WORKERS COMPENSATION APPEAL TRIBUNAL WORKER. and WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION

Transcription

1 E Case #[personal information] WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: WORKER APPELLANT and WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION This is an appeal from the decision of Mr. Terry Dunsford dated September 12, 1996, which decision denied [Worker s] claim for compensation for a heart attack which he suffered on March 21, [Worker] gave notice of his appeal on October 3, 1996, through Brian Kelly, Worker Advisor. The Appellant s submissions were filed by Mr. Kelly on October 17, 1996 and he subsequently filed an amended submission. Then, by letter dated January 2, 1997, Mr. Kelly advised that, [Worker] has obtained what I consider new evidence which I feel must be presented to the Board before the Tribunal can hear his case. The evidence consisted of a Manitoba

2 -2- Queens Bench decision. Although I was of the opinion that the Manitoba decision was not new or additional evidence, under Section 56(22) of the Act, I referred the matter back to the Workers Compensation Board (the Board ) for further investigation. By letter dated January 29, 1997, Mr. Dunsford gave a further decision which concluded that he would not change his earlier decision. By letter dated January 31, 1997, Brian Kelly advised that [Worker] wished to pursue his appeal. The appeal was scheduled to be heard on June 2, 1997, but was postponed to July 9, 1997 because Board Council had not seen Terry Dunsford s January 29, 1997 decision. The Board filed its submission on June 13, 1997 and the hearing took place on July 9, Commencing [personal information], [Worker] became [personal information]. He was [personal information] years old. In addition to the ordinary worker involved in [personal information], he had other frustrating problems: his computer crashed and then the computer which he rented to replace it contained a virus which caused many other problems. [Worker] had a heavy work load, worked long hours and believes that the work load, along with the computer problems, caused him stress, which in turn caused the heart attack. [Worker] was a [personal information]. On March 21, 1996, he [personal information] at lunch time and then went back to work. He was doing routine work with his computer when he suffered a heart attack. Dr. Philip Champion saw [Worker] at the Queen Elizabeth Hospital and reported:

3 -3- [Worker] was seen in the ER during an acute cardiac arrest with an anterior MI at the request of Dr. Carruthers. He is a [personal information] year old man who apparently had some history of vague chest pains over the last couple of years and had been followed by Dr. Steeves. It was not clear to [personal information] whether ischemic heart disease had been proven and he apparently had a treadmill test which was not diagnostic some time ago. He was on no medications. Today, he had been at the [personal information]. When he got home, he apparently was feeling unwell and then developed some chest pain about an hour prior to arrival. There was no other information provided to the Tribunal about the vague chest pains over the last couple of years and I conclude that this is merely uncertain third-hand information conveyed to Dr. Champion by [personal information]. Dr. Donald Steeves treated [Worker] during his hospitalization and by letter dated August 7, 1996 reported: I gather [Worker s] concern with the Board is whether or not his heart attack is work related and, in particular, whether it could have arisen from stress. I do no think there is any doubt that [Worker] has a type A personality and works under considerable stress and there are certainly situations where stress can precipitate angina and myocardial infarctions have occurred under stressful events. Having said that, in a generic sense, I am not aware, specifically, of the circumstances just before and on the day of his myocardial infarction, although [Worker] has, subsequently, informed me of events around that period of time. My understanding, however, at the time, was that his heart attack arose shortly after [personal information] and being aware of the usual circumstances regarding acute myocardial infarction, this kind of event would also be very likely to precipitate an acute infarct if he had plaque rupture, clot formation and subsequent occlusion of the offending coronary artery. Dr. Phil Champion and/or [Worker s] family physician, Dr. Randy MacKinnon, may be able to shed more light on the events around and about this infarct as, although I had seen [Worker] for a different cardiac problem in August 1995, I had not seen him for several months prior to his acute cardiac event.

4 -4- The fact that Dr. Steeves says would also be very likely can only mean that it is likewise very likely that stress could precipitate an acute infarct. Having said that, there is evidence that he did have stress, but no evidence that he had plaque rupture, clot formation and subsequently occlusion of the offending coronary artery. Dr. Champion s consultation records also state: The patient had no history of hypertension, smoking, high cholesterol or particular family history of ischemic heart disease. Past health has been quite unremarkable. He is not diabetic. There are no other medical reports of any significance filed with the Board or with the Tribunal, although from the workers report of accident, I see that [Worker] attended hospital in Halifax on June 6, The Board did not have its own medical expert assess the claimant or review medical reports or give evidence of any kind. We have some evidence then that he might have suffered a heart attack as a result of the [personal information], but the fact that he [personal information] tells against that theory. We also have some evidence that he was under stress during this period and that he is a type A personality and stress can lead to heart attacks. Indeed, on the basis of what Dr. Steeves report says, either possibility is very likely. Section 17 of the Workers Compensation Act states: Notwithstanding anything in this Act, on any application for compensation, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. The Workers Compensation Act defines accident as: 1.(1) In this Act

