Highlights of Noteworthy Decisions

Decision 1585 19
16/07/2021
R. McCutcheon - G. Burkett - M. Ferrari
  • Presumptions (entitlement)
  • Seizures

The worker, an inventory analyst, suffered seizures in the workplace on August 4, 2016. She appealed an ARO decision denying entitlement for the seizures.

The appeal was dismissed.
Section 13 of the WSIA provides that where an accident occurs in the course of employment, it is presumed to have arisen out of employment. Tribunal decisions have stated that the statutory presumption changes the nature of the inquiry to whether the evidence shows that the work was not a significant causal factor in the accident. The presumption should not be used as a substitute for careful investigation and consideration of the evidence. To rebut the presumption, the evidence must indicate that it is more probable than not that the accident did not arise out of employment.
Decision No. 1361/16 set out the analytical framework and summarized the categories of Tribunal cases involving workers who sustained seizures or fainting episodes (syncope) at work. The decisions fell into four categories: (1) work-related seizures or syncope episodes where the evidence indicated that the episode was a chance event caused by work-related factors; (2) cases where the cause of the episode remained unknown and the statutory presumption was applied to find the worker had entitlement; (3) cases where the seizure/syncope episode was not related to work but entitlement was granted for injuries sustained following the episode; and (4) cases where there was no entitlement as the seizure/syncope was not work-related and there was no added peril in the workplace. Although not relevant to the current appeal, the "added peril" concept should be interpreted with caution. The appropriate approach to cases in the fourth category is to determine whether the workplace environment significantly contributed to the injuries or their severity.
The worker was in the course of her employment at the time of the seizures. However, the presumption that the worker's seizures arose out of employment had been rebutted. There was very little to support the work-related theories of causation for the worker's seizures. The primary work-related theory was that the seizures were caused by a perceived gassy smell in the workplace. The evidence indicated that the worker was not exposed to high concentrations of vapors on August 4, 2016. It was unlikely that there were chemical smells on August 4, 2016, and even if there were, the evidence did not indicate that they were at a level that would cause a hypoxic-ischemic injury or acute insult to the brain.
The second theory that the worker fainted due to the chemical smells and sustained a head injury or concussion that preceded the seizures was also unlikely. Air quality testing indicated that it was within normal limits. The worker also had a history of fainting without any identified triggers. Video surveillance evidence of the workplace on August 4, 2016 did not show that the worker struck her head and the immediate medical reports did not document a head injury or concussion. The worker had an extensive pre-accident medical history including losses of consciousness without an identified cause, migraines, thyroid conditions, an injury resulting in retinal detachment, and a mini-seizure in July 2016.
The worker also did not sustain a work-related injury as a result of the seizures as set out in the third category of the analytical framework in Decision No. 1361/16. The video surveillance evidence and the medical records indicated that the worker did not sustain a head injury at work on August 4, 2016. In light of this finding, it was unnecessary to consider the applicability of the added peril analysis in the fourth category of Decision No. 1361/16.
Finally, the workplace did not make a significant contribution to the development of the worker's seizure condition. The evidence did not show that there was an occupational exposure of a type or degree that would constitute an acute insult to the brain or that would cause or significantly contribute to the worker's seizure disorder. The worker did not sustain a head injury in the workplace.