Decision #25/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss and medical aid benefits after June 5, 2017. A hearing was held on September 11, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss and medical aid benefits after June 5, 2017.
That the worker is not entitled to wage loss or medical aid benefits after June 5, 2017.
On June 6, 2017, the worker reported to the WCB that on June 3, 2017, he was working in the top section of a mill for over an hour, changing out filters in very hot conditions. He reported that he was sweating profusely, became increasingly weaker, short of breath and dizzy, and further that towards the end of this work, he felt decreased focus and ability to concentrate. He completed the rest of his twelve hour shift. He returned home after his shift but still felt ill and his spouse took him to a hospital emergency room where it was noted he initially had a slow pulse, body temperature of 36°C and complained of being overheated and confused at work. The emergency room physician diagnosed the worker with heat stroke.
At a follow-up appointment with another physician on June 6, 2017, the worker reported being weak, fatigued and lightheaded. The physician diagnosed him with heat exhaustion and recommended he was capable of alternate or modified work with the restriction of avoiding temperatures greater than 30°C, if possible, and a return to regular duties on June 12, 2017.
The worker's file was reviewed by a WCB medical advisor on June 9, 2017. The WCB medical advisor opined that the worker's presentation would be consistent with a heat-related illness, but because his temperature remained normal, it would be heat exhaustion, not stroke. She stated that heat exhaustion recovers quite quickly once the patient is removed from the hot area, that no long term or permanent changes are expected and return to normal activity can occur within a few days. The medical advisor further opined that as the worker had recovered from the effect of his compensable injury, the doctor's note that the worker should not work in temperatures over 30°C would not be related to his injury, but would be preventative.
On June 13, 2017, Compensation Services advised the worker that his claim was accepted and wage loss benefits had been approved for June 4 and 5, 2017. By letter dated June 16, 2017, Compensation Services advised the worker that no further responsibility would be accepted for his claim beyond June 5, 2017, including ongoing entitlements or medical treatment.
On August 8, 2017, a worker advisor provided further medical information on behalf of the worker and requested that Compensation Services reconsider their June 16, 2017 decision. The worker advisor submitted that the worker's attending physician had noted on a short term disability claim form dated June 22, 2017 that the worker remained symptomatic with fatigue, weakness and dizziness from heat exhaustion, and recommended he remain off work for another eight weeks. It was submitted that the worker's restriction of not working in temperatures above 30°C was not implemented solely to prevent further heat exhaustion episodes, but also because the worker had not sufficiently recovered from his workplace accident such that he could safely return to working in an environment of extreme heat. It was further submitted that according to the attending physician, the worker's recovery from heat exhaustion had been prolonged due to the worker's pre-existing conditions (coronary artery disease, asthma and sinus atrial tachycardia) and prescribed medications, and that consistent with WCB policy, the WCB was responsible for the full injurious result stemming from the worker's compensable injury and pre-existing conditions.
On August 13, 2017, the WCB medical advisor reviewed the new medical information and documented an opinion to file. On August 29, 2017, Compensation Services advised the worker that the information had been reviewed by a WCB medical advisor and the worker's claim would not be reopened.
On September 7, 2017, the worker advisor requested that Review Office reconsider Compensation Services' decision. Referring to their previous submission and focusing in particular on information added to the file after August 8, 2017, the worker advisor submitted that the August 29, 2017 decision was based entirely on the WCB medical advisor's August 13, 2017 opinion and expressed disagreement with many of the comments in that opinion. The worker advisor submitted that while the medical evidence justified benefits being provided until August 4, 2017, given that the temperature restrictions were removed the following day, Review Office only had to find that the compensable condition was present after June 5, 2017 and caused a loss of earning capacity and/or need for medical aid after that date. On October 18, 2017, the employer provided a written response to the worker advisor's submission.
On November 3, 2017, Review Office advised the worker that there was no entitlement to medical aid and wage loss benefits beyond June 5, 2017. Review Office accepted the WCB medical advisor's opinion that recovery from heat exhaustion would occur within a short time and found there was insufficient evidence to show that the worker's pre-existing conditions were impacted by the heat exhaustion after June 5, 2017. Review Office found, on a balance of probabilities, that while the worker was provided with the restriction of not working in a hot environment, this was suggested on a preventative basis so further heat exhaustion would not occur. As it would be a preventative restriction, there was no entitlement to benefits. Review Office found that the worker's need for the restrictions and the employer's ability or inability to accommodate the restrictions after June 5, 2017 were therefore not related to the compensable injury.
