WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1642/10

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1642/10 BEFORE: K. J. Kelly : Vice-Chair A.D.G. Purdy : Member Representative of Employers R. J. Lebert : Member Representative of Workers HEARING: August 31, 2010 at Toronto Oral DATE OF DECISION: February 10, 2011 NEUTRAL CITATION: 2011 ONWSIAT 330 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO), S. Marangoni, dated October 23, 2009 APPEARANCES: For the worker: For the employer: Interpreter: P. Shrum, Paralegal Did not participate Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1642/10 REASONS (i) Introduction and issue under appeal [1] The worker appeals the decision of the ARO, which concluded that the worker was not entitled to initial entitlement for the umbilical hernia. The ARO rendered a decision based upon the written record without an oral hearing. The sole issue under appeal is initial entitlement for an umbilical hernia. (ii) Background [2] On June 10, 2008, this now 47-year-old worker experienced a sharp pain in his abdomen when he lifted a trough lid weighing approximately 75 pounds at work. He attended at the emergency department of St. Michael s Hospital the same day. He was diagnosed as having acute diverticulitis, remained in hospital overnight, and was referred to a specialist for a followup appointment on June 25, 2008, which he attended. A related medical procedure was scheduled for August 14, The worker remained off work until July 14, 2008, when he returned to modified duties. [3] The claim was initially allowed and the worker was granted loss-of-earnings (LOE) benefits from June 11, 2008 to July 14, Entitlement was subsequently withdrawn on July 31, 2008, because the Board s Medical Consultant indicated that the acute diverticulitis condition was not related to the incident of June 10, Instead, the Medical Consultant found that the condition was as a result of a non-work-related bacterial infection. [4] The Adjudicator wrote to the worker on July 31, 2008 and advised him of the reconsideration of his claim and the decision to reverse and deny entitlement. The Adjudicator also informed the worker that a benefit-related debt of $4, was created but that the Board would not be seeking recovery of that debt pursuant to Board Operational Policy Manual (OPM) Document No The Adjudicator also advised the worker that as the medical procedure scheduled for August 14, 2008 related to a non-work-related condition, there would be no entitlement for lost time or health care benefits as a result of that procedure. [5] On August 14, 2008, the worker wrote to the Adjudicator and claimed that his family doctor, Dr. Lindzon, established and confirmed that he had a hernia which occurred on the date of the injury. The worker further claimed that the diverticulitis was secondary to the main injury and that an error had been made in the medical diagnosis of June 10, [6] A Health Professional's Progress Report, dated August 14, 2008, from Dr. Lindzon, was also sent to the Adjudicator. That report provided a new diagnosis of umbilical hernia. [7] The Adjudicator reviewed the August 14, 2008 report, as well as additional medical information obtained from Dr. Lindzon, regarding the umbilical hernia. Dr. Lindzon indicated that he first saw the worker on June 18, 2008, for diverticulitis and that a medical procedure was done with respect to that condition. There is no indication that the worker mentioned anything on that visit about a hernia. The next visit with Dr. Lindzon was on August 14, 2008, and at that time the doctor first diagnosed an umbilical hernia.

3 Page: 2 Decision No. 1642/10 [8] The worker s claim was denied because the Adjudicator was unable to establish a relationship between the umbilical hernia diagnosed on August 14, 2008, with the incident at work on June 10, The Adjudicator wrote: An umbilical hernia is the protrusion of the abdominal organs into the umbilical cord because of a fault in the embryonic development. It is present at birth. Therefore, this is a pre-existing condition and not work-related. [9] The worker objected to this decision and the file was referred to the Medical Consultant. [10] In lieu of a hearing, a further medical review was undertaken and although the worker and his representative were invited to make further submissions, none were made. The ARO confirmed the denial of entitlement. (iii) Law and policy [11] Since the worker was injured in 2008, the Workplace Safety and Insurance Act, 1997 (the WSIA ) is applicable to this appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [12] Specifically, sections 2 and 13 of the WSIA governed the worker s entitlement in this case. [13] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision #8, would apply to the subject matter of this appeal: Package #1 - Package #15 - Initial entitlement; Hernia; Package #300 - Decision Making/Benefit of Doubt/Merits and Justice. [14] We have considered the policy as necessary in deciding the issue in this appeal in particular: Operational Policy Manual ( OPM ) Document No Adjudicative Process; OPM Document No Definition of an Accident; OPM Document No Hernia. (iv) Testimony [15] The worker testified that in his job as a signal coordinator for a transportation company, his hours would vary. He would work 10 hour days for eight days and then have six days off. A typical day would be from 6 a.m. to 4 p.m. He explained the details of his job which involved what would be classified as heavy labour. The worker s job entailed the handling of 24-foot metal rods; the pulling, pushing, and laying of heavy rope cable into horizontal troughs; removal and replacement of lids weighing approximately 75 pounds covering the trough and measuring 3 feet by 2 feet.

