Decision #173/06 - Type: Workers Compensation

Preamble

This appeal concerns a worker who died while in the course of his employment as a long haul truck driver. The worker died at the wheel of his truck after having shifted the load in his trailer. He had a significant pre-existing cardiac condition. The claim was accepted by the Workers Compensation Board (WCB). The employer disagreed with the acceptance of the claim and appealed to the WCB’s Review Office and then to the Appeal Commission.

An appeal panel hearing was held on September 14, 2006, at the employer’s request. The panel discussed this appeal following the hearing on September 14, 2006.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The worker died on March 3, 2004 while employed as a long haul driver. The worker’s daughter reported that her father died while weighing his truck at a truck stop. The worker had shifted the load on the trailer and had just re-weighed the unit when he collapsed at the wheel. Prior to losing consciousness, he had asked his wife who was traveling with him for a nitroglycerin pill.

The employer’s report of accident indicated that the worker had a pre-existing heart condition. The employer disputed the acceptance of the claim as it was the felt that the worker’s death was caused by his pre-existing heart condition and was not related to a work accident.

On March 12, 2004, the worker’s daughter told a WCB adjudicator that her father had shifted 2000 lbs. that consisted of 50 lb. bags around in his trailer just prior to his death. This was considered part of the worker’s job duties and it was common for truckers to have to shift the weight of their loads. She noted that the family physician had given her father medical clearance in January 2004 to perform his truck driving duties. She indicated that her father had a heart attack in 1992 and had by-pass surgery and an angioplasty. He recently quit smoking, did not drink and cooked most of his own meals. He did no outside work activities.

The worker’s daughter advised the WCB adjudicator on March 17, 2004 that according to her mother, no one witnessed her father moving the load in his truck. It took him approximately 20 to 30 minutes to shift the load and he had the heart attack approximately 5 to 10 minutes later.

On June 23, 2004, the employer’s Director of Safety and Driver Training advised the WCB that he was unable to confirm whether or not the worker had shifted his load prior to his death. He indicated that the worker picked up a load in Ontario and then drove to the United States.

On July 7, 2004, the Director of Safety and Driver Training indicated that the worker hooked up his trailer in Winnipeg on February 29, 2004 and drove a full load to Michigan and arrived on March 1, 2004. The loads are unloaded by other workers using fork lifts and pallet jacks. The worker then ran an empty load to Dorchester, Ontario. His trailer was loaded in Dorchester and he continued his route back to Winnipeg. The worker did not pick up any other loads along the way. It had been confirmed that the worker would have driven through 3 weigh scales before this scale when the incident occurred.

On July 12, 2004, the worker’s widow spoke to a WCB adjudicator. She advised that her husband told her that the truck was not pulling the load right, so he pulled the truck over and weighed the load. He was surprised that the weigh scale ticket said it was over 2000 lbs. Her husband said they would have lunch and then he would shift the load. Her husband was fine at lunch and they ate with two other drivers. After lunch, it was noted that the truck had been loaded wrong at the last pick up point. There were drums on the back of the trailer instead of the front which they felt had caused the weight problem. These drums could not be moved by hand. They moved the bags of chemicals on skids. The skids were plastic wrapped around the sides and they had to pick the bags from the centre of the skid. There was no plastic on the top. They took the bags from the skid and her husband threw the bags to the front of the truck. They did not have to move all of the bags. They moved what they thought was about 2000 lbs. worth. He pulled the pin on the trailer to slide the wheel base to stretch the trailer out more to correct the weight problem. He locked the pins in place and then got in the truck and drove to the scales. They were weighed and he drove off the scale to pick up the weigh ticket. He then asked for a nitro pill. The widow advised that she had gone on the last three trips with her husband and not once did he shift a load.

In a memorandum dated August 24, 2004, the WCB adjudicator indicated that the employer had not been able to confirm the act of shifting the load on March 3, 2004 was the worker’s regular job duty. Although legalizing loads was part of the worker’s job demands, frequency had not been established and therefore this was not a job demand that was performed on a daily/regular basis. The adjudicator indicated that shifting the load (2000 lbs.) on March 3, 2004 was deemed to be a significant trigger factor which occurred in the course of the worker’s employment.

