The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is not acceptable. A teleconference hearing was held on July 21, 2020 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker’s spouse filed a Worker Incident Report with the WCB on October 20, 2014 to report her husband was fatally injured on October 16, 2014 while at work. In the report, the incident was described as follows:

“[The worker] had a headache and was holding his head, screaming he needed help. No phone service out there. Someone had to drive to a tower to call for an ambulance and it took 20 minutes for it to arrive. They picked him up and they were going to [location of a hospital] but turned around for some reason and went to [location of another hospital]. He went into cardiac arrest and he couldn’t be revived. Suspected brain aneurysm.”

The WCB contacted the worker’s spouse on October 21, 2014 to discuss the claim. The WCB case manager noted that the worker’s spouse advised she did not think an accident or the work environment caused the worker’s condition but noted that he had suffered from headaches for a while and was scheduled for an MRI on October 31, 2014 to determine if the worker had a brain aneurysm. The worker’s spouse provided the name of the worker’s treating healthcare provider and confirmed that an autopsy was to be conducted.

The WCB gathered information from the employer and the worker’s healthcare providers, including a death summary from the hospital where the worker was treated until his death. The WCB received the January 16, 2015 autopsy report, which noted the worker’s cause of death was “metastatic renal carcinoma to brain with secondary hemorrhage.”

On January 22, 2015, the WCB advised the worker’s spouse the claim was not accepted as the WCB could not establish the worker’s death was related to his employment.

On August 20, 2019, the worker’s representative requested reconsideration of the WCB’s decision to Review Office noting that although the worker was not performing his job duties when the fatal incident occurred, he was on the employer’s premises when it occurred as he was required to be.

Review Office determined on October 16, 2019 the worker’s claim was not acceptable. Review Office relied on evidence on file from the employer indicating the worker performed his regular duties without any signs of distress on October 16, 2014 and that the worker suffered from headaches prior to that date, with an MRI scheduled for October 31, 2014 for further investigation. Review Office further noted the worker’s cause of death was metastatic renal carcinoma to the brain with a secondary hemorrhage. Review Office determined the worker’s death did not arise from his employment as it was not causally connected to that employment and was not caused by a hazard from the nature, conditions or obligations of same.

The worker’s representative filed an appeal with the Appeal Commission on February 7, 2020. A teleconference hearing was arranged for July 21, 2020.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was subsequently received and provided to the interested parties for comment. Counsel for the worker’s spouse provided a further written submission in response to that information on October 9, 2020. On October 20, 2020, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

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.

Section 1(1) and s 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that a worker must have suffered a personal injury by accident arising out of and in the course of employment. The Act defines accident as a chance event occasioned by a physical or natural cause, that includes any event arising out of and in the course of employment, and as a result of which a worker is injured.

A worker is entitled to the benefits provided under the Act only when it is established the worker was injured as a result of an accident. Section 4(5) of the Act creates a presumption that where an accident arises out of the employment it is presumed that it occurred in the course of the employment; and where an accident occurs in the course of the employment, it is presumed that it arose out of the employment. In either case, the presumption applies unless the contrary is proven.

WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Policy”) provides general information on the meaning of the phrase "arising out of and in the course of employment," and states, in part, that:

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.

WCB Policy 44.05.20, General Premises (the "General Premises Policy") focuses on the interpretation of the term "in the course of employment" and provides specific guidance relating to "employer premises." The General Premises Policy states, in part, as follows:

When determining whether an accident was in the course of employment, the WCB will consider: 

i. What activity the worker was engaged in when injured in order to determine the connection with the employment (ie., did the injury result from a personal act, unrelated to the employment, or was there an employment connection). 

ii. Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment. 

iii. When the worker was engaged in the activity. This is also an important factor in determining whether the activity was "in the course of the employment" (ie., did the activity occur at a time reasonably connected to the work shift). 

… 

7. Personal Hazards: 

a. To be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (i.e., is connected in a causal sense).

WCB Policy 44.10.60.40, Accidents Occurring in Lunchrooms (the “Lunchroom Policy”) addresses accidents that occur in employer-provided premises. When an employer provides a lunchroom, accidents occurring in it are considered to be compensable, provided the worker has not created their own hazard. More specifically, when a worker sustains injury during a lunch, coffee or other similar break from work, that injury will be considered to have arisen out of and in the course of employment if the injury occurs while the worker is making reasonable and proper use of the facility and the injury arises from a hazard of the facility, and not from a personal hazard.

