Decision #110/12 - Type: Workers Compensation

Preamble

The employer is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that the worker had a loss of earning capacity due to his heart attack of July 19, 2010 and was therefore entitled to wage loss benefits. A hearing was held on October 10, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits.

Decision

That the worker is entitled to wage loss benefits.

Decision: Unanimous

Background

The worker filed a claim with the WCB for chest pain that occurred at work on Monday, July 19, 2010 while employed as a drywaller. The claim for compensation was accepted by the WCB based on the diagnosis of an acute NSTEMI inferolateral myocardial infarction and the employer was provided with 50% cost relief. The decision to accept the claim and to provide 50% cost relief was upheld by the Appeal Commission under Decision No. 128/11 dated September 14, 2011.

On February 17, 2012, the employer's representative asked Review Office to reconsider the decision to pay the worker wage loss and medical aid benefits in relation to the July 19, 2010 compensable incident. The representative took the position that the worker's loss of earning capacity and disability was due in fact to the myocardial infarction ("MI") that occurred on Friday, July 16, 2010 after the worker went "canoeing", as opposed to the accepted work injury of Monday, July 19, 2010. The representative stated:

"… the medical evidence on file demonstrates that the claimant definitely suffered an MI as a result of canoeing on Friday, July 16, 2010. It further demonstrates that his MI of July 16 was significantly worse than any cardiac event that occurred on Monday July 19. The symptoms were much worse after the July 16 MI. Furthermore, the treating doctor has clearly implicated that MI as the main cause of the claimant's required treatment and his subsequent disability."

We would further submit that the timing involved with these events is significant to ascertaining the WCB wage loss eligibility on this claim. The claimant's serious MI of July 16 occurred on a Friday. The claimant did not work on the subsequent weekend. As such, he never established an attachment to the workplace nor an ability to work after his serious July 16 MI. When he first attempted to do routine work on Monday, July 19, he could not physically manage it as evidenced by his need for medical treatment. As such, the evidence shows that the most likely cause of his disability beginning Monday July 19 was his July 16 MI and not his normal work activities of July 19.

We do take exception to a couple of notes in the Appeal Panel's decision which we feel are not supported by the actual evidence on file. In particular, the Appeal Panel stated: "The worker felt some discomfort after the canoe trip". This description of relative minor discomfort is not supported by the medical reports on file. The WCB's Medical Advisor also understated the July 16 symptoms by stating: "the worker experienced chest difficulties while canoeing on Friday July 16, 2010". In actual fact, the treating doctor stated: "patient was previously healthy - developed central crushing chest pain while canoeing July 16, 2010". He went on to add: "likely has STEM 1 July 16 and recurrent MI July 19".

The doctor's description of the claimant's July 16, 2010 MI ("crushing central chest pain") is hardly chest "discomfort" or "difficulty". In fact, the evidence indicates that the claimant's symptoms were actually worse on July 16 than on July 19. In any event, it is extremely difficult to conclude that his disability was due to only the July 19 cardiac symptoms…on a balance of probabilities, it makes much more sense that his disability was caused by the July 16 MI with the accompanying crushing chest pain. When one also considers that the claimant was never able to establish his ability to work on his first try post-MI (ie: on July 19), the most logical cause of his disability (and loss of earning capacity) was his July 16 MI.

It is also significant that the treating doctor …stated that the claimant had a "late presentation of inferior ST elevation myocardial infarction". As such, the treating doctor has clearly placed more emphasis on the July 16 original MI as the cause of his problems and disability. It would appear, then, that the July 19 episode was not the primary cause of the claimant's disability.

In summary, whether the July 19, 2010 incident is compensable or not (obviously accepted by the Appeal Panel), we believe that the whole of the evidence clearly implicates the July 16, 2010 MI as the cause of the claimant's subsequent disability. As such, we are requesting that the decision to pay wage loss benefits on this claim be rescinded. We would suggest that WCB write off any overpayment and relieve the costs from the employer's firm experience."

On April 12, 2012, Review Office determined that the worker was entitled to wage loss benefits. Review Office noted that in the employer's submission, they state that the medical evidence demonstrated that the claimant definitely suffered an MI as a result of canoeing on Friday, July 16, 2010. Review Office indicated that it was not in their jurisdiction to find this to be a matter of fact or to find that there was a loss of earning capacity related to anything the worker had experienced on July 16, 2010. Review Office's authority was only to determine whether or not there was a loss of earning capacity due to the effects of the compensable injury of July 19, 2010.

Review Office indicated that the evidence was not conclusive that the worker did or did not have an MI on July 16. Review Office noted that the worker was fine the morning of July 19, 2010 and had an MI during his shift and then stopped work. It was logical to relate the worker's loss of earning capacity that began after the event causing the MI on July 19, 2010 to the MI of July 19, 2010. Review Office further was of the view that the 50% cost relief given to the employer took into account any contribution of a pre-existing condition that affected the worker's disability duration from his compensable injury. On April 13, 2012, the employer's representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

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

In this case the employer is contesting the payment of wage loss benefits to a worker on an accepted claim. Subsection 4(2) of the Act provides that a worker who is injured in an accident, as defined under subsection 1(1) of the Act, is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

Employer's Position

The employer was represented at the hearing by its president and an advocate. The advocate provided a written copy of his presentation. The advocate and president answered questions posed by the panel.

