Employer v. Estate of the Worker, 2025 CanLII 111681

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20250044

OBJECTING PARTY: employer

REPRESENTED by: EMPLOYER REPRESENTATIVE

RESPONDENT PARTY: Estate of the worker (not participating)

REPRESENTED by: WORKER REPRESENTATIVE

HEARING: HEARING IN WRITING

HEARD by: L. Cirillo, appeals resolution officer

DATED: MARCH 19, 2025

ISSUE

The employer objects to the Adjudicator’s decisions dated October 3, 2023 & November 12, 2024, which denied initial entitlement for the worker’s heart condition arising out of and in the course of their employment on June 10, 2023.

BACKGROUND

This claim was established in June 2023, upon receipt of a Form 7, Employer’s Report of Injury. The employer outlined that the worker, a Volunteer Firefighter, was responding to a boating accident on a lake. At the time, the worker had been working for the employer for 14 years.

Note is made that the worker’s main occupation was the owner and operator of a Tree Service.

The record reveals that the worker was at the fire hall when the emergency call came through. They proceeded to put on their bunker gear and drove the emergency vehicle to the scene. When they arrived at the scene, they exited the vehicle and proceeded (running) down a steep embankment toward the beach in order to provide aid to a child. The record reveals that the worker collapsed at the water’s edge before reaching the victim and despite a valiant effort by emergency personnel that was already on the scene, the worker passed away due to a heart related condition.

The operating area obtained photographs of the scene and the Proof of Death Physician’s Statement Report dated July 6, 2023, which indicated that the worker had passed from a cardiac arrest. Other significant conditions included hypertension and hypercholesterolemia.

It was ultimately concluded that entitlement could not be accepted under operational policy 15-03-02 – Heart Injuries in Firefighter and Fire Investigators, as the emergency scene the worker responded to did not have smoke or combusted materials. It was also concluded that the entitlement criteria under operational policy 15-03-10 – Heart Conditions had not been met noting the incident did not involve physical activity that would be considered unusually strenuous for this worker. In addition, the type of call received was a typical call for a Volunteer Firefighter. As a result, initial entitlement was denied. The decision was communicated to the workplace parties in correspondence dated October 3, 2023.

In correspondence dated July 23, 2024, the employer’s representative requested reconsideration of the initial entitlement decision. They provided a claim background and argued the following in part:

• The worker was a Volunteer Firefighter who served the employer for 14 years;
• On June 10, 2023, while on duty, the worker was called to assist police officers to respond to a boating accident emergency on a lake along with approximately eight other firefighters;
• This call was not a usual call for the worker to respond to. They stated that on average the worker responded to less than two water related incidents per year;
• During the rescue, the worker suddenly and without warning experienced cardiac arrest and shortly, thereafter, tragically passed away at the age of 46;
• In their view, the worker’s death is work-related and there is a causal relationship between the cardiac condition and the incident. They also assert that the worker did not have significant non-occupational conditions that contributed to their passing;
• They state that the worker’s cardiac arrest was a result of acute emotional stress with no significant delay in the onset of symptoms;
• While a claim can be denied if there were significant non-occupational explanations for a worker’s death, this does not preclude entitlement when there is unusual physical exertion for the individual and/or acute emotional stress with no significant delay in the onset of symptoms;
• They argue that the worker’s condition occurred in the line of duty and therefore, there was no significant delay in the onset of their symptoms;
• In support of their position, they refer to previous case law;
• They argue that the worker was in good physical health and not overweight. They did not have any present or ongoing heart related symptoms and while they were prescribed medication, this was preventative in nature, and they were not advised to stop working or limit their activity;
• They submit that it is a known fact that firefighters are at a higher risk of developing occupational cardiovascular conditions as a result of their occupational stressors and that almost half of all volunteer firefighter deaths are caused by cardiovascular events;
• They report that the worker responded to a water rescue on the same lake in 2010, which resulted in the death of two individuals (father and son). Given how few water-related rescues the worker responded to annually, this incident impacted their personal and professional career greatly;
• In conclusion, they state that the worker served as a Volunteer Firefighter for 14 years and it is more likely than not that these underlying conditions were directly attributed to their duties as a firefighter as they were not a smoker, they were in good physical condition, they were not obese and there was no delay in the onset of their cardiac arrest which occurred while in the line of duty on June 10, 2023

Following receipt of the above, the operating area obtained the Coroner’s Investigation Statement, which identified the cause of death as being “Atherosclerotic and Hypertensive Heart Disease”.

