WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 468/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 468/14 BEFORE: B. Kalvin : Vice-Chair M. Christie : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: March 13, 2014, at Toronto Oral DATE OF DECISION: June 3, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1201 DECISION UNDER APPEAL: WSIB ARO decision dated April 11, 2012 APPEARANCES: For the worker: For the employer: Interpreter: S. Morano, Office of the Worker Adviser The employer did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 468/14 REASONS [1] These are the reasons for decision of the majority of the Panel of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by a worker from a decision of the Workplace Safety and Insurance Board (the Board ) concerning the worker s entitlement to benefits following a workplace accident. (i) Background [2] The background to this appeal is as follows. On October 28, 1988, the worker was mixing concrete at work when he suffered a myocardial infarction ( MI ) or heart attack. The worker was 44 years old at the time. [3] He made a claim to the Board for compensation benefits. A Board Claims Adjudicator solicited the opinion of one of the Board s Medical Consultants. In a memorandum dated March 2, 1989, Dr. P. Carr opined that the physical exertion at work in combination with underlying disease may have caused the worker to have an MI earlier than it otherwise might have occurred. Dr. Carr stated: Certainly, I would think that mixing cement for 11 or 12 brick layers, when the sand was quite heavy, could be quite strenuous. Noting that the onset of the chest pain was immediate, medically I can comment that this activity may have precipitated a myocardial infarction at an earlier point in time than it otherwise might have occurred. Although there are no underlying risk factors present, this worker likely did have underlying disease and if claims are accepting, I would say that underlying disease is moderate. [4] The Board subsequently allowed the worker s claim for entitlement to benefits for an MI on the basis that his duties at work had aggravated an underlying condition. Further, the Board determined that the MI had resulted in a permanent disability which entitled the worker to a permanent disability pension. The worker s permanent disability pension was rated at 30%. [5] In 2002, the worker had heart surgery, specifically an aortic valve replacement and triple coronary artery bypass. A report prepared by the surgeon indicated that following the MI in 1998, the worker had done well, but around 2000, had begun to experience cardiac symptoms. Dr. D. Bonneau s report of May 6, 2002, diagnosed the worker with coronary artery disease with aortic insufficiency and stated: This 58 year old gentleman sustained an MI in 1989 [sic]. He did well afterwards, but over the last 2 years he presented with progressive shortness of breath. Because of his borderline obesity, his pulmonary condition was investigated and he was found to have sleep apnea, but in the last year his condition worsened and eventually the investigation confirmed presence of left ventricular dilation with significant aortic regurgitation. The Board determined that the worker s heart surgery in 2002 was not related to a compensable condition. That decision was not appealed. [6] In November 2010, the worker died from ischemic heart disease and cardiomyopathy. He was 66 years old when he died. The worker s widow made a claim to the Board for entitlement to survivor s benefits. That claim was denied by a Board Adjudicator. The worker s widow objected to the denial of benefits and her objection was referred to an Appeals Resolution Officer in the Board s internal Appeals Branch. In a decision dated April 11, 2012, the Appeals Resolution Officer denied the objection.

3 Page: 2 Decision No. 468/14 [7] The worker s widow now appeals to this Tribunal. (ii) Issue [8] The only issue to be decided on this appeal is whether or not the worker s widow is entitled to survivor s benefits. (iii) Law and policy [9] Because the worker s compensable injury occurred in 1988, entitlement to benefits is governed by the pre-1989 Workers Compensation Act. Section 36 of that statute provides for the payment of benefits to a worker s spouse where death results from an injury to a worker. [10] Section 126 of the Workplace Safety and Insurance Act requires this Tribunal to apply Board policy. It states: If there is an applicable Board policy with respect to the subject-matter of an appeal, the Appeals Tribunal shall apply it when making its decision [11] The Board s policy entitled Heart Conditions is set out in Operational Policy Manual Document No and reads as follows: Policy 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." Guidelines The WSIB accepts entitlement for cardiac conditions under any of the following circumstances: NOTE 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. 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 NOTE 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 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.

