Decision #06/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on June 18, 2002 at the employer's request. The hearing was reconvened on November 13, 2002 and again on November 27, 2002. On November 27, 2002, the Panel met to render its final decision on the issue under appeal.Issue
Whether or not the claim is acceptable.Decision
That the claim is acceptable.Decision: Unanimous
Background
On August 21, 2000 at approximately 2:00 a.m., the claimant, who had been employed since May 1999 as a part time grocery clerk, suffered a heart attack while at work. The claimant was transported to the hospital and underwent triple bypass surgery the following day.
The claimant submitted a claim for compensation, which was accepted by the Workers Compensation Board (the “WCB”). The medical information on file indicated that the claimant had suffered a previous myocardial infarction in 1991 and had a history of hyperlipidemia and hypertension. The evidence on file from the claimant and his co-workers indicated that the claimant normally worked as a stocker but on the day the accident he had been assigned to perform the duties of a receiver. The WCB medical advisor was of the opinion that the work that the claimant was performing prior to the accident may have been the cause of the heart attack. In determining that the claim was acceptable, the adjudicator, in his decision dated December 4, 2000, concluded as follows:
“The evidence provided indicates that prior to [the claimant’s] shift August 21, 2000, he appeared to be fine. His normal job duties consist of stocking, but on August 21, 2000, he was asked to work receiving. This particular job seems somewhat more demanding than his regular duties and is considered a trigger event. Therefore, his claim for compensation is acceptable.”
The adjudicator also determined that the employer would be provided with 50% cost relief in light of the pre-existing coronary artery disease.
On August 29, 2001, the employer appealed the acceptability of the claim and the case was forwarded to the Review Office.
In a November 30, 2001 decision, the Review Office denied the employer’s appeal. The Review Office conducted an investigation on site to obtain information on the job duties of a stocker and a receiver. The Review Office accepted the claim concluding that the claimant’s work duties as a receiver were in significant excess of his regular duties as a stocker and that his myocardial infarction was work related. The employer appealed the Review Office’s decision and an oral hearing was held on June 18, 2002.
At the June 18th hearing the union representative and the employer’s representative were present. Neither the claimant nor any other witnesses attended. Following submissions made by both parties, the Appeal Panel asked the employer’s representative to provide additional information regarding the claimant’s duties as a stocker and a receiver.
On July 9, 2002, the Panel met to discuss the case in light of the employer’s submission dated June 19, 2002 and the union representative’s written response dated June 24, 2002. According to the employer’s submission, the claimant was trained on and had used the power jack as well as the manual jack in performing his duties as a receiver on the date of the accident, while according to the union representative’s submission, the claimant was never trained on and had never operated the power jack. The Panel determined that the hearing should be reconvened, that the claimant would be asked to attend and several of his co-workers would be subpoenaed to give evidence. This would provide the Appeal Panel with an opportunity to gather information surrounding the events and duties performed by the claimant on the date of the accident, and particulars regarding the claimant’s regular job duties as a stocker.
The hearing was reconvened on November 13, 2002 and again on November 27, 2002 for closing arguments. On November 27, 2002, the Panel met to render its final decision on the issue under appeal.
Reasons
Law and PolicySection 4(1) of The Workers' Compensation Act (the "WCA") provides that compensation is payable where "a personal injury by accident arising out of and in the course of the employment is caused to a worker".
