Decision #128/11 - Type: Workers Compensation

Preamble

The employer is appealing two decisions made by the Workers Compensation Board ("WCB") dealing with claim acceptability and entitlement to cost relief. A hearing was held on July 19, 2011 to consider these matters.

Issue

Whether or not the claim is acceptable; and

Whether or not the employer is entitled to more than 50% cost relief.

Decision

That the claim is acceptable; and

That the employer is not entitled to more than 50% cost relief.

Decision: Unanimous

Background

The worker was working as a drywall taper on July 19, 2010 when he felt a crushing pain in his chest. The employer's accident report indicated that the worker had chest pains which started on the weekend and after lifting tools at work, he felt more pain.

On July 20, 2010, the employer noted that the worker made a delivery during the morning of July 19, 2010 at about 10:00 a.m. and after leaving the job site he went to a hospital and was treated for a mild heart attack.

On August 3, 2010, a WCB adjudicator spoke with the worker by telephone and the following information was obtained:

  • The worker was asked to clarify the employer's information that he was having chest difficulties over the weekend. The worker indicated that he went to his cabin on the weekend and went canoeing which he always did. When he got back from the canoe trip he felt funny and felt some tightness in his chest but thought nothing of it. He then worked on rebuilding the steps on his cabin and general work around the cabin on Saturday and Sunday and felt fine with no other symptoms.

  • On the morning of the July 19, 2010 incident, the worker said he felt fine before the start of his shift. He worked alone without a partner. On the day of the incident, he started the day off with a sanding job and was using a sander over his head and above chest level for about two and a half hours. After he finished the job he felt some tightness and chest pain but did not think too much about it. He packed up his tools and loaded them into the truck. The tool bag weighed 60 pounds. He also loaded some scaffolding into the back of the truck along with some pails of plaster. When he drove to the next job and started to unload, the tightness and the pain became much worse so he went home sick. When he got home, he was not getting any better so his wife took him to the hospital. The worker indicated that he never had problems with his heart before.

On August 23, 2010, the adjudicator spoke with the employer's representative. The representative said he was not at the job site on the morning of the incident so he could not confirm what the worker was doing on that day.

In e-mail correspondence dated August 23, 2010, the employer's representative indicated that he spoke with a co-worker. The co-worker said that the worker arrived at the job site at about 11:30 a.m., unpacked his tools, then complained of being sick and left the job site before doing any work. Prior to this particular work site, the worker came from another job site. The supervisor at this job site said that everything seemed fine.

On September 3, 2010, the worker provided the WCB adjudicator with the following additional information:

  • The worker was asked to provide details of the sanding he performed on July 19, 2010. The worker noted that he was using a pole sander and he spent over three hours that morning sanding mostly overhead. He did one ceiling and the straight walls. He saw his supervisor about one hour after he started work and at that time he did not feel too bad.

  • Once he finished the shift, he loaded up his tools and drove about one half hour to the other job. On the way to the other job, he started to have symptoms but it was not until he started unloading his tools when he really started to have pressure in his chest.

  • The worker noted that he felt some discomfort after the canoe trip. He did not have any other symptoms over the rest of the weekend and felt okay on Monday morning.

On November 8, 2010, a WCB medical advisor reviewed the worker's hospital records and lab reports and opined that the worker's Troponin T and CPK levels were consistent with an acute NSTEMI inferolateral infarction on July 19, 2010. By memo dated November 29, 2010, he provided the following clarification:

"The clinical evidence points to occurrence an acute NSTEMI inferolateral MI on Monday July 16 (sic), 2010. There is no information on file that would enable me to determine the cause of chest pains occurring on Friday July 16, 2010, but angina pectoris is probable. Another possibility would be chest wall pain, or gastrointestinal pain, but there is no objective information available to me that would allow me to differentiate."

Following consultation with the WCB's healthcare branch, the worker's claim for compensation was accepted based on the diagnosis of an acute NSTEMI inferolateral myocardial infarction. On November 15, 2010, the WCB adjudicator noted to the file that the employer was entitled to 50% cost relief due to the worker having a pre-existing condition that was related to his chest difficulties. A letter confirming this decision was sent on December 14, 2010.

On December 9, 2010, the adjudicator spoke with the worker's supervisor. The supervisor indicated that he saw the worker between 7:30 and 8 a.m. on July 19, 2010. The worker was sanding when he saw him and the worker seemed okay. He thought the worker started work at 7:30 that morning. After he finished the job, the worker would wheel out his scaffold with the tools loaded on it and put it in his truck. It would have taken the worker 30 to 35 minutes to get to his next job. The supervisor confirmed that when he left he felt the worker would have been finished that job in about one hour. It would take the worker about 20 minutes to load up and 35 minutes to drive to the next job.

On December 9, 2010, the adjudicator contacted the worker. The worker said he usually started work at 6:30 but because he was working in a school he could not start until 7:30. He confirmed that he saw his supervisor between 7:30 and 8 a.m. and was sanding at the time. After the supervisor left, he had about one hour of work left to do. The worker indicated that he was sanding for an hour and a half and not two and a half hours as was indicated in a previous conversation with the adjudicator. When he arrived at the next work site he unloaded his gear and then felt ill and left the job site. He drove home first to see if resting would help but as he did not feel any better, his wife took him to the hospital.

On December 21, 2010, the employer wrote to the adjudicator stating that he wished to appeal the WCB's decision to accept the claim and that it was 50% responsible for the worker's heart attack. The appeal was forwarded to Review Office for consideration.