4 Page: 3 Decision No. 468/14 Fatal claims If death occurs immediately, e.g., as the result of the compensable cardiac condition, shortly after the initial onset, or while the condition is still in the acute phase, the fatal claim may be accepted and full death benefits may be paid. If death occurs as the result of a new or progressive cardiac condition, the fatal claim is not accepted unless there is a new occurrence, at work, which merits allowance under a new claim. (iv) Analysis [12] Having considered the evidence and submissions put forward at the hearing of this appeal, we find that the worker s widow is not entitled to survivor benefits. Our reasons for this conclusion are as follows. [13] We are unable to conclude on a preponderance of the evidence that the worker s death resulted from the injury. The injury was an MI which occurred at work in As noted, entitlement to benefits was granted on the basis that the worker had an underlying disease and that his heavy duties at work precipitated the onset of an MI sooner than it otherwise might have occurred. Dr. Carr s opinion seems reasonable in that it seems unlikely that mixing cement at work would cause a 44-year-old person to suffer an MI in the absence of any underlying disease. [14] In a Medical Discussion Paper 1 entitled Coronary Artery Disease Angina, Unstable Angina, Myocardial Infarction, Dr. W.J. Kostuk, a cardiologist, explains that what causes an MI is coronary artery disease in which a buildup of plaque occurs in the arteries. Dr. Kostuk states: Causation/Evolution: Over a long time, the vessel wall becomes thickened with buildup of cholesterol and narrows the lumen. These buildups in the wall or plaques are called atherosclerosis. Plaque in the arteries can become so thick that it severely restricts the flow of blood to the heart. This can result in recurrent chest pain (angina) that s triggered by exertion and relieved by rest. No heart muscle death occurs. Occasionally a plaque will rupture, triggering the formation of a blood clot. This clot can block blood flow to the heart. This sudden interruption in blood flow leads to inadequate oxygen delivery to the heart muscle and if persistent, myocardial necrosis (heart muscle death) or myocardial infarction ensues. A heart attack can occur anytime at work or play, while one is resting, or while one is active. Some heart attacks strike suddenly, but many people who experience a heart attack have warning signs and symptoms (unstable angina) hours, days or weeks in advance. A myocardial infarction or heart attack occurs when heart muscle dies. This is the result of a CAD plaque rupturing. Any CAD plaque can rupture, even one that is not severe enough to cause angina. When this occurs, a blood clot develops resulting in complete blockage of the artery, and heart muscle death. 1 Tribunal s medical discussion papers deal with medical topics which frequently arise in appeals. They are written by independent experts who are recognized in their fields of specialization. The papers are not peer-reviewed publications, but rather, are intended to provide parties and representatives with a broad, general overview of medical topics. A discussion paper is included in the case materials for an appeal when it appears that the paper may provide some relevant background to an issue in dispute. Medical discussion papers are also available on the Tribunal s website and in its Library.

5 Page: 4 Decision No. 468/14 [15] Further, while tests done around the time of the worker s MI did not disclose evidence of significant coronary disease, it is identified in some reports. For instance, in a report dated February 24, 1989, Dr. F. Meligrana, the worker s treating specialist referred to a Thallium test and stated: This is a fairly good test indicating that the patient has had indeed disease in the territory supplied by the right coronary Dr. Meligrana referred the worker for further testing and an elective cardiac catheterization test conducted on October 3, 1989 revealed evidence of coronary disease. [16] As noted above, the worker s cardiac condition remained stable until around 2000 when he became symptomatic. He was diagnosed with sleep apnea, but further testing revealed that he had coronary artery disease with aortic insufficiency. He required valve replacement and triple bypass surgery which was performed in Also, as noted earlier, this condition, and the surgery to treat it was ruled by the Board to be non-compensable. That ruling was not appealed to this Tribunal, and therefore the Board s determination that the condition and the surgery are non-compensable is not open to challenge. [17] It appears that over the following years the worker s heart condition worsened. In 2009, a permanent pacemaker was inserted. In 2010, the worker died. [18] In assessing the evidence, we are unable to conclude that the worker s death is one that resulted from the MI he sustained at work in In our view, the evidence reveals that the 1988 MI was not a factor that contributed significantly to the worker s death in 2010, but rather was a manifestation of a progressive disease that caused the worker s death. The evidence shows, in our view, that the worker had an underlying heart disease, which, in conjunction with heavy duties at work on October 26, 1988, caused him to have an MI. He then remained in reasonably stable condition until 2000, that is, for about 10 years, before his condition deteriorated and he became symptomatic. He was discovered to have significant coronary artery disease which required surgical treatment. As noted, this is a non-compensable condition. The worker s health continued to decline, required insertion of a pacemaker, and then died in In our view, the evidence shows that the worker s death was caused by a progressive condition, namely, coronary artery disease, which produced a variety of symptoms and problems over the years, one of which was the MI in But the evidence does not support a finding, in our assessment, that the MI in 1988 caused or significantly contributed to the worker s death 12 years later. Rather, the MI was one of numerous health problems resulting from the underlying and progressive coronary disease. In our view, the worker s death resulted from coronary artery disease and not from the MI which was a manifestation of that disease. [19] We are cognizant of the opinions of the worker s treating heart specialist Dr. H. Leong-Poi. In a letter dated November 29, 2010, Dr. Leong-Poi stated: [The worker] was a patient of mine, until his recent death. Over the years, much of [the worker s] care was provided at St. Michael s Hospital. [The worker] suffered an inferior myocardial infarction in 1988, and his ongoing cardiac problems and subsequent death due to congestive heart failure resulted as a consequence of this initial heart attack, and his underlying coronary artery disease. Because of ischemic heart failure, he underwent 3 vessel coronary artery bypass grafting surgery, and aortic valve replacement due to a leaky valve in He passed away in early November of 2010 in the coronary care unit at St. Michael s Hospital, due to heat failure, and ischemic cardiomyopathy.