WCB Policy 44.10.20.10, Pre-existing Conditions (the “Pre-X Policy”) outlines that the WCB will not provide benefits for disablement resulting solely from the effect of a worker’s pre-existing condition as such a condition does not fall within the definition of personal injury by accident arising out of and in the course of employment.

Worker’s Position

The worker’s position was represented in the hearing by his surviving spouse and by legal counsel acting on behalf of the spouse. Legal counsel made an oral submission and provided written submissions for the panel to consider. The worker’s spouse provided testimony in response to questions posed by legal counsel and by members of the appeal panel.

Legal counsel outlined to the panel their position that the claim should be accepted because the worker’s fatal injury resulted from an accident that occurred in the course of his employment and arising out of that employment, noting the worker was injured on the premises of the employer, during a period of rest. The injury occurred in the course of employment, in that the worker was in a location where he would reasonably be, and while performing work duties or an activity incidental to employment. Counsel argued that the circumstances here are analogous to that described in the WCB’s Lunchroom Policy, which provides that a worker remains in the course of employment during lunch hours, coffee breaks and other such rest periods. Further, the injury occurred arising out of employment in that it was caused by a hazard resulting from the nature, conditions or obligations of employment; namely, the conditions of the remote work camp where the worker was situated.

Counsel also argued that the panel should apply the common law “bunkhouse rule” which provides that when a worker lives in facilities provided by the employer and there are no alternative accommodations available, any accident arising out of a hazard of the premise is considered to be arising out of and in the course of employment. In this case, worker was residing in facilities provided by the employer and was making reasonable use of the facility, participating in activities of daily living at the time of his injury.

The hazard of the premises, according to counsel, is the remote location of the facility which meant the worker was unable to receive timely medical attention when he required it. Counsel referenced the evidence confirming the timeline of the emergency response. Nearly 20 minutes passed from the time the emergency services were first dispatched to when they arrived to assess the worker. Approximately 20 minutes later the ambulance left to go to hospital and did not arrive at the hospital where the worker died until just over two hours later. Counsel argued that the remoteness of the facility from the nearest emergency medical station, the unavailability of helicopter transport and lack of cellular phone service availability in the accommodation created a hazard of the premises that caused or contributed to the worker’s death.

In the alternative, legal counsel stated that the presumption in s 4(5) of the Act is applicable, and that because the worker was injured in the course of employment, it must be presumed that his fatal injury arose out of employment unless the contrary is proven. Counsel noted that there is no evidence to conclude that the worker’s injury did not arise out of his employment and therefore the presumption stands.

Further, legal counsel posited that in the absence of medical evidence there is no basis to conclude there is not a causal link between the worker’s activities leading up to his death and his brain hemorrhage and that the worker’s pre-existing condition should not render the claim unacceptable. 

Counsel also pointed to the underlying purpose of the Act, being the provision of benefits to workers who are injured while performing activities arising out of and in the course of employment. In this context, the employer’s position that it has been conscientious and safety conscious should not be considered in determining whether or not a claim is acceptable.

In answer to questions posed to her, the worker’s spouse described the worker’s employment history and the events leading to this employment, noting he started this position in late August 2014. He was working his second 21-day stint at the time of his death. She noted that the worker had expressed to her a concern about the distance to the nearest emergency medical service. She described his work with the employer as being physical.

The worker’s spouse described the worker’s health as stable, although noting he had a kidney removed in 2000 and had experienced sinus issues for many years. She said the worker experienced headaches that he attributed to his sinus condition and would treat these with over the counter medications. While at home on break in early October, the worker saw his doctor regarding allergy issues and their possible link to his headaches. She stated the doctor recommended the worker go for an MRI and the worker promised to set it up on his next return home.

The worker’s spouse confirmed to the panel that there was not any MRI scheduled for the worker prior to his death and that she did not recall telling a WCB case manager that there was such an appointment set for October 31, 2014. With reference to the autopsy report, the worker’s spouse noted that she was unaware the worker had cancer and did not believe the worker knew of this diagnosis.

The worker’s spouse recalled that on the evening of his passing, she spoke to the worker by phone around 6:00 p.m. A few hours later, between 9:30 – 10:00 p.m., she received a telephone call from the employer advising that the worker was being taken by ambulance to hospital due to a headache. She did not hear further until she learned, just before midnight, that the worker had passed approximately one hour earlier. In the intervening hours she had tried without success to get more information, contacting hospitals and police.

