- Arising out of employment (added peril)
- Fainting
- Concussion
The worker was a personal support worker (PSW). On July 20, 2022, while attending to a patient, the worker suffered a syncopal episode in which she fainted. As the worker fell, her head struck the heating/cooling radiator built into the wall of the resident's unit. The worker sought initial entitlement for a head injury that resulted in a concussion.
The Vice-Chair allowed the appeal. The Vice-Chair determined that when the worker fainted, fell and struck her head on the radiator, she suffered a head injury that arose out of employment and in the course of employment. The Vice-Chair noted that the most important part of the injuring process – the actual injuring mechanism – was when the worker's head hit the radiator. That was the immediate and proximate injuring process. The radiator was also part of the work environment. The requirements of WSIA section 13 were met and the accident arose out of employment. Once it is determined that a work-related factor significant contributed to the injury, the inquiry into what caused the fall is unnecessary (see Decision No. 366/14). Furthermore, the section 13(2) presumption applies in a chance event incident: the worker's injury in the course of employment is presumed to have arisen out of employment, unless the contrary is shown. In most cases that have rebutted the presumption, it was then considered whether there was an "added peril" in the workplace that in some way contributed to the injury or made it worse than it "otherwise would have been." The Vice-Chair noted that this narrows the accident mechanism to only the initiating loss of consciousness, which is insufficient. Further, when the multi-part accident mechanism is fully considered, it will often be unnecessary to consider the presumption. The presumption is most squarely applicable when a worker is in the course of employment but essential details of the injuring mechanism are unknown (see Decision No. 667/13R). That was not the case in this appeal. The Vice-Chair concluded that the doctrine of added peril is a concept that should not be considered when determining initial entitlement for an injury under WSIA section 13 for any type of accident mechanism or circumstance. The Vice-Chair noted that there is nothing in the WSIA that indicates only injuries resulting from enhanced risk or "peril" in the workplace are considered to be caused by employment. As the WSIA is a no-fault scheme, it is irrelevant whether the circumstances involved in a workplace injury included anything unsafe, or comparatively less safe, than a non-work-related accident, injury, or circumstance. The Vice-Chair was unable to find a case that offers any rationale for the doctrine of added peril or a persuasive line of authority. It was noted that the added peril requirement has not been applied for other types of injury scenarios, and there is no discussion as to why fainting or seizure cases should be approached differently. There are also no cases addressing the points raised in Decisions No. 366/24 and 1117/20 which have cast doubt on the added peril doctrine. The Vice-Chair concluded that applying the added peril analysis involves such a high degree of speculation that it fails to yield any principled conclusion.