Worker (Estate) v. Employer, 2023 CanLII 34284

decision number:

20230048

estate - worker

REPRESENTED by:

worker representative

HEARD by:

L.CIRILLO, appeals resolution officer

DATED:

january 30, 2023

ISSUE

The estate objects to the Adjudicator’s decisions dated February 4, 2022 and March 3, 2022, which denied initial entitlement for the worker’s heart condition arising out of and in the course of their employment on January 11, 2022.

BACKGROUND

This claim was established in January 2022, upon receipt of a Form 6, Worker’s Report of Injury and Form 7, Employer’s Report of Injury. The employer reported that on January 11, 2022, the worker was performing electrical work at a job site, which was a new store located in a shopping plaza. The employer was unsure of what happened; however, stated that the worker was found by a bystander on the ground outside the store beside their vehicle sometime before 10 a.m. and they called 911. Emergency personnel attended the scene and initiated CPR. The worker was transported to hospital where they underwent life saving measures.

The Cardiology Discharge Summary dated January 12, 2022 indicates that the worker was transferred to the Hospital A from Hospital B on the morning of January 12, 2022. Prior to transfer they were initially admitted to Hospital B after experiencing an unwitnessed cardiac arrest on the morning of January 11, 2022. A bystander found them after an unknown downtime. CPR was initiated by EMS for about 30 minutes with initial rhythm consistent with ventricular fibrillation requiring eight rounds of shocks. They were intubated at the scene and transferred to Hospital C where CPR was continued. ECG revealed a myocardial infarction (MI). The worker was transferred to Hospital D for further treatment of their MI. An angiogram demonstrated significant coronary artery disease (CAD). They were then transferred to Hospital A for ongoing management of cardiogenic shock and consideration of additional mechanical support. Despite their effort, the worker passed away on January 12, 2022. The cause of death was indicated to be secondary to cardiogenic shock precipitated by a MI and prolonged out of hospital cardiac arrest.

At the time, the worker had been working for the employer as an Electrician for three months. Note is made however, that the employer reported that the worker was an experienced Electrician, who was previously self-employed.

The estate indicated that an autopsy was to be performed however; this does not appear on record.

The estate claimed that the workplace duties were a significant contributing factor in the development of the worker’s cardiac event and resulting death. It was ultimately concluded that the work duties did not play a role in the worker’s cardiac condition. Further, it was determined that there was no evidence of unusually strenuous work or any other unusual circumstances, which preceded the medical emergency. As a result initial entitlement as denied. The decision was communicated to the estate in correspondence dated February 4, 2022.

In correspondence dated February 24, 2022, the estate’s representative objected to the denial of initial entitlement. In support of his position, he argued that the decision either did not consider, or misstated the following:

The weather: Environment Canada issued a “cold weather alert” for January 11, 2022, the morning that the worker was injured. Temperatures were between -21 and -28C, with wind chills closer to -30.1. This fact, and that the worker was found outdoors, is absent from the decision. It is relevant to the circumstance of the worker’s injury that they were working outdoors, during a cold weather alert;
The work performed by the worker: While the decision correctly notes that “the employer is unaware of what happened and the exact time lines as there were no witnesses”, it yet reaches factual conclusions in respect of what work the worker did or did not do on January 11, 2022. Respectfully, without witnesses, no conclusions may be reached on this important issue;

Yet, the decision specifically concludes that the worker “had not performed any activities at the time they developed symptoms which would be considered unusually strenuous work and there were no other unusual circumstances which preceded the medical emergency.”

Without witnesses, it is impossible to have determined what work the worker did or did not do, whether that work was strenuous, when they developed symptoms, or whether there were any other unusual circumstances.

All that was open for the adjudicator to find, factually, was that the worker (i) attended the job-site; (ii) opened up the store where they were working; (iii) and was found beside their truck;

The statutory presumption: s. 13(2) of the Workplace Safety and Insurance Act, 1997, creates a presumption that the worker’s injury is presumed to have arisen out of their employment.

