The purpose of this policy is to further define the criteria used to adjudicate cases involving cardiac injuries and diseases.
This policy applies to all claims for compensation involving cardiac injuries and diseases under the Workers’ Compensation Act (WC Act).
For information on cardiac injuries and diseases of firefighters or former firefighters, please see Policy 21-116 Firefighters’ Compensation Act.
1.0 General Statements
Section 7 of the WC Act outlines the process for adjudicating claims for personal injury or death caused by accident arising out of and in the course of employment. All claims, including claims for cardiac injuries and diseases, are adjudicated using Policy 21-100 Conditions for Entitlement – General Principles.
This policy outlines WorkSafeNB’s process of weighing evidence in claims for cardiac injuries and diseases when evidence to the contrary exists.
2.0 Information Related to the Accident Arising Out of and In the Course of Employment
WorkSafeNB gathers information related to the tests of time, place and activity to determine if an accident ‘arose out of and in the course of employment’. The accident must be shown to have:
2.1 Medical Evidence
Medical evidence plays a key role in determining if the cause of the injury is compatible with the work-related accident. In other words, could the nature of the accident described have caused that particular cardiac injury or disease?
WorkSafeNB relies upon medical opinions, the worker’s medical history, and medical or scientific literature to determine if, in its opinion, the work-related activity or exposure was sufficient to have caused the cardiac injury or disease.
3.0 Adjudicating the Claim
For a claim to be compensable, information must show that the accident, that caused a cardiac injury or disease, arose both out of and in the course of employment. The WC Act requires WorkSafeNB to make a determination of this in one of three ways:
3.1 Evidence that the Accident Arose Out Of and In the Course Of Employment
When all the evidence shows that the accident arose out of and in the course of employment and there is no evidence to the contrary, WorkSafeNB accepts the claim as being compensable.
The WC Act also has a presumption clause, which means if an accident, that caused a cardiac injury or disease, occurred at work, WorkSafeNB presumes it was caused by work unless there is any evidence to the contrary. Similarly, if evidence shows that an accident, that caused a cardiac injury or disease, was caused by work, WorkSafeNB presumes that it occurred at work unless there is any evidence to the contrary.
3.3 Preponderance of Evidence
When gathering claim information, WorkSafeNB may find evidence that is inconsistent with the presumption that the accident may not have arisen ‘out of’ or ‘in the course of’ the employment. This is called ‘evidence to the contrary’ and may include:
When there is evidence to contradict that the accident, that caused the cardiac injury or disease, did not arise either ‘out of’ or ‘in the course of’ the employment, WorkSafeNB makes a decision by weighing the evidence on the preponderance.
The preponderance of evidence is the most persuasive and impressive evidence on one side of a case, which outweighs the evidence on the other side. A preponderance of evidence is not measured on the quantity of information, but on the significance and strength of the evidence.
When the preponderance of evidence weighs more heavily towards the accident, that caused the cardiac injury or disease, being work-related, WorkSafeNB accepts the claim.
For more information on gathering and weighing evidence, see Policy 21-113 Decision-making.
Derek Green v. The Workplace Health, Safety And Compensation Commission (1998)
In this decision, the Court affirmed two earlier decisions of the Court of Appeal. The Court ruled that:
Gloria Mallais v. The Workplace Health, Safety and Compensation Commission (1999)
The New Brunswick Court of Appeal ruled respecting a disability that occurred at work in which there was contrasting evidence as to whether or not it was caused by work. The Court concluded, “the evidence does not show that (the worker’s) disability is attributable to some other cause which is required by section 7(2.1).” Section 7(2) of the WC Act provides that if an accident (disability) arose at work, it is presumed to have arisen out of the employment and vice versa.
VSL Canada Ltd. V. Workplace Health Safety and Compensation Commission and Duguay et al. [2011 NBCA 76 (Can LII)] The Court stated that:
The expression “in the course of employment” embraces more than just the performance of the tasks described in the employment contract; it includes activities that are adjunctive or incidental to the worker’s contractual duties.
Black’s Law Dictionary, 6th Edition
Appeals Tribunal – means the Workers’ Compensation Appeals Tribunal established under the WHSCC & WCAT Act.
Evidence to the contrary - evidence that contradicts or is inconsistent with the presumption (VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay et al., 2011 NBCA 76 (CanLII) cited by WCAT decision 20168039).
WorkSafeNB – means the Workplace Health, Safety and Compensation Commission or "the Commission" as defined by the WHSCC & WCAT Act.