Worker v. Employer, 2023 CanLII 74902

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20230091

OBJECTING PARTY: Worker

REPRESENTED BY: Worker Representative

RESPONDENT: Employer

REPRESENTED BY: Employer Representative

HEARING: Hearing in Writing

HEARD BY: L. Cirillo, Appeals Resolution Officer

DATED: July 21, 2023

ISSUE

The worker objects to the Adjudicator’s decision dated July 4, 2022, which denied initial entitlement for a heart condition arising out of and in the course of their employment on May 23, 2022.

BACKGROUND

This claim was established in June 2022, upon receipt of a Form 6, Worker’s Report of Injury. The worker reported that on May 23, 2022, they suffered a heart attack on the job when they became very agitated, stressed, and anxious having to take over the job of three inexperienced trainees, who were doing the job incorrectly and slowing them down. The worker stated that they began to rapidly strip the roof with a spade to make up time. This resulted in them feeling pain in their chest, chest tightness, sweating and laboured breathing around 7:30 a.m. At the time, the worker had been working for the employer as a Roofer for 13 years.

The employer reported that the worker advised their supervisor that they were feeling unwell at the beginning of the workday.

The record reveals that the worker initially thought the condition was related to indigestion and as a result, they drove to a local coffee shop to purchase a tea; however, while they were there, their condition worsened. As a result, their supervisor called 911. The worker was transported to XXX Hospital where they underwent angioplasty.

The YYY Hospital, Discharge Summary dated May 27, 2022 indicates that the worker was transferred from XXX Hospital following acute revascularization for lateral ST Elevation Myocardial Infarction (STEMI). The report noted that the worker had been previously healthy and that they started having chest pain symptoms on May 23, 2022 while they were at work. The pain started as sharp chest pain at the lower part of the retrosternal area that radiated to the back. They had shortness of breath and were diaphoretic. Symptoms lasted for about 90 minutes and were getting worse. As a result, an ambulance was called and they were transferred to hospital. ECG demonstrated a lateral STEMI. Cardiac catheterization showed culprit lesion in the ramus intermediate branch, which was treated with a drug-eluding stent. It was also noted that there was residual disease in the obtuse marginal and distal right coronary artery (RCA) territory, which was scheduled for staged revascularization.

The worker claimed that the workplace duties were a significant contributing factor in the development of their cardiac event. 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 unusual physical exertion or acute emotional stress, which preceded the medical emergency. As a result initial entitlement as denied. The decision was communicated to the worker in correspondence dated July 4, 2022.

In correspondence dated July 4, 2022, the worker’s representative objected to the denial of initial entitlement. She stated that the facts presented by the employer are incorrect. In support of her position, she argued the following in part:

• The worker denies feeling unwell before start of their shift;
• The worker started their shift at 6 a.m. They went to the shop with the driver to load supplies/materials needed for the day onto the company truck – roofing paper rolls #15 – 15 kgs each, 4 rolls loaded;
• They also had to connect the trailer to the truck to bring equipment back at the end of the day – they left the shop at approximately 6:30 a.m. and proceeded to the job site;
• The worker then climbed a 32 foot ladder to get up on the roof to begin their roofing duties at approximately 7:00 a.m.;
• At 7:30 a.m. the worker began to feel chest pain and indigestion-like symptoms during the incident with the 3 in-experienced trainees and forcibly/rapidly stripping the roof with the spade to make up time;
• The representative provided the name and telephone number of co-workers who could attest to the incident and the fact that the worker began to feel unwell with chest pain at that time;
• The worker asked their foreman to allow them to walk to the coffee shop to get some tea, as they thought they were having indigestion and that the tea would help;
• The representative states that even though the foreman was aware of the worker’s symptoms they told them to take the truck and pick up coffee for everyone;
• While at the drive-through, the worker’s symptoms were not better so they called the foreman and asked for someone to come pick them up;
• It was after this that 911 was called and the worker was rushed to the hospital where a heart attack was confirmed;
• The representative submits that the co-worker can attest to the fact that the worker did not have any symptoms at the beginning of the shift and that the worker was emotionally affected by the incident with the trainees;
• In her view, the worker experienced unusual emotional stress and physical exertion in the workplace as a direct result of their job, which caused the immediate onset of their cardiac symptoms and/or an aggravation of any unknown cardiac condition;
• For these reasons, she requested reconsideration of the initial entitlement decision

Following receipt of the above, the operating area confirmed the previous decision on the basis that there was no evidence of unusual physical activity noting the worker’s pre-injury job duties as a Roofer.

Further, the reported incident with the trainees was not considered an acute stressor. For these reasons, initial entitlement remained denied. The reconsideration decision was communicated to the worker in correspondence dated July 18, 2022.

The worker 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.

Worker’s Position:

In correspondence dated November 29, 2022, the worker’s representative objects to the denial of initial entitlement. She provides a claim background and refers to the operational policy on heart conditions as well as previous case law.