In a decision dated February 15, 2011, Review Office determined that the worker's claim was acceptable and that the employer was not entitled to more than 50% cost relief. With regard to claim acceptability, Review Office accepted the opinion expressed by a WCB medical advisor dated November 8, 2010 and November 22, 2010 that the worker had a heart attack on July 19, 2010. Review Office accepted that the worker was in the course of his employment on July 19, 2010 when he started to experience chest tightness and pain. His chest difficulties were causally related to his employment duties of overhead work and medium/heavy lifting.

Review Office further determined that the employer had been correctly provided with 50% cost relief based on the criteria outlined under schedule A of WCB Policy 31.05.10, Cost Relief/Cost Transfers. On March 2, 2011, the employer appealed Review Office's decisions to the Appeal Commission and a hearing was arranged.

Reasons

Applicable legislation and policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsection 4(1) of the Act provides:

4(1) 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.

WCB Policy 31.05.10 Cost Relief/Cost Transfers (the “Policy”) describes certain specific circumstances when a claim cost may be transferred from an accident employer to a shared cost pool. This process is called “cost relief”. Schedule A to the Policy provides:

Where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition, the WCB may provide cost relief.

The following pre-existing conditions will result in 100% cost relief to the employer:

  • Where the prior condition is determined to be the primary cause of the accident, for example, epilepsy.
  • Where the wearing of an artificial appliance is determined to be the primary cause of the accident.
For other claims involving a pre-existing condition where time loss exceeds 12 weeks, the employer will receive cost relief for 50% of the entire costs of the claim.

Employer’s Position:

The employer is a local construction company and was represented at the hearing by its president. The thrust of the employer's position was that it was unfair to assess the claim against the employer as it could not have reasonably prevented the worker's heart attack short of not ever hiring him in the first place. The worker was performing his regular duties on the day of his heart attack and was not doing anything out of the ordinary. He was not being rushed or pressured by the employer to over exert himself. He was just doing the job that he was hired to do. It was the employer's contention that the primary cause of the worker's heart attack was a pre-existing condition and not his job duties as a drywall taper. The employer questioned what he could have done to prevent the heart attack and stated that if he is going to be held responsible for the injury, he would want to know how he could have prevented it. It was noted that it would be discriminatory to refuse to hire new employees based on high blood pressure, high cholesterol, obesity or family history of heart problems.
 

It was also noted that the file material indicated that the worker had crushing chest pains while canoeing on the weekend. The worker did not seek medical attention on the weekend, but instead came to work and then had more crushing chest pains which led him to go to the hospital. It was unfair to base the law on luck, that is, just chance that the heart attack occurred while at work, rather than on the weekend while cutting grass or canoeing.

Finally, it was noted that subsection 4(5.6) was the only clause in the Act which specifically referred to heart attacks. It was submitted that if heart attacks were intended to be treated as jobsite injuries for all employees, there would have been no need for the special section relating to firefighters. The worker in this case was not a firefighter.

Worker's Position:

The worker did not participate in the appeal.

Analysis:

The issues before the panel are whether or not the claim is acceptable and whether or not the employer is entitled to more than 50% cost relief. In order for the employer's appeal to succeed, the panel must find that the worker's heart attack was not an injury by accident arising out of and in the course of his employment. We are not able to make that finding.
 

The panel has sympathy for the employer's position. We acknowledge that the employer is a conscientious employer with a good safety program and record and we understand why having the claim assessed against its experience rating may be frustrating. Nevertheless, the Act affords benefits to workers so long as they are injured while performing activities arising out of and in the course of employment. In the present case, the panel is satisfied that this test is met.

We accept that the worker was in the course of his employment when he suffered the heart attack. Although there was some indication that the worker did suffer some chest pains over the weekend, review of the laboratory reports by the WCB medical advisor confirmed that there was clinical evidence of a myocardial infarction occurring on the Monday. The employer's submission noted that the exact time of the heart attack was not identified, but given that the worker reported for work that morning, completed one job and was in the process of moving to the next jobsite, the panel is satisfied that he was in the course of his employment when the heart attack occurred.

The panel also accepts that the heart attack arose out of the worker's employment. Although the worker was not performing any unusual duties, the work he was performing was physical. The first job which the worker completed involved overhead sanding, which would be expected to entail some degree of exertion. The panel finds that the work of a drywaller involves a sufficient degree of physical activity such that it could reasonably be expected to have contributed to the occurrence of the heart attack.
 

We do not accept the employer's argument regarding the interpretation of subsection 4(5.6) of the Act. There is ample precedent for the finding that a heart attack is an injury for which worker's compensation benefits are generally payable regardless of the worker's specific occupation. We do not read subsection 4(5.6) to limit entitlement; rather we read that section as expanding entitlement in the case of firefighters.

With respect to cost relief, the WCB has acknowledged that there was evidence of a pre-existing condition which contributed to the time loss from work and accordingly, the employer received cost relief for 50% of the entire costs of the claim. In order to grant the employer 100% cost relief, the panel would have to find that the pre-existing condition was the primary cause of the heart attack. The evidence on file does not allow us to make this finding. The indication on file was that the worker was feeling "ok" on Monday morning, and he performed his physical duties for between 1.5 to 3 hours that morning, before loading his equipment and travelling to the second job site. It was only when he was unloading his tools at the second location that he started to experience the symptoms of his heart attack. In the circumstances, the panel finds that the pre-existing condition was not the primary cause and that the work duties played a significant contributing role. We therefore find that the employer was correctly granted 50% cost relief and is not entitled to more. The employer’s appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
P. Marsden, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of September, 2011

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