SUMMARY. Pensions (assessment) (hernia); Pensions (Rating Schedule) (unlisted condition).

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1 SUMMARY DECISION NO. 879/98 Pensions (assessment) (hernia); Pensions (Rating Schedule) (unlisted condition). The worker suffered a hernia in December 1989, which was surgically repaired in January The worker appealed denial of a pension for residual disability. The hernia was repaired successfully but the worker had ongoing symptoms, perhaps due to scar tissue. The Rating Schedule does not provide recommended ranges for hernias. The Vice-Chair referred to the AMA Guides as a useful benchmark. The AMA Guides list three classes of hernia. Class 2 provides for a 10-15% impairment of the whole person and Class 3 for a 20-30% impairment. There was evidence that the worker straddled these two classes. The Vice-Chair noted that all the classes require a palpable defect in the supporting structure of the abdominal wall. A palpable defect is one that can be felt by an experienced examiner. The worker's hernia was repaired successfully. In this case, the criterion of a palpable defect was not present. However, the worker did have symptoms of discomfort that generally fell within Class 2 but extended to Class 3. Considering the lack of palpable defect, the Vice-Chair assessed the worker's pension at the top of Class 2, that is, 15%, rather than the bottom of Class 3. The appeal was allowed. [7 pages] DECIDED BY: McCombie DATE: 03/07/98 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: 453/96 consd

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 879/98 [1] This appeal was heard in Toronto on June 16, 1998, by Tribunal Vice-Chair N. McCombie. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of D.H. Brydson, dated February 2, That decision concluded that the worker was not entitled to a permanent partial disability award for his compensable hernia. [3] The worker appeared and was represented by A. Grande from the Office of the Worker Adviser. The employer was notified of the hearing, but did not attend. THE EVIDENCE [4] The material in the Case Record, prepared by the Tribunal Counsel Office (Exhibit #1), was considered. In addition, two Addenda were considered (Exhibit #2 & 3), a referral form from the worker s family doctor, Dr. C. Stefanovich (Exhibit #4), a two page excerpt from the American Medical Association, Guides to the Evaluation of Permanent Impairment, 3 rd Edition (revised), concerning hernias (Exhibit #5), a judgement from the Ontario Court (General Division), dated March 20, 1991 (Exhibit #6) and a letter to Dr. Stefanovich from Ms. Grande, dated May 22, 1997 (Exhibit #7). [5] Oral evidence was heard from the worker. Submissions were made by Ms. Grande. THE ISSUES [6] The worker suffered a compensable hernia in December This hernia was surgically repaired in January 1990, and the worker returned to work one month later. The worker is arguing that he has a residual disability as a result of his compensable injury. It is suggested that the permanent partial disability award should be between 15% and 20%. THE REASONS (i) Background [7] The background facts are not in dispute and may be summarized as follows: 1. The worker worked as a maitre d in a restaurant when he was punched in the stomach by a customer, on December 15, 1989.

3 Page: 2 2. As a result of this attack, the worker suffered a left, direct inguinal hernia that was repaired at the Shouldice Hospital on January 26, At the time of the hernia repair, it was noted that there was also a lipoma (a fatty, non-malignant tumour) on the spermatic cord. This lipoma was removed. 3. The worker returned to work on February 26, 1990, and has continued to work since. 4. There was a civil suit arising out of this accident. As a result, the worker was awarded damages of $69,000. These damages, however, were never collected and the worker s testified, the Board is now subrogated in the his rights. [8] The worker testified that he continued to have symptoms attributable to his hernia and its repair. He stated that he feels a pulling, burning sensation in his groin. There is a numbness at the site of the scar that extends down to his left testicle. There is, he says, a bulge at the site of the hernia that increases if he stretches, bends or is on his feet for too long. [9] He testified that he is limited in his daily activities and that, as a result of his symptoms, he has had sexual problems as sexual activity can be painful. His evidence was that these symptoms have been present since the surgery and have not improved, or deteriorated, over the years. (ii) Law and policy [10] This case arises under the pre-1989 Workers Compensation Act. Section 45(1) of that Act provides: 45(1) Where permanent disability results from the injury, the impairment of earning capacity of the worker shall be estimated from the nature and degree of the injury, and the compensation shall be a weekly or other periodic payment during the lifetime of the worker, or such other period as the Board may fix, of a sum proportionate to such impairment not exceeding in any case the like proportion of 90 per cent of the worker s net average earnings. [11] The question of permanent partial disability awards for hernias arising under the pre-1989 Act was addressed in Decision No. 453/96 (January 31, 1997). In that case, the Panel noted that hernias were not included in the Ontario Rating Schedule and asked the WCB to indicate the benchmarks that it relied upon. That Panel received a response from Dr. R.D. Longmore, a Board Medical Coordinator. Dr. Longmore answered as follows: This claim was adjudicated under the pre-bill 162 era and as noted by WCAT, the values for permanent impairments are documented in the Ontario Workers Compensation Board permanent disability rating schedule effective February 15, Recommended value ranges for permanent impairments of hernias are not specifically noted in the documentation of the rating schedule. However, it has been my understanding since my pension training in 1986 that in regard to abdominal wall hernias which includes inguinal direct and indirect hernias as well as ventral hernias, that no permanent impairment award is made except for recurrent repairs and local symptomatology. The accepted parameters are from 0 to 5%.