The advocate acknowledged that the issue of acceptance of the claim was dealt with by the Appeal Commission and that the Appeal Commission found the claim to be acceptable. The advocate also acknowledged that the Appeal Commission dealt with a request from the employer for cost relief on the worker's claim. He said the employer accepts the Appeal Commission determinations, but is now appealing the payment of wage loss benefits on the claim.

It is the employer's contention that the July 19 heart attack was minor when compared to the non-compensable July 16 heart attack. He said no wage loss benefits should be paid on the accepted claim as the loss of earning capacity was due to the July 16 heart attack. He also said that the medical costs, including the surgery, was due to the July 16 heart attack. He said that the worker did not establish an attachment to the workforce nor demonstrate his ability to perform his job duties after the July 16 heart attack.

The advocate suggested that the issue can be treated as a claim duration issue, with the employer's position being that claim duration was very limited. He said that the time loss on the claim was not due to the accepted claim but rather due to the non-compensable July 16 heart attack.

In support of the employer's position, the advocate said he wished to demonstrate that a heart attack occurred on Friday July 16 by comparing the July 16 and 19 heart attacks. He reviewed the medical information on the file. He noted that the attending physician referred to "crushing central chest pain" on July 16 while the WCB medical advisor referred to the July 16 incident as "chest difficulties while canoeing." The advocate disagreed with the Appeal Panel's characterization of the July 16 event as "some discomfort after the canoe trip."

The advocate said that the appeal panel relied heavily upon incorrect information from a WCB medical advisor.

The advocate submitted that the evidence indicates that the worker's symptoms were actually worse on July 16 than on July 19. He said it was extremely difficult to conclude that the worker's disability was due to only the July 19 cardiac symptoms. He relied upon the discharge summary of the treating cardiologist which indicated the worker "had a late presentation of inferior ST elevation myocardial infarction…"

The advocate advised that the employer attempted to obtain a further report from the treating cardiologist, but he refused to provide a report without the consent of the worker. The advocate asked the panel to obtain a report if it does not feel the employer's arguments are sufficient to accept the appeal.

Worker's Position

The worker did not participate in the appeal but asked that the file "…record that he disagrees with the employer's position; that he is entitled to wage loss benefits as paid and agrees with the Adjudicator's decision."

Analysis

This is an employer appeal on an accepted claim for a workplace injury that occurred on July 19, 2010. The issue under appeal is whether the worker is entitled to benefits arising from the accepted workplace injury. For the employer's appeal to be accepted, the panel must find that the worker did not sustain a loss of earning capacity as a result of the workplace injury, or in other words, that the worker's inability to work after the injury was not due to the workplace injury. The panel was not able to make this finding.
As noted in the background, this case was the subject of an appeal in 2011. At that time the Appeal Commission determined that the claim was acceptable and that the employer was entitled to not more than 50% cost relief. While the issue before us is different - entitlement to wage loss benefits - the employer, in essence, disagrees with the previous Appeal Commission decision. Much of the employer's submission dealt with the difference between its view of the evidence and that of the Appeal Commission as noted in Decision No. 128/11.

  • The employer has disagreed with the previous appeal panel's finding that "The worker felt some discomfort after the canoe trip." The employer submits that this description of relative minor discomfort is not supported by the medical reports on file.
  • The employer submitted that the previous appeal panel relied heavily upon incorrect medical information.
  • The employer submitted that the medical costs and time loss are not due to the compensable injury but are due to the non-compensable July 16 heart attack. The previous appeal panel found that the worker's duties played a contributing role in the July 19 heart attack.
  • The employer submitted that the worker did not demonstrate an earning capacity, nor an attachment to the workforce, nor an ability to continue his work after the July 16 heart attack. The previous appeal panel wrote that: "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." The previous panel also accepted that the July 19 heart attack arose out of the worker's employment: It wrote that: "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."

To accept the employer's arguments the panel would have to re-weigh or reconsider the evidence already considered by the Appeal Commission and make different findings of fact. The panel is not able to do this. The Act provides that "…the appeal commission shall not reconsider any matter or rescind, alter or amend any decision or order previously made by it, or make any further or supplementary order." Accordingly, the panel is not able to reweigh the evidence that was before the previous appeal panel and make different findings.

In conclusion, the employer's appeal rests on this panel finding that the July 19 heart attack was a minor incident and that the medical costs and wage loss are not related to the July 19 heart attack. Having considered the previous appeal panel decision and the evidence on file, the panel is unable to make these findings. The panel notes that a workplace accident was established on July 19, and that the uncontroverted evidence on file is that the worker immediately sought medical attention which led to his absence from the workplace. As such, the panel finds that the worker is entitled to wage loss on this claim and that the benefits paid are related to the workplace injury.

While the advocate discussed the issue of duration of benefits, its position was that no benefits were payable as a result of the workplace injury. The panel disagrees and accepts the October 5, 2010 opinion of the worker's family physician that the worker should remain off work until November 2010. The panel considers this to be a reasonable period of time for the worker to recover from the injury.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of October, 2012

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