Decision #24/99 - Type: Workers Compensation
An Appeal Panel hearing was held on December 10, 1998, at the request of legal counsel, acting on behalf of the widow. The Panel met on December 10, 1998, to discuss the appeal.
Whether the claimant's death was the result of an accident arising out of and in the course of the worker's employment.
That the claimant's death was the result of an accident arising out of and in the course of the worker's employment.
The widow filed a claim for surviving spousal benefits in relation to her husband's death on December 28, 1995. On January 3, 1996, an advocate for the employer contended that the worker's death did not arise out of and in the course of his employment as it was felt that his working conditions would not be considered "in significant excess of the conditions that the worker experienced on a regular basis".
Subsequent file documentation consisted of reports from the employer which described the incident that occurred on December 28, 1995, and an incident investigation report. On January 12, 1996, the employer's advocate outlined the claimant 's job responsibilities which included driving solo from Winnipeg to Thompson and transferring various loads of product. The product was mechanically loaded/unloaded but occasionally required some manual shoveling to "distribute" the load. Other physical requirements included cranking dollies on the trailers and hooking and unhooking hoses. Some bending was required when washing/sweeping out empty trailers. On the date of the incident, the worker picked up a trailer load of product in Winnipeg and drove to Thompson. When the worker arrived at Thomspon the operations supervisor emptied the product. The advocate stated that the worker performed no physical tasks.
A signed statement was obtained from the operations supervisor on February 13, 1996. Briefly, the supervisor stated the following:
"On the injury date, Mr. [the worker] brought in a load and dumped it as described above, then refilled with more product (nickel). I had a second load in town that I needed off loaded. [the worker] dropped the trailers he had previously loaded at the [employer's] yard, then proceeded to pick up the other trailers which were loaded with product. Mr. [worker] would have had to crank the dollies down on the full trailers, disconnect form (sic) them, drive to the second site and hook up to the second set of trailers. Again Mr. [the worker] would have been cranking dollies on trailers which were full of product."
There would not be any more stress placed on the driver cranking down the dollies unless the driver was doing so in extreme cold weather. If cranking a dollie in cold weather the force required would multiply 6 to 8 times easily as the dollies gear box is full of grease.
.... I received a call from Mr. [the worker] informing me he was having trouble hooking up his hydraulic hoses. The hoses are left unhooked until he truck is backed in the M.R. building. Once in, the hoses are hooked up and the load dumped. The driver would then disconnect the hoses and drive the trailers out to facilitate splitting the trailers. Mr. [the worker] could not get the hoses hooked up. I came back to Inco and helped Mr. [the worker] hook up the hoses. Mr. [the worker] dumped the load cleanly. I told Mr. [the worker] that I had to go and speak to someone at the Department of Transport building. As I was leaving Mr. [the worker] was lowering his back box to facilitate driving the truck out of the smelter to split the trailers.
I left and went to the D.O.T. building. Before I went home I decided to check on Mr. [the worker] to see if he had experienced any more mechanical problems. This is when I found MR. [the worker] in the cab of his truck. The hydraulic and air hoses were disconnected and the dollies were down. The only thing that had not been done was pulling the pin on the fifth wheel. I found Mr. [the worker] in the cab of his truck. ....The only difference in Mr. [the worker's] duties on the accident date would have been cranking dollies on full trailers, and dumping a second set of trailers immediately after the first."
On February 19, 1996, a Workers Compensation Board (WCB) adjudicator telephoned Environment Canada and learned that the temperatures in Thompson on December 28, 1995, were in the range of -16 to -18 degrees Celsius between 1200 hours and 2400 hours. There was also some periodic light snow and a momentary “shot” of freezing drizzle.
Medical information consisted of a report from a general practitioner dated February 23, 1996. The physician stated that he reviewed the claimant's chart and that the worker was under the care of various physicians since July 14, 1982. At no time was there ever a diagnosis of ischemic heart disease or any cardiac abnormality. The worker did, however, have some coronary artery disease risk factors which included cigarette smoking and hyperlipidemia.