6 Page: 5 Decision No. 468/14 [20] As noted above, the ischemic heart failure for which the worker underwent surgery in 2002, and which Dr. Leong-Poi appears to regard as a significant aspect of the worker s disease has already been determined not to have resulted from the 1988 MI. Further, while we accept Dr. Leong-Poi s assessment that the worker s death was due to congestive heart failure and underlying coronary artery disease, we do not accept that the worker s death due to heart failure was as a consequence of his initial heart attack. As noted above, Dr. Carr has opined that the worker s heart attack was caused by an underlying disease combined with physical exertion. Further, in our view, the Tribunal s Medical Discussion Paper fortifies that an MI is a symptom or consequence of coronary artery disease, not the other way round. [21] In a report dated March 28, 2013, Dr. Leong Poi repeated the opinion set out in his letter of November 29, Dr. Leong-Poi states: As stated in my original letter, the primary cause of death from that hospital visit was congestive heart failure, complicated by renal failure (secondary to heart failure cardiorenal syndrome). The primary heart attack was an inferior myocardial infarction in 1988 (for which he received compensation), and his death from congestive heart failure was as a consequence of ischemic heart disease, of which that first myocardial infarction was the initial manifestation and provided the substrate for all subsequent events. [22] We accept that the worker s death was from congestive heart failure which was a consequence of ischemic heart disease. We accept also that the worker s original MI was a manifestation of that disease. We do not accept that the original MI was the cause of all subsequent events including the worker s death. As noted above, it has already been determined that the worker s coronary artery disease with aortic insufficiency and the bypass and valve replacement surgery needed to treat that condition, were not caused by the worker s 1988 MI. Thus, there were significant subsequent events that are not attributable to the 1998 MI itself, but rather to the underlying coronary artery disease of which the 1988 MI was one manifestation. While we appreciate Dr. Leong-Poi s desire to assist the family of a former patient, his March 28, 2013 letter moves beyond the scope of medical opinion into the realm of legal advocacy. Dr. Leong-Poi responds specifically to the Appeals Resolution Officer s decision, and further, cites Tribunal caselaw in support of his opinion. [23] There are other medical reports which support the conclusion that the worker s death did not result from the 1988 MI, but rather that this MI was but one manifestation of an underlying heart condition which, after a period of stability became symptomatic again around the year 2000 and ultimately led to the worker s death. For example, when the worker was admitted to hospital in September 2010, the admitting specialist, Dr. K. McIntyre, described the worker s relevant medical history as follows: [The worker] has a complicated past medical history and I will do my best to summarize. He has been recently admitted now to St. Michael s Hospital on September 4, He was recently discharged from the Cardiology Service on 27 August The patient is a 66-year-old Italian man. He has a past medical history significant for 3- vessel arterial coronary bypass grafting in 2003, congestive heart failure with an ejection fraction of 40%, diverticulosis, obstructive sleep apnea, and AV block requiring permanent pacemaker in He also has diabetes, hyperlipidemia, and hypertension. He has in addition esophageal reflux disease. [The worker] has a mechanical aortic valve. I note from our records it was placed in 2002.

