Decision #21/20 - 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 12, 2019 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
On August 3, 2018, the WCB received a Worker Incident Report from the worker reporting that on August 2, 2018, while working in a remote area, he found blood in his stool three times and vomited blood. As a result, the worker was sent by medical transport to a local emergency department. The emergency department report noted the worker's previous medical history of childhood illness that resulted in the worker having esophageal varices and portal hypertension. The worker was diagnosed with an upper gastrointestinal bleed secondary to esophageal varices and transferred to a larger trauma centre for further treatment.
In discussion with the WCB on August 9, 2018, the worker advised that he was still in the hospital and confirmed his reported symptoms. He noted that due to his childhood illness, he has varices in his esophagus and intestines, as well as damage to his liver and pancreas. The worker advised that he had internal bleeding but was undergoing further investigations to determine the cause.
On August 10, 2018, the worker again spoke with the WCB adjudicator. He advised that his treating healthcare providers told him that the physical labour he had been doing in the performance of his job duties may have induced the bleeding. The worker confirmed he had not been treated recently for his pre-existing conditions. The worker was discharged from the trauma centre on August 11, 2018 but readmitted on August 16, 2018 to another emergency department after his symptoms returned.
A WCB medical advisor reviewed the worker's file on August 16, 2018 and concluded that the worker's diagnosis was an upper gastrointestinal bleed related to esophageal varices. The WCB medical advisor noted the esophageal varices are enlarged, abnormal veins in the esophagus, usually associated with liver conditions and stated his opinion that occupational activities could not contribute to their development.
On the same date, the WCB advised the worker that his claim was not acceptable as it had been determined that his diagnosis of an upper gastrointestinal bleed with related esophageal varices was a pre-existing condition not related to his employment or job duties.
The worker provided further information to the WCB adjudicator on August 27, 2018, including additional medical reports and photos of the remote area where he was working. He advised that earlier in the year, his treating healthcare provider had cleared him to perform the fitness test for his position, while taking medication for his pre-existing portal hypertension.
The additional information provided and the worker's file were reviewed by a WCB medical advisor on September 4, 2018. The WCB medical advisor noted the hepatologist's opinion that "…exercise increases portal pressures; therefore, it is likely that the strenuous conditions under which [the worker] was working contributed to his recent variceal bleed." The WCB adjudicator was subsequently directed to obtain information from the employer regarding the worker's job duties prior to the August 2, 2018 incident.
The employer provided the WCB with the worker's job description on September 20, 2018 and on September 27, 2018, the worker's direct supervisor spoke to the WCB adjudicator regarding the worker's job duties prior to August 2, 2018. The supervisor confirmed that the worker had worked 16 hour shifts on August 1 and 2, 2018 and that the work performed could be very physically demanding, with 10 out of the 16 hours of the shift spent performing the physically demanding work.
The WCB medical advisor again reviewed the worker's file and on October 12, 2018 provided a further opinion. The WCB medical advisor noted the location of the worker's esophageal varices at the gastroesophageal junction, a location associated with the thinnest layer of supporting tissue and the highest risk of bleeding. Further, the August 3, 2018 endoscopy indicated varices at the gastroesophageal junction, with a small ulceration over one of the varices noted at this location as a possible site of bleeding. The WCB medical advisor stated that larger varices are more prone to bleeding and that size of the varices is the most important predictive factor for variceal bleeding, noting that grade two and grade three sized varices are more likely to rupture. The August 3, 2018 endoscopy indicated large varices in the worker's esophagus, covering the full length and an August 13, 2018 endoscopy indicated these varices were grade three. The WCB medical advisor again concluded that the worker's pre-existing conditions of portal hypertension and esophageal varices likely led to the development of the esophageal variceal bleed. The WCB medical advisor suggested that the location and size of the worker's esophageal varices were more "significant predictive factors" for a variceal bleed than the worker's level of physical activity.
On October 18, 2018, the WCB advised the worker that the new information he submitted had been reviewed and the decision to deny his claim was unchanged.
The worker requested reconsideration of the WCB's decision to Review Office on October 26, 2018. In his submission, the worker outlined that he had been provided with medication from his treating physician "…to lower pressure in the portal system" and was cleared to attempt the fitness testing for his position, which he passed. The worker noted he performed his job duties in physically demanding conditions and that it was likely the physical demands of his job duties that led to the development of the bleeding.
Review Office requested the WCB medical advisor provide a further opinion, received on November 30, 2018. The WCB medical advisor opined that "Esophageal varices can and do bleed spontaneously in the absence of any exertion." Further, the medical advisor noted the worker's treating hepatologist had documented pre-existing varices in 2013, and between 2013 and the incident of August 2, 2018, new varices could have developed or the existing varices could have grown in size. The WCB medical advisor indicated that the worker's hepatologist agreed that the location and size of the varices were the "…dominant predictive factors for the development of a variceal bleed."
The employer provided a submission in support of the WCB's decision on December 7, 2018. On December 11, 2018, the worker provided a response to the WCB medical advisor's opinion stating that there had been no change to the size of the varices since 2013 and he had no prior history of variceal bleeds.