4 Page: 3 Decision No. 1642/10 [16] The work is done in gangs of four up to 20 workers, and this worker always worked with one other person. [17] The worker testified that he was feeling fine the day before the incident and felt fine on the day of the incident until he lifted off a lid and twisted to his side. He explained that this occurred in the morning and that he experienced an immediate pain in the gut. He reported the incident to the working foreman but continued his shift as he felt he was responsible to make sure the work was properly done by the other workers. The worker stated that he felt the pain at about 9 o clock in the morning and by lunchtime he asked a colleague to drive him to the emergency department. He attributes the onset of pain to having lifted 10 or more lids by himself and the last one that he lifted resulted in the onset of pain. [18] He described the pain as being located between his groin and the left side of his abdomen, just below his ribcage. [19] He was able to walk in at the emergency department and waited to be seen. He said that he had never been diagnosed or treated for hernia, never had any abdominal problems, and had never been diagnosed with diverticulitis. [20] While in triage at St. Michael s Hospital emergency, he stated the pain worsened and he was given a massive painkiller by injection. He stated he lost his bearing but recalls being told that he had a hernia. He was sent for an x-ray and CT scan and kept overnight. [21] He stated that Dr. Rothstein, Emergency Room Physician, initially thought it might be a hernia but that he later said it was diverticulitis, similar to gas pain and that it would go away. The worker stated that there was still pain six to eight hours later. The worker explained that he had been born with an internal belly button. When he first noticed that his belly button protruded he was told he had gas. He described that he had pain in his lower abdomen and closer to June 10, 2008, he also had pain in his rectum. The worker testified that Dr. Rothstein saw him six to eight weeks after treating him for the diverticulitis and referred him back to Dr. Lindzon for his belly button hernia. Dr. Lindzon in turn sent the worker back to Dr. Rothstein for the umbilical hernia surgery. [22] The worker claimed that prior to June 10 his belly button did not protrude, that he felt pain but no nausea. He also stated that the pain diminished after the hernia operation and he is good to this day. [23] The worker initially returned to modified duties with restrictions of no lifting. It was a regular job but not his normal job. (v) Relevant medical evidence [24] The emergency report of June 10, 2008, from St. Michael s Hospital, documented a number of presenting complaints and the initial working diagnoses listed were: inguinal hernia, abdominal strain and diverticulitis. Imaging results from a CT scan of the abdomen, taken June 11, 2008, showed multiple sigmoid diverticulitis; fecal micro perforation with free air. The worker s white blood count was noted as The worker was discharged later that day.

5 Page: 4 Decision No. 1642/10 [25] Dr. Rothstein examined the worker at St. Michael s Hospital and noted: no fever or chills; no abdominal distension; the abdomen was symmetrical; no mass was found on palpation; and no external hernia was found. [26] In his discharge summary letter to the worker s family physician, Dr. Rothstein wrote: I saw this gentleman following his admission to St. Michael s Hospital. He came at the hospital on 10 June 2008 with clinical signs and symptoms consistent with acute diverticulitis. In the Emergency Department, we resuscitated him and then performed a CT scan. The CT demonstrated evidence of thickening of the sigmoid colon as well as inflamed diverticula and stranding, both consistent with inflammatory changes and a diagnosis of diverticulitis. He was admitted to hospital and stayed in hospital for 48 hours. At that time, we released him from hospital, as his symptoms had subsided. I saw him in the office on 25 June At this time he was appearing to be doing quite well. He had little in the way of residual pain and had finished his antibiotic treatment. In the past, he has had relatively normal bowel movements and some rectal bleeding. Indeed he has had a haemorrhoidectomy operation in the past. Clinically, his abdomen was soft and non tender with no masses or organomegaly. I think this gentleman had an uncomplicated bout of acute diverticulitis. In order to ensure that there is no underlying lesion, we have booked him for a colonoscopy on 14 August I will be back in touch with you after this has been done. [27] In answer to an inquiry from the Adjudicator, the Board s Medical Consultant, Dr. Germansky wrote: The dx here is acute diverticulitis. Acute diverticulitis results from the inspissation of fecal material in the neck of the diverticulum and resultant bacterial replication [diverticular disease, A. Antoine Kazzi, htm]. This results in inflammation. This condition is not related to trauma. It commonly affects the lt colon and can produce lt sided abdominal pain which can be severe. The dx of acute diverticulitis is not work related nor caused by the heavy lifting described. The planned colonoscopy is related to the non-compensable dx of acute diverticulitis and would not be in order under this claim. [28] In the Health Professional s Progress Report dated August 14, 2008, Dr. Lindzon wrote that the patient reported a change in his condition. Dr. Lindzon noted a painful reducible umbilical hernia, and diverticulosis. The presenting complaints were umbilical and lower quadrant pain. The objective findings were deep abdominal pain, lower left tenderness, reducible umbilical hernia. [29] In response to an inquiry from the Adjudicator dated August 20, 2008, Dr. Lindzon wrote that he saw the worker for left lower quadrant pain June 18, He wrote I? Dx diverticulitis. He also wrote next August 14/08 umbilical hernia resolved LLQ pain had at colonoscopy [symbol with ] diverticulosis Dr. Ori Rothstein at St. Mikes. [30] A medical review was carried out by the Board s Senior Appeals Medical Consultant, Dr. Kanalec, on September 18, Dr. Kanalec reviewed the medical information from St. Michael s Hospital and concluded:

