Decision #07/02 - Type: Workers Compensation
Preamble
A non-oral file review was held on December 13, 2001, at the employer's request.
Issue
Whether or not the worker is entitled to wage loss benefits for the period November 22 to December 1, 2000, inclusive.
Decision
That the worker is entitled to wage loss benefits for the period November 22 to December 1, 2000 inclusive.
Background
On December 22, 2000, the claimant filed an inhalation claim with the Workers Compensation Board (WCB) for an event that occurred at work on November 16, 2000 while performing the duties of a trade's helper. The claimant described the incident as follows:
"Was asked by [co-worker] to go into accumulation tank and clean the inside of tank with Varsol. Was in tank for about twenty-five minutes when I felt dizzy and trouble breathing."
The Employer's Report of Injury or Occupational Disease form dated November 24, 2000 described the November 16, 2000 injury as follows:
"Reached into a closed in vessel, cleaned with Varsol with out using a respirator or fresh air supply."
The employer also supplied the WCB with the following information dated December 5, 2000:
- employees were clearly advised to wear a respirator/fresh air supply;
- November 17th the claimant worked all day;
- November 18 and 19 were the claimant's regular days off;
- November 21 the claimant requested a day off (personal)
- November 22 the claimant came to work and attended a Safety Meeting where the safety violation was discussed. The claimant then filled out a green card and went home.
In a letter December 8, 2000, the employer's representative noted that although the claimant's injury occurred on November 16, 2000, he did not find it necessary to discontinue work until November 22, 2000. The employer felt that the WCB should thoroughly investigate the claim because it was generally recognized that inhalation difficulties would normally resolve on their own within a 24 hour period.
A Doctor's First Report dated November 22, 2000 documented the claimant's complaints of dizziness, cough and weakness. The physician recorded the history of injury as, "placed in oil tank with no ventilation to clean walls with Varsol. Upon completing task became dizzy and mentally clouded." The diagnosis rendered was chemical pneumonitis. The claimant was considered to be totally disabled as of November 20, 2000.
During a telephone conversation on February 13, 2001, the claimant advised a WCB adjudicator that he felt his symptoms would go away following his initial exposure. However, his symptoms became worse and worse and as a result he sought medical attention on November 22, 2000. The claimant denied that any discussions had taken place regarding safety violations prior to his layoff on November 22, 2000.
In a letter to the employer dated February 15, 2001, the WCB confirmed that the claim met the requirements of Sections 1(1) and 4(1) of the Workers Compensation Act (the Act). On March 27, 2001, the employer appealed the decision stating that the "totality of evidence" did not establish the necessary relationship between the time loss commencing November 22nd, 2000 and the exposure that occurred on November 16, 2000.
Prior to considering the employer's appeal, Review Office requested and obtained additional information from the claimant and the employer as well as a medical opinion from the WCB's internist consultant. A written submission dated May 8, 2001, from the claimant's union representative was also considered.
In a decision dated May 25, 2001, Review Office confirmed the acceptance of the claim. Review Office noted that the tank, which had been cleaned by the claimant on November 16, 2000 had very poor ventilation. The claimant's respiratory system would have been in contact with the fumes from the Varsol spray when he was standing outside the tank and when he was bent over and reaching into the tank. Taking into account all of the evidence and in particular the opinion of the WCB's internist, Review Office concluded that on a balance of probabilities, the claimant's nervous system was overcome by the Varsol spray fumes and that the length of the claim was not unreasonable.
On June 18, 2001 the employer appealed Review Office's decision of May 29, 2001 and asked that the issue to be addressed by the Appeal Commission be "Whether the worker is entitled to any wage loss by virtue of the November 16, 2000 exposure." The Registrar of the Appeal Commission returned the case back to Review Office to make a determination on this issue. On October 2, 2001, Review Office advised the claimant that wage loss benefits would be paid from November 22, 2000 to December 1, 2000 inclusive. A non-oral file review was held to address the employer's appeal on December 13, 2001.
Reasons
As the background notes indicate, the worker was exposed to chemical fumes for approximately 25 minutes while he was cleaning the inside of a tank for his employer. As a consequence of inhaling these fumes, the claimant experienced dizziness and difficulty in breathing. When these conditions failed to improve, the claimant sought medical attention. The treating physician diagnosed the injury as chemical pneumonitis. Initial adjudication accepted the worker's claim and commenced the payment of benefits. Review Office later upheld the payment of benefits to the claimant from November 22nd to December 1st, 2000 inclusive. It is this decision that the employer has appealed to the Appeal Commission.
The claimant advised a WCB Review Officer during a telephone conversation on March 30th, 2001 that he had never previously worked with Varsol solvent in a spray can prior to this particular incident. He further stated that he had not been advised by his supervisor to wear a respirator while cleaning the tank.
In a memorandum dated May 10th, 2001, the WCB's internal medicine consultant responded to certain questions that were posed to him by the Review Officer with respect to the claimant's exposure to Varsol solvent fumes as follows:
- Q. What would be the normal recovery time from an incident such as the one above?
A. The recovery time from the central nervous system symptoms such as headache, dizziness would require a short period even an hour or two. However, he had also developed cough and weakness and Dr. [family physician] had noted inspiratory wheezing in the right lower lobe, suggesting some form of chemical pneumonitis. We do not have the report of the chest x-ray, which may help to confirm the diagnosis. If there was a chemical pneumonitis or even bronchitis the recovery period may be delayed to a few days up to a week or 10 days.
Q. What symptoms would one generally look for in an inhalation claim of this nature?
A. As mentioned earlier, inhalation of any toxic substance could result in local inflammatory reaction such as cough and even pneumonitis. There is also central nervous system symptoms caused by volatile chemicals resulting in central nervous system symptoms.
Q. The RTW [return to work] is 3 full weeks post incident. The medical reports on file are extremely brief. However, I note he says 6 days post incident he actually was deteriorating. Please comment on that point. Is that reasonable?
A. The development of chemical pneumonitis requires certain time and may have symptoms. The recovery time is also delayed depending on the extent of the problem. A single x-ray taken in the early period of inhalation may fail to show the extent of the disease. Thus the possibility of extended morbidity exists.
Q. Do you feel it is reasonable that one would have symptoms acute enough to produce time loss from work 6 to 20 days post incident?
A. In the present situation, we have to consider two possible reasons for injury. The two factors are hypoxemia and exposure to hydrocarbons. The effect of the two may be synergistic and therefore, may have contributed to the severity as well as duration of the illness. We would therefore require further medical information to determine the exact severity of the problem.
After having thoroughly reviewed all of the evidence, we are satisfied that the worker's exposure to the Varsol solvent fumes during the tank cleaning process did, on a balance of probabilities, result in his loss of earning capacity from November 22 to December 1, 2000. In coming to this conclusion, we attached substantial weight to the following body of evidence: the attending physician's November 22, 2000, report; the WCB's internal medicine consultant's opinion; the Material Safety Data Sheet (MSDS) with respect to Varsol solvent; and the claimant's evidence. We find therefore that the claimant is entitled to wage loss benefits for the period in question. Accordingly, the employer's appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of January, 2002