Decision #102/22 - Type: Workers Compensation
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 June 21, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On December 22, 2020, the employer provided the WCB with an Employer's Accident Report advising that the worker died following a motor vehicle accident on December 18, 2020. The Report indicated the worker "Went into a rock cut, pinned by steering wheel / dash." The reason for the accident was noted as unknown, with the coroner and police reports pending.
The WCB contacted the employer on December 23, 2020 to gather further information. The employer provided the WCB with contact information for the worker's spouse and advised that the spouse was with the worker when the accident occurred. The employer advised the WCB that the worker would not have been responsible for any loading or unloading of the vehicle prior to the accident.
On December 31, 2020, the WCB contacted the worker's spouse to discuss the claim. The worker’s spouse advised the worker had no history of cardiac issues and was feeling fine with "no complaints" when they woke up that morning. The spouse confirmed the worker started driving at approximately 8:00 am on December 18, 2020 and the accident occurred approximately three hours later, with the cause of the accident still being investigated.
The worker's representative provided a Worker Incident Report to the WCB along with additional information on January 26, 2021. The representative indicated the worker was "…under stress due to driving in the winter, rushing to meet work demands and working in a stressful environment when performing his job duties…which caused the cardiac arrest [the worker] suffered while at work while driving on December 18, 2020." The worker's representative noted the worker's spouse had spoken to the worker on the morning of the workplace accident and indicated the worker had "…no chest pain or symptoms at that time." The worker began to experience chest pains approximately two hours later while driving, which then resulted in the worker experiencing a cardiac arrest. The representative stated their belief the worker's job duties contributed to the cardiac arrest they suffered at work, as they "…experienced stressful conditions that could reasonably be expected to cause an elevated heart rate, stress on [the worker’s] heart, and inevitably a cardiac arrest."
On July 5, 2021, the worker's spouse provided the WCB with a copy of the June 24, 2021 Coroner's Investigation Statement, Post-Mortem Report and Toxicology Report. The Statement included a summary of the December 18, 2020 accident and the Post-Mortem Report indicates the cause of the worker's death was attributed to hypertensive cardiovascular disease. On August 18, 2021, the WCB received a copy of chart notes from the worker's treating family physician from January 2017 to December 2020.
At the request of the WCB, the worker's file was reviewed by a WCB medical advisor on October 7, 2021. The medical advisor noted the coroner's report indicated evidence of "…pathological changes in the heart, kidneys and vasculature of the lungs that could support hypertensive cardiovascular disease…There were no fatal toxicological or vitreous biochemical findings. There was no evidence of obstructive coronary artery disease or myocardial infarction. Death was attributed to hypertensive cardiovascular disease. It was noted that hypertension can be asymptomatic (causes no symptoms) going undetected with sudden cardiac death being the first manifestation." The WCB medical advisor also noted the worker had other pre-existing conditions that could have contributed to the cardiac arrest and concluded they could not establish a relationship between the worker's job duties and the cause of death. On October 12, 2021, the WCB advised the worker's spouse that a causal connection between the worker's job duties and their death could not be established and as such, the claim was not acceptable.
The worker's representative provided a submission to Review Office on November 23, 2021 and requested reconsideration of the WCB's denial of the worker's claim. In the submission, the representative again stated their opinion the worker was under stress due to the driving conditions, demands of their job and working in a stressful environment while driving, all of which they believe led to the worker's cardiac arrest suffered while at work on December 18, 2020. On November 23, 2021, the employer provided a submission in support of the WCB's decision.
On December 9, 2021, Review Office found the worker's claim was not acceptable, relying upon the opinion of the WCB medical advisor and concluding that the worker's cause of death was not related to their job duties on December 18, 2020. As such, the claim was not acceptable.
The worker's representative filed an appeal with the Appeal Commission on March 24, 2022 and a teleconference hearing was arranged. Following the hearing on June 21, 2022, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and forwarded to the interested parties for comment. On September 15, 2022, 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 (the "Act"), regulations and policies of the WCB's Board of Directors. The provisions of the Act in effect on the date of the worker’s death apply.
