Decision #29/08 - Type: Workers Compensation
Preamble
This appeal deals with whether the worker’s injury on April 26, 2006 is acceptable as a workplace accident. Evidence established that the worker suffered from a rare condition, Takotsubo Syndrome, while at work. The Workers Compensation Board (WCB) denied acceptance of the claim but the Review Office accepted the claim as an accident. The employer appealed the Review Office decision.
A hearing was held on January 15, 2008 at the request of an advocate, acting on behalf of the employer.
Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
In early May 2006, the worker filed a claim with the WCB for chest pain that started at work on April 26, 2006 when she was asked to complete a double shift during the course of her employment as a registered nurse. When later seen by an emergency room physician, the worker was advised that she had suffered a heart attack.
The employer’s accident report noted that on April 26, 2006, the worker had a 20 minute lunch breach and no afternoon coffee break. She felt tired and thirsty at 14:30 hours. After being told that she was mandated to work a double shift, the worker went to a classroom to cry. The worker reported to her clinical manager that she was tired and did not feel well. The worker then asked her colleagues if they would help her out and stay but they declined. By 16:10 hours, staffing was able to fill the vacant shift and the worker was advised that she did not have to stay. She went back to work still not feeling well and then the worker developed central chest pain, increased fatigue and restlessness. The worker went to the emergency room and was diagnosed with inferior myocardial infarction, stress related.
Medical information was received from the treating cardiologist dated May 16, 2006. He reported that the worker was referred from the hospital with a history of Takotsubo Syndrome. He stated the worker suffered an anterior myocardial infarction with an acute episode of stress. The worker had normal coronary arteries. The stress came from the fact that she was not feeling well while at work where her supervisor told her that she had to stay and do overtime. The worker eventually ended up having chest pain that took her to the emergency room. In a further report dated June 12, 2006, the cardiologist stated “This is truly an example of Takotsubo Syndrome.”
On June 19, 2006, a WCB adjudicator determined that the worker’s claim for compensation was not acceptable. He stated “Current legislation specifically stipulates that claims for stress or conditions resulting from stress are not considered to have arisen “out of and in the course of” employment unless it occurs as an acute reaction to a traumatic event. This does not appear to have occurred…Your situation does not meet the requirements of a stress claim, as outlined in the Workers Compensation Act, and the dominate (sic) cause of your cardiac condition is not work related.” On July 26, 2006, the worker appealed this decision to Review Office. On August 24, 2006, Review Office referred the case back to primary adjudication and asked it to consult with a WCB medical consultant before finalizing its decision.
On September 12, 2006, a WCB internal medicine consultant reviewed the file information at the request of primary adjudication. In his opinion, the diagnosis was myocardial infarction of either the inferior or anterior wall due to small vessel disease or coronary artery spasm. Before providing any further comments, the consultant requested that further information be obtained from the treating cardiologist along with laboratory test results.
In a memo dated December 19, 2006, the WCB internal medicine consultant reviewed the new medical information that was obtained by primary adjudication. The consultant agreed with the treating cardiologist’s diagnosis of acute myocardial infarction induced by stress. He said the results of a MUGA scan of June 5, 2006 suggested non impairment of the left ventricle and hence no impairment.
On January 15, 2007, the WCB adjudicator advised the worker that he was upholding his previous decision to deny the claim. He considered the WCB policy dealing with psychological conditions, Policy 44.20.60 and WCB policy 44.20 entitled “Disease/General”. He stated that the difficulties the worker explained to be the cause of both her stress and heart attack did not meet the criteria as set out in The Workers Compensation Act (the Act) and WCB policy. The worker appealed the decision to Review Office.
On May 16, 2007, Review Office determined that the worker’s claim for compensation was acceptable. Review Office stated WCB policies dealing with disease and myocardial infarction were irrelevant as this worker’s cardiac event occurred in the absence of any underlying coronary artery disease. It felt that WCB policy dealing with psychological conditions was not relevant as the worker’s claim was for a physical injury and not a psychological reaction to stress. Review Office noted that the attending cardiologist and WCB internal medicine consultant agreed that the worker suffered from a cardiac episode related to perceived severe emotional stress. As it considered that the primary cause of the worker’s stress was the demand by her employer that she work a double shift, it determined that the claim for compensation was acceptable. The employer disagreed with Review Office’s decision and appealed to the Appeal Commission. On January 15, 2008, an appeal panel hearing was held.
Reasons
Employer’s Position
The employer was represented by an advocate and a staff person. The advocate submitted that the worker’s condition, on a balance of probabilities, did not arise out of and in the course of her employment. She noted that the WCB does not recognize stress whether it results in psychological or physical disability, as a compensable event unless it results from an acute reaction to a traumatic event. She stated that being told to work overtime is not a traumatic event in the nursing field.
