Decision #04/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on November 23, 2017 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
The worker filed a claim on July 26, 1996 stating that he had suffered a heart attack while at work on April 23, 1996.
The worker's August 27, 1996 statement indicated that his normal working hours were eight hours a day, Monday to Friday and his work consisted of doing heavy duty mechanical repairs and inspections, including maintenance work on trailers. His statement further noted that his symptoms began on Friday, April 19, 1996 in the evening. He indicated that at work on that day, he had a trailer in the shop and he had changed the brakes on one side of the trailer which was considered a "normal job" for him. He finished work at 4:30pm and went home to relax for the evening. At approximately 9:30pm to 10:30pm he noted that he started to feel what he thought was heartburn. His statement goes on to say that he didn't do anything strenuous that weekend and went in to work the following Monday morning. He felt "tired" that day but had no other symptoms until he went to bed that evening when he awoke with what he believed to be "real bad heart burn, worse than on Friday."
The worker's statement indicated that he went in to work on the morning of April 23, 1996 when he was advised by his employer that the worker's wife had made an appointment for him at his doctor's office. When he attended for his appointment, he was advised by the doctor to go to the hospital as it was suspected he was having a heart attack.
The hospital record indicated that the worker presented with chest discomfort that had lasted all weekend. "Throughout the weekend, he had recurrent spells with partial relief with antacids. Several spells were associated with shoulder, upper arm and some lower neck discomfort." He was diagnosed with acute anterior myocardial infarction, treated and released from hospital.
The WCB advised the worker on November 14, 1996 that his claim was not acceptable as his symptoms did not appear while he was at work nor were his activities unusual or excessive that day and therefore, his condition did not arise out of or in the course of his employment.
On December 4, 1996, the worker filed a request for review stating, in part, that "…the decision was incorrectly made because the heart attack I suffered did occur while I was at work on April 19, 1996."
Review Office determined on January 16, 1997, that the claim was not acceptable as it was of the opinion that the evidence did not substantiate that the worker's myocardial infarction was caused by or occurred in the course of his employment. Review Office also found that when the worker made his submission on December 4, 1996, the history of when the worker first felt the symptoms changed. In his submission, he stated that he felt symptoms in the evening of April 18, 1996 "when he shoveled some snow off the top of a trailer."
On April 26, 1999, the worker submitted further medical information and requested a reconsideration of the January 16, 1997 Review Office decision. On May 18, 1999, the worker was advised that his claim, including the further medical information submitted, was reviewed but the Review Office decision would not be changed. On August 24, 2017, the worker filed an appeal with the Appeal Commission and an oral hearing was held November 23, 2017.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
The issue before the panel is whether the worker's claim is acceptable. This claim arises from an incident that occurred in 1996. In adjudicating this appeal the panel must apply the Act in place on the date of the accident and any applicable policies.
Section 4(1) of the Act provides for the payment of compensation benefits to a worker where he or she sustained a personal injury by accident arising out of and in the course of their employment.
In accordance with section 4(1), the panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. That is, "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."
As this claim deals with a myocardial infarction, the claim is dealt with under WCB Policy 18.104.22.168, Myocardial Infarctions, ("M.I. policy"). The M.I. policy deals specifically with myocardial infarctions. In the case of myocardial infarctions where there is pre-existing cardiovascular disease, the M.I. policy provides that the claim must be adjudicated by first determining whether the underlying cardiovascular disease is compensable as an occupational disease. If it is determined that the underlying cardiovascular disease is not compensable, then the myocardial infarction will be adjudicated as an accident and will be compensable if the following criteria are met:
a.) an event or trigger factor has occurred that is deemed to be significant and which occurred in the course of employment and arose out of the employment. In order for a work cause to be determined to be the cause of a myocardial infarction, medical evidence of causation must be available and the factors believed to have caused it must create conditions in significant excess of the conditions that the worker experiences on a regular basis, or,
b.) an event or trigger factor occurring in the course of the employment, arising out of the employment cannot be excluded and examination fails to identify any other probable medical cause of the myocardial infraction, including evidence of vascular disease.
The worker was assisted by his daughter. The worker answered questions posed by the panel.
The worker's daughter advised that her father believes his heart attack was caused by his work. She noted that at the time of the injury, one of his physicians expressed the opinion that he didn't have the heart attack because of his work.
She said that her father was told that that if he could find a doctor to support his position that his heart attack could have happened at work, that he would be able to appeal the WCB decision. She noted that his current physician provided a letter indicating that it is possible that the worker's repetitive heavy lifting and straining contributed to his myocardial infarction.