The decision makes no mention of this presumption, crucially important because of the absence of evidence concerning what work the worker did or did not do on January 11, 2022;

When work commenced: The decision provides that the worker “had arrived and opened up the store”, and then “was in the process of getting tools from their vehicle before starting work”. This chronology is clearly wrong. The worker “opening up” of the store was not before starting work, but was clearly part of the work itself. The suggestion that the worker had yet to engage in their work duties prior to their cardiac incident occurring is not correct;
The worker’s past medical history: the representative submitted a report from the worker’s general practitioner, Dr. Karl Iglar, completed for insurance purposes after their death;
He states that, prior to the event of January 11, 2022, the worker was not being seen for any heart related issues. Indeed, Dr. Iglar notes the date of first treatment for condition causing death was January 11, 2022, i.e., the day when the worker was injured;
To that end, the conclusion that the worker had an “underlying disease”, or, that “their symptoms did not arise out of the work they performed” cannot be substantiated;
It cannot be mere coincidence that an individual with no prior recorded heart history attends work on a bitterly cold workday, does something related to work, and then suffers a first coronary incident that proves fatal;
Taking all of the facts together, and applying the statutory presumption, there is no conclusion available other than the injury occurred as a result of the worker’s work;
In support of his position, he referred to previous case law – decisions 1799/02 and 667/13R. The representative noted that while each case certainly turns on its own facts, his view is that the worker’s case is far more likely to succeed then either of the two aforementioned cases. He also noted that cases concerning heart attacks in extreme heat are also beneficial to the estate’s claim;
For these reasons, he asked that the estate’s claim be allowed;
If however, the decision was confirmed, and the matter were to proceed to an appeal, he argued that there would be no evidence, whatsoever, in respect of what the worker did at work on January 11, 2022. He stated that he would argue vigorously that this absence of evidence is precisely why the legislature enacted the statutory presumption. He stated that he would muster evidence that the worker was certainly at work, and doing something related to work outside of their vehicle, and in extreme cold weather conditions. Further, he would have medical evidence that the worker had not sought treatment for any pre-existing heart issues, but had certainly been regularly seen by their physician. Further, he would argue that the evidence requires the conclusion that but for the worker doing something at work in the extreme cold, they would not have suffered a coronary event

Following receipt of the above, the operating area contacted the employer to obtain additional information. It was ultimately concluded that while there was a “cold weather alert” for January 11, 2022, there was no evidence the worker performed any work duties in the extreme cold, which would have contributed to the onset of their heart condition. In addition, it was noted that while the Workplace Safety and Insurance Act, 1997, contains the presumption clause (s. 13), the burden of proof must show that the cardiac condition arose both out of and in the course of employment. As there remained no evidence that the worker’s heart condition occurred while performing their regular work, and there was no injury, which would have precipitated the MI that satisfied the entitlement criteria outlined in operational policy, the previous decision remained upheld. The reconsideration decision was communicated to the estate in correspondence dated March 3, 2022.

The estate objected to the above; however, the decision remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Estate’s Position:

In correspondence dated September 14, 2022, the estate’s representative objected to the denial of initial entitlement. While the entire submission has been reviewed, it will not be repeated in its entirety.

The representative argues the following in part:

