Decision #155/19 - 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 October 23, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is acceptable.
On August 30, 2018, the worker filed a Worker Injury Report with the WCB, reporting that he injured his head and back in an incident at work on August 20, 2018. The worker reported that he "…felt dizzy and tried to walk away to find a chair. Made it only a few steps and hit the ground. Do not remember anything until woke up."
The Employer's Accident Report, which was provided to the WCB on August 21, 2018, noted in part that the worker was watching a procedure when he "…said he started to feel nauseated and left the operating room. He went into the pre-op room which is two steps away. Then he just fainted. He fell backwards and hit his head hard on the floor. Our floors are cement."
An ambulance was called and the worker was taken to a hospital emergency department. Hospital records indicate that the worker had two seizures while being transported to the hospital and was admitted to the intensive care unit. An August 20, 2018 CT scan of the worker's brain showed a non-displaced occipital skull fracture on the left side of the worker's head. The hospital records note that the worker had a previous episode of syncope in 2016. The hospital record on August 21, 2018 relating to neurology notes "…likely vasovagal syncope and post-traumatic seizures after hitting head on concrete post-syncope" and provides a diagnosis of "…likely post-traumatic seizures following fall with head injury (occipital bone #)."
On August 28, 2018, the worker discussed his claim with a WCB adjudicator. The worker confirmed the mechanism of injury and advised that he had fainted a total of two or three times in the past, that he knew the signs of when he was going to faint, and that his doctor had advised that it was stress-related fainting. He further confirmed that he had never had a seizure before.
On August 30, 2018, the worker's file was reviewed by a WCB medical advisor, who opined that "Syncope rather than a seizure is favored as an etiology for the passing out event on August 2, 2018 (sic)." The WCB medical advisor further opined that the likely etiology for the syncope was a type of vasovagal syncope called situational syncope. The medical advisor stated that situational syncope happens during certain situations that affect the nervous system and lead to syncope, such as dehydration, anxiety, intense emotional stress and pain. The medical advisor noted that no specific workplace or environmental factors were identified which might have contributed to or caused the worker's syncope.
On September 4, 2018, Compensation Services advised the worker that his claim was not acceptable, as a relationship could not be established between his job duties and his workplace accident and injuries on August 20, 2018.
On November 20, 2018, the worker requested that Review Office reconsider Compensation Services' decision. In his request, the worker indicated that he was diagnosed with vasovagal syncope in 2016, and as such, he can be more sensitive to "stressful environmental situations." The worker noted that he had never fainted outside of when he was performing his job duties, which supported that his injuries were related to his employment, and his claim should be accepted.
On December 12, 2018, Review Office determined that the worker's claim was not acceptable. Review Office stated that they did not find evidence on the file that the work environment contributed to the worker's syncope. Review Office noted that the worker had been performing his job duties for several years while attending school and was comfortable working in this environment. Review Office noted that just because a person is at work when they have an episode of syncope does not make it work-related. Review Office concluded that they were unable to relate the worker's work activities to the syncope episode.
On April 5, 2019, the worker appealed the Review Office decision to the Appeal Commission and 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.
"Accident" is defined in subsection 1(1) of the Act as follows:
"accident" means 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,
(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 worker was self-represented. The worker made a presentation and responded to questions from the panel.
The worker's position was that he fainted at work because of the particular surgical procedure he was witnessing at the time, which caused him to be injured. The worker submitted that his claim falls squarely within the definition of an accident under the Act, and should be accepted.
In response to questions from the panel, the worker described the events leading up to his being injured on August 20, 2018. The worker indicated that the procedure he was observing that day was unusual and not one he had seen before. The worker said he had previously had lots of exposure to the more common types of procedures which his employer routinely performed. For more advanced procedures such as the one that day, however, a specialist would come in and perform the procedure using their facilities.
The worker said that in the course of the procedure on August 20, 2018, the specialist "clipped the bones and stuff, and…I remember the last…picture that I saw that set me off, because he had to pull the bones down and so the broken ends were exposed…all broken and bloody there, so I kind of started to feel a little nauseous right then."
The worker also described the three previous occasions on which he had fainted. When asked what he had been diagnosed with, the worker stated that he basically has "syncope episodes under certain stressful factors." The worker stated that he does not faint at the sight of blood, "but when it comes to…the more gory surgeries, or like, more stressful events, sometimes they get me and then I faint." The worker said it is hard to predict which procedures are going to have that effect.
The worker indicated that he has changed the direction of his career path since the August 20, 2018 incident. He said that he still works part-time at the same location as before, but now avoids such surgical procedures since surgery seems to be a common stressor.
The employer did not participate in the appeal.
The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The panel is able to make that finding, for the reasons that follow.
Based on the evidence which is before us, the panel is satisfied that the worker experienced a vasovagal or situational syncope episode on August 20, 2018.
In arriving at that conclusion, the panel notes the definition of situational syncope as set out in the WCB medical advisor's August 30, 2018 opinion, as "a type of vasovagal syncope" which "happens only during certain situations that affect the nervous system and lead to syncope," some of which were listed as intense emotional stress and anxiety. The panel places weight on the opinion of the WCB medical advisor favouring syncope as the etiology for the passing out event on August 20, 2018. The panel accepts the medical advisor's opinion that in this case "the likely etiology for the syncope is situational syncope."
The panel is further satisfied, based on the information which is before us, including the worker's evidence at the hearing, that the August 20, 2018 syncope episode arose out of and in the course of the worker's employment and resulted in the worker being injured. In this regard, the panel is satisfied that the worker identified a specific incident as having led to his fainting episode. The panel notes that watching or assisting in procedures was part of the worker's job. The evidence further indicates, however, that the procedure that day was a more advanced procedure which the worker had not seen before. The worker identified a particular point in that procedure where the sound of bones being cut and the sight of exposed bloody and broken bone ends caused him to be nauseous and to faint while attempting to walk away.
The worker's evidence was that he does not faint at the sight of blood, but that more gory surgeries, or more stressful events sometimes get to him and he faints. The evidence indicates that the worker was previously diagnosed with situational syncope following an episode in 2016. The panel finds that the evidence with respect to that episode, which also involved an unusual surgical procedure and a significant amount of cutting and blood, supports the worker's evidence as to the effect of such events, and in particular of the procedure in this case, on him.
With respect to the two seizures which the worker also experienced on August 20, 2018, the panel is satisfied, on a balance of probabilities, that the worker's fainting episode and fall caused or significantly contributed to the subsequent seizures and hospitalization. The panel places weight on and accepts the conclusion from the neurological assessment on August 21, 2018, that the worker experienced "post-traumatic seizures following fall with a head injury" which was identified as an occipital bone fracture.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a personal injury by accident arising out of and in the course of his employment. The worker's claim is therefore acceptable
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of December, 2019