In the case of myocardial infarctions where there is pre-existing cardiovascular disease, WCB Policy No. 44.10.10.60, Myocardial Infarctions, provides that claims must be adjudicated by first determining whether the underlying cardiovascular disease is compensable as an occupational disease. If it is determined that the underlying cardiovascular disease is not compensable, then the myocardial infarction will be adjudicated as an accident and will be compensable if the following criteria are met:
"An event or trigger factor has occurred that is deemed to be significant and which occurred in the course of employment and arose out of the employment. In order for a work cause to be determined to be the cause of a myocardial infarction, medical evidence of causation must be available and the factors believed to have caused it must create conditions in significant excess of the conditions that the worker experiences on a regular basis,…"WCB Policy No. 44.10.20.10, Pre-Existing Conditions, further provides that:
"Where a worker's loss of earning capacity is caused in part by a compensable accident and in part by a non-compensable pre-existing condition, or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the accident."The claimant in this case suffered a myocardial infarction in the course of his employment. His underlying cardiovascular disease, not being work related, is not compensable. The issue for this Panel to determine is whether, on the balance of probabilities, the myocardial infarction arose out of the employment. In order to make this determination, the Panel must consider whether there has been a significant work related event or trigger which has been caused by conditions in significant excess of the conditions that the worker experiences on a regular basis in his employment.
Employer's Position
The employer argued that the claimant's duties as a receiver on the date of the accident were less strenuous than his regular duties as a stocker and therefore there was no triggering event that was significantly in excess of his regular duties. The employer submitted that 80% of the stocker's duties involve lifting cases of product that can weigh 20 to 80 pounds each. The stocker utilizes a manual jack to pull pallets of product down the aisles from which he unloads cases onto shelves. The receiver on the other hand utilizes both a power jack and a manual jack to unload trailers and move pallets of product into the warehouse and out to the aisles where the stocker takes over. The employer submitted that the receiver can use a power jack to move heavy pallets which can weigh up to a maximum of 3,800 pounds while the stocker can only use a manual jack to move the pallets down the aisles. The employer explained that pumping the manual jack utilizing a hydraulic mechanism to raise the pallet off the floor is not particularly difficult, however, getting the manual jack started and moving down the aisle requires a significant amount of pressure. The stocker must constantly stop and start the manual jack as he moves the pallet along the aisle to stock the shelves. The receiver on the other hand, may use the power jack to move heavy pallets and when utilizing the manual jack, the receiver does not have to stop and start the pallet as often as the stocker. The employer was of the view that as the stocker does more lifting than a receiver and is restricted to using a manual jack to move heavy pallets, the duties of a stocker were more physically demanding.
The employer further argued that in the absence of a significant work related event, the proximate cause of the claimant's myocardial infarction was his underlying coronary artery disease. The employer pointed to the statement of the claimant's supervisor, which indicated that two co-workers stated that the claimant was not feeling well at the start of his shift on the date of the accident. The employer also refers to the hospital emergency report dated August 21, 2000 that notes that the claimant's wife stated that her husband was in denial and has been having exertional shortness of breadth for the past few weeks/months. The note also stated "Borrowed NTG [nitroglycerine] and has been using same with relief of SOB [shortness of breath]". The employer submitted a report from a physician dated April 2, 2002, which, relying on these factors, concluded that the predominant cause of the claimant's myocardial infarction was his pre-existing coronary artery disease.
Evidence of the Claimant
The claimant attended the reconvened hearing held on November 13, 2002 and testified that he was employed as a stocker generally working the juice, soap or paper product aisles. The claimant explained that he would receive pallets loaded with stock at the end of an aisle and it was his job to unload the product from the pallet and stock it on the shelves. The claimant stated that when the pallets were delivered to his aisle, if they were too heavy to move easily, he would unload cases on to a smaller cart that he would wheel down the aisle to stock the shelves. The claimant stated that he would never move the pallet with a manual jack when it had a heavy load but rather he would break it down into smaller loads, which he put on the cart. The claimant also explained that the number of pallets of stock that he could unload in an eight-hour shift would depend upon the weight of the product. When he worked the heavier juice or soap aisles he would usually unload about three or four pallets in a shift.
The claimant explained that he had never done the job of receiver previously other than to occasionally sign for the delivery of small parcels when no receiver or manager was available. The claimant also stated that he had never used a power jack, that he didn't know how to use one and had never been shown how to operate one. The claimant explained that when he used the manual jack to move pallets, it did not take very much strength to pump the jack to raise the pallets off the floor; however, more exertion was required to pull and move the manual jack down the aisle. It was for this reason that the claimant would off-load product from heavy pallets onto hand carts rather than attempt to pull such pallets along the aisles.