On January 23, 2018, the worker advisor appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was provided and was forwarded to the interested parties for comment. On December 27, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
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.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 27(1) of the Act provides that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
WCB Policy 44.40.10, Evidence of Disability, provides that: "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition."
The worker was represented by a worker advisor who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker was accompanied by his spouse at the hearing, and the worker and his spouse responded to questions from the worker advisor and the panel.
The worker's position was that the file evidence, medical information presented to the panel in advance of the hearing and testimony at the hearing justified the extension of benefits beyond June 5, 2017. The worker advisor clarified that the worker was seeking benefits up to and including August 4, 2017, when the treating physician rescinded his temperature restriction of no exposure to an environment over 30°C and approved his return to his pre-accident work duties.
The worker advisor noted that the doctors applied two different diagnoses to account for the worker's presentation of symptoms: heat stroke and heat exhaustion. The worker advisor submitted that while the WCB medical advisor focused on one specific diagnosis and expected recovery norm, the name of an injury should not determine the outcome of the appeal. Rather, the focus should be on when the signs and symptoms from the particular heat-related injury no longer required medical treatment and impacted the worker's ability to work.
It was noted that according to the June 3, 2017 hospital triage and assessment form, the worker experienced confusion, light-headedness and weakness and generally feeling unwell. The worker advisor submitted that the medical reports that followed showed that with the exception of confusion, the worker continued to feel the same symptoms, which the treating physician noted on a June 22, 2017 disability application required fluid intake, rest and avoidance of extreme heat.
The worker advisor submitted that the worker's symptoms being actively treated after June 5, 2017 supports that the temperature restriction was not merely a preventive measure. He further submitted that if the restriction was only for preventive purposes, as suggested by the WCB medical advisor, he would have expected the treating physician to maintain it indefinitely, not remove it by August 5, 2017.
In response to questions from the worker advisor, the worker described his symptoms both before and after June 3, 2017. He testified that before June 3, he would experience fatigue and weakness once or twice in his four-day week rotation, but such symptoms were minimal and managed with medications, and would resolve quickly. After June 3, his symptoms of weakness, fatigue and dizziness were excessive and debilitating; they would occur without warning and could last for hours. He indicated that his symptoms progressively improved, to the point that by July 31, 2017 a return to work was not unreasonable. He said that after August 4, 2017, he did not experience severe or unmanageable symptoms related to his heat exhaustion or heat stroke and managed his medical condition as he had done prior to June 3, 2017.
The worker advisor noted that while the WCB medical advisor suggested that the worker's heat-induced symptoms could only persist for a few days, the treating physician commented otherwise and referred to two medical journal articles as supporting her position. He noted that the articles indicated that the symptoms the worker experienced were compatible with both heat stroke and heat exhaustion, and it was difficult to distinguish between the two.
The worker advisor submitted that should the panel accept that the worker remained symptomatic after June 5, 2017 as a result of his injury, he was entitled to further wage loss for his loss of earning capacity resulting from the employer's inability or unwillingness to accommodate his medically-recommended temperature restriction.
The employer was represented by legal counsel and by its safety manager. The employer's position was that the Review Office decision was correctly decided, and the worker's appeal should be dismissed.
The employer's legal counsel submitted that the medical evidence established that the worker suffered from heat exhaustion on June 3, 2017. He continued to work his regularly-scheduled shift and was able to drive himself home. He later went to the hospital, where he required minimal care, consisting of an IV or fluids for a couple of hours, and was given a relatively quick return to work date of June 10, 2017. He was taken off work for June 4 and 5, had scheduled days off from June 6 to 9, and a return to work date of June 10, 2017. The medical report from the physician who examined the worker on June 6, 2017 indicated no change in diagnosis, some complaints of weakness and fatigue and lightheadedness, and that recovery was satisfactory. He provided a return to work date of June 10 or 12.
Counsel noted that the WCB medical advisor reviewed the medical evidence and determined, based on the observed symptoms, treatment plan and expected recovery time that the diagnosis was heat exhaustion, not heat stroke, recovery from which would be a matter of hours or days. Counsel submitted that the earliest evidence, from the emergency room physician and the treating physician on June 6, 2017, as well as the WCB medical advisor's opinion, based on her review of the evidence, should be preferred and that the worker recovered quickly from his compensable injury.