An autopsy performed on December 29, 1995, revealed the following findings:
- 1. "Diffuse moderate to severe atheromatous disease of left anterior descending coronary artery with focal areas of up to 80% stenosis. Mild atheromatous disease of circumflex artery.
2. Large cyst in upper pole of left kidney, large scar with fatty tissue in lower pole of left kidney. Numerous small cysts filled with clear fluid throughout parenchyma of both sides."
The immediate cause of death was recorded as atheromatous coronary disease.
On April 1, 1996, the case was reviewed by a WCB internal medicine consultant at the request of an adjudicator. The consultant made the following comments after a review of the file contents:
- the autopsy report did not record the presence of myocardial infarction;
- there was no MI (myocardial infarction);
- the atheromatous coronary disease was not related to the claimant's work.
On May 7, 1996, Claims Services denied the claim for surviving spousal benefits. Claims Services considered the worker's coronary artery disease did not have any relationship to his employment as a truck driver and that his employment activities at the time of his demise would not have been in significant excess of what he would have experienced on a regular basis.
Subsequently, legal counsel for the widow appealed Claims Services decision of May 7, 1996, and the case was forwarded to the Review Office for consideration. Prior to rendering its decision, Review Office took into account the following file documentation:
- a medical report from a cardiologist dated November 18, 1996.
- a submission from the employer's advocate dated May 15, 1997.
- a submission from the widow's legal counsel received on June 30, 1997.
- a further statement from the operations supervisor dated July 14, 1997.
- a submission from legal counsel for the widow received September 11, 1997.
- an opinion from the WCB's internal medicine consultant dated October 30, 1997.
- a submission from legal counsel for the widow dated December 5, 1997.
- a Medical Review Panel (MRP) report dated April 20, 1998.
- a submission from legal counsel for the widow received on June 11, 1998.
On July 9, 1998, the Review Office determined that the worker's death was not the result of an accident arising out of, in the course of, his employment. Briefly, the Review Office stated the following:
- the worker died as a result of coronary artery disease. He was not known to exhibit any signs or symptoms of the disease prior to his death but at autopsy there was evidence of diffuse moderate to severe atheromatous disease of his left anterior descending coronary artery and also mild atheromatous disease of this circumflex artery. Such coronary artery disease predisposes to cardiac arrhythmias which can be fatal.
- the MRP was of the view that given the nature and degree of the worker's pre-existing condition physical exertion would be a contributing factor in his death. The MRP however was unable to establish that any such physical exertion occurred and stated that if physical exertion were to produce an arrhythmia, the arrhythmia would be immediate and physical exertion several hours previously would not be relevant.
- according to the statement from the operations supervisor, the worker had been instructed to pick up and unload a second set of trailers that afternoon. He would have unhooked the original trailers and then used a hand held pressure washer to clean them. The second set of loaded trailers would be hooked up and a crank used to roll up the tarps. The loaded trailers could be driven over scales and then onto the dumpsite.
- head office called the operations supervisor to advise that the worker was having trouble hooking up the hydraulic hoses. When the operations supervisor arrived at the site 5-10 minutes later, the worker was waiting and seated in his truck. He did not appear out of the ordinary and made no mention of any ill-health symptoms.
- the operations supervisor surmised that the worker could not have tried to hook up the hoses for very long, since it took him only a few minutes to accomplish the task, and both the problem and its solution were simple and well known to both men.
- the operations supervisor watched as the worker pushed the applicable switches and dumped the first load. There was no problem unloading and the worker did not have to do any shoveling. About 30 minutes later, the claimant was slouched over in the cab of his truck and an ambulance was called and first aid tried. The operations supervisor noted that the hydraulic hoses and air lines had been disengaged and the dollies were cranked down. It appeared that the worker developed symptoms before taking the fifth wheel puller from the tool box.
The Review Office concluded that the worker died of coronary artery disease while in the course of his employment. The Review Office was further of the view that the worker was not involved in any physical activity causing exertion in the few hours prior to his death. This, plus the nature and degree of his pre-existing condition, proved the death did not arise out of the employment. Legal counsel for the widow subsequently appealed the Review Office's decision and requested an oral hearing.
