Highlights of Noteworthy Decisions

Decision 1469 21
N. Perryman - D. Thomson - M. Tzaferis
  • Benefit of the doubt
  • Heart attack
  • Heart attack (stress)

The 68-year-old worker suffered an myocardial infarction ("MI") while out of the country on January 23, 2010. The worker was at his grandson's hockey tournament in the United States at the time of the incident. The worker was employed by a city and for a substantial part of his career (1986 to 2000) he was employed as a garbage collector. The worker claimed to have suffered a MI while at work on January 16, 1997. The Board found that the evidence did not establish that the worker suffered a MI in 1997, and that the worker did not meet the criteria in OPM Document No. 15-03-10 to be granted entitlement for the MI in January 2010. The worker appealed to the Tribunal.

The worker's representative submitted that the worker was entitled to benefits under the following criteria in Board policy: inhalation of smoke and various noxious gases and fumes, and unusual physical exertion for the individual and/or acute emotional stress with no significant delay in the onset of symptoms.
The Panel found that there was a lack of evidence establishing a link between the worker's occupational exposure to diesel exhaust and the symptoms he experienced on January 16, 1997.
Given the absence of reliable and persuasive evidence to support entitlement, the benefit of doubt provisions under s.124(2) did not apply.
The Panel also found that there was insufficient evidence to establish entitlement on the basis that the work duties on January 16, 1997 constituted "unusual physical exertion" on the backdrop of a pre-existing heart condition. The policy provided that entitlement was allowed for physical exertion that is unusual with no significant delay in the onset of symptoms. The evidence strongly suggested that the worker began experiencing symptoms prior to January 16, 1997, which gradually increased in intensity prompting him to seek emergency medical attention.
The Panel found that the amount of snow on January 16, 1997 or the worker's work duties on that day were not demonstrative of unusual physical exertion. In coming to this conclusion, the Panel noted that the worker was employed for a city in northern Ontario where large snowfalls were not rare or unusual.
The Panel found further that the worker did not have a pre-existing heart condition in January 1997 which would meet the criteria under Board policy. While it was possible that the worker had heart disease in January 1997, there was no corroborating objective clinical evidence. It appeared from the evidence that it was just as likely that the worker's heart disease could have developed after January 1997 given the etiology of the worker's heart disease.
The Panel also found that the worker was not entitled to benefits for the January 23, 2010 event. The worker was not in the course of his employment while he was out of the country on January 23, 2010 at his grandson's hockey tournament. Although the worker had his work-issued cell phone with him on January 23, 2010, which, based on the worker's testimony, was also used for personal use, he was not called in regards to any work-related issue and did not perform any work-related activities on that date. At the time of the worker's illness, he was at a hockey arena which was several hundred miles away from his office and the area in which he supervised workers. The Panel noted Tribunal case law which found that simply being available in case of an emergency did not mean that the worker was in the course of his employment. There was no indicia that the worker was working at the time of the event or that he was performing an activity reasonably incidental to his work duties.
The Panel noted further that the policy did not allow for entitlement for a MI due to stress. Furthermore, the presupposition in allowing for entitlement for a MI due to emotional stress is that the onset of symptoms related to the MI comes relatively shortly after the event that precipitated the stress. While the worker's job may have been stressful, there was no particular event or incident to support a nexus between any particular workplace stressor which caused an acute emotional reaction and the workplace which precipitated the worker's symptoms on January 23, 2010.
In terms of a disablement type injury, there was insufficient evidence of significance establishing a significant psychological condition or symptoms related to the same which materially contributed to the worker's MI in January 2010.
The appeal was denied.