protrusion near their navel. The worker sought medical attention on October 21, 2019 and they were diagnosed with an umbilical hernia. The worker reported the incident to the employer on October 24, 2019.
Following the reported incident, the worker returned to their regular job duties and did not initially lose time from work. The employer provided the worker with an offer of modified work on October 25, 2019. On November 26, 2019, the worker underwent surgical repair for the hernia. The worker returned to modified work on December 10, 2019.
On November 7, 2019, the EA denied initial entitlement to an abdominal injury as proof of accident had not been established. The EA noted there was a seven (7) week delay in seeking medical attention and they were unable to determine the hernia diagnosed on October 21, 2019 resulted from a workplace incident on September 4, 2019. The EA reconsidered and upheld this decision on April 2, 2020. The EA noted there was insufficient evidence to support the diagnosed umbilical hernia was caused by a specific work-related effort.
The worker’s objection to the EA’s decision dated November 7, 2019 and the subsequent reconsideration of that decision on April 2, 2020, forms the basis for this appeal.
AUTHORITY
Workplace Safety and Insurance Act, 1997 (The Act), Section 13(2)
Operational Policy Manual
Published
Policy 11-01-01 Adjudicative Process
November 3, 2008
Policy 15-02-01 Definition of an Accident
October 12, 2004
Policy 15-04-08 Hernia
November 3, 2008
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find the worker has initial entitlement to an umbilical hernia. My findings and analysis are provided below.
The worker representative included a submission with the Appeal Readiness Form dated April 19, 2023. The representative noted the worker had been employed with the employer for 32 years. On September 4, 2019, the powered pallet jack normally used to receive product was out of service and the worker was required to use a hand truck to remove products from the truck. The worker reported they were puling skids that weighed up to 2500 pounds. The worker was required to use force to push and pull to move the skids of product. As the evening went on the worker felt pain in their abdomen, which they believed was a muscle strain from pushing and pulling skids with the hand jack.
The representative noted the worker self-medicated for a muscle strain; however, when their symptoms persisted and they noticed a protrusion at their navel they sought medical attention on October 21, 2019. The worker was referred for an ultrasound, which was completed on October 31, 2019 and they were diagnosed with an umbilical hernia. The worker underwent a surgical repair of the hernia on November 26, 2019 and they remained off work from November 26, 2019 to December 9, 2019. The worker returned to modified work on December 10, 2019. The representative stated the worker had no prior hernias and the worker did not participate in any activities outside of work that could have caused the hernia.
The employer representative provided a submission on June 16, 2023. The representative noted the worker reported they initially attributed their symptoms to recent weight gain. The representative referenced medical literature, which indicated that umbilical hernias were mostly congenital, but some were acquired in adulthood secondary to obesity, ascites, pregnancy, or chronic peritoneal dialysis. The representative noted the worker had been employed with the employer for 32 year and that it was probable that during the course of their employment the worker would have had occasion to use the manual hand truck to remove groceries or move stock around the store. The representative noted that this activity had not previously caused the worker to develop a hernia and queried if the umbilical hernia was caused by recent weight gain, which the worker themselves had admitted to thinking. The representative referenced medical literature to support umbilical hernias could be caused by weight gain, due to increased abdominal pressure. The representative also cited concerns with the delay in reporting the September 4, 2019 incident and in seeking medical attention.
An ultrasound of the abdomen completed on October 31, 2019, showed evidence of a reducible umbilical hernia.
A clinical record dated November 1, 2019, indicated the worker was seen at a walk-in clinic 10 days prior and they were referred for an ultrasound. The worker stated they were unloading groceries from trucks on September 4, 2019, when they felt a twitch in their abdomen follow by persistent mild discomfort. The worker was noted to have an obvious umbilical hernia. The worker was referred to a specialist and functional restrictions were provided until the worker could undergo a surgical repair. A Health Professional’s Report (Form 8) was completed. The worker was noted to be at a higher risk of recurrence of the hernia post-surgery due to their weight.
As notes in the CSR Eligibility Template completed on November 7, 2019, the worker reported they had were moving a heavy skid weighing over 2500 pounds with a manual jack. The worker stated they had to push and pull the jack to get the skid off the truck and onto the ramp and they moved eight (8) skids in the course of their shift on September 4, 2019. The worker reported they had experienced some abdominal discomfort during their shift; however, they initially felt it was a muscle cramp. When their symptoms persisted, the worker felt the symptoms may have been caused by recent weight gain; however, after searching their symptoms on the internet they sought medical attention. The worker indicated they been diagnosed with an umbilical hernia and they were scheduled for surgery on November 26, 2019.
An operative report dated November 26, 2019, noted the worker had undergone a laparoscopic repair of an incarcerated umbilical hernia.
According to Policy 15-02-01, Definition of an Accident, an accident includes a chance event or a disablement arising out of and in the course of employment. The definition of a chance event is an identifiable unintended event which causes an injury. The definition of disablement includes a condition that gradually emerges over time or an unexpected result of working duties. In this case, the worker is claiming entitlement to a disabling injury that occurred gradually over the course of their shift on September 4, 2019.
For a disablement-type injury the worker does not have the benefit of the presumption under Section 13(2) of The Act, which states if the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown. In the case of a disablement, there must be evidence that demonstrates that the disablement arose out of and in the course of employment. There must be a causal relationship between the work being performed and the disablement.
With respect to establishing initial entitlement, operational 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."
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.
In determining proof of accident decision makers are asked to consider a number of factors including whether an accident or disablement situation existed; whether there were any discrepancies in the date of accident and the date the worker stopped working; whether there was any delay in the onset of symptoms or in seeking health care attention and whether there were any witnesses.
In this case, I note there was a delay in reporting and in seeking medical attention; however, the worker has had limited experience with the Workplace Safety and Insurance Board and may have been unfamiliar with their reporting obligations. The worker sought medical attention when their symptoms persisted and reported the incident to the employer after seeking medical attention. The worker’s symptoms began immediately following the September 4, 2019 incident; however, they continued to perform their regular work duties from the date of incident until October 24, 2019, after the hernia was confirmed and functional precautions were recommended. I find proof of accident has been established.
Policy 15-04-08, Hernia, states that if a specific work-related muscular effort or incident causes or aggravates a hernia, workers are entitled to benefits. Hernias can result from excessive strain or direct trauma. Types include inguinal, femoral, umbilical, hiatal, and incisional hernias. 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.
The worker identified a work-related muscular effort that caused the onset of their symptoms. The worker indicated they had been using a manual pump jack to move heavy skids as the power jack they normally used was not working. As a result, the worker had to exert additional muscular effort to move the skids. The medical information on the claim file does not support the worker was previously diagnosed with a hernia. The medical reporting supports the hernia resulted from a work-related muscular effort on September 4, 2019. There were no activities identified outside of the worker’s job duties that could have caused or contributed to the diagnosed hernia. Additionally, while the worker’s body habitus was noted to put the worker at a higher risk for a recurrence of the hernia, the worker’s treating health care professionals did not attribute the hernia to the worker’s body habitus or the reported recent weight gain. I find the diagnosed umbilical hernia is compatible with the reported mechanism of injury.
I find the worker has met all five points for an allowable claim, as noted in Policy 11-01-01. As a result, I find the worker has initial entitlement to an umbilical hernia.
CONCLUSION
The worker’s objection is allowed.
The worker has initial entitlement to an umbilical hernia.
Benefits flowing from this decision are remitted back to the Operating area for further review, subject to the normal rights of appeal.
DATED September 14, 2023
M. Haughton
Appeals Resolution Officer
Appeals Services Division