5 -5- (a) accident means a chance event occasioned by a physical or natural cause, and includes (i) (ii) a wilful and intentional act that is not the act of the worker, any (A) (B) event arising out of, and in the course of, employment, or thing that is done and the doing of which arises out of, and in the course of, employment, and (iii) an occupational disease, and as a result of which a worker is injured. Both parties agreed that a heart attack falls within the definition of an accident. The Board maintained that stress was not covered as it was not an acute reaction to a traumatic event pursuant to the definition of occupational disease. I do not believe that the Board is correct in its interpretation of the Act in eliminating anything which results from stress. I believe that all the Act does is to make it plain that stress does not qualify as an occupational disease, except as an acute reaction to a traumatic event. The Appellant argues that he is not claiming for stress, but rather for the heart attack which resulted from the stress and I believe there is a very important difference there. I think this is a case of a non-compensable cause of a compensable matter. In the same way, a person suffering from the flu at work could get dizzy and fall down the stairs. The cause of the fall would be the flu, but it would still be an accident at work and would be compensable. Section 6(4) of the Act states:

6 -6-6(4) Where the accident arose of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. In this case, the accident definitely occurred in the course of employment and so is presumed to have arise out of the employment unless the contrary is shown. While there is some evidence that the accident may not have arisen out of the employment, but rather out of [personal information], there is also evidence that the accident arose out of the stressful employment. Certainly, it cannot be said that the weight of the evidence in favour of the [personal information] version is such that the contrary is shown. Indeed, I consider the weight of the evidence about the [personal information] matter to be considerably less than the evidence about stress and, even if it were equal, pursuant to section 17, the issue would be resolved in favour of the claimant. On January 21, 993, the Workers Compensation Board adopted a Policy and Practice on Heart Conditions which states in part: The Workers Compensation Board PRINCE EDWARD ISLAND Subject: Division: HEART CONDITIONS CLAIMS POLICY The Workers Compensation Board will consider claims for heart conditions falling in two general categories. The first category is when there is a specific causal relationship. This includes: A. Traumatic injury to the chest wall. B. Electric shock producing irregular heart rhythm. C. Inhalation of smoke and noxious gases and fumes (e.g. firefighters)

7 -7- D. Complications of treatment for work-related injuries, (e.g. anaesthesia with hypoxia, hypotension or cardiac arrest). E. Other occupational exposures known to cause heart disease (e.g. nitroglycerin). The second category is when there is a presumptive causal relationship such as: A. Physical exertion only when it is both excessive and unusual with no significant delay in the onset of symptoms. B. Acute and significant psychological stress only if it is both excessive and unusual and with no significant delay in the onset of symptoms. Most compensable heart conditions in the second category (based on a presumptive causal relationship) will be considered as an aggravation of a pre-existing condition (e.g. atherosclerosis). Section 32 deals with the jurisdiction of the Board and says that the Board has exclusive jurisdiction over certain things and that the decisions and finding of the Board upon all questions of law in fact are final and conclusive. All of this, however, is subject to section 56 which deals with the rights of the Appeal Tribunal and Section 56(15) says, Subject to subsection 26, a decision of a panel is deemed to be a decision of the Board. The Board referred to section 56(17) of the Act, which states: The Appeal Tribunal shall be bound by and shall fully implement the policies of the Board and the Appeal Tribunal, its chairperson and members, are prohibited from enacting or attempting to enact or implement policies with respect to anything within the scope of this part. The Board claims that because of the policy on heart attacks and because of section 56(17), the Tribunal could not find in favour of [Worker]. I would say first of all that the Tribunal is obliged firstly to follow the Act, as is the Board. If the Board makes