On December 28, 2018, Review Office determined that the worker's claim was not acceptable, giving weight to the WCB medical advisor's opinions on file. Review Office acknowledged that the worker's job duties were physically demanding leading up to the date of the incident and resulted in the worker physically exerting himself; however, Review Office was unable to find the medical evidence to support that the worker's physical work was related to his variceal bleed.
The worker's representative filed an appeal with the Appeal Commission on May 1, 2019. 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 later received and was forwarded to the interested parties for comment. On January 17, 2020, 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, regulations and policies of the WCB's Board of Directors.
Section 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. "Accident" is defined in s 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 Act clarifies in s 4(5) that where an accident occurs in the course of the employment, unless the contrary is proven, it must be presumed that it arose out of the employment.
WCB Policy 18.104.22.168, Pre-existing Conditions addresses the issue of how pre-existing conditions are treated when administering benefits. The policy states that: "When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury."
The worker was represented in the hearing by a worker advisor who provided a written submission at the hearing and made oral submissions as well. The worker responded to questions from his representative and the panel.
The worker's position, as outlined by the worker advisor, is that as a result of the worker's intensive physical job duties undertaken leading up to August 2, 2018, his pre-existing health condition was aggravated or enhanced, resulting in the variceal bleed. The worker was injured arising out of and in the course of his employment and therefore his claim should be acceptable.
The worker advisor confirmed that the worker had numerous pre-existing conditions that arose out of treatments related to his childhood illness and noted that despite those conditions, the worker was able to pass the annual medical and physical tests required in order to work at his job. He was assessed to be fit to perform all the tasks of his job. The medical evidence pre-dating the incident on August 2, 2018 confirmed that the worker had grade three esophageal varices at least since 2010 and these were likely longstanding already at that time.
The worker advisor noted the WCB medical advisor's opinion that esophageal varices can bleed spontaneously and in the absence of exertion but disagreed with the conclusion reached that the factors of size and location of the varices were the most significant predictors and would overshadow any potential contributing role of the worker's physical exertion in bringing on the variceal bleed. The worker advisor noted that the 2010 and 2018 endoscopy results revealed that the varices had not increased in grade over that period of time but were stable in size and location.
Further, the worker advisor noted the WCB medical advisor did admit, in a report dated October 5, 2018 that isometric exercise or physical movements resulting in the Valsalva maneuver are also risk factors in the development of a variceal bleed as these can increase portal pressure, which increases risk of bleeding. The treating hepatologist, in an August 31, 2018 email to the WCB case manager, stated that "…exercise increase portal pressures; therefore it is likely that the strenuous conditions under which [the worker] was working contributed to his recent variceal bleed."
The worker advisor provided the panel, in a pre-hearing submission, with research literature indicating that even moderate exercise increases portal pressure and may therefore increase risk of variceal bleeding, and also that coughing bouts can cause variceal bleeding.
In response to the additional information obtained by the panel after the hearing and shared with the parties, the worker advisor noted that the subsequent medical reports further support that the size of the worker's varices remained stable through 2018 and 2019 and were not progressing in size. Further, the subsequent medical reports in relation to the worker's unsuccessful attempt to obtain medical clearance to return to the job in 2019 serve to confirm a relationship between the physical demands of the job and the risk of another variceal bleed occurring.
In sum, the worker's position is that the physical exertion required of the worker in the course of his duties on August 1 and 2, 2018, in particular, was extreme. In this case, the conditions in which the worker was working were significantly worse than he had been exposed to in his prior years in the same position. The extreme exertion in the course of his employment was the catalyst that caused the worker's pre-existing but stable esophageal varices to bleed. The worker was injured as a result of and in the course of carrying out his work duties and his claim should therefore be accepted.
The employer was represented in the hearing by an advocate, who provided the panel with written and oral submissions, and answered questions posed by the panel.
The employer's position is that the evidence does not support that the worker was injured at work, but rather supports that the worker had a pre-existing condition that caused the injury. The employer urged the panel to rely upon the opinion of the WCB medical advisor of October 5, 2018 that the worker's pre-existing history of portal hypertension and esophageal varices "…likely account for the development of the esophageal variceal bleed."
With respect to the evidence obtained by the panel subsequent to the hearing, namely, the health screening questionnaires completed by the worker, the employer noted that the worker's responses on the 2017 questionnaire suggest that the worker "…knowingly and intentionally" misrepresented his health condition so as to be able to work in this job. While the worker did provide more information in the health screen questionnaire he completed in 2018, the employer stated his answers are inconsistent and misrepresent the extent of his pre-existing condition.
The employer also noted that the worker's medical records for the period subsequent to the incident under consideration point to the worker continuing to suffer the effects of bleeding esophageal varices even after he was no longer engaged in the work he was doing in August 2018 and stated that this supports the position that the worker's esophageal variceal bleed resulted from the size and location of the varices rather than the worker's physical exertion in the course of his employment.
