WORKPLACE SAFETY AND INSURANCE

APPEALS TRIBUNAL

DECISION NO. 3504/17

BEFORE: C. Sand : Vice-Chair

R.G. Ouellette : Member Representative of Employers
C.S. Mannella : Member Representative of Workers

HEARING: November 14, 2017 at Toronto

Oral

DATE OF DECISION: December 5, 2017

NEUTRAL CITATION: 2017 ONWSIAT 3710

DECISION(S) UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated
March 23, 2016

APPEARANCES:

For the worker: F. DiLena, Paralegal

For the employer: Not participating

Interpreter: Not applicable

Workplace Safety and Insurance Tribunal d’appel de la sécurité professionnelle

Appeals Tribunal et de l’assurance contre les accidents du travail

505 University Avenue 7th Floor 505, avenue University, 7e étage

Toronto ON M5G 2P2 Toronto ON M5G 2P2
 Decision No. 3504/17

REASONS

(i) Introduction
[1] These are the reasons for the decision of the Workplace Safety and Insurance Appeals
Tribunal with respect to an appeal by a worker from a decision of the Workplace Safety and
Insurance Board (WSIB) (the Board) concerning the worker’s entitlement to benefits following a
workplace accident.

(ii) Background
[2] The following are the basic facts.
[3] The worker is 66 years old. He began working as an auto body repairman for the
employer in 1999. He sustained an injury on February 5, 2015, when he attempted to lift an
engine weighing approximately 500 pounds, with a co-worker. The worker sought treatment at a
hospital emergency room on February 7, 2015. Although he managed to continue to work
immediately after the incident, his low back and right leg symptoms increased until he returned
to the hospital emergency room on February 18, 2015. He did not return to work after that date.
An MRI dated February 24, 2015 showed a herniated nucleus pulpous at L4-5. The Board first
allowed the worker’s claim for benefits only for a low back sprain, but upon reconsideration, that
decision was overturned, and entitlement was granted for the L4-5 herniated nucleus pulpous.
The employer did not have modified work to offer the worker. The worker’s regular job was
described as heavy, and required awkward positions and the worker could not return.
[4] After some time, the worker began physiotherapy treatment. In June 2015,
approximately four months after the workplace injury, he noticed right-sided groin pain, while
doing his physiotherapy exercises. Upon investigation, the worker was found to have an inguinal
hernia on his right side. His family physician referred him to a specialist. Dr. Q. Pham, a
surgeon, found a small umbilical hernia on examination, and referred the worker for an
ultrasound to rule out a left inguinal hernia. Dr. Pham opined that the worker’s line of work may
have led to a gradual hernia, and that the incident of February 5, 2015 may have aggravated the
underlying hernia, or, he opined, the incident may have initiated the hernia. An ultrasound
confirmed a left inguinal hernia. The worker claimed the three hernias were related to his injury.
[5] The Board requested the assistance of a medical consultant to provide an opinion
regarding the compatibility of the hernias with the workplace incident of February 5, 2015.
Dr. S. Somerville opined on September 8, 2015, that he did not believe the hernias were related
to the workplace injury of February 5, 2015.
[6] Relying on Dr. Somerville’s medical opinion, the Board denied entitlement for the
worker’s hernias. The worker appealed this decision to the Board’s internal Appeals Services
Division, where the Appeals Resolution Officer (ARO) upheld the Board’s previous decision.
The worker appealed that decision to the Tribunal.
(iii) Issues
[7] The sole issue to be determined by the Panel is the worker’s entitlement for a bilateral
inguinal hernia and umbilical hernia as related to the workplace injury of February 5, 2015 or on
an aggravation basis.
 Page: 2 Decision No. 3504/17

