Decision #120/22 - Type: Workers Compensation
The worker's estate is appealing the decision made by the Workers Compensation Board ("WCB") that the claim is not acceptable. A hearing was held on October 6, 2022 to consider the appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The WCB was notified of a fatal incident involving the worker while at work on August 25, 2020. A Worker Incident Report filed September 8, 2020 indicated the worker was one step up on a step ladder at work and fell. It was noted that the worker passed away the following day, and an autopsy determined his passing was due to blunt force trauma to the head.
The WCB spoke with the worker's spouse on September 9, 2020. His spouse advised that the worker had prior cardiac issues, but his heart had been fine since his heart surgery in 2016. His spouse further advised that the worker was fine the morning of the incident, and left for work like every other day.
On September 10, 2020, the WCB received copies of the medical reports from the local emergency department the worker was taken to on August 25, 2020. The reports indicated the worker arrived at the emergency department with an altered loss of consciousness, having been found at work by a co-worker following an unwitnessed collapse. A CT scan taken August 25, 2020 indicated the worker had "Extensive multicompartmental intracranial hemorrhage with significant mass effect and herniation. Neurosurgical consultation is advised. Multiple skull fractures…" The treating emergency physician determined the worker had an intracerebral hemorrhage, and referred him to a neurosurgeon for further treatment. The worker underwent an attempted neurosurgical repair that same day, but passed away on August 26, 2020.
On November 3, 2020, following an investigation into the incident, the employer submitted an Employer's Incident Report, along with a description of the worker's background, job duties and incident and a summary of his relevant health history. The employer noted that the worker was working his regularly scheduled shift on the date of the accident, and a third party inspector was inspecting the vehicle he was working on at that time. The employer further noted that the inspector and the worker knew each other, and were speaking to each other just before the incident occurred. The inspector turned around to make a notation in her inspection report, when she heard a "thud". When she turned back, she saw the worker on the ground and immediately called for help. First Aid was administered and the worker was transported to a local emergency department by ambulance. The employer also noted that witnesses reported seeing and speaking to the worker throughout the day, and that they described him as being in a good mood and not showing any signs of physical distress.
On November 4, 2020, the WCB contacted the employer for clarification with respect to the initial reporting that the worker was on a ladder when the incident occurred. On November 6, 2020, the employer advised that ladders were not used for the tasks the worker was performing, or present at the work station when the incident occurred. The employer noted that a two-step stool was used for some of the tasks, but the worker was not using the stool at the time of the incident.
On March 19, 2021, the WCB received a copy of the worker's August 31, 2020 autopsy report. On April 16, 2021, a WCB internal medicine consultant provided a medical opinion to file. The consultant noted that the emergency department had indicated in their assessment that the worker had an unwitnessed collapse at work, and that the medical examiner documented the immediate cause of death in the autopsy report as a "…catastrophic intracranial hemorrhage (bleeding within the skull) due to or as a consequence of a fall from standing." The WCB internal medicine consultant went on to opine that the worker's fall from standing was not medically accounted for "by occupational factors."
On April 21, 2021, the WCB's Compensation Services advised the worker's spouse that the claim was not acceptable. Compensation Services advised they had determined that while the worker collapsed at work, the information did not support an employment-related cause, and the fall and injury sustained as a result of the fall could not be attributed to a workplace hazard.
On April 28, 2021, a union representative asked that Compensation Services reconsider their April 21, 2021 decision. The representative noted the worker was not on a break or having lunch, but was actually working when the incident occurred. The representative also submitted that the information did not indicate the worker "collapsed" at work, but that he fell backwards and hit his head which caused his death. The representative further submitted that there were hazards in the area where the worker was performing his job duties which may have led to the worker tripping and falling.
On the same date, the WCB asked the employer to provide photographs of the worker's job site and further information regarding the presence of a rail in the area which the worker might have tripped on. On June 2, 2021, the employer responded to the WCB's request, providing photographs and a description of the area, including photographs recreating the worker's incident. On June 11, 2021, Compensation Services advised the worker's spouse that the new information was reviewed, but there would be no change to their decision that the claim was not acceptable.
On August 23, 2021, a representative from the Worker Advisor Office requested that Review Office reconsider Compensation Services' decision. The representative submitted that the worker's accident occurred while the worker was in the course of his employment, and pursuant to the WCB's legislation and policies, it was presumed the accident arose out of the worker's employment unless the contrary was proven. On September 14, 2021, the employer provided a response to that submission.
On October 20, 2021, Review Office determined that the claim was not acceptable. Review Office accepted the cause of death as noted on the autopsy report and determined it would be speculation to conclude a cardiac event occurred. Review Office placed weight on the recreation of the accident scene as provided by the employer. Review Office accepted the opinion of the WCB's internal medicine consultant, and advised that they were unable to identify a hazard of the employer's premises that contributed to the worker's fatal injuries. Review Office concluded that the worker's injury occurred while in the course of his employment, but that they were unable to find evidence to support the injury arose out of his job duties.
On March 1, 2022, the estate's representative submitted a copy of an employer Incident Investigation Report dated October 9, 2020, and requested that Review Office reconsider their earlier decision. The representative noted some inconsistencies with the earlier evidence provided by the employer. The representative submitted that the reason the worker fell to the ground would never be known as no one witnessed the fall. The representative further submitted that because the new information rebutted the employer's "scene recreation" document, or at least cast enough doubt on the evidence such that it was inconclusive, the WCB must presume the injury arose out of the worker's employment and find the claim acceptable.
On April 26, 2022, Review Office determined the claim was not acceptable. Review Office found that they were unable to identify a hazard of the employer's premises which contributed to the worker's injury. Review Office further stated that they were able to find evidence to support the worker's injury did not arise out of his employment.