4 Page: 3 This is supported by personal documentation in my copy of the permanent disability rating schedule. This notification was made in the schedule at the time of my training and has been carried on in replacement schedules since that time. I believe that all permanent impairment examinations carried out by the Board s medical advisers and co-ordinators have been provided with this consideration in mind. In the American Medical Association Guidelines to evaluation of permanent impairments, hernias are addressed under Section 10.9, Hernias of the Abdominal Wall, in the third edition (revised), on page 195. In table 6, the hernias with impairments are classified into three classes, the description of these classes are outlined. It is noted that the AMA Guidelines are not relevant to pre-bill 162 permanent impairments. Having said this, based on my examination of this man for permanent impairment award considerations, the impairment of this man s recurrent epigastric (ventral) hernia under the AMA guidelines would be Class #1. [12] The actual WCB policy concerning permanent partial disability awards for pre-1989 injuries is found at Operational Policy Manual, Document # This was one of a number of policies and policy packages submitted by the Board in this case, pursuant to subsection 126(2). That document notes that, for these pre-1989 injuries, the Board will use the Ontario Rating Schedule. The policy guideline then continues: The Ontario Rating Schedule does not address all forms of impairment. Approved clinical ratings, for some special types of permanent disability may also be found in other policy documents (e.g., see , Traumatic Hearing Loss and , Impotence and Sterility). [13] The Panel in Decision No. 453/96 noted that, for unscheduled conditions, the AMA Guides were a useful benchmark, although care should be taken not to automatically apply the Guides impairment ratings. With the greatest of respect to Dr. Longmore, it is the Panel s view that, where possible, access to reproducible, widely accepted criteria are more helpful to a Panel than remembered training and personal notes. We accept, as was noted in Decision No. 915, that there is an accumulated expertise among WCB doctors and that the Tribunal will give deference to those doctors views. That being said, in this case we prefer the detailed, published criteria contained in the AMA Guides to the personal expertise of Dr. Longmore. Many Tribunal decisions have likewise accepted the use of the AMA Guides in the absence of a listing in the Ontario Rating Schedule and we propose to do likewise in this case. [14] It is of interest to note that the Appeals Officer, in the case before me, stated that the Board uses the AMA Guides in determining hernia pensions, despite Dr. Longmore s contention in the earlier case that these guides not relevant to pre-bill 162 permanent impairments. [15] The AMA Guides provide for three classes of hernia. These are described in Table 6, as follows:

