Decision #04/20 - 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 21, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
On September 28, 2018, the worker filed a Worker Incident Report with the WCB reporting injuries to his body, with an incident date of August 6, 2018. The worker reported that he felt years of working as a truck driver hauling livestock, with the stress of loading and unloading animals, and breathing in ammonia and excrement, possibly caused heart damage. The worker noted that he started to feel ill while driving on August 6, 2018. He had a sore neck, headache and nauseous stomach, then later felt his whole left side go numb. The worker contacted his spouse who met him at a truck stop and took him to a local hospital emergency department.
At the emergency department, the worker's blood pressure was monitored and an electrocardiogram was conducted. The worker was prescribed medications, was referred to a specialist, and was released from the hospital early the next day. On August 8, 2018, the worker saw his family physician, who noted that the worker reported he "felt so tired and fainty." The physician's reported findings were "non specific other than exhaustion" and she diagnosed the worker with "presyncope." The physician further noted that the worker had pre-existing ischemic heart disease.
A CT angiogram was conducted on August 29, 2018, which indicated "Significant stenosis of the proximal right ICA (internal carotid artery)." On September 28, 2018, the worker saw a neurologist, who discussed the CT angiogram with him and opined that the worker had suffered a "small stroke." The neurologist referred the worker to a vascular surgeon for surgical removal of the blockage in his artery. The worker also underwent an MIBI (nuclear stress test) on September 28, 2018, which indicated "Moderate to severe probably RCA [right coronary artery] territory ischemia".
In his initial discussion with a WCB adjudicator on October 5, 2018, the worker confirmed the mechanism of injury and provided additional information with respect to his job activities, time loss, and medical attention and conditions. The worker noted that hauling livestock was stressful, that "you cannot just stop to take your time, they need to be fed, have water, be somewhere on time."
On November 14, 2018, the worker's file was reviewed by a WCB medical advisor, who noted that the worker's initial diagnoses on August 6, 2018 were hypertensive urgency, chest pain attributed to suspected acute coronary syndrome, a suspected transient ischemic attack, chronic cough and shortness of breath, and suspected chronic obstructive pulmonary disease. The medical advisor stated that the worker's current diagnoses included hypertension, hypercholesterolemia, an increased body mass index, ischemic coronary artery disease, and symptomatic proximal right internal carotid artery stenosis. The medical advisor opined that the worker's heart condition and suspected stroke were related to coronary artery and carotid artery atherosclerosis. The medical advisor further opined that the information on file supported that the worker had pre-existing conditions, including all of the listed diagnoses, and that a causal relationship between any of those medical conditions and his work activities could not be established. On November 20, 2018, the WCB's Compensation Services advised the worker of the WCB medical advisor's opinion and that his claim was not acceptable.
On December 6, 2018, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that his health had been declining over the past year and that the strenuous nature of his work, including fighting with livestock, breathing in dust and ammonia, cleaning out trailers, and long hours on the road, was the primary cause of his medical conditions. A report from the worker's family physician dated November 29, 2018 was submitted in support of the worker's request for reconsideration.
On February 6, 2019, Review Office determined that the worker's claim was not acceptable. Review Office found that driving for long hours and being exhausted, as referenced by the worker's family physician in her November 29, 2018 report, was not considered an accident. Review Office placed significant weight on the WCB medical advisor's November 14, 2018 opinion, and accepted the medical advisor's conclusion that there was no "…probable causative relationship between the worker's medical conditions and his employment activities." Review Office further stated that they were unable to establish that the worker experienced an event arising out of and in the course of his employment that led to an injury and a need for medical treatment. Accordingly, Review Office concluded that there was no "accident" causing the worker personal injury, and the claim was not acceptable.
On February 27, 2019, the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged.
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 compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.
What constitutes an accident is defined in subsection 1(1) of the Act, which provides 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.
Occupational disease is further defined in subsection 1(1) of the Act as follows:
"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions
(a) peculiar to or characteristic of a particular trade or occupation;
(b) peculiar to the particular employment; or
(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.
WCB Policy 44.05, Arising Out of and in the Course of Employment, states, in part:
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.
The worker was self-represented. The worker made an oral presentation at the hearing and responded to questions from the panel.