7 Page: 6 Decision No. 468/14 While the worker s heart problems are noted, Dr. McIntyre does not refer to the 1988 MI in describing the relevant medical history. This confirms in our view, that the 1988 MI was a manifestation, but not the cause of, or a factor that significantly contributed to the heart condition which ultimately led to the worker s death. [24] Similarly, in a report prepared on October 12, 2010, that is, in the month preceding the worker s death, Dr. J. C. Monge, a cardiologist, states the following: Today, I saw [the worker]. He is a 66-year-old man with a history of previous coronary artery bypass surgery and aortic valve replacement. He has been admitted several times with predominantly right-sided heart failure. The left ventricular systolic function is normal. Like Dr. McIntyre, Dr. Monge does not refer to the 1988 MI in describing the worker s relevant medical history. On the other hand, Drs. McIntyre and Monge regard the bypass and valve replacement surgery, that is, the non-compensable condition, to be significant. In our view, this is in keeping with a finding, and with Board policy referred to below, that while the 1988 MI is a compensable condition, because it occurred at work, the underlying disease which gave rise to that condition, and subsequent problems and manifestations of that disease which occurred outside of the workplace is non-compensable. We are unable to conclude on a preponderance of the evidence that the worker s death in 2010 result[ed] from the 1998 MI. [25] As noted earlier, this Tribunal is required by its enabling statute to apply Board policy. In this case, the worker was granted entitlement to benefits for an MI that occurred at work following unusual physical exertion following which there was no significant delay in the onset of symptoms. The policy states clearly that when entitlement to benefits is granted on this basis, no further entitlement for subsequent cardiac conditions is allowed, unless they also occur at work. For ease of reference, the relevant provision is set out again below: NOTE 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 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. [26] In our opinion, the provision is clear and applies directly to the facts of this case. The worker s entitlement to benefits for the 1988 MI was granted on the basis that unusual physical exertion at work aggravated an underlying condition. The worker s condition stabilized and a permanent disability evaluation was conducted. Given that the onset of heart problems which led to surgery in 2002, insertion of pacemaker in 2009, and ultimately his death in 2010 were not the result of a new work-related occurrence they are not compensable conditions. [27] The policy speaks specifically to claims when death occurs. It makes clear that if death occurs immediately or while the compensable condition is still in the acute phase, the death is compensable. However, if death does not occur immediately, the following provision governs entitlement to death benefit claims: If death occurs as the result of a new or progressive cardiac condition, the fatal claim is not accepted unless there is a new occurrence, at work, which merits allowance under a new claim.

8 Page: 7 Decision No. 468/14 As noted, there was no new occurrence at work and therefore a plain reading of the policy prohibits entitlement to death benefits in this case. [28] We are fortified in the conclusion at which we have arrived by the opinions of the Board Medical Consultant, Dr. I. Taraschuk. In 2003, the worker applied for a reassessment of his permanent disability pension on the basis that his heart condition had worsened, following his surgery in Dr. Taraschuk opined that a reassessment should not be done because, since the worker s original entitlement was granted on the basis of unusual physical exertion at work, the policy prohibited further entitlement to benefits, in particular, an increased pension rating, given there was no new accident in this claim. Dr. Taraschuk provided a similar opinion in response to the claim for survivor benefits after the worker died. In an opinion dated February 7, 2011, Dr. Taraschuk stated that if the worker was granted entitlement to benefits for the 1998 MI on the basis of unusual physical exertion then death due to a cardiac condition is not the responsibility of this claim as a matter of policy. [29] At the hearing of this appeal, the worker s representative referred to and relied on Decision No. 1855/09. The facts in that case are similar in many respects to those in the present appeal. In that case, the Panel allowed the claim for entitlement to survivor benefits made by a worker s widow. After sustaining a compensable heart attack at work in 1998, the worker had a second heart attack that led to his death on October 25, The Panel ruled that the second heart attack and resulting death were compensable. However, this case is distinguishable from the present case in one significant respect. In Decision No. 1855/09, the Panel found that the first heart attack caused the second heart attack. The Panel stated that it accepted that the prior MI was a cause of the left ventricular dysfunction which was subsequently a cause of the second heart attack. The Panel stated that the worker s death was not due only to the progression of the underlying disease, but rather that the original heart attack significantly contributed to the second heart attack. In these circumstances, the Panel held that the Board s policy was not a bar to entitlement to benefits. [30] In the present case, there was no second MI. The worker did not die as a result of a second MI. Further, for reasons already stated, we have concluded that the worker s death was not caused by or significantly contributed to by the 1988 MI. Accordingly, the facts in the present case are materially different than those in Decision No. 1855/09 and therefore it is not necessary for me to comment on the approach to the Board s policy adopted in that decision.

9 Page: 8 Decision No. 468/14 DISPOSITION [31] The appeal is denied. DATED: June 3, 2014 SIGNED: B. Kalvin, M. Christie, A. Grande