In his view, the adjudicator was obliged to apply the statutory presumption under s. 13 (2) of the WSIA, that an injury in the course of employment is presumed to have arisen out of employment unless the contrary is shown. Instead of doing so, the adjudicator made unsupported factual findings, including as to when the worker began experiencing symptoms of their heart attack, and what they were doing at that time. In his view, these factual findings were unavailable to the adjudicator and were clear errors;
He submits that the adjudicator’s decision cannot be permitted to stand as it is the product of unsupported factual conjecture, and legal errors;
The representative goes on to state that the adjudicator held that “it does not appear that work played a significant role in the worker’s cardiac condition.” She then, found that they “had not performed any [work] activities at the time they developed their symptoms”. Further, the adjudicator determined that the worker’s symptoms did not arise out of the work performed;
The representative states that the only issue to be determined is whether the adjudicator erred and in his view, it is obvious that she did. He submits that the adjudicator committed both legal and factual errors, which makes her decision unsupportable;
The representative states that the record before the adjudicator did not permit her to make factual findings (on when the worker developed symptoms/what work they were performing when the symptoms arose);
He argues that there was no evidence before the adjudicator concerning what the worker had precisely done on the job site, nor, when their symptoms arose. Any finding by the adjudicator tying symptoms to work performance was unsupported conjecture;
He argues that the actual evidence respecting work performance by the worker was as set out by the employer, namely that the worker “was doing electrical work” at the time of the injury. Any other conclusion concerning the nature of the work being performed on January 11, 2022 was not open to the adjudicator to make;
The representative opines that there is no possible basis that the adjudicator could have determined when the worker “developed symptoms”, let alone whether they were engaged in “strenuous work” when they suffered their heart attack. Still finding that the worker “had not performed any activities” is belied by the employer’s acknowledgement that the worker was engaged in work;
The representative also states that there was no evidence available to the adjudicator in respect to how the worker’s heart condition arose. The adjudicator had the worker’s medical history available to her, and found that the heart condition “did not arise” from their employment;
In his view, the absence of evidence concerning how the worker’s heart condition arose does not mean that it did not arise from employment. It merely means that there was no evidence available on this issue;
The representative argues that the Act sets out the presumption that an injury, which occurs in the course of employment is presumed to have arisen out of employment, “unless the contrary is shown”. He argues the adjudicator failed to follow the presumption and there is no evidence to rebut the presumption. He also notes that the worker was outside, engaged in work, during a cold weather advisory;
He states that the presumption exists in these very circumstances, to create a regime benefitting a worker injured on a job site, and with no other information available. The legislature [sic] has made clear, in such circumstances, the worker is compensated. Similarly, he states that case law from the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has confirmed that the presumption is “primarily intended to apply where the facts of the accident were not known”;
In his view, the fact that there was “no evidence that the worker’s heart condition occurred while performing their regular work” means that the presumption was not rebutted;
The representative further submits that the adjudicator erred in respect of holding that the worker’s claim was barred by operational policy 15-03-10. In his view, the policy does not address the evidentiary or legal issues set out under the Act. He submits that nothing in the policy can be taken as limiting the presumption that an injury, which occurs in the course of employment is presumed to have arisen out of employment, unless the contrary is shown;
He argues that what the policy contemplates is delineating circumstances where a cardiac incident is “work-related”. The policy merely notes that WSIB “accepts claims as work related” when “the cardiac condition is established as a disablement ‘arising out of and in the course of employment.’” He states that the policy does not limit the presumption under the Act, nor does it deal with evidentiary presumptions. In his view, nothing in the application of the policy undermines or limits the estate’s claim;
Taken together, he submits it is clear that the adjudicator erred. The worker was injured at work, performing work and that is sufficient for their claim to be accepted in these circumstances, and in particular in the absence of any other evidence;
For these reasons, he requests that that the adjudicator’s decision be set aside and that the estate’s claim to benefits is allowed

AUTHORITY

Section 13 Workplace Safety & Insurance Act (WSIA), 1997

Operational Policy Manual

Published

11-01-01 – Adjudicative Process

15-02-01 – Definition of an Accident

15-03-10 – Heart Conditions

November 3, 2008

October 12, 2004

ANALYSIS

I have reviewed the record and considered the information, relevant legislation and operational policies in reaching this decision. In considering all of the evidence, as well as the arguments presented, I find there is no initial entitlement for the worker’s cardiac event, which occurred on January 11, 2022. The rationale for my decision is as follows.

Prior to my analysis, I must note that while I have had regard for the previous case law, which has been referred to, the WSIB is not bound by these decisions and each case is adjudicated based on its own merit. Further, the facts of these cases differ significantly from those in this case.

The Workplace Safety & Insurance Board’s (WSIB) policy for the Adjudicative Process states in part:

A claim created by the WSIB for a workplace accident/disease is adjudicated based on entitlement principles and the facts of the case.

Five point check system

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system."

An allowable claim must have the following five points

an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history

Proof of accident

Decision-makers may consider the following when examining proof of accident,

Does an accident or disablement situation exist?
Are there any witnesses?
Are there discrepancies in the date of accident and the date the worker stopped working?
Was there any delay in the onset of symptoms or in seeking health care attention?

Diagnosis

If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.

As is outlined above, the estate claims that the worker’s cardiac event occurred while they were in the course of their employment on January 11, 2022, performing their regular job duties as an electrician. Further, they state that on that particular day, the worker was working during an extreme cold weather alert.

In reviewing the record, I note the following pertinent uncontested information provided by the employer:

GP of the employer spoke to the adjudicator on March 1, 2022. He noted that on

January 11, 2022, the worker was doing electrical work at a job site, which is located in a shopping plaza. They had been onsite for a week and the job was anticipated to take approximately three weeks. The worker was found on the ground outside the store beside their vehicle sometime before 10 a.m. by a passer-by who called emergency services;