An autopsy was performed in Winnipeg and a report dated April 27, 2004 was provided to the WCB. The report noted that the worker had an extensive history of heart disease with multiple previous myocardial infarcts and triple bypass surgery. The autopsy findings included:

“Heart:

Changes of left ventricular hypertrophy, with extensive interstitial and replacement fibrosis of the posterior wall of the left ventricle. Some fibrotic areas are relatively recent and cellular, and focal areas showing acute ischemic changes (wavy fibers, contraction bands) are seen next to large scars. The native coronary arteries show severe atherosclerosis. The LIMA graft to the left anterior descending coronary artery is patent, while the vein graft to the circumflex artery is moderately aneurysmally dilated and obstructed by atherosclerosis. The vein graft to the right coronary artery is massively aneurysmally dilated, and completely occluded by thrombus in the early stages of organization.”

A WCB internal medicine consultant reviewed the file information on August 25, 2004. He opined that the worker’s death was due to ventricular arrhythmia in a person with previous myocardial infarction and coronary artery grafts, one of which showed recent thrombus resulting in focal areas of necrosis of the heart muscles. He noted that the worker called for nitroglycerine pills and that it would seem that the recent physical activity produced chest pain due to ischemia resulting in focal necrosis (infarction) and arrhythmia relating to sudden death.

On August 25, 2004, the claim for compensation was accepted by the adjudicator and the worker’s widow was notified accordingly.

In a letter to the employer dated November 1, 2004, the adjudicator outlined her opinion that since it could not be established the frequency upon which the worker was required to adjust freight or equipment loads, it was determined that this job demand was not performed on a daily or regular basis. The act of shifting the 2000 lbs. load in the truck on March 3, 2004, was the triggering event. The adjudicator also took note of the worker’s pre-existing condition but found that the worker was cleared to drive in a yearly driver’s physical in December 2003.

On April 18, 2005, an advocate for the employer appealed the acceptance of the claim. The advocate submitted that the worker’s passing was due to his pre-existing severe and advanced cardiac disease which was the cause of his prior heart attacks and was therefore the greater risk factor. He believed that the claim was disqualified under paragraph 1.a of WCB policy 44.10.10.60 and the probable cause of the myocardial infarction was coronary artery disease as per the autopsy report under paragraph 1.b of policy 44.10.10.60.

On April 27, 2005, Review Office wrote to the worker’s family physician and cardiologist to obtain information related to the worker’s prior heart history. This information, however, was not received at the time of Review Office’s June 22, 2005 decision.

Legal counsel, acting on behalf of the widow, provided Review Office with a rebuttal submission dated June 14, 2005. Legal counsel submitted that the worker’s job duties which involved tossing 25 and 50 pound bags on March 3, 2004, was the unusual and strenuous activity and trigger factor or event that led to his myocardial infarction.

On June 22, 2005, Review Office outlined its view that the unusual and strenuous activity in moving the load was the trigger factor or event leading to the myocardial infarction. It found that the claim was acceptable.

On November 29, 2005, legal counsel for the employer asked the Appeal Commission to obtain the medical records from the worker’s physician and cardiologist for its review and consideration. The Appeal Commission wrote the physician and cardiologist and asked them to supply medical information pertinent to the worker’s past medical history. This information was later received, placed on file and shared with the parties.

The information from the physicians confirmed that the worker had triple aortocoronary bypass surgery in 1993 and suffered from cardiovascular disease.

Legal counsel for the employer appealed the decision to accept the claim, an oral hearing took place at the Appeal Commission on September 14, 2006.

Reasons

Legislation and Policy

Claims involving cardiac conditions are generally adjudicated as accidents under the general provisions of The Workers Compensation Act (the Act) or under WCB Policy No. 44.10.10.60, Myocardial Infarctions (M.I. policy). Where there is no evidence of a myocardial infarction, the general provisions of the Act are applied. Where there is evidence of a myocardial infarction, the M.I. policy is applied. The WCB and Review Office found that the worker suffered a myocardial infarction and adjudicated the claim under the M.I. policy.

Subsection 4(1) of 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."

If the panel determines there was no myocardial infarction, the claim should be adjudicated as follows:

In accordance with this section [4(1)], 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,

b. any

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."

With respect to the present case, the question arises whether the worker’s death was causally related to his employment duties. According to subsection 1(1)(b)(i) of the Act, it is necessary to establish that the accident both arose out of and in the course of employment. The phrase "arising out of" generally refers to a causal connection between the work being carried on by the worker and the injury sustained. The phrase "in the course of" has been interpreted to mean that the incident occurred at work, or while discharging one's employment duties.

