Decision #17/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 4, 2003, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Decision: Unanimous

Background

In June 2003, the claimant submitted an application for workers' compensation benefits stating the following:
"At about 12 noon, I was stopping every 15 - 20 minutes to use the washroom and by 2 p.m I left work. I have been in bed ever since, with diarrhea, fever, and cold symptoms. I first went to the doctor on Monday June 9th to get it checked out and to get a note for work. The doctor gave me a note to be off for 2 days, and to return and see him in two days before I return back to work. I'm still sick and don't think that I will be working at all this week. I feel that is (sic) related to transporting patients on a regular basis to their medical treatments, for CT scans, radiation and cancer treatments. These people are very sick."
A Doctor's First Report dated June 11, 2003, indicated that the claimant had been assessed on June 9, 2003 and the diagnosis rendered was viral gastroenteritis. The physician noted that the claimant could return to his regular duties "in a few days".

On June 13, 2003, an adjudicator with the Workers Compensation Board (WCB) advised the claimant that it was very unlikely that the WCB could accept his claim as his symptoms were similar to those of the flu. The claimant stated that he lived alone and the only other place he could have caught this was at work.

On June 24, 2003, the WCB adjudicator contacted the employer. The employer advised the adjudicator that she was not aware that the claimant's time loss from work was related to a work related condition.

In a decision dated July 8, 2003, the claimant was advised of the WCB's decision to deny his claim. Rehabilitation and Compensation Services concluded that there was insufficient evidence on file to support the suggestion that the dominant cause of the claimant's condition was related to his work duties of transporting patients. On July 11, 2003, the claimant disagreed with the decision and the case was forwarded to Review Office for consideration.

On August 8, 2003, Review Office confirmed that the claim was not acceptable. Review Office noted that the diagnosis of viral gastroenteritis could be contracted from any number of sources. There was no evidence available to confirm a work related contact in the case of this worker. As a result, Review Office could not establish that the claimant incurred "personal injury by accident arising out of and in the course of the employment." On September 20, 2003, the claimant appealed Review Office's decision and an oral hearing was convened.

Reasons

Section 4(1) of The Workers Compensation Act (the Act) 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.
"Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections."
In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, "a chance event occasioned by a physical or natural cause; and includes
  1. A wilful and intentional act that is not the act of the worker,
  2. 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
  3. an occupational disease
and as a result of which a worker is injured."

In recalling the claimant's oral submission, it became apparent that his appeal was presented as either a well-defined event arising out of and in the course of his employment or as an occupational disease.

As the background notes indicate, one of the claimant's job duties involved his transporting senior citizens to their medical appointments. The claimant testified at the hearing as follows: …"They [senior citizens] have a tendency to cough all over you while in transit and your chances of obtaining an illness, due to the fact that you're transporting people like that are very, very high. And this is how I contacted whatever it was I had." He stated that he had become ill on June 3rd, 2003. His symptoms included diarrhea, fever and cold. He was convinced that he had contracted his illness from the senior citizens, who he had been transporting. The claimant eventually sought medical treatment and was diagnosed by his treating physician as having contracted viral gastroenteritis.

In arriving at our decision, we took into consideration the file information as well as the claimant's and the witness's testimony. Unfortunately, however, we find that the evidence does not establish a causal link or connection between the claimant's diagnosed condition of viral gastroenteritis and his exposure to a particular senior citizen or generally to the senior citizens that he was transporting.

Viral gastroenteritis is an illness, which can be contracted by the general public from any of a number of sources through daily living and public interaction. We find based on the weight of evidence that the claimant's viral gastroenteritis did not, on a balance of probabilities, arise out of and in the course of his employment. Inasmuch asthere being no accident as defined by the Act, the claim is not acceptable. Accordingly, the claimant'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 22nd day of January, 2004

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