Decision #143/08 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (WCB) for an injury that occurred at work on June 25, 2007. The claim for compensation was denied by Rehabilitation and Compensation Services (RACS) on the grounds that it was unable to establish that an accident occurred as defined in section 1(1) of The Workers Compensation Act (the Act). The decision was appealed to Review Office. On October 31, 2007, Review Office confirmed that the claim was not acceptable on the grounds that section 4(1) of the Government Employees Compensation Act (GECA) had not been met. The worker appealed to the Appeal Commission and a hearing took place on October 8, 2008.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
An employer’s accident report dated June 26, 2007 indicated that the worker “…claims she got dizzy & fell on her side. No time loss – restrictions.” The date of accident was recorded as being June 25, 2007.
As English is the worker’s second language, the worker’s friend/co-worker called the WCB’s call centre on June 27, 2007 to help the worker file her compensation claim. He indicated that the worker injured her head and low back on June 25, 2007 due to the following incident that occurred on June 25, 2007:
“She was putting the fish on the machine. The machine is very loud and she was trying to call [a co-worker]. She got dizzy. That is why she called [the co-worker]. She fell down and hit her head and her back on the floor. She almost hit the other machine which was close to the other machine. I [name] work the other line and I saw her falling down. She was taken to the first aid room.”
It was further indicated that the worker went to work on June 26, 2007 with a doctor’s note stating that she could work light duties but as the employer was unable to provide her with light duties, the worker was sent home.
In a letter to the WCB dated July 3, 2007, an advocate for the employer outlined her position that although the worker’s injury of June 25, 2007 arose in the course of employment, it did not arise “out of the course of employment”. She indicated that the subject injury was therefore not a compensable condition as required by subsection 1(1) of the Act as described in WCB Policy 44.05.
On July 9, 2007, the worker advised her WCB adjudicator that she was fine prior to her shift on June 25, 2007 and she was not sure why she became dizzy. She had no medical condition and there were no changes to her work environment. The worker indicated that she was standing and putting fish on the line which were her normal work duties. She became dizzy and fell to the ground, injuring her head and back. The worker indicated there were no work hazards in the area that caused her to fall such as slippery ground or being pushed.
In a decision dated September 28, 2007, the worker was advised that a medical report confirmed that she sought medical treatment on June 25, 2007 and the diagnosis provided was syncope. The worker was further advised that since there was no work related incident or accident in relation to her dizziness, it was the opinion of RACS that it was unable to establish that an accident as defined in subsection 1(1) of the Act arose out of and in the course of her employment. It was therefore unable to accept responsibility for her claim including medical treatment and time loss. On October 22, 2007, the worker appealed the decision to Review Office.
On October 31, 2007, Review Office determined that the worker’s claim for compensation was not acceptable. Review Office noted that RACS did not consider the worker’s claim under GECA in its decision. It pointed out, however, that the same provisions apply to GECA in that a worker must be in the course of their employment as well as, the accident must arise out of the employment. This meant, not only does a worker have to be at work when the accident happens, but there has to be some part of the worker’s employment that caused the accident.
Review Office indicated that this was not the situation in this case. The worker was simply working at the line which satisfied the ‘in the course of’ part of the definition of an accident, but there was nothing at work that caused her to be dizzy and fall. It could not be said the accident arose out of the worker’s employment. As both parts of subsection 4(1) must be satisfied, Review Office was unable to accept the claim and denied the worker’s appeal. On April 23, 2008, the worker appealed Review Office’s decision to the Appeal Commission and an oral hearing was arranged.
Reasons
Applicable Legislation
The worker is employed by a federal government agency and her claim is therefore adjudicated under the GECA. Under the GECA, an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”
Subsection 4(1) of the GECA provides that compensation shall be paid to an employee who is caused personal injury by an accident arising out of and in the course of employment. Under subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.
The key issue to be determined by the panel deals with causation and whether the worker’s injury arose out of and in the course of her employment.
The WCB Board of Directors made WCB Policy 44.05.10 dealing with the application of the GECA. It provides principles to be used in interpreting the definition of accident. The panel finds this policy did not assist with determining the work relatedness of the worker’s injury.
Worker’s Position
The worker was assisted at the hearing by an interpreter. She described the incident and answered questions posed by the panel.
The worker explained that she does not know what happened when she was injured. She said she fell down and recalls her co-workers calling her name and crying, “Wakeup”. She went to the first aid room and then to the hospital emergency ward where she stayed for ten hours.
The worker explained her duties and described her work station. She explained that fish came down a chute and she places individual fish on a machine. She stands while working at this work station. She faces the machine and works directly in front of her, moving fish closer to her body. She is not required to turn from side to side while moving the fish.
The human resource officer assisted in describing the work set-up. She advised that the worker is the only person at this workstation and provided details on the volume of product the worker deals with. She advised that staff are rotated through positions every two hours.
The worker confirmed that she stands while performing her duties at this work station. While performing her duties she wears boots, hearing protection and a hairnet. She confirmed there was nothing different about the workstation on this date.
The worker advised that she had eaten breakfast and she was not dizzy before the shift. She also advised that she does not smoke, drink or have diabetes. She described a remote history of heart problems.
The worker advised that she had been dizzy on other occasions at home, but that it was not the same.
She said she injured her arm and head when she fell and is taking pills. She also advised that she cannot work at her former job and is now working at a different position.
Employer’s Position
The employer was represented by an advocate and a human resource officer.
The employer representatives provided photographs of the worker’s work station. These were admitted as exhibits.
The employer advocate reviewed the applicable legislation and policy and the WCB decisions on the claim. She submitted that the evidence supports a finding that the worker’s dizziness and fainting episode resulted from non-work-related personal factors. She noted a lack of specific work related incident or accident prior to the worker’s dizziness or prior to the actual fall. She said that no specific hazard of the premises has been identified that could have caused the worker’s dizziness and fainting that led to her fall. She also noted that no disease has been identified and that the claim is not acceptable as an industrial disease claim.
She noted that the diagnosis provided on the file was syncope and referred to the various causes of this condition.
The employer’s advocate referred to WCB Policy 44.05.20, General Premises, which provides, in part, that the WCB will make a distinction between an injury resulting from a personal cause and one resulting from employment. She said that the lack of a specific incident, the fact that the worker was performing her regular duties and the knowledge that syncope is known to be a condition that can occur as a result of a medical condition or in healthy persons without warning supports the conclusion that the syncope more likely resulted from personal factors and not from work-related factors.
The employer advocate also submitted that the injuries resulting from the fainting are not a consequence of work. She concluded that although the injury occurred in the course of employment, the overwhelming weight of evidence shows that her injury did not arise out of her employment.
Analysis
The issue before the panel is whether the worker’s claim is acceptable. For the appeal to be successful the panel must find that the worker’s injury occurred in the course of employment and arose out of employment. The panel was not able to make this finding.
The panel acknowledges that the injury occurred in the course of employment but finds that the evidence, on a balance of probabilities, does not establish that the injury arose out of her employment. In making this decision, the panel notes that the evidence does not demonstrate a causal connection between the worker’s fainting and her employment. The evidence shows there was no change of duties, no change to the workstation, no fumes or chemicals, no change in room temperature, no piece of equipment and no duty which can be said to have caused the worker to faint and fall. The panel also notes that there is no medical evidence on the file either asserting or supporting a causal connection between the worker’s fainting incident and a hazard of the workplace. The panel finds that it was more likely that the cause of the worker’s fainting episode was a personal factor unrelated to employment.
The worker’s claim is not acceptable and her appeal is denied.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
G. Ogonowski, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 14th day of November, 2008