The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 4, 2001, at the request of the claimant's union representative. The Panel discussed this appeal on December 4, 2001.

Issue

Whether or not responsibility should be accepted for the claimant's time loss from work commencing July 29, 1998.

Decision

That responsibility should not be accepted for the claimant's time loss from work commencing July 29, 1998.

Background

On August 12, 1998, the claimant filed a compensation claim for a respiratory condition that he related to the following work event that occurred on June 5, 1998:

"A body shop employee was spraying undercoating on a [vehicle] in the middle of our shop area. Inadequate ventilation caused fumes to spread throughout our work area. I sought permission to refuse work from a [employer's name] Health and Safety Officer on a phone in the shop for about 2 hours. No one would or could say whether or not it was unsafe so I remained at work."

As a result of the above incident, the claimant experienced headaches, vomiting and disorientation along with respiratory congestion, loss of voice, nausea and dizziness. The claimant stated that the severity of his problems were not enough to warrant medical treatment at first. His last day of work was July 28, 1998.

A Doctor's First Report dated July 30, 1998 (date of treatment was July 2, 1998) noted that the claimant complained of headache, dizziness, nausea, running nose and tight chest due to a new chemical used to undercoat the buses. The diagnosis rendered was toxic exposure to fumes. The claimant was considered totally disabled effective July 29, 1998.

In another letter dated August 16, 1998, the attending physician noted that the claimant was seen for respiratory complaints on July 2, 1998. The claimant was complaining of night sweats, hemoptysis, a raw throat, irritated sinuses and a dry cough. The diagnosis rendered was infectious bronchitis and medication was prescribed for 10 days. When seen on July 10, 1998 the claimant still complained of night sweats, a dry cough and chest pains. Two types of inhalers were prescribed and a multitude of investigations were arranged, all of which were normal. When seen again on July 29, 1998, the claimant remembered the initiating event of his respiratory problems, i.e. the undercoating of a vehicle on June 4, 1998 with a new chemical. The physician stated that the claimant obtained a list of the possible side effects upon exposure to the new chemical and his symptoms seemed to match. The physician was of the opinion that the claimant's symptoms were due to the exposure to the fumes at work.

Subsequent file information contained a WCB questionnaire filled out by the claimant on August 12, 1998, Material Safety Data Sheets (MSDS) for chemical products known as PF707 (which was normally used in the workshop) and PF701 (which was used on June 4, 1998) and a statement from the claimant dated September 11, 1998.

On October 7, 1998, primary adjudication asked a Workers Compensation Board (WCB) internal medicine consultant to review the medical information on file and the claimant's September 11, 1998 statement. The consultant was asked to provide an opinion as to the diagnosis of the claimant's condition and whether or not the dominant cause of his respiratory difficulties was his exposure to the substance being sprayed at work. The consultant was also asked to provide an opinion with respect to whether or not the claimant's time loss from work seven weeks after the exposure was reasonable. The consultant responded to primary adjudication's request in a memo dated October 9, 1998.

In a decision dated November 2, 1998, the WCB confirmed that the claimant was exposed to a noxious substance on June 4, 1998, however, it could not relate his July difficulties to the June 4, 1998 exposure. Primary adjudication noted the following opinions that were expressed by the WCB's internal medicine consultant in making its decision:

• The claimant did not seek medical attention for his condition until July 2, 1998 and was diagnosed with infectious bronchitis. The substance that the claimant was exposed to could produce central nervous system symptoms such as dizziness, nausea, feelings of disorientation and headaches;
• Two diagnoses may be involved on this claim. The first diagnosis was inhalation of volatile hydrocarbons, however, there was no medical evidence to confirm this. The second diagnosis that seemed to occur around July 2nd may have been due to a viral infection of the upper respiratory tract. When questioned in discussion, the medical advisor stated that the symptoms resulting from the inhalation of the item involved would not continue as long as they had in this case.