On September 22, 1998, the Appeal Commission requested the employer to provide log records in connection with the worker's trip to Thompson commencing when he left Winnipeg on December 27, 1995, up to his arrival at Inco together with a print-out of the truck recorder. On September 30, 1998, the advocate for the employer indicated that the log records regarding the worker's trip to Thompson were no longer available and that their trucks did not have truck records.
On October 26, 1998, the Appeal Commission received a copy of a report which recorded the time when trucks entered and left the plant site on December 28, 1995.
An Appeal Panel hearing was held on December 10, 1998.
Section 4(1) of The Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
In accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "a chance event occasioned by a physical or natural cause; and includes
- (a) A wilful and intentional act that is not the act of the worker,
- (i) event arising out of, and in the course of , employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease
and as a result of which a worker is injured."
Briefly, the facts of the case are these. The deceased had worked as a long distance transport driver for several years. On December 27th,1995, he left his employer's place of business in Winnipeg at approximately 9:00 p.m. with a load of product and headed out to Thompson, Manitoba. The evidence suggests that such a trip normally takes about nine hours which would have the deceased arriving at his destination around 6:00 a.m. on the morning of December 28th,1995. According to the evidence, he spent the day performing required job duties such as the loading, unloading and transporting of product to and from a mine site. At no time was the deceased ever observed to be in any physical distress. He did mention to the operations supervisor over lunch, however, that he had a bad cold. This same operations supervisor last saw the deceased around 4:00 p.m. and later found him slumped unconscious over the steering wheel of his truck at roughly 4:30 p.m. There is no question that the deceased was in the course of his employment at the time of this incident.
The deceased was rushed to hospital by ambulance where he was later pronounced dead. An autopsy performed in Winnipeg the ensuing day disclosed the following findings: "Diffuse moderate to severe atheromatous disease of left anterior descending coronary artery with focal areas of up to 80% stenosis. Mild atheromatous disease of circumflex artery." The immediate cause of death was recorded as atheromatous coronary disease. Primary Adjudication, relying on a WCB medical consultant's advice that the deceased's disease was not related to his work duties, rejected the widow's claim for entitlement to dependent's benefits. The widow then appealed this decision to the Review Office requesting reconsideration, based on the argument, that her husband's work duties produced ischemia and subsequent arrhythmia which eventually led to his cardiac arrest. In light of an apparent difference of medical opinion, the Review Office, pursuant to Section 67(3) of the Act, referred the matter to a Medical Review Panel (MRP) for its further consideration.
The makeup of the MRP consisted of two cardiologists and a general practitioner. The MRP responded unanimously to certain questions posed to it by the Review Office:
1. What is the diagnosis of the cause of death?
"Based on the Autopsy Report, there is evidence that Mr. [the deceased] suffered from diffuse moderate to severe atheromatous disease of his left anterior descending coronary artery and also mild atheromatous disease of his circumflex artery. Such coronary artery disease predisposes to cardiac arrhythmias which can be fatal. The Panel believes that the cause of death was coronary artery disease."(emphasis ours)
2. What if any role, does physical exertion play in death occurring under such diagnosis? What, if any, clinical findings would be anticipated, and would you explain the process?
"Physical exertion causes an increased requirement of the heart muscle to be supplied with oxygenated blood. Narrowing of the supplying artery results in a decreased supply of such blood. The heart muscle then, occasionally, goes into an arrythmia which is frequently fatal. The arrythmia results in a rapid and ineffectual beating of the heart. This ineffectual beating may be progressive overtime (sic) with complaints of breathlessness and chest distress or it may be immediately fatal."
3. Given the nature and degree of the pre-existing condition was death likely to have occurred regardless of physical exertion?
Given the substrate, that is, the coronary artery disease, death can occur with or without physical exertion."
4. Given the nature and degree of the pre-existing condition and the available evidence with respect to Mr. [the deceased's] activities, was physical exertion likely to have been a contributing factor in his death?
