Occasional heavy lifting on the job and no identifiable accident excludes worker from eligibility for benefits
An Ontario worker whose job involved occasional heavy lifting and developed a hernia requiring surgery has been denied workers’ compensation benefits for his recovery due to a lack of compatibility between his injury and his job duties.
The 57-year-old worker was employed as an industrial painter, starting in January 2000. His job involved painting metal parts for a manufacturing company, including the need to lift heavy objects and working in awkward positions such as lying on his back and crawling on his knees to paint specific areas on large metal parts — some of which could weigh more than 20 tonnes. Particularly large metal parts would be lifted with a forklift, but he often had to lift smaller parts — which could weigh up to 20 kilograms — onto a rack himself and then push the rack into a spray booth. The process also involved cleaning the parts and painting them with a sprayer several times. The worker estimated he cleaned and painted between 20 and 90 parts per day, depending on the size.
In late 2014, the worker began to experience pain in his groin area. It gradually got worse and in June 2015 he saw his doctor, who diagnosed him with an umbilical hernia. He had surgery in August 2015 and was off work for two years. When he returned in September 2017, he started with modified duties for about one month and then returned to his full, regular job duties.
When the worker’s surgery was scheduled, he told his supervisor about it and reminded him of it two days before. The employer filed a report of injury to the Ontario Workplace Safety and Insurance Board (WSIB) on Aug. 28, 2015, which indicated the worker had informed it of his surgery one week after it happened and the hernia was caused by heavy lifting at work over a nine-month period. The worker filed his own report of injury to the WSIB on Sept. 4 that said he had reported the injury to his supervisor. The worker’s family doctor completed a report following the surgery that indicated the hernia had progressed slowly “due to heavy lifting over eight to nine months.”
The WSIB denied the worker initial entitlement to benefits because there was no clear evidence of compatibility between the worker’s hernia and any accident that could have resulted from the worker’s work activities. The worker appealed, but an appeals resolution officer reached the same conclusion. The worker appealed again, this time to the Ontario Workplace Safety and Insurance Appeals Tribunal.
To determine compatibility between the diagnosed hernia and the worker’s job duties, the tribunal referred to the definition of “accident” in both the Ontario Workplace Safety and Insurance Act and the WSIB policy manual document on accidents. The former states that a compensable accident had to be “a chance event occasioned by a physical or natural cause” that arose out of and in the course of employment, while the policy manual document states, similarly, that an accident was “an identifiable unintended event which causes an injury” or a disablement from “a condition that emerges gradually over time” that was “an unexpected result of working duties.” The document also indicates that “an injury itself is not a chance event.”
The tribunal further noted that the WSIB policy manual required certain elements for an allowable claim for benefits, including a personal work-related injury, compatibility of diagnosis to accident history and proof of accident.
Typical hernias not compatible with job activities
The tribunal found there was no personal work-related injury in this case. There was no specific incident that caused the hernia and the worker described “a gradual onset of pain that got worse” over several months. The medical evidence on hernias indicated that often patients noticed a lump in the groin immediately following heavy lifting or a sudden severe strain and, while some hernias could develop gradually, those were difficult to determine what caused them. In addition, some men were predisposed to hernias and the risk of developing one increased with age. Given the uncertainties and the lack of a specific identifiable accident — as well as the fact the worker performed his job duties for 14 years without any symptoms — the evidence wasn’t sufficient to link the worker’s hernia to a workplace accident, said the tribunal.
The tribunal also pointed out that the injury report forms weren’t completed and submitted to the WSIB until August and September 2015, despite the fact the worker began experiencing pain several months earlier. This made it likely the worker didn’t consider the hernia to be related to his job duties until he missed time to undergo surgery, the tribunal said.
The tribunal noted that the worker’s doctor indicated that “prolonged and strenuous physical activity may be at least a contributing cause of hernia,” but the worker’s duties could not be considered prolonged and strenuous. Though the worker sometimes had to lift heavy items as part of his normal job duties, it was only occasionally and for brief periods of time, not repeatedly and over a long period of time. In addition, the worker’s doctor provided no explanation in his report as to how the worker’s job duties may have directly contributed to the development of his hernia.
The evidence also indicated that the worker consulted a specialist for his hernia and the specialist had no opinion as to the cause. The worker also denied experiencing any trauma in the consultation.
The tribunal determined that there was insufficient evidence linking the worker’s hernia to his job duties, so the worker’s condition wasn’t work-related. The appeal for workers’ compensation benefits was denied.
For more information see:
