The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on June 2, 2004, at the worker's request.

Issue

Whether or not the worker is entitled to payment of wage loss benefits for the period July 11, 2002 to July 26, 2002.

Decision

That the worker is not entitled to payment of wage loss benefits for the period July 11, 2002 to July 26, 2002.

Decision: Unanimous

Background

The worker filed a claim with the Workers Compensation Board (WCB) for a lung condition that she related to second hand smoke exposure during her employment activities as a housekeeper on July 5, 2002.

File information revealed that the worker had been employed with the accident employer since May of 1999 as a housekeeper. On May 5, 2002, her physician issued a medical certificate which stated that she could no longer work in smoking areas.

The worker claimed that her employer initially complied with the recommendation but when she returned to work on July 5, 2002, following a non-compensable back injury, she was told that she had to work in a smoking area. The worker says she felt heavy "chested" but was able to get through her shift. When she went to work on July 6 she worked in a non-smoking area. When she woke up on Sunday morning she couldn't breath and her inhalers didn't work. On Monday morning she sought medical treatment.

She returned to work on July 10, 2002 and was assigned a non-smoking area. She was absent from work from July 11 to July 26, 2002.

On July 30, 2002, the worker informed the WCB that about one year ago prior she started getting bronchitis and pneumonia almost once a month and was never sick before this. She felt that second hand smoke was the only thing she was exposed to.

In a decision dated September 10, 2003, the worker was informed of the WCB's decision to deny her claim for respiratory difficulties. Primary adjudication outlined its position that there was insufficient evidence to support that her work environment was the dominant cause of her condition. It was also determined that there was insufficient evidence to support that the worker's time loss from work between July 11, 2002 and July 26, 2002 was due to second hand smoke on July 5, 2002.

The case was considered by Review Office on December 19, 2003 at the request of the worker who appealed primary adjudication's decision. Review Office also considered a submission from the employer's advocate dated December 8, 2003 and sought the medical advice of a WCB medical advisor on December 18, 2003.

Following complete review of the claim information, Review Office made the determination that the worker's exposure to second-hand smoke on July 5, 2002 was acceptable as an incident arising out of and in the course of her employment. However, Review Office determined that wage loss benefits were not payable to the worker between July 11, 2002 to July 26, 2002.

Review Office noted the comments expressed by the WCB medical advisor that the acute exacerbation which would be involved for a person to have an acute respiratory reaction to an irritant, would be 24 - 48 hours. The time loss involved with this claim did not commence until July 11, 2002, approximately 6 days after the exposure. Review Office found that by that point in time, any acute exacerbation causing symptoms to the point of disability from employment would be long gone. Review Office found she would not be disabled from employment on July 11, 2002 as the acute exacerbation of her condition would have resolved. On March 15, 2004, the worker disagreed with Review Office and a non-oral file review was arranged.

Following discussion of the case, the Appeal Panel determined that additional information was required from the worker and the employer with respect to the worker's workplace activities on July 10 and July 27, 2002, air quality testing, etc. On July 14, 2004, the information that the Panel received from the worker and the employer was shared with the interested parties for comment and on July 29, 2004, the Panel met to render its final decision.

Reasons

As noted in the background, the worker appealed the Review Office decision to the Appeal Commission. In arriving at our determination we considered the full claim file including the correspondence and submissions from the parties.

The issue before us was limited to "whether or not the claimant is entitled to payment of wage loss benefits for the period July 11, 2002 to July 26, 2002." For the worker's appeal to be successful, we must find that the worker was not able to work during this period due to her exposure to smoke on July 5, 2002. We were not able to make this determination.

In her written submissions the worker stated that her exposure to smoke at work on July 5, 2002 continued to bother her resulting in her absence from work from July 11 to 26, 2002. She noted that in May 2002 her physician had provided a certificate indicating that the worker is not to work in a smoky environment. She also noted that despite the certificate the employer assigned her to work in a smoking area on July 5, 2002.

The employer through a consultant agreed with the Review Office decision. The consultant noted that the worker's time loss from work commenced 6 days after the exposure to smoke and that such a delayed reaction is not supported by the medical evidence.

We note the worker worked a full shift on July 5, 2002 in a smoking area at her workplace. She did not seek medical attention after her shift. She returned to work on July 6, 2002 and worked another full shift, this time a non smoking area. The worker was not scheduled to work for the next 3 days. She sought medical attention on July 7, 2002 and July 8, 2002. She then returned to work on July 10, 2002. She worked a full shift on that day in a non smoking area. She did not return to work again until July 27, 2002. She has asked for payment of lost wages for the period commencing July 11, 2002 to July 26, 2002 which she believed was caused by the July 5, 2002 workplace exposure to smoke.

While we are satisfied that the worker was exposed to smoke at work on July 5, 2002, we did not find that the worker's absence from work from July 11, 2002 to July 26, 2002 was due to her exposure to smoke at work on July 5, 2002.

In arriving at our determination, we place significant weight on the report from the physician who treated the worker on July 7, 2002 at a local hospital. The physician who treated her that day noted that she had been exposed to smoke 2 days prior. He recorded no objectives findings. He indicated in response to a question on the WCB report form that the worker was not disabled beyond the date of the accident.

We understand that the worker saw her own physician on July 8, 2002. A specific report about this visit was not provided to the WCB. The visit is noted in a letter from the physician dated August 20, 2002. In this letter the physician does not address the question of time off from work due to the exposure to smoke on July 5, 2002. The physician does confirm that he told the worker that she must not continue to work in a smoky environment.

On the claim file there is a copy of a certificate from the worker's physician which deals with the worker's absence from work between July 16, 2002 and July 22, 2002. The physician notes the worker is able to return to work on July 22, 2002. The certificate does not provide a diagnosis of the worker's condition or a reason for her absence from work. The certificate does not relate the absence from work to the worker's exposure to smoke on July 5, 2002.

We note that Review Office reviewed the worker's file with a WCB medical consultant who advised that generally the acute respiratory reaction to an irritant would be 24 to 48 hours. However, in this case the worker ceased to work on July 11, 2002, approximately 6 days after the exposure. We place particular weight on this comment in support of our decision that the worker's absence was not caused by the July 5, 2002 exposure to smoke.

We find on a balance of probability that the worker's loss of earnings from July 11, 2002 to July 26, 2002 is not related to exposure to smoke while at work on July 5, 2002. We find that the medical evidence does not support the worker's contention that the absence from work was caused by the July 5, 2002 exposure to smoke. Accordingly, the worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 7th day of September, 2004