The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 15, 2004, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on July 15, 2004.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On February 11, 2001, the claimant submitted a claim to the Workers Compensation Board (WCB) for neurological and psychological difficulties that she related to her exposure to zinc, copper and various other metals through the ventilation system in her workplace.

An Employer's Report of Injury or Occupational Disease form on file indicated that no injury was reported by the claimant. The employer supplied the WCB with a copy of the claimant's job description along with environmental reports.

On February 26, 2001, the claimant advised a WCB adjudicator that her desk was under a ventilation system. When she arrived at work in the mornings she would find black particles and dust on her desk. This had been tested and it was found to contain known carcinogens. The claimant started working for her employer in 1985 and was always blowing her nose and sneezing. In 1993, she had a lump on the roof of her mouth which was removed surgically and a pathology report was done. Shortly thereafter, she started to have memory problems, shakes, inability to sleep and bladder infections. The claimant had been off work for about one year in 1996 and had to stop work again in December 1998.

Medical information consisted of a number of reports received from physicians/consultants who had treated the claimant since December 1993. These reports were reviewed by a WCB internal medicine consultant on August 24, 2001. The consultant outlined various diagnoses that were suggested by the treating physicians which included post-partum depression, manganese toxicity and essential tremor. The consultant requested blood and urine levels to be taken to establish the diagnosis of manganese toxicity.

In a report from a neuropsychologist dated July 11, 2001, the specialist stated that the claimant appeared to have been in relatively good health until 1984 when she developed a post-partum depression. Following treatment with medication, psychiatric follow-up and ECT in 1987, she did not appear to have returned to her previous level of health. In 1989 the claimant reported cognitive inefficiency and development of tremors. In terms of medical documentation, the claimant has had depression and panic disorder. In terms of tremor, it was speculated that this may have been secondary to some of the medications, e.g. a tardive tremor.

In a memo to primary adjudication dated December 19, 2001, the WCB's internal medicine consultant again reviewed the file information and provided the following opinion:

"In summary, Dr. [occupational health physician] suggested that her neurological symptoms may be related to exposure to manganese, which was present in the dust. However, MRI of the brain has been negative and no manganese level were ever done. The neurologist who has seen this claimant on different occasions did not enter the diagnosis of magnesium toxicity and have found other explanations for symptoms of tremor.

In summary, I am not able to support the diagnosis of manganese toxicity in this case. In my previous memo, I had asked for the levels of manganese be done but these have not been done."

In a letter dated January 4, 2002, the WCB advised the claimant that there was insufficient medical evidence to support the diagnosis of manganese toxicity and that the dominant cause of her difficulties was not exposure to metals at the workplace.

On March 21, 2002, a worker advisor, requested the WCB to reconsider its January 4, 2002 decision based on a report by an occupational health physician dated March 18, 2002. In his report, the physician stated that neuropsych testing had been performed and the results were consistent with heavy metal poisoning. The worker advisor also asked that a WCB psychiatric consultant review the report from the treating clinical psychologist and neuropsychologist dated July 11, 2001.

On April 30, 2002, primary adjudication wrote to the claimant and stated the following:

"Please be advised your file was further reviewed by our medical advisor who indicated that the test results from the blood work done on October 19, 2001 were all within normal limits except for Serum Ferritin. A low Serum Ferritin value indicates an iron deficiency. The medical advisor also indicated the report of December 18, 1989 outlining the dust sample contained 7% manganese does not provide sufficient information to support your long-term exposure at the workplace. The report did not provide the size of the sample. Our medical advisor is of the opinion MRI scans are quite specific in the diagnosis of manganese toxicity.

Your file was also reviewed by our Psychologist who is of the opinion the results of the neuropsychological assessment can be attributable to many causes included medication effects, mood disturbance and neurological functioning. The diagnosis of manganese toxicity needs to begin with evidence of toxic exposure in the work place.

Rehabilitation and Compensation Services is still of the opinion there is insufficient evidence to support the diagnosis of manganese toxicity. As well, we are not able to confirm your long-term exposure to toxic levels of metals in the workplace."

On January 24, 2003, the case was considered by Review Office based on appeal submissions from the worker advisor dated December 4, 2002 and December 19, 2002. Based on its review of all the file information, Review Office confirmed that the claim was not acceptable. Review Office stated that in order to determine dominant cause the WCB must first establish that there are causative factors in the workplace which may have contributed to the worker's condition. It found that in this case, there was no evidence provided that would confirm that the workplace had contributed to the worker's condition. On May 4, 2004, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.

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."

As the background notes indicate, the claimant contends that her neurological and psychological difficulties from which she is suffering are related to nine years exposure to toxic materials in her workplace, specifically manganese. The WCB adjudicated the claim on the basis that the accidental injury consisted of an occupational disease. Section 4(4) of the Act states: "Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease."

We find the claim is not acceptable. In arriving at our decision, we attached considerable weight to the following body of evidence.

• The workplace analysis that was carried out did not define a clear workplace exposure.
  
  
• There is no evidence allowing us to conclude that there was a consistent contamination of the claimant's office work area.
  
  
• The medical evidence does not, on a balance of probabilities, establish manganese toxicity as the basis for the claimant's current medical problems.
  
  
• WCB psychology advisor - "Diagnosis of a toxic state needs to begin with evidence of toxic exposure in the workplace, patient exposure, toxin-specific symptom evolution, physical evidence (or neuropsychological/neuropsychiatric), and ruling out other causes including non-workplace general health, metabolic, medication-induced, non-related neurological and psychiatric causes."
  
  
• Claimant was examined by three neurologists none of whom diagnose an occupational toxic exposure.
  
  
• WCB Internal Medicine Consultant - "Although the symptoms of manganese toxicity do not correlate with the blood level, it certainly allows one to diagnose exposure to manganese. The positive MRI changes would allow us to correlate her symptoms to the changes seen in the scan. In this case, the scan was negative. The MRI scans are quite specific in the diagnosis of manganese toxicity."
  
  
• Normal concentration of manganese in the blood is 1mcg/100ml and in the plasma or serum, it is 0.1 mcg/100ml. Blood work conducted on October 19th, 2001 revealed magnesium to be in the high normal range.
  
  
• Claimant has a chronic history of psychiatric disorder and treatment dating back to the mid 1980's, which could result from a number of possible etiologies other than manganese toxicity.

We find based on the preponderance of evidence that the dominant cause of the claimant's difficulties was not, on a balance of probabilities, as a result of exposure to manganese and/or other metals in her workplace. The claim is not acceptable and accordingly the 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 1st day of September, 2004