WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2004 ONWSIAT 2028 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1489/04 [1] This appeal was heard in Kitchener on September 10, 2004, by Tribunal Vice-Chair R. Nairn. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer H. Grant, dated October 23, That decision denied the worker initial entitlement to benefits for a left inguinal hernia claimed to have arisen out of and in the course of his employment on November 17, [3] The worker appeared and was represented by Ms S. Rocke, a consultant. The employer, while advised of the appeal, decided not to participate. THE RECORD [4] In considering this matter, I had before me: Exhibit #1: Case Record, Exhibit #2: Addendum No. 1, dated October 2, 2003 Exhibit #3: Addendum No. 2, dated January 14, 2004 Exhibit #4: Addendum No. 3, dated August 18, 2004, Exhibit #5: A letter dated January 16, 2004, from the Office of the Vice-Chair Registrar, Exhibit #6: A package of receipts for medical reports. [5] Oral testimony was received from the worker. Submissions were made by Ms Rocke. THE ISSUE [6] The issue to be determined in this case is whether the worker has initial entitlement to benefits for a left inguinal hernia claimed to have arisen out of and in the course of his employment. THE REASONS (i) Background [7] The following background information is, generally speaking, not contested and I have relied on it in reaching my decision:

2 Page: 2 Decision No. 1489/04 At the time of the events under consideration here, the worker was employed as a mechanic with the accident employer. He had worked in that position since being hired in In his Report of Injury dated April 24, 2000, the worker noted during the week of November 17, 1997 was working in garage lifting a compressor out of a truck 90 lbs. Noted sharp pain then, but pain left and noted pain return two days later. Notes from the employer s Health Services Department concerning this worker have an entry for December 8, 1997, which indicates: employee reports discomfort R ABD area states approximately two weeks ago during the wk of Nov. 17/97 he was working in the garage lifting a compressor out of a refrigeration unit on a truck. States the area he was working in was awkward/confined and he noted strain to R ABD area. States pain has been periodic occurring even if no exertion with work. While the worker remained at work after the incident in 1997, he continued to experience periodic pain and discomfort in the right side of his abdomen. He experienced a particular severe episode of pain on approximately March 31, 2000 while attempting to remove an old nut from a compressor hose. The Health Services report for that date notes low R sided ABD pain similar pain as previously investigated. The worker was referred to a specialist, Dr. P. Ahuja (general and colorectal surgery). On June 21, 2000, Dr. Ahuja performed surgery on the worker. The pre-operative diagnosis was abdominal pain not yet diagnosed. The post-operative diagnosis was left inguinal hernia. Following the surgery, the worker continued to experience discomfort and on November 1, 2000, Dr. Ahuja performed further surgery on the left and right sides. The worker requested that the WSIB grant him entitlement to benefits for his left sided hernia on the grounds it was related to the nature of his employment duties. In Memo #12 dated August 28, 2000, Dr. Meenan of the WSIB advised: The history of this worker s pain has been strictly to the rt side of the abdomen with no left sided pain noted. The discovery of a left inguinal hernia on operation would not indicate that it is related to the injury under this claim. The existence of the hernia prior to the Mar 30 is impossible to prove. It was not symptomatic in that it did not cause what would be expected which would be a left abdomen and/or inguinal pain. The worker objected to the Board s denial of benefits and the matter was eventually considered by an Appeals Resolution Officer. Prior to issuing his decision, the Appeals Resolution Officer requested a medical opinion and in Memo #22 dated June 26, 2002, Dr. Kanalac of the Board concluded: ( ) It appears that we are missing the second operative report as he appears to have had a second surgery for a bilateral repair. This is not on file. This is required before proper medical decision making can be entertained. In order to answer these specific questions, it is unlikely that the right abdominal strain in November 1997 would have necessitated a left inguinal hernia repair. Also, symptomatology from 1997 into 1998 appear to be right sided and this would not explain why we require a left sided repair. Again, we really do not have much information regarding the most recent incident of March 30, 2000 but