(iv) Law and policy

[8] Since the worker claimed to be injured in 2015, 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.
[9] An “accident” is defined in section 2(1) to include:
(a) a wilful and intentional act, not being the act of the worker,
(b) a chance event occasioned by a physical or natural cause, and
(c) disablement arising out of and in the course of employment;
[10] General entitlement to benefits is governed by section 13:
13(1) A worker who sustains a personal injury by accident arising out of and in the
course of his or her employment is entitled to benefits under the insurance plan.
(2) If the accident arises out of the worker’s employment, it is presumed to have occurred
in the course of the employment unless the contrary is shown. If it occurs in the course
of the worker’s employment, it is presumed to have arisen out of the employment unless
the contrary is shown.
[11] The statutory presumption set out in section 13(2) does not apply to an injury by
disablement. See, for example, Decision Nos. 268 and 42/89.
[12] Tribunal jurisprudence applies the test of significant contribution to questions of
causation. A significant contributing factor is one of considerable effect or importance. It need
not be the sole contributing factor. See, for example, Decision No. 280.
[13] The standard of proof in workers’ compensation proceedings is the balance of
probabilities. Pursuant to subsection 124(2) of the WSIA, the benefit of the doubt is resolved in
favour of the claimant where it is impracticable to decide an issue because the evidence for and
against the issue is approximately equal in weight.
[14] Pursuant to section 126 of the WSIA, the Board provided the Tribunal with the relevant
policy packages for subject matter of this appeal, which are referred to below.
[15] We have considered these policies as necessary in deciding the issues in this appeal.
Operational Policy Manual (OPM) Document No. 15-02-01, “Definition of an Accident,”
describes a chance event as “an identifiable unintended event which causes an injury,” an injury
itself is not a chance event. The policy defines a disablement as “a condition that emerges
gradually over time” or “an unexpected result of working duties.”
[16] OPM Document No. 11-01-01, “Adjudicative Process,” states that an allowable claim
must have five points: an employer, a worker, personal work-related injury, proof of accident,
and compatibility of diagnosis to accident history. OPM Document No. 11-01-01 provides the
following guidelines for determining proof of accident:
Proof of accident
Decision-makers may consider the following when examining proof of accident,
 Does an accident or disablement situation exist?
 Are there any witnesses?
 Are there discrepancies in the date of accident and the date the worker stopped
working?
 Page: 3 Decision No. 3504/17

 Was there any delay in the onset of symptoms or in seeking health care
attention?
[17] OPM Document No. 15-04-08, “Hernia,” states that “if a specific work-related muscular
effort or incident causes or aggravates a hernia, workers are entitled to benefits.” The policy
goes on to note that a decision-maker “may allow claims for work-related hernias if there is
information on file confirming the diagnosis.”

(v) Analysis
[18] The appeal is allowed for the reasons set out below.
[19] The four-month delay in reporting hernia symptoms was central to the ARO’s denial of
entitlement in this case. As per OPM Document No. 11-01-01, a delay in the onset of symptoms
or in seeking health care attention can be a factor to consider in determining proof of accident.
However, in the case of groin hernias, according to the Tribunal’s Medical Discussion Paper
included in the case materials, delay in seeking medical attention is common for this particular
injury. The Tribunal’s Medical Discussion Paper entitled “External Abdominal Hernias,”
prepared by Dr. J. Duff in 2006, describes groin hernias as not being painful, and therefore going
unnoticed. Dr. Duff wrote:
The presenting complaint of patients with groin hernias is usually a bulge. Patients may
note vague discomfort in the groin area. However, severe pain is rare in the absence of
complications such as incarceration or strangulation. Severe pain suggests groin
pathology other than hernia.
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.
[20] The worker testified in an entirely forthright manner and we accept his testimony. He
described feeling some discomfort in his groin area after the February 5, 2015 lifting incident,
but considered it to be part of his back and leg injury. He described a period when he was on
bedrest following the injury, wherein he barely moved. He testified that he only felt the groin
pain in his second round of physiotherapy, when he was doing a specific exercise on the floor
with his legs raised. Within the context of Dr. Duff’s description of groin hernias, the worker’s
explanation for the delay in seeking treatment was reasonable. The worker was incapacitated
prior to his physiotherapy, and did not go through the physical motions to bring about the
sensation of hernia pain prior to commencing his second round of physiotherapy treatment.
[21] The worker further testified to his strong desire to return to his regular job, and was
frustrated by his groin pain, because it precluded him from continuing with his physiotherapy
exercises for his back, and he sought medical treatment immediately, when he felt the groin pain.
[22] The Panel further notes that Dr. Pham, who examined the worker specifically related to
the inguinal hernia, wrote “Examination of the inguinal area showed a palpable hernia on the
right side. It is difficult because of his body habitus. There is a possible left inguinal hernia.”
As per the Discussion Paper, the presenting complaint with groin hernias is usually a bulge.
Because of the worker’s body shape, the hernia bulge was not visibly evident.
 Page: 4 Decision No. 3504/17