The worker’s spouse described a later conversation with the worker’s colleague, who heard the worker moaning and noted his distress on the evening of October 16, 2014. This colleague told her he contacted the onsite security personnel and they called for emergency help for the worker. The worker’s spouse also noted she later spoke with a kitchen worker at the site, who was also a family friend, and was told by that individual the worker did not attend for supper that evening.

In sum, the position of the worker’s spouse is that the worker’s death arose out of and in the course of his employment, and as a result, the claim should be acceptable. Alternatively, if the panel finds the accident occurred in the course of employment, the presumption that the injury arose out of the worker’s employment, under s 4(5) of the Act, should apply as there is no evidence to refute that the accident arose out of employment. In either case, the claim should be accepted.

Employer’s Position

The employer was represented in the hearing by its Workers Compensation Claims Manager, who made an oral submission and provided a written submission to the panel for consideration. The employer’s representative also provided testimony in answer to questions posed by panel members.

The employer’s position is that the evidence does not support a finding that there is any relationship between the worker’s injury and his employment and therefore the claim should not be accepted. The employer’s representative stated that for an injury to arise out of employment the activity giving rise to it must be causally connected to the employment as outlined in the Arising Policy.

The employer’s position is that it complied with the provisions of the Act in that it provided access to 24-hour medical clinic services in the main accommodation facility, including ambulance service to the nearest hospital. The employer’s representative stated that the distance to the nearest medical facility is not within the control of the employer. Acknowledging that the work site is remote, the employer’s representative stated it has taken all steps to mitigate risk as required, noting that phones linking directly to security were placed in each hallway on every floor of the accommodation.

Further, the employer’s representative noted, with respect to the Lunchroom Policy, that an injury occurring in such premises as outlined will only be compensable if the injury arises from a hazard of the facility and not a personal hazard. Here, the worker’s injury was the result of longstanding medical issues unrelated to the worker’s employment and the autopsy report confirms that. The employer’s representative also noted that while the definition of accident under the Act includes occupational disease, it explicitly excludes an ordinary disease of life from the definition of an occupational disease, suggesting the worker’s fatal injury was the result of an ordinary disease of life.

The employer’s representative noted there is no medical evidence to support the worker’s suggestion that the mode of transport and timing contributed to the outcome. Further there is no evidence to support that the worker’s employment activity was a contributing factor to the injury.

In response to questions from the panel members, the employer’s representative confirmed that the worker was paid wages on an hourly basis and that at the time he was found in his room in distress, he had concluded his workday and was off duty. The employer’s representative also confirmed to the panel that there was no evidence that the worker was unwell on that date but that he had completed his work as usual.

The employer’s representative stated that the Act and the WCB policies make it clear that there must be a direct relationship between the employment and the injury. In this case, there is no evidence to establish such a relationship. Rather, the medical findings support a finding that the worker’s pre-existing medical condition was the sole contributing factor in his death.

Analysis

The issue before the panel is whether the claim is acceptable. For the appeal to be successful, the panel must find, on a balance of probabilities, that the worker was fatally injured as a result of an accident arising out of and in the course of his employment. The panel is unable to make that finding in this case for the reasons that follow.

Based on our review and consideration of all of the evidence which is before us, on file and as presented at the hearing, as well as the submissions made by counsel for the worker’s spouse and the representative of the employer, the panel is satisfied, on a balance of probabilities, that the worker's fatal injury was not the result of an accident arising out of and in the course of his employment and that the claim is therefore not acceptable.

The worker’s spouse submits that the evidence supports a finding that at the time the injury occurred, the worker was in the course of his employment, as he was in a location where he was reasonably entitled to be and performing an activity incidental to employment. Counsel argued the WCB’s Lunchroom Policy should apply as the worker’s after-work circumstances were analogous to those described in that policy, in that his off duty hours were spent in employer-provided accommodation and he was not free to go anywhere else, and therefore, the injury sustained during a break from work should be considered to have arisen out of and in the course of employment as it occurred while the worker was making reasonable and proper use of the facility arose from a hazard of the facility, and not from a personal hazard.