The employer's legal counsel noted that it was not until some time later, on June 22, 2017, that there was a medical report from the worker's family physician. In a subsequent report dated July 31, 2017, the worker's family physician indicated that the worker had ongoing symptoms, with complications due to his pre-existing conditions. The July 31, 2017 letter was reviewed by the WCB medical advisor. A further letter dated December 13, 2017 was provided by the family physician, the gist of which, it was submitted was very similar, indicating that the worker had ongoing symptoms of fatigue, weakness and dizziness.
Counsel noted that there was no indication in either the July 31 or December 13 letters that any test was performed, or that the worker required special medication or ongoing treatment, other than the recommendation that he avoid working in temperatures higher than 30°C. Counsel submitted that the letters from the family physician appeared to be more in the nature of advocacy, as opposed to opinion letters. He submitted that they did not conform with the June 6, 2017 examination by the treating physician, with the opinion of the WCB medical advisor, who indicated very quick recovery time, or with there having been no ongoing treatment.
Counsel further submitted that the work restrictions were not mandatory, but suggestions. He submitted that whether any such temperature or other restrictions could be accommodated was not relevant to the question of whether or not the worker had a compensable injury on June 3 that involved compensation beyond June 5, 2017.
In conclusion, it was submitted that the worker was not entitled to compensation for wage loss or medical aid beyond June 5, 2017, and the worker's appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to wage loss and medical aid benefits after June 5, 2017. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker sustained a further loss of earning capacity and/or required further medical aid after June 5, 2017 as a result of his June 3, 2017 workplace accident. The panel is unable to make that finding.
Based on our review of all of the information which is before us, the panel accepts that the worker suffered a minor incident of heat exhaustion on June 3, 2017. The panel is unable to find, however, that the worker's ongoing symptoms beyond June 5, 2017 were causally related to the June 3, 2017 workplace incident.
The panel places weight on the medical evidence which is closer in time to the June 3, 2017 workplace incident, including that:
• The hospital emergency report indicated that the worker complained of being overheated and experiencing confusion at work and indicated that he was "good now;"
• The attending emergency room physician provided a note that the worker was to be absent from work June 4 and 5, 2017, noting that the worker could not work in an environment of 30°C or hotter;
• The worker stated in his Incident Report filed June 6, 2017 that he was "feeling somewhat better" and would be seeing his doctor that same day;
• The report from the physician who saw the worker on June 6, 2017 noted that he complained of weakness, fatigue and lightheadedness. The physician reported that recovery was satisfactory. No treatment plan was proposed other than for the worker to continue with his cardiac medications. The report indicated that the worker was capable of alternate or modified work, but should avoid temperatures in excess of 30°C if possible and that he could return to his regular duties on June 12, 2017.
The worker did not seek medical treatment again until June 21, 2017, when he saw his family physician. Although the worker reported ongoing symptoms of fatigue, weakness and dizziness, the panel finds that there is a lack of clinical evidence to support that these symptoms were directly related to the worker's June 3, 2017 compensable injury.
The worker was taken off work for June 4 and 5, then was off work for his regular days off on July 6 to 9. The panel is satisfied, based on our review of the evidence, that the worker had recovered from the effects of his compensable injury by June 10, 2017. The panel finds that the suggestion or restriction at that time that the worker not work in conditions over 30°C was preventive, and was not related to his compensable injury.
The panel finds that this is supported by chart notes obtained subsequent to the hearing. In this regard, the family physician reported in the chart notes from the worker's June 21, 2017 visit, that "Even healthy individual (sic) would be symptomatic under these conditions, but given his medical comorbidities, he shouldn't be working in conditions > 30." In her July 31, 2017 chart notes, the family physician further noted that "We discussed at length that his comorbidities make him more likely to experience negative effects from working in such hot/humid conditions, and that this type of exertion is not recommended."
The panel places weight on the June 9, 2017 opinion of the WCB medical advisor, who reviewed the worker's file and opined:
He was diagnosed with heat stroke. The presentation would be consistent with a heat related illness, but because his temperature remained normal, it would be exhaustion, not stroke.
Heat exhaustion recovers quite quickly once the patient is removed from the hot area. IV fluids can sometimes be required. No long term or permanent changes are expected. Return to normal activity can occur within a few days.
The doctor notes he shouldn't work in temperatures over 30°. Since the worker would recover from the effects of this C/I [compensable injury], that would not be related to this injury, but would be preventative…
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a further loss of earning capacity or require further medical aid after June 5, 2017 as a result of his June 3, 2017 workplace accident. The panel therefore finds that the worker is not entitled to wage loss or medical aid benefits after June 5, 2017.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 19th day of February, 2019