Despite the above, it was once again concluded that the physical activity that the worker was engaged in immediately prior to their collapse was not to a degree that would be considered unusual for a Volunteer Firefighter and as such, initial entitlement remained denied. The decision was communicated to the workplace parties in correspondence dated November 12, 2024.

The employer objected to the denial of initial entitlement; however, the decision remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Employer’s Position:

The employer relies on their previous submission dated July 23, 2024.

Estate’s Position:

The estate has indicated their intent to appeal the denial of initial entitlement; however, has not provided any additional information.

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 15-03-12 - Heart Injuries in Firefighters and Fire Investigators

November 3, 2008 October 12, 2004 October 12, 2004 April 27, 2015

ANALYSIS

I have reviewed the record and considered the information, legislation, and relevant operational policies in reaching this decision. In considering all of the evidence, including the police report, photographs of the scene, medical reporting, and the arguments presented, I find the worker experienced unusual physical exertion during the course of their employment on June 10, 2023, and as a result, suffered, without any significant delay, an acute cardiac condition. As a result, initial entitlement is allowed.

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 merits.

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 workplace parties claim that the worker’s cardiac event occurred while they were on duty as a Volunteer Firefighter and responding to a boating accident emergency on a lake on June 10, 2023. The employer also noted that this type of call was not a usual call to which the worker normally responded to, and they clarified that on average they only responded to less than two water-related incidents annually.

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 workplace parties claim 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 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 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 policies 15-03-12 and 15-03-10, which state in part:

15-03-12 – Heart Injuries in Firefighters and Fire Investigators

If a full-time, part-time or volunteer firefighter or fire investigator sustains an injury to the heart in the circumstances prescribed in the applicable Regulation, the injury is presumed to be a personal injury arising out of and in the course of the worker's employment, unless the contrary is shown.

Heart Injury

A heart injury in this policy means a medical diagnosis of

• acute myocardial infarction (myocardial necrosis caused by ischemia) (ICD-9 code* 410.0, ICD-10 code* I21) or
• cardiac arrest (abrupt cessation of cardiac pump function, which may be reversible but will lead to death in the absence of prompt intervention) (ICD-9 code* 427.5, ICD-10 code* I46)

Prescribed Circumstances

The worker must have sustained the heart injury while, or within 24 hours of

• Attending a fire scene in the performance of his or her duties as a firefighter or fire investigator; or
• Actively participating in a training exercise that is related to his or her duties as a firefighter or fire investigator and that involves a simulated fire emergency.

Other Circumstances

A fire scene or a simulated fire emergency requires the presence of combustion or burning materials giving rise to smoke and/or flames.

15-03-10 - Heart Conditions

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 [my emphasis added].

NOTE

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

As outlined in the claim record, the worker was not attending a fire scene in the performance of their duties as a firefighter and there is no evidence of the presence of combustion or burning materials giving rise to smoke and/or flames. Therefore, entitlement for the worker’s cardiac condition does not meet the entitlement criteria of operational policy 15-03-12.