With regards to the worker's duties she noted that her father had a heavy job, he was a truck driver and a certified trailer mechanic. He had to remove and install tires on trailers. The tires weight between 250 and 300 pounds. There was about 250 trailers he had to certify. There were only two people in the business where he worked, her father and the owner. She noted that the owner did not do any of the heavy work, he mostly stayed in the office and did the business end of the business. Her father did all of the heavy "grunt" work, including moving the trailers. The business rented out trailers, and her father would deliver them to the clients' premises for use.
Regarding the incident that caused his accident, the worker's daughter advised that the worker believes it occurred when he had to move a trailer which had been parked earlier in the winter and which was stuck. There was no lift to help him so he had to manually dig it out.
In reply to a question about the medical report that was submitted in November 2017, the worker's daughter advised that the physician did not have a copy of the worker's WCB file but did have the worker's medical file.
The worker was asked his position on when the accident occurred. The worker advised that it happened on April 23, 1996 while he was pulling the trailers out of the mud. He said he didn't feel right so he called his wife and she took him to his family doctor.
Regarding his duties on April 22, 1996 and April 23, 1996, the worker acknowledged that he changed tires on trailers. He said on Monday he changed tires. There were two tires on each axle and each tire weighed 200 to 250 pounds. He had to lift the tires about five or six inches. The worker acknowledged that on Tuesday, April 23, 1996, early in the morning, he woke up with what he thought was real bad heartburn, worse than what he had on the previous Friday.
He said that he went in at 5:00 am. The worker advised that on April 23, 1996 in the morning, he had to finish that trailer, finish all the brakes and put the tires back on. He then hooked it up and delivered it. He said that after he parked the trailer, he was asked to move a trailer that he had parked in the cold weather.
He said that:
So I took the shovel, I shoveled enough mud off to get it hooked up to the trailer. And then I had to shovel the mud off the back wheels of the trailer, about this much mud. So then I took it out and I parked it where they wanted it.
He said that after doing the shoveling, he felt something was wrong.
When his prior statement was read to the worker, he disagreed with the accounts provided and denied that he had claimed the heart attack occurred on Friday, April 19, 1996.
The employer is no longer in operation.
The issue before the panel was whether the claim is acceptable. For the worker's appeal to be approved, the panel must find that the worker's April 1996 injury was causally related to the worker's employment duties. The panel was not able to make this finding.
The panel notes that the worker's current recall of the events surrounding his heart attack are different than those reported in the file in 1996. In making this decision the panel attaches greater weight to the evidence provided nearest to the incident.
The panel finds, in accordance with the medical evidence, that the worker's heart attack occurred on Tuesday, April 23, 1996.
The panel reviewed the evidence regarding the worker's activities on April 23, 1996 as described in a sworn statement taken from the worker on August 27, 1996. The statement includes the following:
• The first symptoms appeared Friday, April 19, 1996 in the evening, he had a trailer in the shop on that day and had to change the brakes.he did not remember anything being unusual or more difficult than usual with changing the brakes that day.
• he came home and had a relaxed evening.
• somewhere between 9:30 and 10:30 PM he started to notice what he thought was heartburn. It was gone the next morning. • on Monday April 22, 1996 he felt tired but no other symptoms. • early in the morning on Tuesday April 23, 1996 he woke up with what he thought was real bad heartburn; he took Maalox and the symptoms eased up. • he went to work and delivered a truck to its location. It was already hooked up to the truck in the shop. He unhooked it at the destination. His heart burn was no worse when working. • he returned to the shop about noon and was told that his wife arranged an appointment with a doctor for him. • he went to see the doctor just after lunch, by that time his joints felt sore all over (shoulders, jaw etc,). • he saw his physicians who advised him to go to the hospital as they suspected a heart attack. • he went to a hospital where they admitted him and performed tests.
The worker offered a different description of his April 23, 1996 duties at the hearing. However, as noted above, the panel attaches greater weight to the evidence nearest the incident.
The panel notes that the worker's employer advised that when the worker arrived at work on April 23, 1996 "he did not look well …he told me of chest pains that would not go away". The panel finds that the evidence on the file from the worker's employer is more consistent with the worker's early statement than his later evidence. The panel finds that the worker's activities were as noted in the statement.
The worker was asked about a letter dated December 4, 1996 to the WCB bearing what appeared to be his signature. He disagreed with the content of the letter.
The panel notes that there was no evidence of an underlying vascular condition which caused or worsened the worker's injury. Therefore it was appropriate to adjudicate the claim under the M.I. Policy. However, the panel is not able to identify a triggering event that occurred at work which would cause the heart attack.
Although the worker reported symptoms when he was at work on April 23, 1996, the evidence shows that these symptoms were present before he attended work. The panel is not able to find that the symptoms arose out of the worker's employment on April 23, 1996.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
S. Briscoe, Commissioner
A. Finkel, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 10th day of January, 2018