3 Page: 3 Decision No. 1489/04 noted in (the Health Centre s notes was that on March 31, 2000, he reported to the Health Services with continued lower right abdominal pain. Therefore, his symptomatology appears to be mainly right sided in nature. Therefore, it is unlikely that the left inguinal hernia developed as a result of removing a compressor hose on March 30, 2000 as the symptoms were mainly right sided. In his decision dated October 23, 2002 the Appeals Resolution Officer denied the worker s appeal and concluded: (ii) There is an accident history for both the left and right sided abdominal pain that the worker experienced. However, for the November 17, 1997 accident history it describes both left and right sided pain. The right side pain was an aggravation as a result of a March 30, 2000 incident when the worker was removing a difficult compressor hose. Also the worker had been experiencing right sided pain for several years. The worker s specialist November 30, 2000 report does not convince me that the worker s left inguinal repair was a result of his November 1997 incident. Neither does the specialist s other reports or that of his family doctor. In addition, the worker s visits (to the Health Centre) were for his right sided abdominal pain. The medical opinions, the medical evidence on file and the other file evidence convinced me, in the absence of any continuity of left sided pain, to uphold the (claims adjudicator s) decisions to deny entitlement to a left inguinal hernia. Medical evidence [8] The medical evidence on file includes the following: In a report dated May 8, 2000, Dr. G. Miller (family physician) noted: I saw him in mid November 1997 and referred to Dr. Vidiik because of persistent pain at the lateral border of the rectus muscle. Dr. Vidiik did not feel that he had a hernia at that point and did not advise surgical intervention. He suggested conservative treatment. [The worker] continued to have trouble and the next time I saw him was on August 7, 1998 with pains in this area which were most severe when he bent forward or sat down. Again I treated this symptomatically and he was in again on August 22 for the same reason. I refer him again to Dr. Vidiik who again reassessed him and again did not feel that surgical intervention was indicated. He underwent a CT scan of the abdomen in March 1999 which was negative with no indication of problems with the bowels. Following this he continued to have problems and was seen on December 15, 1998, February 16, 1999, March 4, 1999, March 30, 1999, August 13, On the last visit I asked for another opinion from Dr. Ahuja and his opinion was similar to that of Dr. Vidiik. He was back in the office on January 7, 2000, March 31, and April 3 and he continued to have pain through this time. My opinion, all through this, is that this man may well have a small spighellian hernia at the lateral borders of the rectus muscle which continues to give him pain and which is related to his injuries some years ago when he was lifting at work. Unfortunately there is no way to prove this except through exploration and I recently spoke again with Dr. Ahuja who is considering doing this. I think he is also considering a CT scan not of the abdomen but of the interior abdomen wall and it is possible that it may show up on this scan. I am sure at some point this would precede to laparotomy which will either prove or disprove the above diagnosis. In his operative report of June 21, 2000, Dr. Ahuja indicated in part:

4 Page: 4 Decision No. 1489/04 abdominal cavity was examined for a spigelian hernia but none was found. The right side showed no signs of any herniation but there may be small depression in the direct area. The left side showed a hernia with the omentum in the sac. This was probably then thought to be the cause of the undiagnosed pain, hence, the repair was instituted In his report of November 30, 2000, Dr. Ahuja advised: ( ) (About two months after the surgery in June 2000) although his pain had improved, the right sided pain had recurred and was bothering him again. Even though no real indirect hernia was found on the right side by the diagnostic laparoscopy, we suspected that there could have been a weakness of his posterior inguinal wall which has been found to be a problem in many of undiagnosed lower abdominal pain. Finally, we decided to go back and we explored both of his sides, the left and the right sides. The inguinal area only showed weakness of the posterior wall, which was treated with plication only, as there was already a mesh behind the abdominal wall on the left side. The right side exploration revealed a small direct hernia with fairly absent or weak conjoint tendon, hence, this was repaired in the fashion of Liechenstein repair. ( ) As this gentleman has had two operations on the left side, and a right inguinal hernia repair on the right side, I would feel that this gentleman has suffered a direct hernia during his initial episode of injury at work in March of 1998, hence, it