In considering the information on file, I take particular note of the following [with various areas of my emphasis]:

• Local EMS Incident History: patient was responding a volunteer firefighter attending call beach to assist Local EMS on a VSA. Patient in full firefighter equipment in approx. 25 Celsius degree weather with sunny clear skies. Patient attended scene on beach approx. 200 m hill at 45-degree angle down to beach after approx. another 200 m on beach when patient suddenly collapsed in front of other firefighters. According to fire department colleagues on scene patient was not complaining of any chest pain or shortness of breath prior to collapse;
• Outpatient/Emergency Note June 10, 2023 - Dr. Tiberiu – this afternoon, as a first responder, he went to respond to VSA call at the beach. He exerted himself running down the long cliff steps and, on the beach, while carrying equipment and in gear. Was not known to have cardiac disease; however, was started on Rosuvastatin 10mg po daily, Perindopril 2mg po daily and Indapamide 2.5mg po daily a few weeks prior;
• Proof of Death Physician’s Statement Report dated July 6, 2023
  • Date of death: June 10, 2023
  • Disease and condition directly leading to death: cardiac arrest;
  • Other significant conditions: HTN and hypercholesterolemia
• Coroner’s Investigation Statement – October 9, 2024
  • On duty as a Volunteer Firefighter having been called to the scene of a drowning on the bank of a lake;
  • The worker responded to the event by firetruck and then on foot;
  • The worker and their colleagues descended the bank of the lake down a series of metal steps and then traversed an estimated 700 m. in total from the top of the bank and along the shoreline;
  • With Firefighters ahead of and behind them, the worker suddenly collapsed;
  • They were wearing full firefighter gear;
  • The worker was described as being asymptomatic earlier that day, except for some fatigue but no description of potential cardiac symptoms;
  • They attended their GP 6 weeks ago and was identified to have hypertension and hyperlipidemia;
  • Prescriptions included: Rosuvastatin 10mg daily (since 2019), Indapamide 2.5mg (March 2023) and Perindopril 2mg daily (May 2023);
  • Had a 20-year history of tobacco use and it was reported that they still smoked occasionally;
  • Their usual occupation as a tree remover was fairly vigorous and there was no reported history of exertional chest pain or dyspnea;
  • After a complete death investigation, including post-mortem examination, the immediate cause of death was determined to be atherosclerotic and hypertensive heart disease.
• Police report dated June 10, 2023
  • The Police Constable observed the scene to be a steep gravel hill and a set of steel stairs, down to the beach. From the top of the hill to where the firefighter collapsed, was approximately a 700m walk. The area where the worker was located was a stone pebble beach front with loose sand prior;
  • The Police Constable spoke with several volunteer Firefighters, who advised that they were walking down to assist and attempt to revive the first male, when the worker collapsed on the beach near the shoreline;
  • The Police Constable spoke with the worker’s spouse, where she advised that the worker stated earlier, that they were sore and achy at approximately 1:00 p.m. She stated that approximately 6-weeks prior, the worker went into the doctor’s office for a check up and was prescribed medication for blood pressure and cholesterol;
• Employer Standard Incident Report dated June 10, 2024
  • 2:11pm – 32-year-old male and 8-year-old female fell off sea doo. The child is on the beach, and the male is still in the water;
  • 2:12 + 2:13pm – the firehall was paged;
  • 2:14pm – firehall confirmed and responding;
  • 2:17pm – male now VSA on the beach;
  • 2:21pm – 2:23pm – arrived on scene;
  • 2:59pm – downed Firefighter now to be transported by EMS
• Photographs of the scene demonstrate what appears to be an extremely steep path with a set of metal stairs as well as pathway full of gravel like sand material beside the stairs
• Memo 9 – dated July 27,2023 – the employer confirmed that in addition to their full gear, the worker was carrying a 5-pound throw rope at the time of the incident

It is my understanding that cardiac arrest, also known as sudden cardiac arrest, is when the heart stops beating suddenly. The lack of blood flow to the brain and other organs can cause a person to lose consciousness, become disabled or die if not treated immediately.

A change in the heart's electrical activity causes sudden cardiac arrest. The change makes the heart stop pumping blood. No blood flow goes to the body.

Heart conditions that can cause sudden cardiac arrest include coronary artery disease. Sudden cardiac arrest may occur if the heart arteries become clogged with cholesterol and other deposits, reducing blood flow to the heart.