In a September 7, 1999 submission to Review Office, the claimant's union representative provided argument that there was a relationship between the claimant's difficulties in July and that of June 4, 1998. Reference was made to the claimant's symptoms and those that were identified on the MSDS for the product used on June 4th known as PF701. Reference was also made to a statement provided by a co-worker which showed that he experienced similar symptoms as the claimant did and that the claimant had ongoing problems with his exposure and was constantly complaining about his symptoms. The union representative noted there was a difference in medical opinion between the WCB's internal medicine consultant and the attending physician which was expressed in a letter dated July 8, 1999 as to the cause of the claimant's condition. Review Office was asked to reconsider primary adjudication's decision to deny benefits and if Review Office could not do so, a Medical Review Panel (MRP) was requested pursuant to Section 67(4) of the Workers Compensation Act (the Act).

Review Office received a submission by the employer's representative dated October 21, 1999. The employer took the position that the weight of medical evidence, including the MSDS, were incapable of establishing a relationship between the time loss commencing on July 29, 1998 and the inhalation incident of June 4, 1998.

In a decision dated March 10, 2000 Review Office determined that responsibility would not be accepted for the claimant's time loss from work commencing on July 29, 1998. In making its decision, Review Office referred to comments expressed by a WCB internal medicine consultant dated November 23, 1999 and January 12, 2000 (which was in response to a report by the attending physician dated December 27, 1999). Review Office also considered the opinion put forward by an independent immunologist dated February 28, 2000.

In the opinion of Review Office, there was no clinical medical evidence to support a contention that the claimant's time loss which commenced eight weeks post inhalation had a relationship to the inhalation of the PF701 on June 4, 1998. It was also pointed out that much of the attending physician's theory was based on speculation; and that his view was opposed by the WCB internist and a highly reputable Manitoba immunologist. Review Office felt there was no solid medical grounds to support a contention that there was a relationship between the symptoms noted on July 29, 1998 and the June 4, 1998 inhalation incident.

On March 30, 2000, the union representative requested Review Office to consider his previous request for a MRP. On August 25, 2000 Review Office granted the request for a MRP as it was felt that a difference of medical opinion existed between the claimant's attending physician and that of the WCB internist and the independent immunologist.

Prior to the convening of the MRP, the claimant contacted Review Office indicating that he had concerns over the questions that were put forth to the MRP. The questions that the MRP was asked to address dealt with the potential for a cause and effect relationship between the inhalation claim of June 4, 1998 and the claimant's symptoms on July 29, 1998 leading to his few days off work. The claimant advised Review Office that his claim was for extended exposure to PF 701 between June 4, 1998 and July 29, 1998.

Review Office subsequently obtained a statement from the claimant on December 6, 2000. Ultimately, the claimant was of the position that he had chronic continuous exposure to PF701 fumes in his work environment and that the painters were leaving their panels coated with PF701 outside the spray booths in the general work area overnight to cure. In view of the claimant's position, Review Office attended the claimant's work site on December 7, 2000 to visually assess the situation and to talk to different people regarding the claimant's position. After speaking with the superintendent of vehicle maintenance and several co-workers at the site, Review Office was unable to confirm the claimant's version of events.

A MRP was subsequently held on December 14, 2000 and a copy of the MRP's findings and opinion was provided to the employer, the claimant and the union representative.

In a decision dated March 23, 2001, Review Office confirmed its earlier decision that the responsibility should not be accepted for the claimant's time loss from work commencing on July 29, 1998. Review Office's rationale for its decision was as follows:

• it found that there were many speculative comments made by the MRP which were in conflict with actual file evidence ascertained by Review Office's investigation conducted in the week leading up to the MRP, i.e. vital evidence obtained from the work site visit of December 7th that refuted many of the claimant's opinions and which were ignored by the MRP's responses to the questions posed by Review Office.
• when the claimant attended his physician on July 2 and July 29, 1998, the file evidence from the physician made no mention of chronic, ongoing exposure to toxic fumes in the workplace. The reports dealt with a one time exposure on June 4, 1998 and it appeared that the claimant never presented the chronic exposure scenario to his physician.
• there were only two confirmed cases of PF701 under coating being used between June 1, 1998 and July 31, 1998. One was on June 4, 1998 at which time the claimant inhaled fumes and the other was on July 29, 1998 when the claimant was not at work.
• evidence confirmed that PF701 was used on panels in a controlled environment. Neither the claimant or his co-workers had seen the painters place the panels outside the controlled environment to cure them.
• the opinion by the WCB internist and an independent immunologist that there was no relationship between the June 4, 1998 inhalation of PF701 fumes and the claimant's signs and symptoms leading to a three day time loss from work commencing on July 29, 1998.
• the MRP was influenced by the claimant's verbal information that was presented to them. This information was unconfirmed and in conflict with the evidence gathered by Review Office. Review Office therefore provided significant weight to the evidence gathered through its comprehensive investigation and ruled accordingly.