6 Page: 5 Decision No. 1642/10 Based on review of the medical information an umbilical hernia was not noted on the day of accident which was also the day he was admitted to hospital. The admission diagnosis based on imaging findings and elevated white count was diverticulitis without any evidence of umbilical hernia. Therefore based on review of the medical information the umbilical hernia now diagnosed is not related to the lifting event dated June 10, (vi) The worker s submissions [31] The worker s representative submitted that: Even if the umbilical hernia was a pre-existing condition the entitlement should be allowed on an aggravated basis per Board Policy on Hernia, and the Benefit of Doubt. The worker was asymptomatic prior to the incident on June 10, The emergency report noted a possible inguinal hernia and that the hernia could not be treated right away because of the diverticulitis. The incident of June 10, 2008, was the sole cause of the umbilical hernia. As the umbilical hernia is work-related the decision of the ARO should be overturned. (vii) Analysis [32] The worker presented his testimony in a straightforward and direct manner. By the way he described his duties and responsibilities, he demonstrated that he was a conscientious worker, who cared about his work and responsibilities to his fellow gang members at work. [33] The worker experienced a sudden and severe onset of pain in his lower left abdomen while at work on June 10, 2008, as he was lifting a lid weighing about 75 pounds. He went to the emergency department at St. Michael s Hospital where the working diagnoses of inguinal hernia, abdominal strain and diverticulitis were made. Examinations were carried out, physical, x-ray, and CT scan. The results indicated that the worker was experiencing an acute bout of diverticulitis. [34] On August 14, 2008, two months after the workplace incident, the worker attended his family physician and was diagnosed with umbilical hernia for the first time. [35] While the worker became aware of a possible diagnosis of inguinal hernia, from the first impression at emergency, and the notation of inguinal hernia on the emergency report, the medical evidence on file does not establish the necessary medical connection to relate the umbilical hernia to the work-related incident of June 10, 2008, nor does it establish that the umbilical hernia was aggravated by work. [36] The Act requires that Board Policy be considered in adjudicating claims. OPM Document provides: Hernias can result from excessive strain or direct trauma. Types include inguinal, femoral, umbilical, hiatal, and incisional hernias. Inguinal hernias (around the groin) are the most common.

7 Page: 6 Decision No. 1642/10 Decision-makers may allow claims for work-related inguinal hernias if there is information on file confirming the diagnosis. For all other types of hernias, decisionmakers must consult WSIB medical staff before allowing claims. Decision-makers allow benefits for emergency surgery for both work-related and nonwork-related hernias aggravated by work if the hernia is incarcerated (irreducible), or strangulated (incarceration with compromised blood supply), or associated with, or is apt to cause, rupture of the bowel wall. [37] In this regard, we note the medical opinion of Dr. Kanalec, Board Senior Appeals Medical Consultant, of September 18, 2009, who determined that the umbilical hernia was not related to the lifting event of June 10, [38] As noted by Dr. Lindzon, the umbilical hernia in question is classified as reducible. According to Board Policy, even it could be established that it was aggravated by work, benefits would not be allowed in this situation. Accordingly, Board policy on Benefit of the Doubt is not applicable in the circumstances of this case. [39] There is no medical evidence to support the worker s claim that the umbilical hernia was either a work-related incident, or that the umbilical hernia was aggravated by work. Accordingly, the Panel disallows the worker s appeal and denies his claim for initial entitlement.

8 Page: 7 Decision No. 1642/10 DISPOSITION [40] The worker s appeal, for initial entitlement, is denied. DATED: February 10, 2011 SIGNED: K. J. Kelly, A. D. G. Purdy, R. J. Lebert