[23] Upon examining the worker, Dr. Pham opined as to the cause of the hernias. Dr. Pham
wrote on July 30, 2015,
He (the worker) thought that this might be related to the strain during his accident. I told
him with his line of work (he works in a body shop), he may have developed a hernia
over a long period of time and the accident may have aggravated it or it could have
initiated a hernia but I cannot be absolutely certain.
…
[24] Dr. Pham opined that the hernias (at this point two of the three hernias were confirmed)
were work-related. He opined that either the hernia had gradually developed due to the worker’s
line of work, and then was aggravated by the lifting accident, or that the hernia was initiated by
the lifting accident. He wrote that he cannot be “absolutely certain,” which is a higher standard
than the standard of proof required for workers’ compensation proceedings, which is the balance
of probabilities. While Dr. Pham wrote that he “cannot be absolutely certain,” the Panel is
satisfied that on a balance of probabilities, the hernias were caused by the lifting incident.
[25] Dr. Somerville, the independent medical assessor and specialist in occupational medicine,
on the other hand, opined that he did not believe the hernias were work-related. We note that
Dr. Somerville had not examined the worker, and he did not have all the accurate information
before him regarding the accident history. His understanding was that “the injured worker and
three co-workers were attempting to lift a car engine from the ground when the injured worker
experienced low back pain.” He did not know the approximate weight of the engine and
understood that the weight was shared amongst four, rather than two workers.
[26] The Panel prefers to rely on the opinion of Dr. Pham, the surgeon who directly examined
the worker and who had a more comprehensive understanding of the accident history.
[27] Furthermore, the Panel relies on the testimony of the worker who denied any prior
symptoms in the groin area. The clinical notes included in the case materials predate the
accident by several years, and corroborate the worker’s testimony that he had no prior groin
symptoms. The worker testified that his co-worker let go of the engine before he did and that he
carried the full weight of the engine on his own for a short time, because a young man had
started to remove the skid that was under the engine and the worker was afraid to drop the engine
on the young man’s hands. The Panel notes this was an unusually heavy lift.
[28] Within the context of this unusually heavy lift, the worker’s testimony that he never
experienced prior groin pain, no evidence of a pre-existing condition, and Dr. Pham’s opinion
that the hernia was either caused by, or aggravated by the lifting accident, the Panel finds on a
balance of probabilities that the bilateral inguinal hernias and the umbilical hernia were caused
by the heavy lifting accident of February 5, 2015.
[29] Although Dr. Pham opined that the hernias may have been pre-existing and aggravated
by the February 5, 2015 incident, the Panel is satisfied that there is no pre-accident evidence of
the worker having symptoms or being diagnosed with an inguinal or umbilical hernia. As such,
the Panel finds the worker’s bilateral inguinal hernias and umbilical hernia were caused by a
specific work-related muscular effort or incident which occurred on February 5, 2015.
[30] The worker, therefore, has entitlement for the bilateral inguinal hernias and the umbilical
hernia arising out of the February 5, 2015 workplace accident.
 Page: 5 Decision No. 3504/17

DISPOSITION

[31] The appeal is allowed as follows:

1. The worker is entitled to benefits for a bilateral inguinal hernia and umbilical hernia
as related to the workplace injury of February 5, 2015.

[32] The nature and duration of benefits flowing from this decision will be returned to the
WSIB for further adjudication, subject to the usual rights of appeal.

DATED: December 5, 2017

SIGNED: C. Sand, R.G. Ouellette, C.S. Mannella