The Act provides, in s 4(1) for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Section 4(5) of the Act sets out the presumption that an accident that arises out of employment occurred in the course of employment unless the contrary is proven, and that an accident that occurs in the course of employment arouse of the employment, unless the contrary is proven. Section 28(1) of the Act provides for compensation to be paid where an accident results in the death of a worker.
The term “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 it 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 also defined in s 1(1) of the Act, as “a disease arising out of and in the course of employment and resulting from causes or conditions” that are peculiar to or characteristic of a particular trade or occupation, or to particular employment or that trigger post-traumatic stress disorder but does not include an “ordinary disease of life” or “stress, other than an acute reaction to a traumatic event”.
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 188.8.131.52, Pre-existing Conditions (the “Pre-Ex 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.
The worker’s estate was represented in the hearing by an advocate who made oral submissions on behalf of the appellant and relied upon a written submission provided in advance of the hearing. The advocate also provided a further written submission for consideration by the panel in response to the additional information obtained by the panel subsequent to the hearing. The worker’s spouse attended the hearing and provided testimony in response to questions posed by the advocate and by members of the appeal panel.
The position of the worker’s estate is that the claim should be acceptable because the worker was in the course of their employment when they suffered sudden cardiac death, and that the worker’s death arose out of the conditions and circumstances of the worker’s employment. As such, the worker’s death is the result of an accident as defined by the Act and the claim should be acceptable.
The worker’s advocate submitted that the worker’s death was caused by working in a stressful environment, noting that the worker was engaged in the activities of their employment when they experienced sudden cardiac death. The advocate described the stressful environment as arising out of the stresses of work and the road conditions of light snow on the highway where the worker was travelling on the morning of December 18, 2020. The advocate noted the definition of accident in s 1 of the Act includes an occupational disease, and further referenced the portion of the definition of accident that includes an event arising out of and in the course of employment, noting that the Arising Policy provides that “arising out of” includes circumstances where an injury is caused by a hazard or conditions of employment.
The worker’s spouse provided a written statement included in the submission to the panel of June 3, 2022, in which the spouse outlined that the worker had worked in a stressful occupation for many years and describing some previous incidents where the worker experienced high pressure in the course of work. The spouse stated that after starting to work together with the worker, they noted that the worker was increasingly anxious and stressed when the weather was threatening so that the spouse would often take over in those circumstances. The spouse further noted that the worker also had personal financial stress arising from a debt owing to the employer. The worker’s spouse stated that driving was especially stressful in winter conditions and that the overall job circumstances of the worker were also stressful.
The worker’s spouse testified to the panel that there was snow on the ground the morning of December 18, 2020 and that there had been freezing rain overnight. The spouse noted they were unable to testify as to what happened immediately before the worker’s cardiac event and the motor vehicle accident as the spouse was sleeping at that time. The spouse was not able to recall any specific stressors or timing issues on the job that particular day but stated that the whole job is stressful. The spouse stated that they drove that specific route twice weekly.
On questioning by the panel, the worker’s spouse was not able to provide any information as to whether the motor vehicle accident occurred prior to the worker’s cardiac event or whether the cardiac event occurred first. The worker’s spouse further confirmed to the panel that the worker was not aware of the extent of their financial obligations to the employer and noted that based on their level of indebtedness, the spouse would push the worker to keep working, but that the work itself was the stressor.
The advocate submitted that the stress of the worker’s job duties in general, not just on the date of their death, contributed to the worker’s sudden cardiac death. The advocate noted the statement provided by the worker’s treating physician, as set out in the June 3, 2022 submission, that there was no evidence in the physician’s file that the worker had any pre-existing conditions affecting their heart and also no evidence of heart disease.
In sum, the position of the worker’s estate is that the claim should be accepted because the evidence supports a finding that the worker’s sudden cardiac death was caused by the stress of doing the job and that as the worker’s death occurred in the course of employment, it also occurred arising out of the employment.
The employer did not participate in the appeal.
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 their employment. The panel is not able to make that finding in this case for the reasons that follow.