To his knowledge, there were no witnesses. GP stated that the worker was first to arrive at the site that morning. A co-worker was picking up supplies and was expected to arrive at the work site a little later. The door to the store was found unlocked and the worker was found on the ground beside their vehicle with the tailgate open and tools beside them. He stated that it appeared the worker was in the process of getting tools from their vehicle and loading them onto a buggy to take into the store to start work;
GP opined that there was no heavy lifting or strenuous work involved other than lifting tools from the back of the truck to place on the buggy. It was noted that the worker had taken off their eyeglasses and that these had been placed on the tailgate. GP noted that the worker was expected to arrive at work around 9:30 am. The store was unlocked at the rear of the building accessed by walking from the carpark through a short alleyway;
GP advised that the work was inside the store in a mall. There was temporary heat while they worked in the empty unit. The only times that the worker would be outside was on arrival to move tools required for work from the vehicle to inside the store which is estimated to have taken 10 minutes. GP noted that the only time they were outside was on one occasion a few days earlier, which required a short visit to the roof when they commenced at this worksite and were reviewing the work to be done. GP explained that their company was completing electrical work, which had been started by another company and they did not perform any work outside. There were no circumstances, which were different or unusual at this work site during the time they worked there;
GP stated that the worker was not required to shovel snow to access the unit as this work was performed by mall maintenance;
GP explained that the co-worker arrived at the store to start work shortly after 10 a.m. after picking up supplies, and found the police present and the area taped off. Police advised the employer that there was no indication of foul play;
GP stated that the worker had not complained of feeling unwell and they were aware that if time off was required this would be given. He further stated that the worker was on vacation for Christmas break for two weeks and they had been working at the location for a week. He stated that there were no concerns raised regarding the work or the job site;
GP explained that the worker was an experienced electrician who had worked for the employer since September 2021 and previously was self-employed

Operational Policy 15-02-01 states:

Accident includes

a wilful and intentional act, not being the act of the worker
a chance event occasioned by a physical or natural cause, and
a disablement arising out of and in the course of employment

Chance event

A chance event is defined as an identifiable unintended event, which causes an injury. An injury itself is not a chance event. [my emphasis added]

Disablement

The definition of disablement includes

a condition that emerges gradually over time
an unexpected result of working duties. [my emphasis added]

The record fails to reveal that an identifiable unintended event caused the worker’s condition. Instead, according to the evidence on file, the estate claims that the worker suffered a cardiac event as a result of a disablement arising out of and in the course of their employment. Under these circumstances, the estate does not have the benefit of the presumption clause under s. 13(2) of the WSIA, which states in part:

“If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown”.

As a result of the above, the estate has the burden to prove the work-relatedness of the worker’s cardiac condition. Further, proof of accident, as outlined in operational policy 11-01-01, is not the foundation upon which entitlement depends on. Instead, entitlement for heart conditions is adjudicated based on the entitlement criteria outlined in operational policy 15-03-10, which states in part:

The WSIB accepts claims as work related when:

a causal relationship is shown between the cardiac condition and an accident at work, or
the cardiac condition is established as a disablement "arising out of and in the course of employment."

The WSIB accepts entitlement for cardiac conditions under any of the following circumstances:

traumatic injury, either penetrating or non-penetrating injuries to the chest wall
electric shock producing irregular cardiac rhythm
inhalation of smoke and various noxious gases and fumes, e.g., fire fighters, and
complication of treatment for a work-related injury, e.g., anaesthesia with an interval of hypotension, hypoxia or cardiac arrest.

NOTE

When entitlement is established under the above points for a cardiac condition, there will be no limitation of ongoing entitlement as long as the subsequent condition is related to the work-related cardiac condition,

unusual physical exertion for the individual and/or acute emotional stress with no significant delay in the onset of symptoms.

NOTE

This instance is allowed on the basis of aggravation of a pre-existing non-work-related condition.

When entitlement is established, the condition has stabilized, and a permanent disability/impairment evaluation has been conducted, further entitlement will not be granted for a subsequent cardiac condition unless there is a new work-related occurrence, which merits allowance under a new claim.

Temporary disability/impairment

In most instances, claims for cardiac conditions are considered on the basis of aggravation of a

pre-existing condition, usually arteriosclerotic heart disease.

While I acknowledge all of the arguments, which have been presented, as well as the fact that there was no evidence of any known [my emphasis added] prior heart issues, I find that the entitlement criteria outlined in operational policy has not been met.