She argues the following in part:

• In her view, the worker’s claim meets both the “unusual physical exertion” as well as the “acute emotional stress with no significant delay in the onset of symptoms” criteria;
• She re-iterates that the worker began their shift 6 a.m. and loaded supplies/material onto the company truck and connected the trailer to the truck;
• At 6:30 a.m. the worker proceeded to the job site where they climbed a 32 foot ladder to get up to the roof and began roofing duties at approximately 7 a.m.;
• The worker was with a crew of 3 inexperienced trainees who were not performing the tasks correctly so the worker became extremely agitated and stressed at the situation;
• The worker began to strip the roof with a spade rapidly to make up time as the trainees were slowing down the work;
• It was at this time that the worker began experiencing chest tightness, sweating and labored breathing;
• In her view, using rapid and forceful movements to pull up the roofing material from the roof with a spade was an “unusual physical exertion”. It was not their “usual or normal” way of performing the task;
• She states that it is no coincidence that after doing this for a short while, the worker developed the symptoms of what would later be diagnosed as a myocardial infarction;
• Further, she argues that being in a state of extreme anxiety, stress and agitation constitutes “acute emotional stress” with no delay in the onset of symptoms;
• She submits that in combination, the acute emotional stress and unusual physical exertion were significant contributing factor in the onset of the worker’s heart attack;
• In support of her position, she refers to previous case law. Further, she notes that a medical opinion was not obtained nor were any of the witnesses contacted;
• In addition, she submits that while the employer stated that the worker reported feeling unwell at the beginning of the workday, this was vague and the worker began their day at 6 a.m. and the problems started at 7:30 a.m. so it was still technically at the beginning of the workday;
• For these reasons, she requests that that the adjudicator’s decision be overturned and that worker’s claim be allowed

Employer’s Position:

The employer’s representative completed the Respondent Form (RF) on April 24, 2023; however, no argument was provided.

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 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 May 23, 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 worker claims that their cardiac event occurred while they were in the course of their employment on May 23, 2022, performing their regular job duties as a Roofer. Further, they state that on that particular day, they became agitated when 3 co-workers, who were trainees, were performing tasks incorrectly and making them get behind. As a result, the worker claims to have taken over and rapidly removed roof tiles with a spade, which was not the usual way they performed their work.

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.

Disablement

The definition of disablement includes

• a condition that emerges gradually over time
• an unexpected result of working duties

The record fails to reveal that an identifiable unintended event caused the worker’s condition. Instead, according to the evidence on file, the worker claims that they suffered a cardiac event as a result of a disablement arising out of and in the course of their employment. Under these circumstances, the worker 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 worker has the burden to prove the work-relatedness of their 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,

Or

• 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.

I acknowledge the representative’s suggestion that the witnesses be contacted and that a medical opinion be obtained; however, I find neither of these are necessary noting the accident history has been accepted as was described by the worker. In addition, there is an applicable operational policy (15-03-10), which outlines the circumstances in which entitlement can be considered/allowed for a cardiac condition.

While I acknowledge the arguments, which have been presented, as well as the fact that there was no evidence of any known 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 record reveals that the worker was an experienced Roofer, who had worked for the employer for several years. Therefore, the duties of a Roofer were not unaccustomed to them. It is my understanding that these duties include in part, using hand tools and other equipment to remove debris from roofs to place materials. In my view, the act of rapidly lifting roofing tiles with a spade is a regular part of the worker’s employment duties, a task the worker performed for 13 years;
• On May 23, 2022, while the worker commenced their workday at 6 a.m., they did not commence any roofing duties until approximately 7 a.m.;
• Even if it is accepted that 3 co-workers who were trainees, were performing their duties incorrectly and the worker took over, I am not persuaded that these duties constituted any actions that the worker was not accustomed to. Further, the worker submits that they were behind and that is why they took over, so that they could catch up. I find it difficult to accept that the crew would be so far behind in their work within 30 minutes of starting the actual roofing tasks;
• Therefore, I find this was not an unaccustomed physical activity for the worker. In addition, even if the task was performed at a higher rate of speed, this was not for a prolonged period of time;
• In addition, while the worker submits that they became agitated and stressed/anxiety over the errors made by the trainees, I am not persuaded that this would constitute an event that would rise to the level “acute emotional stress”. In my view, during any particular job there are always varying situations that require quick thinking and immediate action, which are normal activities and of which the worker would have been accustomed to

The hospital reports on file outline that the worker’s ultimate diagnosis was a lateral STEMI (a type of myocardial infarction) requiring stenting.

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 obesity, coronary artery disease (CAD – i.e. stenosis - narrowed and blocked arteries) and sleep apnea.

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 worker argues that they did not have any pre-existing heart issues, the fact that CAD was identified, 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. In my view, although the worker’s heart condition occurred while they were performing their regular work, the physical exertion they were performing and emotional reaction they had was consistent with their usual level of activity and job duties. 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 worker’s objection is therefore, denied.

DATED July 21, 2023

L. Cirillo Appeals Resolution Officer Appeals Services Division