The worker’s estate submits that the worker died as a result of an accident as defined by the Act, relying upon the provision that an accident includes an “event arising out of, and in the course of, employment” and as well as relying upon the inclusion of an occupational disease in the definition of accident. The worker’s estate takes the position that the worker’s sudden cardiac death was caused by a hazard (workplace stress) resulting from the “nature, conditions or obligations” of the worker’s employment. Alternatively, the worker’s estate argues that the worker’s death was the result of an occupational disease arising out of the worker’s employment.
The panel therefore considered whether the evidence establishes that the worker’s death occurred as the result of an accident, being an event arising out of and in the course of employment or an occupational disease.
There is no dispute that the worker’s death arose in the course of their employment with the employer, in that the worker was, at the time of their death, engaged in a usual employment activity on behalf of the employer. The panel must determine whether the worker’s death arose out of that employment. In this regard, the presumption set out in s 4(5) of the Act is relevant. Section 4(5) provides that an event causing injury that arises in the course of employment is presumed to have arisen out of that employment unless the contrary is proven. The WCB’s Arising Policy elaborates upon this provision, setting out 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.”
The panel considered the medical evidence in respect of the cause of the worker’s death. The panel noted the medical cause of death set out in the Coroner’s Investigation Statement and Report of Post-Mortem Examination contained in the WCB claim file is hypertensive cardiovascular disease. The Coroner’s report sets out that the post mortem examination “did not reveal any injuries that would have contributed to or account for death” but the examination did reveal “pathological changes that could be attributed to hypertensive cardiovascular disease” and the Coroner concluded that that the “manner of death is natural.” The attending forensic pathologist concluded that “Based on history, scene and autopsy findings, death is attributed to hypertensive cardiovascular disease and which could account for the course of events related in the history. Hypertension can be asymptomatic going undetected with sudden cardiac death being the first manifestation.”
The panel also reviewed the worker’s medical chart notes as provided by their primary care physician on August 17, 2021. The medical chart confirms that the worker was being treated by the physician for a number of non-compensable medical conditions, but there is no evidence of any prior diagnosis of a cardiovascular-related disease.
The panel also considered the opinion provided by the WCB medical advisor on October 7, 2021. The medical advisor reviewed the medical information on file and noted that the worker’s death was attributed to hypertensive cardiovascular disease, a condition which the medical advisor explained may not manifest with any symptoms until a sudden cardiac death. The medical advisor further explained that “Sudden Cardiac Death (SCD) refers to sudden death occurring due to sudden cessation of cardiac activity and hemodynamic collapse (absence of palpable pulse and blood pressure)” and noted there are a number of underlying causes of sudden cardiac death, including most commonly, coronary heart disease but also cardiomyopathies, valvular heart disease, myocarditis and primary electrical heart disease. The medical advisor noted that the risk and predisposing factors are varied and that there is evidence that the worker had a number of known risk factors. Finally, the medical advisor concluded that they could not “establish a probable causative relationship between the worker’s occupation…and…cause of death.”
Following the hearing, the panel sought further information from the WCB medical advisor with respect to the etiology, treatments and prognosis for hypertensive cardiovascular disease and sudden cardiac death, and the relationship between those conditions if any. The panel also inquired whether external or environmental factors could contribute to the onset of sudden cardiac death and if so, how. A WCB internal medicine consultant provided a further opinion dated July 13, 2022, offering a number of conclusions. The consultant noted that the worker’s physician reported on April 5, 2022 that the worker had a number of risk factors for ischemic heart disease and stated that the terms ischemic heart disease and cardiovascular disease are “essentially interchangeable” with “essentially the same” risk factors, and noted that the worker’s age, sex (gender) and elevated body mass represent additional risk factors for cardiovascular disease. Further, the consultant noted there were no other findings, such as injury, toxicological or vitreous biochemical findings, to account for the worker’s death. Based on their review of the post mortem findings, the WCB internal medical consultant concluded that the worker “died as a consequence of underlying hypertension” on their heart, noting that hypertension is highly prevalent in the population (at 46% by estimates) and that the cause of primary hypertension is unknown although the risk factors are known. The consultant went on to note that “Complications of longstanding, non-treated hypertension include (but are not limited to) left ventricular hypertrophy and sudden cardiac death” and that “the vast majority of individuals with hypertension are asymptomatic (without symptoms). The internal medical consultant explained that “Sudden cardiac death is a broad term that refers to sudden death due to the sudden cessation of cardiac activity and hemodynamic collapse” and that this may have been the case for the worker, noting that sudden cardiac death “occurs in the context of underlying risk factors for cardiovascular disease” which the worker is known to have had. In response to the panel’s question regarding external or environmental factors contributing to the onset of sudden cardiac death, the consultant stated that the research indicates a “possible relationship between acutely stressful major catastrophic disasters…and the risk of sudden cardiac death” and that further research in the area is warranted. In this context, the consultant noted that stress is predominantly defined as that “associated with direct involvement in a major catastrophic disaster, such as a high magnitude earthquake or missile strikes in the setting of war” and that the mechanism for the “possibly increased risk of sudden death may be a precipitous increase in catecholamine hormone release (fight or flight response hormones) and effect of same on myocardial (heart muscle) oxygen demands.”