In sum, the employer's position is that the evidence supports a finding that the worker's esophageal variceal bleed occurred spontaneously and not as a result of or arising out of the worker's job duties. Therefore, the claim should not be accepted.
The issue before the panel is whether the worker's claim is acceptable. 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 employment. The panel is able to make that finding.
The Act provides, in s 4(5) that where an accident occurs in the course of the employment, unless the contrary is proven, it must be presumed that it arose out of the employment. Here, the evidence shows that on August 2, 2018, while in the course of carrying out his employment duties, the worker suffered an esophageal variceal bleed and as a result, was taken by emergency transport for medical care. The employer confirmed the worker was engaged in his employment activities at the time this occurred and was subsequently provided sick leave. The worker had been seasonally employed with the employer each summer since May 2015. The panel finds that the evidence supports that the injury occurred in the course of the worker's employment.
The issue in dispute is rather whether the injury arose out of the employment or was coincidental to it. The employer takes the position that the worker's esophageal variceal bleed occurred spontaneously and was not related to the worker's specific job duties. The employer relies, in particular, upon the opinion of the WCB medical advisor to support this position. The WCB medical advisor, in a report dated October 12, 2018, concluded that the location and size of the worker's esophageal varices were more "significant predictive factors" for the variceal bleed than the worker's level of physical activity.
The worker, as outlined above, takes the position that the combination of the specific job duties undertaken and the challenging environment in which these were undertaken on August 1 and 2, 2018 in particular required excessive exertion on his part, which aggravated his longstanding but previously stable condition of esophageal varices, to result in the variceal bleed on August 2, 2018.
In considering whether the worker was injured arising out of and in the course of undertaking his work duties, the panel considered the following evidence:
• The worker's testimony was that he was able to meet the physical requirements of the job in the previous three years without incident, but that this particular job environment in early August 2018 was unique and more physically demanding.
• The worker demonstrated fitness for the job, having successfully completed a physical fitness assessment in advance of his employment in 2018.
• Endoscopic results from February 22, 2010 revealed grade three esophageal varices at the gastroesophageal junction and along the esophagus, with no stigmata of bleeding noted.
• Endoscopic results from August 2018 also revealed grade three esophageal varices running along the full length of the esophagus and at the gastroesophageal junction, this time with stigmata of bleeding noted.
• The worker's treating hepatologist provided an opinion on August 31, 2018 that "It is known that exercise increases portal pressures; therefore, it is likely that the strenuous conditions under which [the worker] was working contributed to his recent variceal bleed."
• The WCB medical advisor, who reviewed the file documents and provided an opinion on October 5, 2018, concluded that the location and size of the worker's esophageal varices "…were significant predictive factors for the development of a variceal bleed." The medical advisor's report also noted that the medical literature confirms that isometric exercise or physical movements that result in a Valsalva maneuver are considered potential risk factors by of increasing portal pressures temporarily. The medical advisor opined that while "…it is reasonable to infer that [the worker's] physical duties…would have likely included some degree of isometric exercise and/or straining, it is highlighted that the relative contribution of physical activity, if any…would likely be overshadowed by…" the predictive factors of variceal location and size.
• The WCB medical advisor, while focusing on the location and size of the varices as being predictive of the development of a variceal bleed, again noted in the November 30, 2018 opinion that "physical activity (specifically isometric exercise and/or straining) can contribute to development of such bleeding."
The panel agrees with the worker's position that his pre-existing condition created a heightened susceptibility to further injury, and finds this to be consistent with the medical information before the panel. The WCB's Pre-existing Conditions policy is therefore applicable. As outlined above, that policy provides that the WCB will accept responsibility for the "full injurious result of the compensable injury" when a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them. The panel notes that the policy does not require any particular degree of relative contribution of the pre-existing condition as compared to the work duties. If the non compensable pre-existing condition contributes in part to the workplace injury, WCB is responsible for the full injury resulting.
Here, the panel finds that while there may be multiple contributing causes of the injury to the worker, there is sufficient evidence to support a finding that the worker's non compensable pre-existing condition, in concert with the activities undertaken arising out of and in the course of his employment, caused the worker's esophageal variceal bleed on August 2, 2018.
Although irrelevant to the determination of the question before us given that the Act provides for compensation for injured workers, regardless of fault, the employer noted that the worker provided inconsistent responses to the pre-employment health screen questionnaire and that in doing so, he made misrepresentations to the employer. This may be relevant to questions of labour relations, but is not an issue within the jurisdiction of this panel. Nonetheless, the panel noted that the evidence supports that the worker was cleared by his treating medical practitioners in 2018 to undertake the duties of his job and the worker in his testimony explained that he answered the questions to the best of his knowledge at the time.
On the basis of the evidence before the panel, we find, on a balance of probabilities, that the worker did experience an injury as a result of an accident on August 2, 2018. That injury occurred in the context of the worker's pre-existing condition of esophageal varices but was, on a balance of probabilities, caused by and arising out of the duties of his employment.
The claim is therefore acceptable and the appeal is allowed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
R. Ripley, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 21st day of February, 2020