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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 667 13 R
3/12/2018
D. Corbett

  • Medical report (payment for)
  • Presumptions (entitlement)
  • Procedure (reconsideration) (application and merits together)
  • Reconsideration (error of law)
  • Medical report (objective analysis)
  • Evidence (weight) (medical report)

The worker's estate applied for reconsideration of Decision No. 667/13, which found that the worker's sudden death at work on February 20, 2009, did not arise out of employment.
This was an appropriate case to combine the threshold test and the merits, given the narrowness of the issues, the fact that both issues could be decided in a written process and the overlapping nature of the evidence.
The worker was a caretaker at an office building. He was found dead in the washroom of the building on February 20, 2009, at 8:45 am. He was 54 years old. The original hearing panel found that the worker had shovelled snow at work that morning but that he did not engage in unusual physical exertion. The worker had been performing his job for about 11 years. His duties during all those years included shovelling snow from walkways and pathways around the building.
A Board medical consultant was of the opinion that the worker was at risk of a fatal arrhythmia based on his ischemic and hypertensive heart disease. A cardiologist retained by the estate also identified arrhythmia associated with the ischemia to be the cause of death but related it to heavy exertion in the performance of his work duties. The original hearing panel found the cardiologist's language approached language of an advocate rather than a medical expert.
In support of the application for reconsideration, the estate made submissions regarding the application of the presumption in s. 13(2) of the WSIA, and regarding the medical evidence.
Decision No. 667/13 found that the worker was not engaged in unusual physical exertion but, even if there was some physical exertion and even if the presumption applied, the presumption was rebutted by evidence of the worker's significant non-compensable risk factors.
The Tribunal Chair reviewed the history of the presumption, noting that it was intended to be of particular use where there is an unwitnessed workplace fatality and essential evidence is unknown.
In this case, there were both known facts and unknown facts. The worker's activities on the day he died were not witnessed. Known facts included the amount of snow, the cold temperature, the worker's job duties, the fact that he shovelled snow, the time he arrived at work, the time that he was found dead and the underlying risk factors. Unknown facts included the length of time he shovelled snow, the amount of snow he shovelled, the weight of the snow, whether he took breaks, whether he performed other work activities and whether he experienced symptoms while performing work duties.
The Tribunal Chair found that the situation in this case was particularly the type of situation which the presumption was intended to address. The original hearing panel appears to have focused its analysis on the balance of probabilities, with reference to the presumption only in passing. This was an error of law, which met the threshold test. The application to reconsider was granted.
In considering the merits of the appeal, the Tribunal Chair noted that the hearing panel identified two medical opinions as being the most significant. Those opinions were from a Board consultant who was an internal medicine specialist and from a cardiologist who was an acknowledged expert in the field and whose opinion was obtained by the estate. While the Tribunal Chair agreed that these were the two significant opinions, his interpretation and weight to be given to the reports differed.
An expert is expected to provide fair, objective and non-partisan evidence. Representatives are expected to exercise the care required to properly frame questions for experts and to provide the necessary factual foundation. If not, there is the risk that the medical opinion will be found lacking and that it will fail to meet the standard of fair, objective and non-partisan expert evidence.
The cardiologist was asked to provide an opinion as to whether the worker was entitled to benefits because his activities significantly contributed to his death. He was provided with the raw evidence but not the factual context. The Tribunal Chair found that, notwithstanding the flaws arising from the way the opinion was requested, the cardiologist's opinion on causation was thoughtful, that it directly addressed the connection between the underlying heart disease, the coronary risk factors and the snow shovelling, that it was consistent with a Tribunal medical discussion paper and with articles about snow shovelling and that it was not inconsistent with the opinion of the Board consultant.
The cardiologist found that the snow shovelling in cold temperatures increased both heart rate and blood pressure, resulting in an increase in the oxygen demand of the heart muscle. This increase in demand was beyond the capacity of the narrowed coronary arteries to supply, triggering lethal arrhythmia and resulting in the worker's sudden death. The Board consultant was not asked for an opinion on causation. The consultant provided an opinion that fatal arrhythmia as the cause of death was consistent with post-mortem findings.
Considering the highly-plausible opinion of the cardiologist, as well as the other evidence, the Tribunal Chair found insufficient evidence to rebut the presumption that the accident arose out of employment.
The estate requested reimbursement for the cost of the report of the cardiologist as well as a follow-up report prepared for the reconsideration. The Tribunal Chair found that the original report was useful for adjudication of the claim. Considering the flaws in the manner in which it was solicited, the reimbursement should be limited to the amount provided for in the Board's fee schedule. The follow-up report did not add useful information. The estate was not entitled to reimbursement for the cost of the follow-up report.
The appeal was allowed.