The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's heart attack arose out of and in the course of his employment. A hearing was held on April 22, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

On January 27, 2012, the worker delivered 50 pizzas to a school and was on his way to drop off his next order when he suffered a heart attack while driving his vehicle. The worker was taken to hospital by paramedics and was later pronounced deceased.

On February 7, 2012, a WCB adjudicator spoke with the worker's father and the following information was obtained.

• on the day of accident, the worker and his staff were all cooking pizzas, boxing the pizzas and loading them onto the worker's vehicle. The worker was delivering the pizzas alone and on the way to deliver them he suffered a heart attack.
• he had spoken to the staff and they all indicated that his son was feeling fine, he looked fine and made no comments of feeling unwell.
• in May 2011, his son went through a full physical and everything was fine. He did not have any prior heart difficulties or a condition.
• there was a family history of heart problems.
• his son's heart attack happened out of nowhere. He was very healthy and active and he played hockey, baseball and went jogging.

On February 10, 2012, the employer's representative was contacted by the adjudicator and the following information was documented:

• the worker had started work at 8:46 a.m. on January 27, 2012. At first he was only working with one other staff. He made a phone call to head office indicating that he needed help as they had a big order. The worker sounded very stressed. Other co-workers arrived at 10:00 to help out.
• the worker was helping to prepare the pizzas. He was pounding and stretching out the dough balls and he boxed and cut up the pizzas. The order for 50 pizzas went out at 11:45 and the worker loaded the pizzas into his truck with the help of a co-worker.
• the worker delivered the pizza on his own to the school. After dropping them off, he proceeded to make a second delivery at a home. A bystander saw the worker in his car on the same street as the school he had just delivered. The bystander saw his car go up onto a yard, scraped the side of a house and hit a tree.

The school principal was contacted on February 10, 2012. She said she met the worker when he arrived with the pizza. She said the worker seemed rushed and was out of breath. He had parked in the bus loop about 100 feet from the entrance and delivered the pizza to just outside the library. Some moms had offered him some assistance but he told them he was okay. The worker had made three trips from the car into the school. He was carrying the pizza by hand and she noted he did not look well which was why they had offered him assistance.

On May 25, 2012, the claim for compensation was accepted by the WCB and the initial death benefit was provided to the worker's estate.

On February 5, 2013, the employer submitted an appeal to Review Office as he disagreed with the WCB decision to accept the claim. The employer outlined the view that the worker passed away from a heart attack due to a cholesterol issue and he was performing the same duties for over 20 years. He said carrying 5 pizzas was not strenuous or stressful. The employer later provided Review Office with a written submission dated May 28, 2013.

The WCB obtained a copy of the autopsy report which was reviewed by a WCB medical advisor on July 26, 2013. The medical advisor stated in part: "...this combination of factors led to ischemia of the heart muscle which is a known trigger for a ventricular tachyarrhythmia in a scarred left ventricle. This led to a sudden cardiac arrest (SCA) followed by sudden cardiac death (SCD) after resuscitation efforts failed."

On July 26, 2013, Review Office denied the employer's appeal and found that the worker's death did arise out of and in the course of his employment. Review Office stated that the worker suffered from severe coronary artery disease and scarring on the heart wall based on the autopsy

report. It determined that these issues along with obesity contributed to his death. Review Office stated that although the worker had a significant pre-existing condition, this alone did not remove him from having an acceptable claim. Review Office noted that the actions of the worker carrying 30 to 45 lbs. of pizza 100 feet three times increased his heart rate. This activity became "the thing that is done and the doing of which" as per the definition of an "accident." After his heart rate was elevated and the need for oxygen rich blood in the heart was not fulfilled, the worker suffered the injury which led to his death. On January 1, 2014, the employer appealed Review Office's decision to the Appeal Commission and an oral 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 44.10.20.10 (the “Policy”) addresses the issue of pre-existing conditions when administering benefits. The Policy states:

The Workers Compensation Board of Manitoba will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition as a pre-existing condition is not “personal injury by accident arising out of and in the course of the employment.” The Workers Compensation Board is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

The Policy further provides:

1. WAGE LOSS ELIGIBILITY

a. 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 Worker’s Compensation Board will accept responsibility for the full injurious result of the accident.

The employer’s position:

The employer was represented by its president. At the outset, the president stated that the worker had been a friend and no disrespect was meant by pursuing the appeal. The employer's position was that pre-existing conditions were not covered by the Act and that ultimately, the worker's death was brought on by pre-existing coronary artery disease. The autopsy report indicated that the worker had had a previous undiagnosed heart attack and that there was residual scarring in his arteries. The employer noted that on the day of the accident, the worker was not doing anything out of the ordinary for their business. The temperature of -3 degrees was not unusual for Manitoba and the worker had been doing the same type of job since 1991. The worker had personally delivered to this same school over a hundred times during the previous few years. The employer could not see how the work could be high risk for causing a heart attack. The injury was not one which could have been prevented. The activities which went on that day were no different than any other day. It was the pre-existing condition which was the one and only cause of the worker's death.

The worker’s position:

The worker's estate was represented by the worker's father. The worker's father provided some background information regarding the worker's health and the pre-existing condition. He had been advised that the worker had major coronary disease which no one knew about and which has been called the "silent killer." The father also added that the worker's occupation was not a run of the mill job. It was a very demanding job, both in terms of physically making the pizzas, and the responsibility and long hours involved. The worker was not one to avoid doing the work which needed to be done and it was nothing for him to work 14 to 15 hours in one day if he had to. He was a very conscientious individual and he made things happen.

Analysis:

The issue before the panel is claim acceptability. For the employer’s appeal to be successful, we must find on a balance of probabilities that the performance of job duties by the worker did not in any way cause or contribute to his heart attack. We are not able to make that finding.

There is no question that the worker's pre-existing medical condition played a significant role in the heart attack. The Policy, however, provides that where the injury is caused in part by a compensable accident and in part by a non compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the accident.

On the day in question, the worker had just delivered 50 pizzas weighing 2.2 pounds each. The employer questioned the evidence that the worker made the deliveries in 3 trips, stating that there was no video evidence of how many trips the worker took. The panel, however, can only rely on

the best available evidence. In this case, the best available evidence would be that of the principal who was present at the time and indicated that the worker made 3 trips from the car into the school. The bags used to carry pizzas were sized either for 5 or 10 boxes. Although there was no specific evidence as to the size of bags which were used by the worker, it is sufficient to determine that the worker carried a total of 110 pounds of pizzas in three trips in a relatively short span of time. This would have been an average of about 37 pounds per trip. The distance from the vehicle to the building was about 100 feet. The panel is satisfied that the performance of these job duties involved sufficient physical exertion that the worker experienced increased demand on his heart muscle. As indicated by the WCB medical advisor in her opinion of July 26, 2013, the mismatch between the worker's demand for, and supply of, cardiac muscle blood flow then resulted in ischemia and the subsequent sudden cardiac arrest.

The panel therefore finds that the worker's heart attack was caused, at least in part, by the performance of his job duties. While there was little the employer could do to prevent the injury, the job duties nevertheless placed an additional stress on the worker's heart muscle which resulted in the heart attack arising out of and in the course of employment. The claim is thereby acceptable and the employer's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of June, 2014