Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | October 2018 | News Worker denied workers' compensation benefits after hernia surgery Occasional heavy lifting on the job and no identifiable accident excludes worker from eligibility for benefits BY JEFFREY R. SMITH AN ONTARIO worker whose job involved occasional heavy lift- ing and developed a hernia re- quiring 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 com- pany, including the need to lift heavy objects and working in awkward positions such as ly- ing 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 fork- lift, but he often had to lift small- er 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 esti- mated 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 um- bilical 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 su- pervisor 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 hap- pened 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 fam- ily doctor completed a report following the surgery that indi- cated 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 evi- dence of compatibility between the worker's hernia and any ac- cident that could have resulted from the worker's work activi- ties. 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 defini- tion of "accident" in both the Ontario Workplace Safety and Insurance Act and the WSIB policy manual document on ac- cidents. 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, simi- Credit: Shutterstock/GajokFilm No identifiable accident > pg. 7

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