On May 2, 2022, the estate's representative 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") and regulations, and by policies established by the WCB's Board of Directors. As the date of injury is identified as August 25, 2020, the applicable legislation is the Act as it existed at that time.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered a personal injury by accident arising out of and in the course of employment. Both parts of the test must be met, that is, the accident must arise both out of, and in the course of, the worker's employment.
Subsection 4(5) sets out a rebuttable presumption where there is evidence available to establish one part of the test, but the evidence is inconclusive or there is no evidence regarding the other part of the test, and reads as follows:
4(5) Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.
The WCB has established WCB Policy 44.05, Arising Out of and in the Course of Employment, with respect to determining whether an injury is the result of an accident arising out of and in the course of employment. The Policy states, in part, as follows:
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's estate was represented by a worker advisor, who made an oral presentation at the hearing. The representative noted that they were also relying in part on a written submission provided in advance of the hearing, and on their previous submission to Review Office. The worker's spouse and daughter also attended the hearing, and provided brief comments to the panel.
The estate's representative submitted that the claim ought to be accepted on the basis that the worker's fatal injury occurred in the course of his employment, triggering the presumption under subsection 4(5) that the injury arose out of the employment, and that in the absence of sufficient evidence to rebut that presumption, the definition of an "accident" was satisfied.
The representative submitted that all that is really known based on the available evidence is that the worker was at work, performing work or an activity incidental to work, and for some unknown reason, he lost his footing and fell, landing on the ground.
It was submitted that there are so many unknowns in this case, and the reason for this was that the investigation of the claim was untimely and incomplete. The representative submitted that the investigation was in some ways delegated to the employer, who had a vested interest in the outcome, with the WCB adopting a more passive role.
The representative submitted that the absence of investigation or delayed investigation resulted in an inability to speak to potential witnesses, and evidence which may have been available at the time would have been lost or misplaced. The representative noted that there may have been evidence at the time, but could not say what this was, acknowledging that "we don't know what we don't know."
It was submitted that in the circumstances, exactly how and why the accident happened will never be known, and the presumption that the accident arose out of the employment should apply.
The representative further submitted that the information which was provided was not reliable enough or was too incomplete to rebut the presumption that the claim arose out of the employment.
The representative noted that in the November 3, 2020 Employer's Incident Report and accompanying documentation, the employer's conclusions that the worker had suffered a medical event unrelated to work, and with respect to how the worker had fallen, were speculative.
Further, the October 9, 2020 Investigation Report which was prepared by the employer for Workplace Safety & Health, a copy of which was not provided to the WCB until March 2021, contained important details which were not known to the WCB. The representative also noted concerns with respect to the nine witness statements which were provided with the Investigation Report, including that the reports were dated about two weeks after the incident, but had not been provided to the WCB before this; that the identities of the witnesses were unknown; that the statements were typed and it was not known by whom; and that in some cases the statements contained identically worded responses to particular questions.
The representative further noted that information in the "scene recreation" document which the employer prepared and provided to the WCB approximately seven months after the incident contained details which were not mentioned in the Investigation Report or witness statements included with that Report. It was submitted that it was very unlikely, however, that those details would have been overlooked by the witnesses or in the Investigation Report.
In conclusion, the estate's representative submitted that given the absence of sufficient evidence to determine why and how the accident happened, the legislative presumption should apply, and both tests or parts of the definition of an accident under the Act having been met, the claim should be accepted.
The employer did not participate in the appeal.
The issue before the panel is claim acceptability. For the estate's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered 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.
There is no dispute that the worker's injury arose in the course of his employment with the employer. The evidence is clear that the incident occurred during work hours, while the worker was engaged in a usual employment activity on behalf of the employer.
The remaining issue is whether the incident, the worker's fall and his resulting injury, arose out of the worker's employment. Based on our review of the available information and relying on the presumption in subsection 4(5) of the Act the panel is able to make that finding, on the applicable standard of a balance of probabilities.
The panel finds that there is no dispute, and the evidence clearly indicates, that no one saw the worker fall. The available evidence further indicates that the worker was fine the morning of the injury, when he left for work, and that several co-workers indicated he was in a good mood and not showing any signs of physical distress that day.
Having carefully reviewed and considered the totality of the available information on file, the panel finds that there is not enough compelling evidence to make a reasoned decision, on a balance of probabilities, as to whether the worker's fall and injury arose out of his employment.
The panel notes that there were significant gaps in the investigation of the claim, which impeded the ability of the WCB and the panel to decide this issue. The panel further notes that there are significant inconsistencies or gaps in the evidence itself. The panel is not satisfied that additional information could be obtained at this point which would assist in remedying such gaps or deciding this issue.
The panel notes that we attach little weight to the April 16, 2021 medical opinion of the WCB internal medicine consultant. In the panel's view, the consultant's report indicates that she based her opinion on a limited review of the medical information alone. Moreover, the panel is of the view that the issue the consultant addressed, relating to whether occupational factors caused or contributed to the worker falling, is more of an adjudicative matter, to be decided by an adjudicator.
The panel therefore finds that the legislative presumption that the worker's fall and resulting injury arose out of his employment or were causally related to his employment has been satisfied. Having made that finding, the panel must go on to consider whether that presumption has been rebutted.
Based on our review of the evidence, and as indicated above, the panel is satisfied that there is insufficient reliable information which would enable us to arrive at such a conclusion, and therefore finds that the presumption has not been rebutted.
As a result, the panel finds, on a balance of probabilities, that the worker suffered personal injury by accident arising out of and in the course of his employment. The claim is therefore acceptable and the estate's appeal is allowed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 5th day of December, 2022