Highlights of Noteworthy Decisions

Decision 1117 20
E. Smith - M. Christie - Z. Agnidis
  • Injuring process
  • Arising out of employment (added peril)
  • Chance event (interpretation)
  • Presumptions (entitlement)
  • Fainting

The worker was a monitor/supervisor on an archeological project. On April 21, 2016, she suffered an episode of syncope while at a remote work site and hit her head on the ground. The worker appealed a decision of the Appeals Resolution Officer denying entitlement.

The appeal was allowed.
The worker did not have entitlement for the syncopal episode itself, but did have entitlement for the concussion she suffered when she hit her head on the hard clay ground.
The Tribunal's Medical Assessor opined that the syncope episode was most likely vasovagal syncope, which is characterized by a tendency to faint due to increased vasovagal tone. The episode could have happened anywhere. The Assessor was also of the opinion that all of the worker's ongoing symptoms were likely the result of the concussion, rather than the physiological effects of the syncope or the underlying physiological condition.
The injuring process in this case was a chance event. The words "chance event" may apply to any discrete sudden onset event, which may be an event that involves several elements. In this case, the injuring process began with an increase in vasovagal tone that caused the faint and fall, which in turn caused the worker to hit her head and suffer a concussion. The fall and hitting of her head were part of the injuring process.
As the injuring process was a chance event, the statutory presumption applied.
A line of Tribunal decisions has found that entitlement for a fainting episode depends on whether there is an added peril involved in the work that is not encountered in everyday life. Some decisions have found, for instance, that a fall on a concrete floor did not involve an added peril because a worker may be expected to encounter concrete, such as sidewalks, in everyday life. However, this requirement for an added peril was not consistent with the Tribunal's general test of significant contribution, especially where the presumption applied. In other cases that do not involve seizure or syncope, there is no requirement that the compensable cause reflect a risk that was not encountered in everyday life. The fact that a surface such as concrete may be encountered in everyday life does not mean that a worker who fainted at work and fell on concrete would have been equally or more likely to have fallen on concrete and suffered the same injuries if the fainting happened elsewhere. It was speculative to assume that the worker would have been at the same or greater risk of falling on concrete in their everyday life. In such cases, the presumption would not be rebutted unless there was evidence on a balance of probabilities that the concrete floor had not affected the extent of the injury.
The presumption was not rebutted in this case. The worker was at a remote archeological site and fell backwards onto hard clay ground that had all of the top layers of soft earth removed. It was essentially unknown to what extent the hard surface enhanced the degree of her injury. However, there was no evidence, only speculation, that the worker would have been injured to the same extent had she fallen somewhere else.