Further, the worker’s spouse takes the position that the fatal injury arose out of the worker’s employment, noting the WCB’s General Premises Policy sets out that an injury occurring on the employer’s premises generally is considered to arise out of the employment, unless it is the result of a personal action by the worker and was not caused by a hazard of the premises or by an occurrence under the control of the employer. Here, it was argued, the conditions of the worker’s employment, including the requirement to reside on-site in a remote camp location created a hazard of the premises that contributed to or caused the worker’s death.

In considering the issue for determination, the panel considered whether the medical findings support the position that the worker’s fatal injury resulted from an accident that occurred in the course of and arising out of the worker’s employment.

The medical findings of the pathologist set out in the autopsy report of December 12, 2014 unequivocally indicate the cause of the worker’s death to be metastatic renal carcinoma to the brain with secondary hemorrhage. The report noted the resected left kidney tumor, removed on March 14, 2000, was reviewed and that the pathology of the metastatic lesions found in the worker’s brain, esophageal area and bile duct were consistent with having originated from the primary left kidney site. Upon examination of the worker’s brain, the pathologist noted “Metastatic carcinoma of renal primary, clear cell type, multifocal, involving left frontal lobe and right cerebellum” with brain swelling/cerebral edema and intratumoral hemorrhage. The pathologist comments that the cerebral hemorrhage is caused by metastatic carcinoma and that the findings strongly suggest the renal cancer to be the primary cancer.

The WCB physical medicine consultant who reviewed the autopsy report at the request of the panel noted in an opinion dated August 19, 2020 that the worker’s:

“...acute headache of October 16th, 2014 and associated acute distress, ensuing inability to provide an understandable response, cardiac arrest and passing are fully medically accounted for on the basis of an acute, spontaneous (i.e. non-provoked) bleed within cancerous deposits in his brain that had been present for an undetermined duration prior to October 16, 2014. Those cancerous deposits in [the worker’s] brain had occurred as a complication of spread of cancer to his brain from a primary left kidney cancer.

I am not aware of a pathophysiologic process in relation to the October 16, 2014 work duties that would medically account for the acute bleed within the cancerous deposits in [the worker’s] head.

Rather, acute, spontaneous bleeding within cancerous deposits in the brain represents the natural history of metastatic renal cell carcinoma to the brain. Specifically, death often follows relatively rapidly in individuals who have developed brain metastatic deposits of renal carcinoma.”

The panel accepts and relies upon the report of the attending pathologist as to the cause of the worker’s death being metastatic renal carcinoma to the brain with secondary hemorrhage. The panel also accepts and relies upon the opinion of the WCB physical medical consultant that the worker’s acute headache and associated distress and subsequent cardiac arrest and death are “fully medically accounted for” on the basic of an acute and spontaneous brain bleed within the cancerous deposits in his brain that had metastasized from the primary renal cancer.

In considering the application of the policies relied upon by the worker’s spouse, the panel noted that at the time of his injury, the evidence supports that the worker was not participating in any work-related activity but was off duty in his accommodations, in a location where he was entitled to be. There is no evidence before the panel to suggest that the worker’s own activities, whether personal or related to his employment caused his injury and death. There is also no evidence before the panel to suggest that the worker’s employment duties on October 16, 2014 or leading up to that day played any role in his fatality. Further, there is no evidence before the panel that the worker’s execution of his job duties in any way exacerbated or enhanced his pre-existing metastatic renal cancer.

The panel recognizes that the injury occurred at a remote work camp, in a facility provided by the employer. Counsel for the worker’s spouse indicated that because the employer provided this facility in which workers would live and spend their time outside of work hours, the employer was responsible for hazards associated with these premises. This is clear under the provisions of the policies relied upon by the worker’s spouse, but there is no evidence before the panel to suggest that any of the conditions of the worker’s employment, including the remoteness of the accommodation from a hospital were causal factors in the worker’s death due to his pre-existing medical condition.

The evidence does not support a finding that the worker’s fatal injury arose out of a hazard of the employer’s premises. The panel finds that there was no causal relationship between the worker’s employment and his death. Rather, the evidence supports, on a balance of probabilities, a finding that the cause of the worker’s fatal injury was the result of the worker’s pre-existing metastatic renal carcinoma to the brain with secondary hemorrhage.

On the basis of these findings, and having considered all the evidence before us, the panel determines, on a balance of probabilities, that the worker’s fatal injury did not occur as a result of an accident arising out of and in the course of his employment. Therefore, the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of November, 2020