The claimant testified that when he arrived for his shift at 9:00 p.m. on the night of August 20, 2000, he spoke to the lead hand that was responsible for assigning job duties that evening. The claimant testified that from approximately 9:00 to 10:45 p.m. he unloaded empty milk crates until the first truck arrived at about 10:45 p.m. The claimant unloaded this truck which contained 18 to 20 pallets of varying product and weight. The claimant testified that he used only a manual jack to move the pallets from the back of the truck through the warehouse to the aisles, a distance of approximately 700 to 800 feet. He was assisted in unloading the truck by the driver who operated a power jack and by a co-worker who helped him push and pull some of the heavy pallets using a manual jack. A second truck arrived at approximately 11:30 p.m. containing a similar number of pallets. The claimant unloaded this truck using a manual jack. There was a third truck, which arrived at approximately 12:30 a.m., which the claimant unloaded with the assistance of the lead hand. From 12:30 a.m. to approximately 2:00 a.m. the claimant was moving pallets which weighed anywhere from 1,000 to 4,000 pounds from the warehouse area to various aisles in the store using only a manual jack. In the claimant's view, his duties as a receiver that night were more strenuous than his regular duties as a stocker. He explained that as a stocker he was generally lifting cases weighing no more than 20 to 40 pounds from pallets onto a handcart and onto shelves. As a receiver he was required to pull heavy pallets using the manual jack a distance of 700 to 800 feet and the exertion of pulling these heavy pallets was much more strenuous than frequent lifting of 20 to 40 pound cases. The claimant also explained that as a stocker he pulled pallets down aisles that were only 100 to 150 feet and only when the weight of the pallets were light or their weight was reduced substantially by previous off-loading of product to the hand cart. The claimant testified that on the night of the accident he was using the manual jack to move pallets that were significantly heavier than the weight of the pallets that he normally moved in his regular stocking job.
With respect to his heart condition, the claimant testified that following his 1991 heart attack he was on medication, which he discontinued approximately four years prior to the accident. He explained that due to weight loss and exercise, his physician had taken him off all medication and provided him with a prescription for nitroglycerin that he carried with him at all times. He stated that the nitroglycerin, which he used on August 21st, was his prescription and was not 'borrowed'. When asked about the note of his wife's comments in the hospital report he explained that about three weeks prior to the accident while working in the yard on a very hot day, he had told his wife it was taking him longer than usual. The claimant explained he was referring only to the heat and not to any shortness of breath. The claimant testified that he had not experienced any problems or shortness of breath prior to the date of the accident, that when he arrived for his shift on August 20th he was feeling fine, and that he had not told any of his co-workers that he was feeling unwell.
Evidence of the Co-Workers
Two of the claimant's co-workers testified at the hearing. The first was the lead hand in charge of all of the employees on the claimant's shift on the date of the accident. This witness spoke to the claimant when he arrived for his shift at 9:00 p.m. and was one of the individuals who had been referred to by the supervisor as having said that the claimant was unwell at that time. This witness confirmed the information, which he had previously provided in his sworn statement that the claimant appeared to be normal and never indicated that he was feeling ill. The only concern which the claimant had and which he repeated on a number of occasions to this witness was that he didn't want to do receiving as it was not his regular job and that he was not comfortable using the power jack. As a result of the concerns expressed by the claimant, this witness testified that during the unloading of the first truck the claimant asked for his assistance and this witness took over the use of the power jack while the claimant used the manual jack for the rest of the shift.
This witness further testified that he had been employed with the employer for over 25 years primarily doing the jobs of a stocker and receiver. When asked to compare the two jobs, the witness was of the opinion that the receiver job was more physically difficult primarily because a receiver has to pull many more heavy pallets over longer distances without the ability to rest as often as a stocker whose pallet also becomes lighter as stock is unloaded. According to this witness, a stocker who is working in the heavier juice aisles would be expected to unload only two to three pallets in an eight-hour shift. The witness testified that on the date of the accident the claimant would have moved at least half of the pallets that were delivered that night on his own using a manual jack.