would definitely fall under the category of a work related injury. I will be seeing [the worker] again, for a post-operative visit and I would suggest that he take a prolonged 8-12 weeks off work where he should not be doing any heavy lifting or pushing more than about 20 lbs. Any repetitive bending or twisting of the waist would cause discomfort. Usually these pains are well controlled after about 12 weeks after operation. In a report dated December 31, 2000, Dr. Ahuja advised: This letter is in response to your request for further clarification on the symptom complex of [the worker] who was having right upper quadrant pain, but eventually the pain was diagnosed to a left sided inguinal hernia, during a laparoscopic examination. The reason [the worker] was having pain in the right upper quadrant was the omentum had become stuck and incarcerated a left inguinal hernia, so that any time [the worker] would stretch to reach for something above his head, the omentum would be pulled and would cause him symptoms in the right upper quadrant. This may seem far fetched, gut pulling on the omentum does cause discomfort, hence, [the worker] symptoms of the right upper quadrant can be explained on this basis. I would strongly suggest to [the Appeals Resolution Officer] that the hernia probably was the cause of his right upper quadrant pain. Hence, it should come under the review of the WSIB. (iii) Relevant law and policy [9] In accordance with section 126 of the Workplace Safety and Insurance Act, 1997 the WSIB has identified the following policies as applicable in this case: - Policy Package #1 - Revision #5 Initial Entitlement - Policy Package #15 - Revision #5 Hernia - Policy Package #300 - Revision #5 Decision Making

5 Page: 5 Decision No. 1489/04 (iv) The worker s testimony [10] The worker, who retired from the accident employer in February 2002, after 35 years of service, had been employed as a garage mechanic throughout his career. He testified that prior to the events in 1997, he had never experienced any hernia or abdominal problems. The worker recalled that during the week of November 17, 1997, he experienced an onset of pain on the right side of his abdomen (just below belt level) while lifting a 90 lbs. compressor. He visited the employer s Health Centre and was assessed by Dr. G. Magor, the company s physician. Dr. Magor felt the worker may have strained a muscle in his abdomen and suggested it could be relieved through exercise. A few weeks later, when the pain had not disappeared, Dr. Magor suggested the worker discuss the matter with his family physician, Dr. Miller. [11] According to the worker, Dr. Miller initially agreed with Dr. Magor that his right sided pain was likely the result of a stretched muscle and would eventually disappear with a passage of time. [12] The worker testified that because of the problems diagnosing the situation, no one suggested reporting the matter to the WSIB. The worker continued to perform his regular duties and the right sided abdominal pain would come and go. There are also periodic visits to the Health Centre between 1997 and [13] With his pain persistent, the worker was referred to a specialist, Dr. Vidiik who, like the other physicians, suggested that he exercise to relieve his pain. When they discovered it reached the point that he was having difficulty walking, the worker asked to be referred to another specialist and in the spring of 2000, was seen by Dr. Ahuja. A CT scan and ultrasound performed apparently failed to reveal the exact cause of the discomfort and finally, in June 2000, Dr. Ahuja decided to perform diagnostic surgery. According to the worker, Dr. Ahuja repaired a bad tear on the left side of his abdomen which was apparently responsible for the right sided pain he was experiencing. [14] Following the surgery, the worker continued to experience some discomfort and on approximately November 1, 2000, underwent further surgery on both the right and left sides of his abdomen. [15] The worker s condition improved after the surgery and he returned to work around the beginning of January He retired from the employer on February 15, [16] The worker testified that he continues to experience pain in his right and left sides particularly when he sits down or drives a car. Discomfort may also be brought on if he lifts anything heavy. Walking helps to relieve the pain. According to the worker, he has been advised that he may have disturbed the mesh which was inserted in his previous operations but he has been advised against having any further surgery performed. (v) Submissions of the worker s representative [17] Ms Rocke reviewed the history of the claim and noted that the employer s Health Centre had documented ongoing complaints of right sided abdominal pain from the time of the lifting of the compressor in November She noted that until the diagnostic surgery performed by

