WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2138/10

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2138/10 BEFORE: R. Nairn: Vice-Chair HEARING: October 18, 2010 at Sudbury Oral DATE OF DECISION: February 1, 2011 NEUTRAL CITATION: 2011 ONWSIAT 253 DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated November 27, 2009 APPEARANCES: For the worker: For the employer: Interpreter: Ms. C. Langevin, Office of the Worker Adviser Did not participate None 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. 2138/10 REASONS (i) Introduction [1] The worker, born in 1939, was hired by the employer s machine and tool company in approximately He worked as a machinist. [2] The worker retired from the employer in June 2005 at the age of 66. [3] In his Health Professional's Report dated May 19, 2006, Dr. L. Woodward (family physician) diagnosed the worker as suffering from an inguinal hernia. Arrangements were made for the worker to be referred to a specialist, Dr. A. Dougall. In a report dated June 8, 2006, Dr. Dougall diagnosed the worker as suffering from bilateral inguinal hernia and noted he is only interested in having the left side repaired and accordingly we will arrange this for him. I will carry out a mesh plug repair which I have described to him in detail in the office. [4] Subsequently, the worker contacted the WSIB (the Board ) asking that it recognize his bilateral hernia condition as compensable and related to the nature of his duties. In Memo #4 dated August 4, 2006, the Claims Adjudicator noted the following after a telephone conversation with the worker: Worker called and said that he doesn t understand why his claim is not being looked into. He said that he has been having pain in his groin for about 4-5 years and in May 2005 he told his employer about this and he then went on to EI. After this he decided he wanted to retire as he felt he could not work anymore. He acknowledges that there was no specific incident but he says his job was heavy in nature. He said that he first sought medical attention in May 2005 and was initially diagnosed with just a muscle pull. He said he went back a month later and asked the doctor to check for hernia. The doctor told him he didn t have a hernia. That doctor is now retired and his new doctor checked him again in April 2006 and told him he did have a hernia which would need operating. [5] In the course of considering the worker's request for benefits, the operating level asked for a medical opinion and in Memo #16 dated June 1, 2009, Dr. R. Preobrazenski of the Board replied: Opinion: 1. While it is possible that the I/Worker may have had a hernia or pre-hernia for some time (if not his lifetime), there is little medical evidence on file to support this and no clinical findings or need of visits or treatment to support this. Thus, the hernia that was finally diagnosed and surgically treated sometime after retirement, was not clearly related or diagnosed prior to his retirement. It should be noted that hernias will occur with considerable frequency in sedentary workers and thus are not only related to lifting and physical work risk factors. Given that the preexisting tendency exists in most men, unless a hernia is clearly related to a lifting or work related event, it becomes difficult to determine causation in non diagnosed and non-prior clinically evident hernias.

3 Page: 2 Decision No. 2138/10 [6] In light of the opinion provided by Dr. Preobrazenski, the operating level denied the worker entitlement to benefits for his bilateral hernias. The worker objected to this conclusion and the matter was eventually forwarded to an Appeals Resolution Officer ( ARO ). In a decision dated November 27, 2009, the ARO denied the worker's appeal and concluded: Overall, the medical consultant was of the view that there was little medical evidence on the record suggesting the hernia resulted from the working duties and I concur with this finding. While it is possible the worker had a hernia for some time, if not his lifetime, there was little medical evidence to support this and no clinical findings or need for visits or treatment to support this. The medical consultant also explained that hernias can also occur with considerable frequency in workers doing sedentary work and are therefore, not only related to lifting, and physical work risk factors. Having considered all of the information on the claim file record, it is my view that the evidence does not substantiate, that the hernias resulted from the workplace duties. (ii) Issue on appeal [7] The issue to be determined in this case is whether the worker has initial entitlement to benefits for bilateral hernias which he claims can be causally related to the nature of his employment. (iii) The worker's testimony [8] In his testimony, the worker confirmed that he started with the accident employer in approximately 1960, working as a machinist. The worker was responsible for machining primarily very large and heavy industrial parts, many of which weighed a ton or more and had to be moved with the assistance of a crane. [9] The worker testified that in approximately 2001 or 2002, he began to notice a burning sensation in his left lower groin. This burning sensation would switch to pain as the workday progressed. The worker recalled raising the matter with his family doctor in approximately 2002 but the doctor could not find anything wrong. The worker later switched family doctors and raised the issue of his groin pain once again. This doctor felt he was experiencing only a muscle spasm and did not prescribe any medication. The worker indicated that he wore tight underwear to help reduce his discomfort by keeping pressure on the affected area. [10] The worker confirmed that he retired from the accident employer in 2005, at the age of 66. His decision to retire was based in large part on the increasing pain he was experiencing. The pain was making it difficult for him to perform his job. After retirement, he changed family doctors again and it was Dr. Woodward who finally diagnosed him as suffering from a hernia. Dr. Woodward arranged for the worker to be seen by a specialist, Dr. Dougall, and it was Dr. Dougall who discovered that the worker actually had bilateral hernias. [11] The worker had surgery performed on his left hernia in He elected not to have surgery performed on the right side given that he had never had any problems with pain in that area.