"The Panellists (sic) agree that given the nature and degree of Mr. [the deceased's] pre-existing condition physical exertion would be a contributing factor in his death. However, the Panellists (sic) are unable to establish that any such physical exertion did occur. The Panellists (sic) are of the opinion that, if physical exertion were to produce an arrythmia, the arrythmia would be immediate and physical exertion several hours previously would not be relevant." (emphasis ours)
5. Is there anything the panel members would like to add?
"The Panel members agree that there are large gaps in the history regarding Mr. [the deceased's] activities during the morning of December 28,1995. We do not know and it appears that we cannot discover exactly what Mr. [the deceased's] activities were during the last hour of his life." (emphasis ours)
The definition of "accident" in Section 1(1) of the Act is given a broad meaning by the WCB and it can encompass both accidental cause and accidental result whereby, as in the present case, the deceased's death may be considered the accident. In accordance with the definition of accident, it must be determined that the accident both arose out of and in the course of employment. The phrase "arising out of" by and large refers to there being a causal connection between the work duties carried on by the worker and the injury sustained. The phrase "in the course of" refers to the incident having occurred at work, or while discharging one's employment duties. In cases such as the present, it often happens that one component can be readily determined, but not the other. The interpretation and the applicability of the presumption clause contained in Section 4(5) then becomes important. The particular section reads as follows:
“Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.”
In effect, this section creates a rebuttable presumption of law that where the accident arose out of the employment, then it is presumed that it occurred in the course of employment and vice versa, unless the contrary is proven. Generally, this becomes a question of medical evidence and fact. However, before the presumption can apply, one must first come to the determination that either the accident arose out of the employment or that the accident occurred in the course of employment.
There is no dispute that the deceased was in the course of his employment at the time of his cardiac arrest. The Review Office recognized that the presumption clause would therefore be applicable and that the deceased's cardiac arrest would be presumed to have arisen out of his employment unless the contrary was proven. The Review Office attached considerable weight to the conclusion reached by the MRP that given the extent of the deceased's pre-existing condition "physical exertion would be a contributing factor in his death." However, the MRP was "unable to establish that any such physical exertion occurred." After having examined all of the evidence, the Review Office also arrived at the same conclusion that the deceased "was not involved in any physical activity causing exertion in the few hours prior to his death." The Review Office determined that the presumption had been rebutted and thus the deceased's death did not arise out of his employment. The claim for dependent's benefits was, therefore, not accepted.
Legal counsel acting on behalf of the deceased's widow appealed the Review Office's decision to the Appeal Commission. He suggested the decision be overturned on the basis that the weight of evidence did, on a balance of probabilities, confirm that the deceased was involved in physical exertion immediately prior to his death. In support, counsel advised that he would call several witnesses to give oral testimony.
One of the witnesses called was the deceased's former driving partner. He provided evidence with respect to the routine followed by the deceased when delivering a load of product and the procedure employed when unhooking a pup trailer. The sequence of events was:
- back the trailer into the unloading area;
- loosen the safety latches;
- attach the hydraulic hoses;
- raise the box to dump the load;
- lower the box;
- pull the trailer unit out of the unloading area;
- undo the hydraulic hoses;
- close off the air lines;
- unhook the electrical lines;
- crank down the landing gear;
- release or pull the fifth wheel pin;
- drive the truck away from the trailer;
- back the main trailer into the unloading area;
- begin the sequence once again to off-load the product.
The witness stated that in his experience the deceased always adhered to the same routine as described.
The witness also provided testimony with respect to the effort required in cranking down of the landing gear. He said that it was 6 to 8 times harder in the wintertime than it was in the summertime. He likened the difference to "pushing a car up on a kind of an incline."
- Q. And then how about a few minutes later when he is cranking the dollies, what is his exertion level at that point? And remember we are talking about minus 18 or minus 16 or minus 20 in Thompson.