8 -8- policies which are contrary to the Act and, in particular, contrary to the definition of accident, then the Tribunal cannot be obliged to follow unlawful policies. The Tribunal certainly couldn t create its own policies, but it shouldn t follow unlawful ones. In any case, though, the definition under the Board s policy on heart attack is not exhaustive. It uses the words, includes and such as and I find that it is broad enough to contemplate a heart attack under these circumstances. Since this is an inquisitorial system requiring investigation by the Board rather than an adversarial system pitting two sides against each other in front of an independent adjudicator, there is no onus upon the claimant to prove his case. The only onus on the worker is to cooperate in the process and participate in mitigation of loss. It is up to the Board to gather evidence sufficient to make a decision. Mr. Dunsford s letter of January 29, 1997 make reference at page two to the overwhelming evidence and at page three states, The Board has provided clear and unequivocal evidence that this gentlemen participated in physical activity which was not work related and which can be reasonably assumed to have caused this man s heart attack. I find to the contrary, that the medical evidence identifies two clear possible causes of the heart attack and does not give one more weight than the other. The fact that the heart attack occurred a short time after [Worker] [personal information] may suggest that the physical activity has something to do with the heart attack, but it is no more than a suggestion and the fact that [Worker] [personal information] frequently suggests that the activity may not have been a cause. On the other hand, it is certain that the accident occurred in the course of employment and, pursuant to Section 6(4) of the Act, it shall be

9 -9- presumed that it arose out of the employment unless the contrary is shown. I do not believe that the contrary has been shown. As well, there is no evidence that [Worker s] stress was caused by any non-work factors - - all factors which contributed to his stress were work related. I am surprised that there is not more medical information here after the case being considered three times, but I do not believe that this Tribunal should determine that the matter needs further investigation. Rather, it should determine that there is no other evidence to be had. I suspect that there are a great many heart attacks at work which are the result not of work, but of life in general. It might be that if there was more evidence available in this case, the finding of this Tribunal might have been different but, based on the evidence presented to us and the duty to give the benefit of doubt to the claimant, we find that the heart attack was caused by stress at work. The Board referred the Tribunal to the cases of Bouchard v. Manitoba (Workers Compensation Board), [1997] N.J. 116 and Keough v. Workers Compensation Appeal Tribunal (Nfld) et at (1994) 125 Nfld. & P.E.I. R 58 in support of the Board s proposition that the Tribunal should only interfere with a decision of the Board if the decision was patently unreasonable. The Bouchard case was heard by the Manitoba Court of Appeal and the Keough case was heard by the Newfoundland Supreme Court Trial Division. In both the Bouchard and the Keough cases, the Workers Compensation Act stated that the Board s decision is final and conclusive and not open to question or review. The Appeal Court of Manitoba stated at paragraph 2 that, in spite of a privative clause, the Courts are entitled to intervene where an administrative tribunal has

10 -10- exceeded its jurisdiction, or where it has made a patently unreasonable decision, or where the process violated the rules of natural justice. I do not believe that the reasoning in the Bouchard appeal case applies to the present case, which is an appeal from the Board to the Tribunal rather than to the Courts. Indeed, I would point out that both the Bouchard and Keough cases were appeals to the Courts from Appeal Tribunal decisions. There is no privative clauses as regards appeals from the Board to the Tribunal, nor is the Tribunal bound by all of the findings of the Board. Section 32(1) states: 32 (1) Subject to section 56, the Board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Act and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the Board; and the action or decision of the Board thereon is final and conclusive and is not open to question or review in any court, and no proceedings by or before the Board shall be restrained by injunction. (underlining added) Thus, the Board s exclusive jurisdiction as contained in section 32 is subject to the powers of the Tribunal which, pursuant to section 56(15) has the power to make a decision which is deemed to be a decision of the Board and which therefore shares the powers contained in section 32. The appellant asserts that the Tribunal has wide powers to vary a decision of the Board and points out that if the only time the Tribunal could interfere was when the decision of the Board was patently unreasonable, then since the findings of the Board on all questions of law and fact are final and conclusive, the Tribunal could not interfere with any of the decisions of the Board unless they were patently unreasonable. I do not

11 -11- believe that this is the purpose or the plain meaning of section 56 of the Act and I agree with the appellant. It is difficult to say what the limits are on review by the Tribunal of the Board s decision, but I do not believe that it is necessary to determine that in this case. I think that the Tribunal s hands would be tied in the areas of considering the credibility of witnesses, since the Tribunal does not see witnesses. But credibility of witnesses is not an issue in this case and it does not appear to me that there are any issues in this case in which the powers of the Tribunal are limited or where the Tribunal should not, as a matter of law, interfere with the decision of the Board if the Tribunal believes the Board was wrong. The appellant has asked the Tribunal to reverse the decision of the Board, namely to approve [Worker s] claim for Workers Compensation benefits. The appeal is allowed and [Worker s] claim is accordingly approved for benefits. I CONCUR: DATED this 3 rd Day of December, WALLY MacGILLVARY BENJAMIN B. TAYLOR, Q.C. Chairperson Appeal Tribunal I CONCUR: FRANCES LEWIS