The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 5, 2000, at the request of the claimant. The Panel discussed this appeal on April 5, 2000.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On November 24, 1997, the claimant submitted an application for compensation benefits relating to pain and redness in her right eye, which she claimed occurred during her occupation as a plastic technician. The injury date was recorded as November 19, 1997. A doctor's first report dated December 2, 1997, stated that the claimant had "red eye since November 14 - pain right eye started November 19, felt it at work." The diagnosis was right conjunctivitis.

On December 11, 1997, a Workers Compensation Board (WCB) adjudicator spoke with the company nurse. The nurse advised that the claimant's work environment was clean with no dust or particles in the air. The claimant was required to wear safety glasses but this was a precautionary measure. The nurse advised that the claimant worked with exacto knives and that the glasses are worn in case a blade breaks. A union representative submitted a receipt for $5.00 for a replacement side shield on the claimant's safety glasses. The union representative told the nurse that the claimant broke her side shield during an accident. The nurse stated she was not sure how the side shield was related but that she told the union that if the shield was broken during the accident a receipt should be submitted to the WCB.

On December 12, 1997, the WCB adjudicator spoke with the claimant. The claimant told the adjudicator that the side shield of her glasses had been broken approximately 3-4 days prior to injury. The claimant indicated that she recently changed departments and that her duties in this department were working with graphite and other materials that she had not worked with before. The claimant felt that her injury may have been caused from something that flew in her eye at work due to the broken side shield or maybe she was allergic to one of the new materials. The claimant advised that the work environment has some dust in the air but it could not be seen. Outside of work, the claimant advised she did not do anything except go home and rest. Her eye became red approximately 3 or 4 days prior to her eye becoming painful on November 19, 1997. When the adjudicator told the claimant that her doctor had redness starting on Nov 14/97, the claimant replied that the doctor probably had the right date.

On December 29, 1997, a second physician provided the following "Worker's History of Injury" description: "Patient reports that on Nov. 14/97 R eye was red/sore - had lost side shield on glasses; patient felt red/sore may be due to graphite material at workplace." The physician indicated that the claimant had a vague feeling of irritation on November 20, 1997. Objective findings were mild conjunctival infection, anterior chamber clear; no foreign body seen; fornices clear and reduced tear breakup time. The diagnosis was "dry eye".

In a decision letter dated January 8, 1998, Claims Services advised the claimant that her claim for compensation was not acceptable as it had not been established that an injury occurred at work. On February 26, 1998, a union representative appealed this decision, stating in part, the following:

"...Mrs. [the claimant] does work in what is deemed to be a dust free area how ever she has to walk through high dust areas to reach the cafeteria, this could have been where she got something in her eye. The areas which she would have had to walk by would have been as follows: Trim area - this area is where the Fiberglass panels get trimmed and is very dusty, Core area - is another area that she has to walk by on route to the cafeteria. In this area they are sanding honey comb fiberglass cores. Assembly areas - in these areas they are drilling metal and there is also dust in the air."

On June 4, 1998, the employer provided a submission to Review Office in regards to the appeal. The employer stated that there were no particles flying throughout the air that would enter a person's eye while walking on the way to the cafeteria. The really dusty areas such as core or trim would just be a concern for those employees directly doing the jobs in those areas. The employer stated that these areas were quite a distance from the walkway that everyone used in the factory. The assembly areas also do not produce any dust in the walk ways of the factory. The employer agreed that the lay-up shops are more dust free than the other areas but the direct dust in the other areas would probably only affect those employees working directly in that area.

The employer further commented that the claimant had not changed departments according to her manager. There was no change in the material that claimant worked with and she did not work with any graphite material. There were no change in her everyday job duties or a change in the work area. The claimant had been in the same area since August 20, 1996, according to employer records. The employer concluded its submission by stating that there was no evidence to suggest that the claimant's eye problems were due to an accident arising out of and in the course of her employment.

On June 19, 1998, the Review Office determined that the evidence did not establish that the worker sustained a personal injury by reason of an accident arising out of and in the course of her employment. When reaching this decision, Review Office noted the following:

• by her own admission, the claimant did not know how her eye became sore nor was she aware of any particular foreign body entering her eye.
• the claimant was consistent in reporting to the employer and to her two doctors that her right eye was red and sore on or around November 14, 1997 and that she had lost the side shield on her safety glasses around that time. There was no indication, however, that the claimant did in fact have a foreign body in her eye that led to her conjunctivitis problem.
• there was no specific evidence to indicate that the claimant's employment with or without the side shield of her safety glasses in place was the cause of her right eye conjunctivitis condition.

In December 1999, the claimant appealed Review Office's decision and an oral hearing was held on April 5, 2000. During the hearing, the claimant was provided with copies of subsection 1(1) and 4(1) of the Act along with WCB policy section 44.05, Arising Out Of and in the Course of Employment.

Reasons

The issue in this appeal is whether or not the claim is acceptable. The relevant subsections of the Workers Compensation Act (the Act) are subsection 1(1) which defines accident and 4(1) which provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment. In accordance with subsection 1(1) the panel must initially be satisfied that there has been an accident within the meaning of the Act.

Subsection 1(1) states:

Definitions
1(1) In this Act

"accident" means a chance event occasioned by a physical or natural cause: and includes

a. a wilful and intentional act that is not the act of the worker,

b. any

1. event arising out of, and in the course of, employment, or

2. thing that is done and the doing of which arises out of, and in the course of employment, and

c. an occupational disease.

And as a result of which a worker is injured.

We find that the weight of the evidence supports a finding that the claim is not acceptable in that we find that no accident arising out of and in the course of employment has been established, on a balance of probabilities, as defined by the Act.

In this appeal the claimant has alleged that her right eye conjunctivitis arose from and during her employment. We find from the evidence that the claimant's contention that her right eye condition arose out of and in the course of her employment to be speculative.

We concur with the Review Office that the claimant herself did not know how her eye became red and that she herself has speculated on various possible causes. In this regard we note in a memorandum to file dated December 12, 1997 the claimant indicated to a WCB adjudicator:

" I asked her how she [the claimant] relates her injury to work. She stated maybe something flew into her eye at work due to broken side shield or maybe she is allergic to one of the new materials. She indicated that in the work environment there is some dust in the air but it cannot be seen."

At the hearing the claimant further speculated that her red eye could have been caused from hair spray or scent used by other co-workers. Also in a report dated December 29, 1997 the attending optometrist records in his history that, "the patient felt red/sore may be due to graphite materials at workplace." At that time, however, the attending practitioner diagnosed "dry eye." (emphasis ours)

We note from the evidence that the claimant does not work directly with or handle graphite and that there is also no apparent evidence to suggest that any type of foreign body entered the claimant's eye. The claimant was diagnosed and treated for right eye conjunctivitis which we accept as having many causes which would not involve the work place.

Further the evidence indicates that the redness in the right eye was apparently only first seen by the claimant in a mirror early on a particular work day. However, we find the evidence does not establish a link between the claimant's observation to any event or association with the workplace. (emphasis ours)

We also note and accept the employer's evidence that the claimant works in a "clean room environment" which is mandated by production requirements and workplace health and safety standards and which was described by the employer at the hearing as "approaching a laboratory environment." While the claimant had changed work areas approximately 2 weeks prior to the appearance of the conjunctivitis condition, we note that both work areas were classified as "clean room environments" and that the nature of her work and materials handled were the same.

In light of the above we find that an accident as required by the Act has not been established. Therefore the claimant's appeal is denied.

Panel Members

D.A. Vivian, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of April, 2000