6 Page: 6 Decision No. 1489/04 Dr. Ahuja in June 2000, the worker s treating physicians had been unable to correctly diagnose the cause of his right sided abdominal pain. As noted in Dr. Ahuja s report of December 31, 2002, however, the cause of the worker s right sided abdominal pain was eventually determined to be the result of a left inguinal hernia. [18] Given that the worker had never experienced any prior similar problems nor had he been involved in any other accidents outside of work, Ms Rocke submitted that the balance of evidence supported a finding that the worker s left inguinal hernia arose out of and in the course of his employment. [19] Ms Rocke also requested that the worker be reimbursed for the costs he incurred in providing medical reports to the Board. Exhibit #6 contains receipts (totalling $345) for payments made, primarily to Dr. Ahuja, since June (vi) Conclusions [20] A review of the materials before me suggests that the primary reason for denying the worker entitlement to benefits for a left inguinal hernia was not because anyone disputed that an incident had occurred in November 1997 but rather because the worker had consistently complained of pain on the right, rather than on the left side. [21] In his testimony, the worker acknowledged that since 1997 he had experienced pain on the right side of his abdomen and the notes from the company s Health Centre (between 1997 and 2000) confirmed that. From a lay perspective, it does not seem unreasonable to expect that a worker seeking entitlement for a left inguinal hernia would have experienced pain on his left side rather than his right. This would appear to be the rationale adopted by the Appeals Resolution Officer who, in denying the worker s claim, noted the worker s visits to (the Health Centre) were for right sided abdominal pain and the absence of any continuity of left sided pain. [22] At the time the decision was rendered, the Appeals Resolution Officer did not have the benefit of the December 31, 2002, report from Dr. Ahuja who performed the hernia repair. In that report, Dr. Ahuja noted: The reason [the worker] was having pain in the right upper quadrant was the omentum had become stuck and incarcerated a left inguinal hernia, so that any time [the worker] would stretch to reach for something above his head, the omentum would be pulled and cause him symptoms in the right upper quadrant. This may seem far fetched, but pulling on the omentum does cause discomfort, hence, [the worker s] symptoms of the right upper quadrant can be explained on this basis. I would strongly suggest to [the Appeals Resolution Officer] that the hernia probably was the cause of his right upper quadrant pain. Hence, it should come under the review of the WSIB. [23] As noted above, there would appear to be little dispute that the worker experienced an onset of discomfort in the right side of his abdomen following a lifting incident in November I am also satisfied that the evidence establishes that the worker has consistently complained of right sided discomfort since 1997 but the cause of the pain was never truly understood until the surgery performed in June After considering the matter, I am prepared to accept the medical opinion provided by the worker s treating specialist, Dr. Ahuja,

7 Page: 7 Decision No. 1489/04 that it was actually a hernia on the left side which was responsible for the discomfort he had been experiencing on the right side of his abdomen. As such, I am satisfied that the worker is entitled to be compensated for the surgery and lost time related to his left inguinal hernia. [24] With regards to reimbursement for medical reports, I note, after reviewing Exhibit #6, that with one exception, the receipts deal with reports provided to the Board during its adjudication of this claim. In my view, reimbursement for those expenses is a matter which should be directed to the Board s attention. [25] The only expense incurred after the October 23, 2002, decision of the Appeals Resolution Officer involved the preparation of Dr. Ahuja s report of December 31, Given that this report was of significant assistance in the adjudication of this appeal, I am satisfied that the worker should be reimbursed for the cost of obtaining this report to the extent provided by the Tribunal s Fee Guidelines. THE DECISION [26] The worker s appeal is allowed. [27] The worker is entitled to benefits with respect to his left inguinal hernia. The matter of the type and duration of those benefits is returned to the Board for further adjudication. [28] As noted in Exhibit #6, Dr. Ahuja provided the worker with an invoice in the amount of $ for preparation of his December 31, 2002 report. The worker has advised he paid this invoice and that being the case, he is entitled to be reimbursed to the extent permitted by the Tribunal s Fee Guidelines. DATED: This 30 th day of September SIGNED: R. Nairn.