In May 2001 the claimant's union representative appealed Review Office's decision and an oral hearing was convened.

Reasons

This case involves a worker who was exposed to a potentially harmful substance in his workplace. The claimant maintains that he lost time from work as a result of the aftereffects of this exposure. While his claim was ultimately accepted, the board determined that there was no loss of earning capacity and no wage loss benefits were paid.

A request for reconsideration by the Review Office resulted in a decision upholding the adjudicator's decision. He appealed that decision to this Commission.

The issue before the Panel was whether or not the board should accept responsibility for the claimant's time loss, which commenced July 29, 1998.

For the appeal to be successful, the Panel would have to determine that his medical symptoms, which resulted in his time loss, were causally related to the workplace incident. We were not able to make that determination.

Our decision was based on a careful review of the claims file, as well as an oral hearing at which we heard testimony from the claimant and argument from his advocate.

From our review of the file, we noted that there was a fair bit of debate as to whether the claimant's symptoms could possibly be related to his inhalation of the substance on June 4, 1998. We took particular note that, as a result of a Review Office decision, the claimant was referred for examination by a Medical Review Panel (MRP). The claimant's advocate asked us to apply considerable weight to the MRP report.

The members of the MRP came to the conclusion that the claimant's time loss was the result of his workplace exposure on June 4. However, the MRP based this conclusion on a number of factors, which were not a part of this claim, including isocyanate exposure, brake lining dust exposure and psychological stress. These were matters that were reported verbally to the MRP by the claimant, but which had not previously been part of the consideration of this claim.

As noted by the Review Office, MRP opinions are not binding. They merely form part of the evidence on file. We have chosen not to give much weight to the MRP findings in this case, in large part because these findings did not relate directly to the issue before us.

We chose instead to give more weight to the earlier reports of the board internal medicine consultant and of an immunologist of considerable reputation.

While the claimant inhaled the substance on June 4th, he did not seek medical attention until July 2nd. When he did see his family physician, he exhibited flu-like symptoms. At this time, he was treated for a viral infection. Four weeks later, when the claimant made a link to the inhalation, his doctor expressed the view that the claimant had suffered a delayed allergic reaction to the inhalation.

The board internal medicine consultant disagreed with this diagnosis. It was his opinion that there should have been two diagnoses made. The first was a fairly short term reaction to the inhalation of the substance at work, which occurred in the immediate aftermath of the workplace incident. The second was likely a viral infection of the upper respiratory tract, which was what the claimant was suffering from on July 2nd, when he first went to see his doctor. The board consultant was unable to find a link between an exposure of fairly short duration and severe symptoms lasting throughout June and July.

In a later memo, this same board doctor stated that the inhalation of the type of chemical involved should have resulted in an irritation to the upper respiratory tract lasting only 24 to 48 hours.

The claimant's own doctor stood by his diagnosis of a late-onset allergy. To help clarify these differing opinions, the claimant's file was sent for an independent assessment by an immunologist. He discounted the allergic reaction theory as an unlikely explanation. He noted that the fact that the onset of respiratory tract symptoms were delayed 10 to 14 days was inconsistent with a reactive airways dysfunction syndrome. He concludes that a viral infection would be a more likely explanation.

It should be noted that the MRP came to some similar conclusions. That panel stated that the acute toxicity related to the exposure should last one and a half to two days. They also stated that "the history and description given on July 2, 1998, is consistent with an upper respiratory viral infection."

We would also like to note that immediately prior to his first visit to the doctor, the claimant was on holidays for about 16 days and, thus, not exposed to any of the potentially harmful substances considered by the MRP. Yet, it was during this period that his symptoms manifested themselves.

We are more persuaded by the assessments of the board consultant and the independent medical examiner. Therefore, we conclude that - on a balance of probabilities - the claimant's loss of earning capacity was not causally linked to the workplace incident of June 4, 1998.

Accordingly, the appeal is dismissed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of January, 2002