In cases which involve death, it often happens that one component of an accident can readily be determined, but not the other. When this situation occurs, subsection 4(5) of the Act comes into play.

WCB Policy No. 44.10.20.10, Pre-Existing Conditions may also be applicable. It 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."

On the other hand, if the evidence establishes that the worker suffered a myocardial infarction, the case must be adjudicated under the M.I. policy which deals specifically with myocardial infarctions. In the case of myocardial infarctions where there is pre-existing cardiovascular disease, the M.I. policy provides that the claim 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,…"

In this case there is no evidence that the worker’s underlying cardiovascular disease is work related, therefore the underlying condition is not compensable. That being the case, if the panel determines that the worker suffered a myocardial infarction, it must then determine 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 was represented by legal counsel and its Director of Safety and Driver Development. The employer’s counsel made a presentation on behalf of the employer.

The employer’s counsel noted there was one global issue to be determined by the panel, whether the claim is acceptable. He noted there are several sub-issues that arise in dealing with the global issue. These include:

  1. whether the worker’s death was caused by a myocardial infarction, which brings into consideration whether the M.I. policy is applicable.
  2. whether the worker’s death arose out of his employment activities. The employer acknowledges that the worker’s death arose in the course of his activities but questions whether the death arose out of the employment activities.
  3. whether the physical activity the worker was involved in before his death, the carrying of bags, placed demands upon his heart that were in excess of the demands typically placed upon it.
  4. whether the carrying of the bags or shifting the load, as opposed to the other activities the worker was involved in prior to his death, as opposed to his underlying cardiac condition, was the proximate cause of the worker’s death.

The employer’s counsel submitted that the worker’s death is not compensable. He submitted that the probable cause of death was the worker’s severe and advanced cardiac disease.

The employer’s counsel noted the worker has a pre-existing condition and referred to the pre-existing condition policy. He said that if it is likely that the worker’s death was caused at least in part by a compensable accident under the pre-existing conditions policy the claim is acceptable. He submitted that in the converse “…if its just as likely that it was not caused by a compensable accident then it should not properly be compensable.” The employer’s counsel submitted that the claim is not acceptable as an accident.

Referring to the M.I. policy, the employer’s counsel submitted that there is no compelling evidence that the worker had a myocardial infarction and accordingly the M.I. policy is not applicable. The employer’s counsel referred to the evidence of a cardiac specialist who was retained on behalf of the employer. He noted the specialist’s opinion that there is no evidence that a myocardial infarction occurred from the findings described in the autopsy report.

If a myocardial infarction had occurred and the M.I. policy was applicable, counsel stated that the claim would not be compensable because the conditions in place at the time of death were not in excess of those experienced on a regular basis by a truck driver. He stated that shifting loads is part of the duties of long haul truckers. He also stated there was no trigger factor as required by paragraph 1.(a) of the M.I. policy. He emphasized that the worker’s wife reported to the WCB that the worker did not seem to have any difficulties while shifting the load. He stated there was no evidence that the worker was placed under any undue stress. He also submitted that there is no temporal relationship between shifting the load and the worker’s medical difficulties. He noted there was a 5 to 10 minute gap between shifting the load and the worker’s slumping over the wheel in the cab of the truck.

The employer’s counsel submitted that without the M.I. policy, the panel must look at whether the activity the worker was engaged in provided such significant stress on his heart that it caused the injury. He said the panel must look at the activity and see how the worker fared and determine if there is a temporal relationship between the activity and the death. In this case, counsel submitted the presumption in subsections 4(5) is rebutted by the worker’s cardiac condition, the worker’s condition during and after the activity and the break in the temporal relationship.

Worker’s (Widow’s) Position

The widow attended the hearing with legal counsel who made a submission in support of acceptance of the claim. The widow answered questions posed by her counsel and by the panel.

The widow’s counsel submitted there is a clear connection between the shifting of the load, the worker suffering symptoms and his ultimate demise.

The widow’s counsel reviewed the medical evidence. With respect to the opinion of the employer’s cardiac specialist, he notes that the specialist states that he cannot conclude that there was not a myocardial infarction. He referred to the opinion of the WCB internal medicine consultant and the autopsy report and concluded that the worker did suffer a myocardial infarction.

The widow’s counsel submitted that the moving of the load was a significant stressor and triggering event which resulted in his demise.

He noted that the worker passed a medical examination in December 2003 and was permitted to keep his class 1 license and continue truck driving.