The worker noted that he hauled all kinds of livestock in his job as a truck driver. The hours varied and he often worked extremely long days. He stated that there is a lot of stress to the job. He submitted that his health deteriorated because of the job, and the nature of his job duties, including the hours he worked, the stress of dealing with the animals, the road conditions and traffic, the time sensitive nature of the work, exhaustion and lack of sleep. The worker stated that even the food he ate contributed to the decline in his health, as he tended to eat a lot of fast foods while on the road due to time constraints. The worker stated that over time, all of this affected his health and resulted in what happened on August 6, 2018.
The worker submitted that he has been on medications for cholesterol and high blood pressure since the August 6, 2018 workplace incident, and has undergone surgery, with stents having been inserted in his coronary artery. He noted that he has been eating better, has quit smoking and has done "the whole nine yards." He said that he still has two more blockages, but the medications seem to be working and he feels great now, better than he did 20 years ago.
In conclusion, the worker submitted that his job duties brought on his "mini-stroke" in August 2018. He submitted that his medical condition was directly related to his ongoing history of employment driving truck and hauling livestock, and his claim is therefore acceptable.
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, as defined in the Act. The panel is unable to make that finding.
Based on our review and consideration of all of the information which is before us, the panel is satisfied that the worker did not suffer a personal injury arising out of and in the course of his employment.
In arriving at that conclusion, the panel is satisfied that the evidence does not support that the worker suffered an acute injury arising out of his employment on August 6, 2018. In response to questions from the panel, the worker indicated that there was nothing unusual about his activities on the day of the incident. Information on file shows that in his initial conversation with the adjudicator on October 5, 2018, the worker indicated that he had loaded the livestock on the truck and started driving, that it was four hours later that he started to experience symptoms while driving, and he continued to drive for some time after that. The panel notes that while the treating neurologist indicated in his September 18, 2018 report that he suspected the worker had experienced a small stroke, a subsequent MRI on October 15, 2018 did not support such a diagnosis.
The panel is further satisfied that the worker did not suffer a cumulative injury arising out of his employment.
The panel notes that the evidence shows the worker had had ongoing health issues for a long time, including pre-existing ischemic heart disease and high blood pressure for which he had been told to take medication, when needed. The panel is unable to find, based on the evidence which is before us, that those ongoing health issues were causally related to the worker's job duties.
The panel places significant weight on and accepts the November 14, 2018 opinion by the WCB medical advisor, who reviewed the worker's file, and set out a list of the worker's initial diagnoses of August 6, 2018 and his current diagnoses. The medical advisor went on to opine that "both his heart condition and suspected stroke are related to coronary artery and carotid artery atherosclerosis respectively." The medical advisor further opined that there was evidence of pre-existing conditions, including all of the initial and current conditions listed, and that "Based on the available objective medical evidence I am unable to establish a probable causative relationship between any of the medical conditions listed…and his work activities."
The panel further finds that the worker's job duties and activities as described are not peculiar to or characteristic of his occupation or peculiar to his particular employment as contemplated under the definition of "occupational disease."
While the worker refers to poor eating habits and lack of sleep or exhaustion as having contributed to his difficulties or condition, the panel notes that these are personal choices or matters which are generally within the control of the worker, not of the employer, and are not particular to the worker's employment. With respect to his long days of work, the worker candidly acknowledged at the hearing that prior to the incident, he would cheat in his daybook and work far more hours than was allowed under the rules. He said that he had been cheating for 30 years, right from when he started driving a truck. In response to a question as to whether this was something that was encouraged by the employer, the worker said "definitely not…We just did it to get the job done, more money, more loads." The panel notes that the worker further stated that he is still working long hours hauling livestock, but they now have electronic logs and cannot cheat.
While the worker also referred to exposure to ammonia and excrement as being potentially causative of his medical difficulties, the panel notes that there is a lack of medical information which would relate such exposure to his medical difficulties or conditions.
The worker has also referred to the stresses of his job. Based on the information which is before us, the panel has no doubt that the worker's job was stressful. The Act specifically provides, however, that "stress, other than an acute reaction to a traumatic event" does not fall within the definition of an "occupational disease" or "accident" and is not compensable under the Act.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer a personal injury by accident arising out of and in the course of his employment, as defined in the Act. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
P. Kraychuk, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 20th day of January, 2020