The panel also considered the evidence as to the circumstances surrounding the worker’s death. Although the worker’s spouse was present at the time of the worker’s death, the spouse testified that they were sleeping until being awakened by the motor vehicle accident. The spouse indicated the worker had not expressed any concerns about their health earlier that morning. The spouse further testified that they were not aware of whether there was any event or circumstance that caused the motor vehicle accident, although the spouse speculated that there could have been poor winter driving conditions at the time or that there may have been wildlife on the road. The panel noted there are no witnesses to the circumstances leading up the motor vehicle accident. The panel also noted that there is no evidence as to whether the motor vehicle accident occurred following the worker’s sudden cardiac death or whether the sudden cardiac death occurred following the motor vehicle accident. On being questioned by the panel on this point, the advocate for the worker’s estate was not able to provide any further information and restated their position that the worker’s fatal injury was the result of the stresses placed upon the worker by doing their job and that the claim should be acceptable because the worker’s death arose in the course of the worker’s employment and arising out of the stress of that employment.
With respect to the submission that the worker’s death was the result of both an accumulation of workplace stress and the immediate stressful circumstances of that morning, the panel is unable to make such a finding on the basis of the evidence before us. The evidence suggests that the worker was subject to what could be described as the ordinary stressors of employment, rather than to any acutely stressful event such as the examples described by the WCB internal medical consultant in their August 19, 2022 report. The panel notes that the worker was not travelling along an unfamiliar route at the time of their death and we note the evidence that there was nothing out of the ordinary about the particular job task the worker and their spouse were undertaking on December 18, 2021 and that it was a routine trip.
We accept the evidence of the pathologist and coroner and the WCB medical advisors that the direct cause of the worker’s death was hypertensive cardiovascular disease. We find that the evidence supports that this was more likely than not a pre-existing medical condition that was undiagnosed and asymptomatic and that resulted in the worker’s sudden cardiac death on December 18, 2021. There is no evidence before us to support the position of the worker’s estate that this condition was caused by or the result of the worker’s occupational duties or stresses. We are satisfied on the basis of the evidence that this was a non-compensable pre-existing medical condition that resulted in the worker’s death on December 18, 2021. As such, we find that the evidence does not support the position offered by the worker’s estate that the worker’s death arose out of their employment.
With respect to the position of the worker’s estate that the worker’s death was the result of an occupational cause, being the accumulation of workplace stress over a period of time, the panel noted that the definition of occupational disease set out in the Act specifically excludes “an “ordinary disease of life” or “stress, other than an acute reaction to a traumatic event”. The panel finds that this exclusion applies here, as the evidence supports a finding that the worker was subject to the usual stresses of employment but does not support a finding that the worker was subjected to an acute stress reaction to a traumatic event and further, the evidence supports a finding that the worker had an underlying, asymptomatic and undiagnosed condition of hypertension, a condition that is highly prevalent in the general population and as such, may be described as an ordinary disease of life.
Based on our review and consideration of the evidence before us, on file and as presented at the hearing, as well as the submissions made by counsel for the worker’s estate, the panel is satisfied, on a balance of probabilities, that the worker's death was not the result of an accident arising out of and in the course of their employment and that the claim is therefore not acceptable.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of October, 2022