In this particular case, there is objective medical evidence, which confirms the worker had a number of well-established, classic risk factors for the condition including smoking, family history and coronary disease (coronary artery disease – CAD).

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.

While I acknowledge that the medical reports indicate that the worker was a smoker, had a family history of heart disease, and had hypertension and high cholesterol there is no evidence that these conditions were uncontrolled at the time of the worker’s cardiac event. In addition, while these are known risk factors in the development of cardiac complications there is an absence of evidence which supports that the worker did not have a work-related injury that contributed to their acute cardiac condition.

In considering the available information, I find that while the evidence supports that the worker performed Volunteer Firefighter duties that involved varying degrees of life and death circumstances and physical exertion, as part of their regular job, the physical exertion that occurred on June 10, 2023, was one that they were unaccustomed to experiencing. I come to this conclusion based on the following:

• The worker was a Volunteer Firefighter; however, there is no evidence on file with respect to their usual schedule and/or the amount of shifts they performed during a regular year. In fact, there was no effort made to obtain the worker’s schedule in the days/weeks leading up to the cardiac event;
• Regardless of the above, the employer quite clearly outlined that this type of call was unusual for the worker and that they only responded to less than two water-related incidents per year;
• In reviewing the photographs of the scene, provided by the employer, as well as the police and medical reporting, it is clear that upon exiting their emergency vehicle, the worker had to travel down a steep embankment to get to the beach area, all while wearing their firefighting gear and holding a five-pound throw rope. While the exact weight of the gear is not documented in the claim file, it is my understanding that this can be upwards to 20+ pounds;
• What is most striking however, is that the worker collapsed at the water’s edge (which was described as being 700 metres from the emergency vehicle), which I find supports that in an effort to get to the victim, the worker was running in the sand

It is my understanding that walking and/or running on sand is significantly harder than running on a hard surface because soft, unstable sand requires more energy expenditure, engages different muscles, and can lead to slower paces. Further, sand absorbs more force than a hard surface, forcing one to push off harder and engage more muscles to propel oneself forward. In addition, the uneven nature of sand can also make it more difficult to maintain balance and stability, especially on slopes, all of which was something that was not typical for this worker.

This, in my view, supports that the physical exertion the worker had on that day was unusual compared to what they were usually accustomed to as a Volunteer Firefighter.

In considering all the available evidence, I find that while the worker suffered from pre-existing factors that could have contributed to heart disease, I am persuaded on the balance of probabilities, that the work activities performed by the worker on June 10, 2023, caused unusual physical exertion of which they were not accustomed to at the time, and they developed an acute onset of cardiac symptoms with no significant delay.

In accordance with operational policy, entitlement can be accepted when a worker experiences unusual physical exertion with no significant delay in the onset of symptoms, which is the case here. Therefore, I find the activities performed by the worker on June 10, 2023, were a significant contributing factor in the development of their heart condition.

For these reasons, I find the worker’s cardiac condition arose out of their employment and as a result initial entitlement is allowed.

The level and duration of benefits is left to the discretion of the operating area.

CONCLUSION

I conclude the worker’s cardiac condition arose out of their employment and as a result initial entitlement is allowed.

The level and duration of benefits is left to the discretion of the operating area.

The employer’s objection is therefore, allowed.

DATED March 19, 2025

L. Cirillo Appeals Resolution Officer Appeals Services Division

NOTICE – IMPLEMENTATION INFORMATION

The objection is allowed or allowed in part. Based on the Appeals Resolution Officer’s review, there appears to be information outstanding which may be required to implement this decision. Further to the letter dated Select date, the following information remains outstanding:

• Obtain earnings information;
• Obtain details pertaining to all claim costs following the worker’s death

This decision will be implemented once this information is received. If there are any questions about the status of the claim, please call the general enquiry number at 1-800-387-0750.

Please note: The operating area ultimately determines what information is required for implementation of an Appeals Resolution Officer decision and the Case Manager may require information which has not been identified by the Appeals Resolution Officer. Should this be the case, the Case Manager will be in contact to advise what additional information is required.