Decision #142/19 - Type: Workers Compensation
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is acceptable. A hearing was held on October 2, 2019 to consider the employer's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The employer filed an Employer's Accident Report with the WCB on July 11, 2017 indicating that the worker had suffered a heart attack while at work on July 7, 2017. It was noted that the worker "Arrived at the jobsite. Aft the jobsite for 45 mins…fell to the ground suffering from a heart attack. CPR was administered from a coworker." The worker was transported by ambulance to a local emergency room then once stabilized, to a cardiac unit at another hospital.
In a discussion with the worker's spouse on July 21, 2017, the WCB was advised the worker had passed away on July 15, 2017. The worker's spouse further advised that the worker "…has a severe cardiac arrest" and she felt it was as a result of working in the heat. She further advised that two days before the workplace accident of July 7, 2017, the worker had come home holding his chest, saying that he had pains when at work and it was always so hot.
The WCB spoke with the employer on July 25, 2017. The employer advised that the worker seemed fine at the start of his shift on July 7, 2017, with no indications of any problems. The employer further advised that approximately three to four weeks prior to the workplace accident, the worker had mentioned that he got chest pains once in a while and advised the employer that he was seeking treatment.
On August 17, 2017, the worker's family physician provided the WCB with a treatment summary for the worker along with documentation from the cardiac unit at the hospital. The worker's treating physician advised that the worker was being treated for high blood pressure. The Discharge Summary from the hospital noted the worker was diagnosed with a cardiac arrest with ventricular fibrillation and a myocardial infarction. It was further noted that the worker underwent an angioplasty and insertion of a stent but developed seizures and passed away on July 15, 2017.
The WCB was provided with a further medical report from a June 5, 2017 emergency department visit by the worker who reported that he had a week of sharp chest pains. The worker was diagnosed with undetermined chest pains and a follow-up with a cardiologist was recommended. The worker was seen by the cardiologist on June 19, 2017, who indicated the worker was having "atypical chest pain" and recommended stress testing to assess the worker for ischemia.
The worker's file was reviewed by a WCB medical advisor on September 18, 2017. The WCB medical advisor opined that the worker "…was diagnosed initially with Ventricular Fibrillation cardiac arrest secondary to a myocardial infarction. Although he did have pre-existing coronary artery disease, it was reported that he was at work…at the time of his witnessed cardiac arrest and his workplace activities may have contributed to his myocardial infarction and cardiac arrest, on a balance of probabilities." On October 3, 2017, the employer was advised that the worker's claim was acceptable as it was determined that a relationship between the worker's medical condition and the workplace accident of July 7, 2017 had been established.
On December 19, 2018, the employer requested reconsideration of the WCB's decision to accept the worker's claim to Review Office. In his submission, the employer expressed his belief that it was more of a coincidence that the worker's cardiac arrest occurred while he was at work as the worker had pre-existing coronary artery disease. The employer also noted that the worker's co-worker who witnessed the workplace accident should be contacted to provide information, along with another person who witnessed the worker performing his regular duties. On January 30, 2019, Review Office spoke to the co-worker who was working with the worker on the day of the workplace accident. The co-worker advised Review Office that he and the worker were performing their regular job duties on the morning of July 7, 2017. He recalled the worker bending over and looking uncomfortable a few times while they were working; he asked the worker if he was okay and the worker responded that he was fine. The co-worker further advised that he called 911 and performed CPR as instructed by the 911 operator when the worker collapsed.
Review Office determined on February 15, 2019 that the claim was acceptable. Review Office found that the evidence on file indicated that the job duties the worker was performing on the day of the workplace accident were "…strenuous to an extent that it could reasonably be expected to cause an elevated heart rate." Further, Review Office accepted that the physical exertion of the duties being performed by the worker were not in excess of his regular job duties. Accordingly, Review Office determined the worker's death was causally related to his job duties and the workplace accident of July 7, 2017 and the claim was acceptable.
The employer filed an appeal with the Appeal Commission on March 14, 2019. An oral hearing was arranged.
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 to the worker by the WCB.
In order to qualify for compensation, pursuant to section 4(1), the worker is required to have suffered an 'accident' as defined in the Act. Section 1(1) of the Act defines an 'accident' as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes:
(a) a willful and intentional act of that is not the act of the worker,
(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.
The Act further states:
"occupational disease" means a disease arising out of and in the course of employment resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation; or
(b) peculiar to the particular employment;
(b.1) that trigger post-traumatic stress disorder;
but does not include
(c) an ordinary disease of life; and
(d) stress, other than an acute reaction to a traumatic event.
Board Policy 44.05 Arising Out of and in the Course of Employment states:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment – that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
Board Policy 18.104.22.168 Pre-Existing Conditions states:
The Workers Compensation Board will not provide benefits for disablement resulting solely form 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 employer is a local construction company that was represented at the hearing by its president. The employer took the position that it was unfair to assess the claim against the employer as there was nothing the employer could have done to prevent the worker's heart attack. The employer noted that the worker was performing his regular duties on the day of the heart attack and, in the employer's view, it was entirely coincidental that the heart attack occurred while at work.
The employer also noted that the worker was experiencing cardiac-related symptoms in the weeks leading up to the day he suffered a heart attack, including chest pains and shortness of breath, but did not advise the employer that he was experiencing these symptoms. The worker had also sought medical attention with respect to his symptoms and was being followed by a cardiologist. Given his condition, the employer submitted, the worker was likely to suffer a heart attack at some point. It was little more than a matter of chance that the heart attack occurred while at work rather than in the evening or over the weekend. As such, the claim ought not to be acceptable.
The worker's estate did not participate in the appeal.
The issue before the panel is whether the claim is acceptable. For the employer to succeed on the appeal, the panel must find that the worker's heart attack was not an injury by accident arising out of and in the course of employment. We are not able to make that finding.
This was a very difficult decision for the panel. The panel has sympathy for the employer's position. The panel acknowledges that the employer is conscientious and safety conscious. That said, the Act is intended to provide benefits to workers who are injured while performing activities arising out of and in the course of employment. In the present case, the panel is satisfied that the test is met.
The panel accepts that the worker was in the course of his employment when he suffered a heart attack. Although the worker did have pre-existing coronary disease, it was reported that he was at work building a deck at the time of the cardiac arrest. Reports from his wife and employer indicate that he had no chest pain at the time that he started work on the morning of July 7, 2017 and his collapse was witnessed by a co-worker 45 minutes after work activities started. The medical opinions have therefore concluded that the myocardial infarction likely occurred around the time that the worker collapsed.
The panel further accepts that the heart attack arose out of the worker's employment. The medical opinion on file concluded that, on a balance of probabilities, the worker’s workplace activities contributed to his myocardial infarction. Although the worker was not performing any unusual duties, the work he was performing was physical. The worker was a carpenter whose job included the construction of residential backyard decks. The work the worker was performing would be expected to entail some degree of exertion and lead to an elevated heart rate. The panel finds that the type of work performed by the worker involved physical exertion and a sufficient degree of physical activity such that it could reasonably be expected to have contributed to the occurrence of a heart attack. It is not required that the physical exertion be out of the ordinary or in excess of the worker's regular job duties in order to be found to be contributing factor.
The panel therefore finds that, on a balance of probabilities, the worker's heart attack was an accident that arose out of and in the course of employment. The employer's appeal is therefore dismissed.
K. Wittman, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Wittman - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of November, 2019