I come to this conclusion based on the following:

The employer reported that the worker was an experienced electrician, who had worked for them for 3 months; however, prior to that was self-employed. Therefore, the duties of an electrician were not unaccustomed to them;
On January 11, 2022, the worker was expected to arrive on site (start time) by 9:30 a.m. and they were found by a bystander before 10 a.m. i.e. less than 30 minutes after they were to commence work;
The back door to the unit was found unlocked when others arrived, which I find indicates that the worker arrived onsite and opened the door;
The worker was found near their vehicle (with the tailgate open) and their tools were beside them. This leads me to believe that the worker was in the process of gathering their tools to start their actual electrician duties;
The employer confirmed that no electrical work was performed outside. He also stated that the only time the worker would be outside was on arrival to move the required tools for work from their vehicle to inside the store. In my view, while this is a regular part of the employment duties, this is a task the worker performed, at the very least, for one week, noting the employer confirmed that that was the length of time they had been on this particular job site. However, once again, noting the worker was an experienced electrician, the likelihood of them having performed this task in the past, is high. Therefore, this was not an unaccustomed physical activity for the worker. Further, while there was a cold alert on that particular day, noting the worker’s start time was 9:30 a.m., they were found before 10 a.m. and their tools remained beside them, I am unable to conclude that the worker performed any work duties (i.e. loading tools onto a buggy) in the cold. That being said, even if the worker did load the tools onto the buggy, I find this was not for a prolonged period of time;
The employer confirmed that the unit they were working on was in a strip mall and the maintenance staff was responsible to shovel the snow. Therefore, there is no evidence the worker was required to or that they had shovelled snow to access the unit on that day;
I also take particular note that the medical records reveal that the worker experienced chest pressure and light-headedness, over the last couple of weeks, or prior to the commencement of work on this job, (as reported by their spouse) and they did have non-work-related cardiac risk factors including smoking, a family history and significant CAD (stenosis)

The hospital reports on file outline that the worker’s ultimate cause of death was secondary to cardiogenic shock precipitated by an acute myocardial infarction (MI) and prolonged out of hospital cardiac arrest, with complicating coagulopathy.

It is my understanding that an acute myocardial infarction, also known as a heart attack, is a

life-threatening condition that occurs when blood flow to the heart muscle is abruptly cut off, causing tissue damage. This is usually the result of a blockage in one or more of the coronary arteries.

Symptoms of a heart attack most often include chest pain (angina), fatigue, nausea or stomach discomfort, heart palpitations, anxiety, sweating, feeling lightheaded, dizzy or passing out.

In this particular case, there is objective medical evidence, which confirms that the worker had a number of well-established, classic risk factors for the condition including smoking and family history. In addition, while in hospital the worker underwent angiography, which revealed the presence of significant CAD (i.e. stenosis - narrowed and blocked arteries).

It is my understanding that CAD is a common heart condition. The major blood vessels that supply the heart (coronary arteries) struggle to send enough blood, oxygen and nutrients to the heart muscle. Cholesterol deposits (plaques) in the heart arteries and inflammation are usually the cause of coronary artery disease.

Similar to a heart attack, signs and symptoms of CAD occur when the heart does not get enough oxygen-rich blood. If one has CAD, reduced blood flow to the heart can cause chest pain (angina/chest pressure/tightness) and shortness of breath.

CAD often develops over decades. Symptoms may go unnoticed until a significant blockage causes problems or a heart attack occurs. Therefore, while the estate argues that the worker did not have any pre-existing heart issues, the fact that significant CAD was identified intra-operatively, suggests otherwise.

I have had regard for the arguments presented; however, I must rely on operational policy 15-03-10, which specifically states that entitlement can be accepted if there was unusual physical exertion for the individual and/or acute emotional stress with no significant delay in the onset of symptoms. This instance is allowed on the basis of an aggravation of a pre-existing non-work-related condition.

In considering the available evidence, I find there was no unusual physical exertion and/or acute emotional stress on that particular day. Despite the fact that the worker was in the course of their regular working duties when they developed symptoms, the medical evidence on record suggests that the worker had been suffering from symptoms of chest pressure and light-headedness for some time prior to that day.

In my view, the file evidence outlines that although the worker’s heart condition occurred while they were performing their regular work; the physical exertion they were performing was consistent with their usual level of activity. In addition, the worker presented with classic risk factors for heart disease, which are not work-related. These factors make it more probable than not that the heart condition was not work-related.

Based on the above, I find that on the balance of probabilities, the worker’s heart condition did not arise out of their employment, nor was it a significant contributing factor in the development of their heart condition.

For these reasons, initial entitlement is denied.

CONCLUSION

I conclude the worker’s heart condition did not arise out of their employment and as result, initial entitlement is denied.

The estate’s objection is therefore, denied.

DATED January 30, 2023

L. Cirillo

Appeals Resolution Officer

Appeals Services Division