The widow indicated that she had traveled with the worker for approximately 3 months and that during that time the worker had not shifted a load until the day of the accident.

The widow provided a detailed description of the events surrounding shifting the load and the worker’s death. With respect to the task of shifting the load, she advised that she assisted with moving smaller 25 lb. bags but that the worker moved the 50 lb. bags. She advised that the bags were moved from the back of the trailer towards the front. She estimated that it took from 30 to 40 minutes to move the load.

Regarding the worker’s condition when he was shifting the load, the widow advised the worker was “having a hard time” and was “getting exhausted”. She advised that the worker was having difficulty breathing while shifting the load and had to stop and rest while performing this function. She provided evidence as to the chronology of events from the time that the worker completed the shifting of the load and the short distance driven and elapsed time to the weigh scale where he passed out. She also advised that shortly before passing out at the wheel of the truck, the worker asked for his nitroglycerine pills.

The widow advised that the worker was concerned about the contents of the bags and that some bags had broken open. The widow’s counsel noted that the autopsy did not include a chemical analysis and there is no indication whether chemical exposure was a factor in the worker’s symptoms.

At the request of the panel, the employer’s representative advised that the load contained class 9 dangerous goods which are a consumer product.

Analysis

The issue before the panel was whether the claim is acceptable. For the employer’s appeal to be successful, the panel must find that the worker’s injury on March 3, 2004 was not causally related to the worker’s employment duties. The panel was not able to make this finding.

A central issue to this appeal is whether the worker suffered a myocardial infarction. There is no conclusive evidence on this issue. The panel, in making its findings, has applied the civil standard of proof, a balance of probabilities, and was unable to conclude that the worker suffered a myocardial infarction. The panel notes that the autopsy report did not specifically conclude that a myocardial infarction occurred. The panel also notes the comments of the cardiac specialist retained by the employer who opined that there is no indication that a myocardial infarction occurred from the findings of the autopsy.

As the panel did not find that the worker suffered a myocardial infarction, the panel must consider the claim under the general accident provisions and determine whether the worker suffered personal injury by accident arising out of and in the course of his employment. The panel did make this finding and concluded that the claim was acceptable.

In arriving at this determination the panel places significant weight upon the following:

  • memorandum from WCB internal medicine consultant, August 25, 2004. Although the panel does not find that the worker suffered a myocardial infarction, the panel accepts the consultant’s opinion that death was due to ventricular arrhythmia. The consultant noted that the worker died unexpectedly after doing recent physical activity and comments that the physical activity produced chest pain due to ischemia.

  • report of cardiac specialist retained by the employer , August 21, 2006. The specialist noted the autopsy finding that there were changes in the myofibrils related to ischemia and concluded that the death could have been related to ischemia and the development of a fatal ventricular arrhythmia. He stated further that “It is quite possible that the prior physical effort led to that ischemia.” The panel agrees with this opinion. The panel is satisfied that the specialist had a good understanding of the circumstances surrounding the worker’s physical activity as he was provided with the Review Office decision which outlined these circumstances.

  • autopsy report, April 27, 2004. The report notes “In light of this man’s underlying severe cardiac disease and limited myocardial perfusion, strenuous physical activity, with its attendant increase in heart rate and workload, would produce a significantly increased risk of myocardial ischemia and associated cardiac dysrhythmias.”

The panel finds that the weight of medical evidence supports the finding that the worker’s work activity, specifically the shifting of the load, contributed to the worker’s death a few minutes later. Pursuant to the pre-existing conditions policy the claim is acceptable as the worker’s work activities combined with his pre-existing condition caused the injury which resulted in the worker’s death.

As the M.I. policy is not applicable, the panel need not consider whether there was a trigger factor which is deemed to be significant and which occurred in the course of his employment. However were the M.I. policy to have applied, the panel would have found that the requirements of the policy were met in that there was a significant triggering event, and that the claim would be acceptable under the policy.

At the hearing, the widow advised that the worker was in some distress when shifting the load. This evidence differs from the information on the claim file where it is noted that the widow told a WCB staff person that the worker did not seem to have difficulty moving the bags. The employer’s counsel asked the panel to accept the file evidence provided shortly after the accident as the best evidence of the worker’s condition. The panel questioned the widow extensively on this issue and on the circumstances surrounding the shifting of the load and accepts the widow’s account of the events and the worker’s condition. The panel finds this evidence to be consistent with the evidence that the worker asked for his nitroglycerine pills.

The employer’s appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of November, 2006

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