A. At that temperature, he'd be huffing and puffing also.
Q. Would you break a sweat doing these dollies, or is it just exertion or is it real exertion?
A. It's just sort of more or less real exertion. It's huffing and puffing, and I don't know what more a guy can say.
The Appeal Panel subpoenaed the operations supervisor who was with the deceased at various times during the fatal day. The witness described in detail the involvement that he had had with the deceased on the afternoon of December 28th,1995:
"So then he went down to unload. I had some other business to do in town and he went down to Inco to off-load his load. I got a phone call around, I think it was around 3:00.
From [the deceased], saying that he could not get his hydraulic lines hooked up. He was having problems. So then I proceeded to go back on Inco property to help him out and get him going, and -- I think it was roughly -- it would have to be around a quarter after 3:00 I believe, 3:00, between 3:00 and 3:30 for sure, because I went there, got everything situated. We were backed in. He was -- we unloaded the first trailer, and that was right around 4:00 by the time we had the first trailer unloaded, because then I went over to Inco Transportation at 4:00. And he was pulling -- he was just lowering his box at the time and he was going to pull out, drop his back trailer, back in his front trailer and unload the front trailer. And I come back -- I was going to leave the property and I thought, well, I'll just make sure he didn't have no problems. I swung around again to see if everything was all right, and I think that was around 4:30, because I left Transportation I think right at 4:30 because they were going home, and it's only a two minute drive over to there. So then I went back over there and that's when I come around the corner and the trailer still wasn't unhooked and nothing had been done basically, except for the trailer had been pulled out of the bay. And then so I went to check where he was and in the truck and I found him inside the truck. --All's he had to do was lower the box. When I left there, the box was still in the air."
- Q. Can you tell us about when you came back and you mentioned the box on the pup trailer was down?
A. "Well, the truck was pulled out. It was out. Like we back into a building to dump there. It was out in the yard where we split trailers. And when I come up to the truck, you could see that the hydraulic lines were disconnected and everything, and the back dollies were down. Everything looked like it was ready to, but nothing was disconnected. I thought he was hooked back up already. I thought the front trailer had been dumped already and he was hooked back up. But I couldn't find him. I looked around. I went back into the M.R. building and I couldn't find him. And then when I come back out, I checked the truck and that's when I found him, was in the truck. And like I told the police afterwards is that I walked -- you could walk around and tell how far he had got in disconnecting everything, because normally a driver will disconnect his airlines and his hydraulic lines, then he'll crank his dollies, then he'll pull his fifth wheel pin before he splits."
Q. Is there any set rule or procedural matter with regards to either uncoupling the power lines or the hydraulic lines first before putting the cranks down?
A. "Yes. Well, normally what you do is you would get up in the middle of the trailers, because you're in between the trailers, and disconnect the air lines so your back brakes will go on, because you don't want to disconnect nothing without the brakes on the trailers. So on a normal procedure, a driver will go out, disconnect the hydraulic lines, air lines and light cord. Then he'll crank his dollies. Then he'll pull his fifth wheel. Because you don't want to pull the fifth wheel pin while the dollies are up because if the brakes don't lock on, it can disconnect the unit with the dollies up in the air. It's happened many times before."
Q. You have mentioned that you're an experienced trucker of 14 years experience. What sort of force or energy is required to put these dollies up and down?
A. "Well, depending on the temperature. You know, in the summer you can do it with one hand and in the winter it can make you sweat, you know to move them up and down in cold weather. And it's the same thing as your connections. If you don't release the pressure and try to hook the connectors up, you are, you know, you're going to exert yourself." (emphasis ours)
Legal counsel for the claimant called a cardiologist to give expert testimony with respect to the claimant's pre-existing condition and its relationship to the cause of death.
- Q. Have you formed an opinion as to what was the cause of his death on November, or December 28, 1996?
A. "The cause of his death was a cardiac arrythmia, most often due to ischemia, which I will define as a lack of blood supply to the heart relative to its demand. In his case, the background is he had coronary artery disease, a narrowing in one of the main arteries that supplies blood to the his heart. That restricts the flow such that when the demand for flow is increased, it isn't able to supply it. The heart becomes irritable and then arrythmia occurs."