4 Page: 3 Decision No. 2138/10 [12] The worker believes that his hernias must be related to the physically demanding nature of his duties and in particular, the moving and lifting of heavy parts. He does not believe there is any other possible cause for his hernias. He is not involved in any hobbies or sports. After he retired, he noticed an easing in his groin pain which he felt was due to the fact that he spent most of his day sitting in an easy chair, playing video games. However, prior to the surgery, he found that even walking would increase his groin pain. (iv) Analysis [13] Operational Policy Manual ( OPM ) Document No entitled Hernia provides in part: Policy If a specific work-related muscular effort or incident causes or aggravates a hernia, workers are entitled to benefits. Guidelines General 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. 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, decisionmaker must consult WSIB medical staff before allowing claims. 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. [14] Having reviewed all of the information before me, including the worker's testimony, I am satisfied that there is sufficient evidence on file to support a conclusion that the nature of the worker's employment as a machinist was a significant contributing factor in the development of his bilateral hernias. In reaching that conclusion, I have taken particular note of the following: The Board s decision to deny the worker entitlement to benefits was based in large part upon the opinion provided by Dr. Preobrazenski in Memo #16. In reaching his conclusion about the nature of the worker's hernias, Dr. Preobrazenski noted that although the worker may have had a hernia for some time there was no clinical findings or need of visits or treatment to support this. As noted by Ms. Langevin however, a review of the case materials indicates that when the worker was seen by his previous family physician, Dr. Demers, on November 11, 2004, Dr. Demers recorded complaints of LT groin pain. Similarly, in a clinical note dated August 18, 2005, Dr. Demers noted testicular pain resolved [with] supportive undershorts.