The second co-worker who gave evidence at the hearing had been employed as a full-time receiver with the employer since 1990 and the claimant had been covering his shift on the night of the accident. This witness was able to provide detailed evidence on the job of a receiver at the store in question. In this witness's opinion, if a receiver used a manual rather than a power jack, the job of a receiver would be significantly more physically demanding than that of a stocker. The witness explained that due to the way in which the store is constructed, there was a long distance from the receiving dock to the aisles and the receiver would have to pull pallets much farther than a stocker. The witness testified that the particular manual jacks that were available at the store during the time in question were difficult to use because the wheels were either broken or didn't work correctly making it very difficult to drag, pull and maneuver the heavy pallets all the way to the aisles. He also explained that when unloading a trailer there might be a steep grade, which would make the pallets very difficult to lift and move using a manual jack. The witness acknowledged that the job of a stocker, lifting as many as 300 to 400 cases of 40 to 50 pounds each, was also strenuous, but he was of the view that the job of a receiver using a manual jack was significantly harder physically because as he stated "you had to bomb all the time", "you didn't have a let up" and "the time pressure on that job was quite…significant". The witness described the difficulty of maneuvering the manual jacks with poorly maintained wheels, which required constant tugging forcing him to lean and pull with all his weight at almost a 45-degree angle in order to move pallets of 2,000 pounds or more. The witness described that at the end of his shift his thigh muscles and forearms would be sore and that his t-shirt would be wet from perspiration. The witness described the use of a manual jack to move pallets as being similar to a sprint which would leave the receiver "dragging his tail" by the end of his shift.
Conclusion
After taking into account all of the evidence, the Panel is satisfied on a balance of probabilities that the claimant's myocardial infarction arose out of his employment. The Panel is satisfied that the weight of the evidence supports a determination that the work performed by the claimant as a receiver on the date of the accident was significantly in excess of his regular duties as a stocker and which could have been the proximate cause of his myocardial infarction.
In reaching its decision the Panel notes that the claimant described the manner in which he performed his duties as a stocker and, in particular, that he did not use the manual jack to move heavy pallets down the aisles, but rather unloaded product onto a smaller cart which he easily wheeled to the shelves. By this method the physical demands of starting, pulling and stopping a heavy pallet using a manual jack were minimized in the regular performance of his job. The Panel accepts the claimant's evidence that he had not used the power jack to any great extent in performing the duties of a receiver on the date of the accident, which evidence was supported by that of the lead hand. The Panel also notes that the evidence of both co-workers with significant experience in the jobs of stocker and receiver was that the job of the receiver using a manual jack to move pallets, would be significantly more strenuous and physically difficult than that of a stocker. In particular, the Panel refers to the evidence of the receiver describing the difficulty of using the manual jacks, which were not in proper working order and maneuvering them over long distances.
With respect to the claimant's pre-existing cardiovascular disease, the Panel notes that the weight of the evidence supports a finding that the claimant was feeling fine when he began his shift and did not indicate to any of his co-workers that he was ill. The co-workers referred to by the supervisor as having stated that the claimant was not feeling well, provided statements indicating that this was not the case. One of these co-workers, the lead hand who gave evidence at the hearing, confirmed that he had spoken to the claimant at the beginning of his shift and there was no indication that the claimant was unwell. The Panel also accepts as credible the claimant's explanation regarding the hospital report note of his wife's comments respecting previous symptoms of shortness of breath and that the nitroglycerin he carried was a prescription drug that had been provided to him by his previous physician. The report itself also notes that the claimant denied any previous symptoms of angina.
The Panel is therefore satisfied on the balance of probabilities that the claimant's myocardial infarction arose out and in the course of his employment. The claimant's myocardial infarction is therefore compensable and the claim is accepted.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
M. Thow - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of January, 2003