Q. And what would be the cause of the ischemia in this case?
A. "The cause of the ischemia is an increased demand and most often that's caused by increased physical activity. Like that increases the heart rate and the blood pressure, which increases the demand for oxygen. The relative demand/supply can also be altered if there is what's called spasm of the artery that is in question, such that a minor narrowing or a moderate narrowing can become much more severe if the arterial wall constricts."
Q. What would be the trigger factor for that then?
A. "Again exertion can do that. It can come on spontaneously. Sometimes exposure to cold can produce that. But, you know, in this particular case, if there was evidence that he was exerting himself at some point shortly before he died, then that's clearly the triggering factor for the ischemia."
Q. Doctor, obviously you have hit the nail on the head, and the problem that we have to struggle with in adjudicating this case is was there or was there not exertion.
Q. Now that is a pretty general term. As you have indicated, you could simply be walking down the street. Now a man that had an occlusion of 80 per cent in his artery, what degree of exertion would be required to bring on arrythmia?
A. "You were asking the degree of exertion that is required for an 80 per cent lesion. It depends on a number of factors, but in general above average exertion, usually straining type exercise where you are having to pull against something and strain, tighten up your abdominal muscles to do that. Walking in the cold or the wind, for example is more than above exertion, even though when you were walking in normal weather it wouldn't produce a problem. Repetitive bending also is exertion that would the type to bring that on. You have all seen examples of people snow shoveling and that sort of thing, and pushing their cars out of the ditch, who have collapsed because of that type of exertion produced the arrythmia, or the ischemia and then the arrythmia. A narrowing of 50 per cent usually does not produce ischemia, okay? It requires something usually over 70 per cent to produce ischemia that we can detect, for example on a stress test or something like that."
Q. Okay. Now the next question deals with the window -- of time prior to the arrest. Are we talking 20 minutes? Are we talking half an hour, an hour?
A. "We're basically talking minutes. The usual pattern is that -- the initial arrythmia that's produced is called ventricular tachycardia. Where there's irregular beating of the heart, that may still produce some output from the heart. That eventually deteriorates to ventricular fibrillation, which produces no output, and that's what ultimately causes death."
The employer's advocate concluded her remarks by requesting the Appeal Panel to uphold the Review Office's decision "that there has been no indicators to document that the accident or the death arose out of course of employment, that the employment activities, as we have been led to believe today, were not significant enough to cause the death that we know has been caused by the coronary artery disease."
Counsel for the deceased's widow, on the other hand, requested us to overturn the Review Office's decision and find, "in accordance with the presumption and in accordance with the evidence that you have heard today, that [the deceased's] death arose out of his employment and that he died as a result of the physical exertion, mainly in cranking the dollies, that Dr. [the cardiologist] clearly stated was the most likely cause of the ischemia, leading to arrythmia and Mr. [the deceased's] death."
We find the evidence clearly establishes that the deceased became unconscious at some point in time between 3:50 and 4:30 p.m. on December 28th, 1995. We also find as a fact that when the deceased was last seen alive the procedure to disengage the pup trailer had not been started. More specifically, the dollies or landing gear had not yet been cranked down. However, when the operations supervisor returned to the deceased's truck at 4:30 p.m., the various cables and lines had been disconnected and the dollies were in the down position. We further accept the evidence that it requires considerably more physical exertion to crank the dollies down in the wintertime than it does in the summertime. We note, as well, that the opinions of the MRP and the cardiologist both conclude the deceased would have had to expend physical exertion in order to trigger ischemia.
The preponderance of evidence leads us to conclude that the presumption the deceased's accident arose out of his employment has not been rebutted. On the contrary, the weight of evidence confirms, on a balance of probabilities, that the deceased did expend physical exertion sufficient enough to trigger ischemia which later led to arrythmia and ultimately his demise. The deceased's death was as a result of an accident which both arose out of and in the course of his employment. Accordingly, the deceased's widow's claim is acceptable and the appeal is hereby allowed.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of February, 1999