5 Page: 4 Decision No. 2138/10 The clinical notes of Dr. Demers support the worker's testimony (something which was not available to the ARO) that he had been experiencing pain in his left groin prior to his retirement. In a clinical note dated January 31, 2006, Dr. Woodward wrote L ing pain x years (5-6 years) activity DEP. In his clinical note of May 10, 2006, Dr. Woodward indicated L ing area ongoing only when upright. Small hernia evident. In his report of June 8, 2006, Dr. A. Dougall (general and vascular surgery) diagnosed the worker as suffering from bilateral inguinal hernia. In a report dated August 28, 2008, Dr. S. Somerville (specialist in occupational medicine) Occupational Health Clinics for Ontario Workers Inc. ( OHCOW ) indicated in part: Inguinal hernias are protrusions of soft tissue, such as sections of intestine, through a weak area of muscle. This often occurs in the abdominal wall. They can occur on one side or on both sides. Men, women, and children can experience hernias however; they are about ten times more likely to occur in men. There are two major types, namely congenital and acquired. Acquired hernias may take years to develop and their onset can be painless. Acquired hernias can develop over time due to an increase in pressure with the abdominal cavity, such as occurs due to heavy lifting, straining, obesity or even pregnancy. Of these risk factors, it appears that [The worker s] job involved heavy lifting on a regular basis over many years. It should also be noted that [The worker s] BMI is listed as 28.0 which is mildly overweight. Therefore, in the absence of other risk factors, or trauma sustained, it is likely he developed his bilateral inguinal hernia as a result of heavy lifting in his job as a machinist. In a report dated May 1, 2009, Dr. Dougall, advised: This gentleman had an indirect inguinal hernia diagnosed at the time of surgery. He states that he had had pain in that area some time before diagnosis was made and Dr. Woodward s own notes suggests that he had been bothered by left inguinal discomfort for several years which would have put that back to An actual diagnosis of hernia itself, however, wasn t made until May of Indeed, when I saw him in June, I felt he had bilateral inguinal hernias. Hernias can be present for some time before a firm diagnosis is made. Indeed, we can see people in consultation who have inguinal pain and in spite of our best efforts we can demonstrate a bulge for some months or years. It is therefore possible that this fellow s symptoms did relate to a hernia that was difficult to prove for a number of years. The left inguinal hernia had he had was obviously a long time in the making and, as I have indicated above, it certainly was possible to take over a year to provide a diagnosis of hernia. In his testimony, the worker indicated that he has not been involved in any other incidents or accidents which could have caused his hernias. In the Tribunal Discussion Paper entitled External Abdominal Hernias Dr. J. Duff notes in part: Clinical presentation groin hernias

6 Page: 5 Decision No. 2138/10 Some patients notice a bulge or lump in the groin immediately after an injury such as a heavy lift, a sudden severe strain, a blow to the groin area or a fall from a significant height. However, even with such injuries, some patients do not notice a bulge for days or weeks following the injury. Moreover, since pain is mild or absent, they often delay seeking medical assessment. Most complain of a gradual onset, which they cannot relate to a specific event or injury. In a few patients, the groin mass appears intermittently and may not be present at the time of a physician s first examination. Repeated examinations are sometimes necessary to confirm the existence of a hernia. Groin hernias and workplace Acute strains and heavy manual labour Since the majority of hernias appear without a history of an accident or sudden strain, it is difficult to be certain that single specific accidents cause hernias. there is also evidence that prolonged and strenuous physical activity may be at least a contributing cause of hernia. In a cross-sectional study, Kang found a higher rate ratio for hernia in male workers performing strenuous, heavy manual labor. Bilateral inguinal hernias share the same etiology as unilateral hernias. Up to one third of men who have a unilateral hernia eventually, develop a hernia on the opposite side. It follows that workers who have developed hernias from strains, lifts or prolonged strenuous work, and who return to the same work, will often develop a hernia on the opposite side. However, the sudden occurrence of bilateral hernias following a single injury would be an extremely rare event. [15] After reviewing all of the information before me, I am satisfied that the balance of evidence supports a conclusion that the bilateral inguinal hernias diagnosed by Dr. Dougall in June 2006 can be causally related to the physical nature of the duties the worker performed for some 45 years with the accident employer. The worker s testimony and the clinical notes from his family physicians confirm that the worker was experiencing pain and discomfort in his groin area prior to his retirement and unfortunately, it was not until 2006, through the expertise of Dr. Woodward and Dr. Dougall, that the existence of these hernias was confirmed. Given that Drs. Woodward and Dougall had the opportunity to personally assess the worker, I prefer to place greater evidentiary weight on their opinions than on the comments provided by Dr. Preobrazenski. As such, I am satisfied that the worker s duties as a machinist were a significant contributing factor in the development of his bilateral hernias and as such, he is entitled to be compensated. The issue of the type and quantum of benefits flowing from this conclusion will be returned to the Board for further adjudication.

7 Page: 6 Decision No. 2138/10 DISPOSITION [16] The worker's appeal is allowed. [17] The worker is granted initial entitlement to benefits for bilateral inguinal hernias. The issue of the type and quantum of benefits flowing from this conclusion is returned to the Board for further adjudication. DATED: February 1, 2011 SIGNED: R. Nairn