She reviewed the diagnosis of the worker’s condition, Takotsubo Syndrome also know as Apical Ballooning Syndrome and noted that it is a relatively rare condition which has only recently been recognized in North America. She indicated that research shows it may be triggered by acute emotional stressors, such as the loss of a loved one, domestic abuse and catastrophic medical diagnosis. In some cases it is believed to have been triggered by acute physical stressors such as trauma or the aftermath of surgery or illness. She also identified information on possible risk factors and noted that the worker has a number of the risk factors. She also noted that the worker had a history of pervious cardiac symptoms.
The employer’s representative reviewed the worker’s activities and complaints on the day of the incident and noted the worker commenced the day by taking a decongestant for sinus congestion. She also noted the worker had various symptoms of illness throughout the day.
The employer’s representative noted that the worker had attributed the stress she felt, in part, to harassment from co-workers which had been ongoing for some time. She noted that such stress is not compensable.
The employer’s representative submitted that the file information documents that it was the act of being asked to work overtime that precipitated the perceived emotional stress and such stress, whether it results in psychological or physical disability, is not compensable.
Worker’s Position
The worker was represented a worker advisor who made a submission on her behalf. The worker answered questions posed by the panel.
The worker’s representative stated that the worker is not taking the position that the specific event that caused the injury is being told to work overtime. Rather many factors were involved. He stated it is the cumulative effect of the job duties being performed throughout the day, leading to an accident. He stated that it makes sense in this case to look at not just the issue of overtime, but everything leading up to that and how she was feeling. He stated this is a classic case of an accident that happened at work, as concluded by the Review Office. He submitted that the presumption (subsection 4(5) of the Act) applies. He also noted that this is a physical injury.
In answer to questions from the panel the worker reviewed her day up to the time of the admission to the emergency ward. She acknowledged the use of a decongestant and experiencing more symptoms as the day wore on.
She provided information on her previous cardiac incidents.
The worker indicated that she was perturbed but not overly angry about the overtime incident.
Analysis
The worker’s condition has been diagnosed as Takotsubo Syndrome, a rare syndrome that has been characterized as cardiomyopathy or transient left ventricular apical ballooning in the absence of coronary artery disease.
The worker’s cardiologist reports that the worker suffered an anterior myocardial infarction with an acute episode of stress. He stated that “The stress came from the fact that she was feeling unwell while at work…where her supervisor told her that she had to stay and do overtime.”
The panel accepts the evidence provided by the employer representative that while very little is known about the condition, limited studies show that patients with the condition share some risk factors and that the worker had some of the noted risk factors.
The question before the panel is whether the worker’s claim is acceptable. For the appeal to succeed the panel must find that the worker was injured by a workplace accident. The accident must have arisen out of and in the course of employment. The panel did not make this determination.
Subsection 4(1) of the Act provides that compensation is payable where “personal injury by accident arising out of and in the course of employment is caused to a worker”. With respect to an accident, for the claim to be acceptable as an accident, the claim must satisfy the requirements of subsection 1(1) which defines accident as follows:
"accident" means 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;
Subsection 1(1.1) of the Act, is germane to this consideration. It provides:
The definition of “accident” in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.
The employer has referred to subsections of the Act dealing with occupational disease and indicated that as the incident was caused by stress, it is not acceptable. The worker’s representative submitted that this is not an occupational disease case. The panel finds that this is not an occupational disease case and that the occupational disease provisions do not apply. An occupational disease is a disease arising out of and in the course of employment and resulting from causes and conditions peculiar to or characteristic of a particular trade or occupation or to that particular employment. There is no medical or scientific evidence to establish that the worker’s condition, identified as Takotsubo Syndrome, is an occupational disease.
The inquiry this panel must make is therefore whether or not there was an accident. This determination requires the panel to examine whether an event happened at work that could have caused the worker’s injury and whether the diagnosis is consistent with that mechanism of injury. In reviewing and weighing the evidence, we find on a balance of probabilities that the worker did not suffer an accident at work.
The panel notes that the worker’s symptoms commenced before she attended work. She took an antihistamine when she got up in the morning for sinus congestion which she had the prior day. The worker had other symptoms during the day before she was told she had to work overtime, including not feeling well, feeling out of touch, having difficulty concentrating, and feeling thirsty.
The most significant incident that appears to have occurred on the day of the incident was the request or direction that the worker work additional hours at the end of her shift. It is this request which has been identified by the cardiologist as the event that caused the worker’s injury. The panel finds that this event, which deals with a change in the worker’s employment, is excluded from the definition of accident under subsection 1(1.1) and therefore the event and resulting condition cannot be considered an accident. Accordingly the panel concludes that the worker did not sustain an accident as required by the Act. The panel finds that the presumption does not apply given the application of subsection 1(1.1) which expressly excludes such events from the definition of accident.
The worker did refer to other contributing factors including the heat and humidity on the ward on the day of the incident and harassment by co-workers. The evidence of the cardiologist is that the overtime incident was the event that caused the condition. He does not identify environmental factors or harassment by co-workers as a cause of the episode or the resulting condition. The evidence does not demonstrate that the worker suffered personal injury as a result of these factors.
The panel is unable to identify any other event or activity that happened to the worker in the workplace on April 26, 2006 that would establish an accident under the Act.
Accordingly, the employer’s appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 19th day of February, 2008