5 Page: 4 Class 1 0-5% Impairment of the Whole Person Palpable defect in supporting structures of abdominal wall; and Slight protrusion at site of defect with increased abdominal pressure; easily reducible; or Occasional mild discomfort at site of defect, but not precluding normal activity. Class % Impairment of the Whole Person Palpable defect in supporting structures of abdominal wall; and Frequent or persistent protrusion at site of defect with increased abdominal pressure; still manually reducible; or Frequent discomfort, precluding heavy lifting, but not hampering normal activity. Class % Impairment of the Whole Person Palpable defect in supporting structures of abdominal wall; and Persistent, irreducible, or irreparable protrusion at site of defect; or Limitation in normal activity [16] Based on the evidence before that Panel, the worker s pension was increased from to 2% to 10%. (iii) The medical evidence [17] Ms. Grande noted that the worker s family doctor, Dr. Stefanovich, has written in support of the worker on a number of occasions over the years. She wrote to Dr. Stefanovich, enclosing the Table 6 from the Guides, and asking for his opinion. Dr. Stefanovich responded, in a letter dated March 23, 1998, that he had last examined the worker on February 20, 1998 that is, eight years after the surgery and that the worker s symptoms included a cough that produced a palpable bulge with hyperaesthesia at the site of the hernia and hypoaesthesia extending into the genital area. [18] Dr. Stefanovich concluded that the worker fell between the high end of Class 2 and the low end of Class 3 in Table 6; that is, between 15% and 20%. [19] Ms. Grande also addressed a report from Dr. C.K. Chan, dated September 8, Dr. Chan is a general surgeon at the Shouldice Hospital. On September 6, 1994, the worker attended Dr. Stefanovich with increased complaints of pain and swelling in the left inguinal region. Dr. Stefanovich was concerned that there might be a re-herniation and referred the worker back to Shouldice. The worker was seen by Dr. Chan on September 8, According to the worker, this visit and examination was an extremely short one. [20] Dr. Chan s report, dated the day of the visit, reads, in its entirety: The above named patient came in today complaining of a pulling sensation in the left groin especially on lifting. He still had some pain especially during sexual intercourse. Physical examination revealed a well healed left inguinal hernia repair. Repair was intact. Both testes and right groin were normal

6 Page: 5 (iv) Conclusions [21] Ms. Grande argued that Dr. Chan s cursory report, based on what the worker testified was a cursory examination, should not be accepted over Dr. Stefanovich s well reasoned reports. She also noted the worker s testimony that the reason he attended Dr. Stefanovich two days before going to the Shouldice, was due to increased symptoms and that because of those symptoms, he rested over the next two days and that they had abated by the time he saw Dr. Chan. [22] I agree with Ms. Grande that Dr. Chan s report cannot put an end to the matter in light of the worker s evidence and the ongoing complaints to the family doctor. I accept that, even if the hernia repair was successful, the worker does have ongoing symptoms. Dr. Stefanovich posited, in a report dated July 10, 1995, that the pain may be due to scar tissue from the hernia operation and that often times scar tissue will entrap nerve fibres in it causing sensations of pulling and aching when stretched. This theory was supported, in principle, in a memorandum from Dr. A. Malayil, a Board medical consultant, although Dr. Malayil was of the opinion that such scar tissue will usually improve with time. There is no explanation in this memorandum as to whether this was a usual case or why the worker continued to complain of symptoms almost six years at that time after the surgery. [23] I therefore accept that there are ongoing symptoms arising from the worker s hernia and its repair. The question to be answered is what is the best estimate of the impairment of earning capacity arising form this injury. In this case, I will accept the AMA Guides as useful benchmarks to consider. Looking at the classes listed in the Guides, my first concern is that all classes require a palpable defect in the supporting structure of the abdominal wall. As I understand this, the defect may be felt by an experienced examiner. In this case, there are a number of reports which note the symptoms discussed above, but which do not refer to such a palpable defect. So, for example, despite the worker s testimony that there was always noticeable swelling in the area, Dr. Stefanovich s July 10, 1995 report notes that No lumps or herniae were palpable or seen. [24] However, the Guides also speak of the kind of activity limiting symptoms that I accept this worker has. For example, Class 2 speaks of Frequent discomfort, precluding heavy lifting, but not hampering normal activity and Class 3 of Limitation of normal activity. As noted above, Dr. Stefanovich s conclusion is that the worker straddled these two classes and was in the 15% 20% range. [25] The worker in this case, it should be stressed, does not have a hernia. He did have one and it was surgically repaired. In his case, the criterion of a palpable defect is not present. I do accept, however, that the worker does have discomfort symptoms that limit his daily activity. Those symptoms generally fall within Class 2, but also extend into Class 3. [26] Taking the above into account, it is my view, that the worker is entitled to a permanent partial disability award of 15%. Given the lack of a palpable defect, I cannot accept that the worker falls within the lower end of Class 3. Leaving aside the palpable defect, however, he does meet some of the criteria for Class 3 and those of Class 2. I therefore find that a 15% rating is appropriate.

7 Page: 6 THE DECISION [27] The appeal is allowed. The worker is entitled to a 15% permanent partial disability award. DATED: July 3, 1998 SIGNED: N. McCombie

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