Decision #156/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on November 8, 2004, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

In February 2004, the worker filed a claim with the Workers Compensation Board (WCB) for right shoulder and left knee difficulties which developed from working under a fan system that brought in cold outside air. The accident date was recorded as being February 13, 2004 and it was reported to the employer on February 16, 2004.

A Doctor's First Report dated February 16, 2004 noted that the worker complained of increasing pain in her right shoulder and knee that was aggravated by cooling due to a large fan. The diagnosis rendered was an exacerbation of osteoarthritis of the right knee, myofascial pain and mild impingement of the right shoulder. It was felt that the worker was disabled from work.

The employer provided the WCB with a fax dated February 23, 2004. The employer noted that since September 2003, after moving to a new location, the worker traditionally dressed with several layers of clothing while her colleagues in the same proximity wore short sleeve T-shirts or long sleeve shirts twelve months of the year. Management's attempts to operate at higher department temperatures resulted in other employees turning down the heat to the level which the majority found most comfortable.

On March 1, 2004, a WCB medical advisor reviewed the file and was of the opinion that the mechanism of injury as described by the worker and her physician was inconsistent with the diagnoses of osteoarthritis of the right knee or shoulder and myofascial pain.

In a decision dated March 4, 2004, the WCB advised the worker that her claim had been denied as it was unable to establish that her current difficulties were related to her employment.

On August 4, 2004, a worker advisor, acting on behalf of the worker, provided Review Office with information that he obtained from the Workplace Safety and Health division of the Department of Labour. From this report, the worker advisor noted that there was a noticeable direct draft of cold air where the worker's work station was located and which was eventually remedied by the installation of a "sock" that could deflect the air. The correction took place in February after the worker laid off work. The worker's position was that the cold air exacerbated the osteoarthritis in her knee and caused myofascial pain in her shoulder. The worker was seeking wage loss benefits from February 13, 2004 until her return to work on March 29, 2004 along with medication and physiotherapy costs.

On August 16, 2004, Review Office confirmed that the claim was not acceptable. Review Office noted that the issue under consideration was whether or not the worker had sustained an accident which caused the injuries reported to her knee, shoulder and lower back. Review Office was of the opinion that working in a draft would not have caused the injuries reported by the attending physician and the worker. It could not find that the worker was disabled from her employment by reason of a personal injury that arose out of and in the course of her work. On August 23, 2004, the worker advisor appealed this decision and an oral hearing was arranged.

Reasons

The issue before us was whether the worker's claim is acceptable. For the appeal to be successful, we must find that the worker's injury arose from a workplace accident. In other words there is a direct relationship between her injury and her work. We were able to find a direct relationship between her injury and her work and accordingly the claim is acceptable.

The sections of The Workers Compensation Act (the Act) which are applicable to the issue before us are subsections 1(1) and 4(1).

Subsection 1(1) defines accident as
"accident" means 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.

Subsection 4(1) provides:
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.
The worker's claim can only be accepted if these requirements are met.

Evidence and Argument at the Hearing

The worker was represented by an advocate who made a submission on her behalf. As well, two co-workers were called as witnesses. The worker and her husband also gave evidence.

The worker's representative submitted that:
"It is our position that, on a balance of probabilities, the cold draft blowing directly on the claimant's back caused her to develop a condition which prevented her from working. That condition may have been directly caused by the draft or the cold draft may have aggravated some underlying pre-existing condition or some combination of the two. However, regardless of the exact mechanism, it is a reasonable assumption, based on the evidence, that exposure to the cold draft over a period of several months from September 2003 to February 2004 gave rise to the painful condition which prevented the claimant from working. The fact that since the problem was corrected the claimant has not experienced a recurrence of the condition further substantiates such a conclusion. We, therefore, request this panel to accept Mrs. [the claimant's] claim as compensable and that she be provided with wage loss and other benefits for the period of February 13, 2004 to March 29, 2004."
The first witness was a welder who also serves as Chair of the local union. He was familiar with the worker and her complaints. He confirmed that since the move to the new premises in September 2003 the worker has complained about the draft blowing on her back from a vent in the ceiling. He also confirmed that he felt the draft and that it was significant. He advised that this matter was discussed with the Health and Safety Committee and raised with management. He advised that the problem was fixed while the worker was off work.

The second witness was a woodworker who also serves as a shop steward for the local union. He works nearby the worker and confirmed that a significant draft blew down on the worker's work station. He advised that the draft would occur whenever the dust collection system was activated. Although not constantly running, the dust collection system was frequently activated, primarily by the woodworkers to remove dust from the air. This witness also confirmed that the worker had made numerous complaints and that the problem was finally fixed while the worker was off work.

The worker advised that at the new premises her workstation was located under a vent which blew cold on her. She advised that she brought her concern to management and to the union on many occasions. She also advised that she tried moving her workstation so that the draft did not blow across her back but that the draft continued to bother her. She described the symptoms she suffered which caused her to leave work. She indicated that the draft was very cold and that she was always shivering and her muscles were very tense. This in turn affected her posture. She was in pain both at work and when she came home after her shift. She also advised that as the draft became colder in February, her symptoms worsened. She confirmed that since the vent has been altered, her condition has not re-occurred.

The worker's husband described the worker's symptoms and also confirmed that the worker has not been bothered by the draft since the vent was altered.

The employer was represented by two staff, the office administrator and the worker's supervisor. The administrator explained the operation of the dust collection system. She noted that cold air is not brought into the plant. The unit re-circulates the inside air after dust has been removed. The dust removal unit is located on the roof of the premises and the air is transported through uninsulated ducts on the roof. The administrator advised that when the worker called to report her absence, she did not report that it was work related.

The supervisor provided information on the vent system and explained how the system has been modified.

Decision

We have considered all the evidence including the evidence presented at the hearing. We find on a balance of probabilities that the worker's claim is acceptable.

We find that a significant draft blew down on the worker's work area. This was confirmed by the worker's co-workers. This was also confirmed by representatives of Workplace Safety and Health who visited the premises and reported "There was a noticeable draft passing directly from the fresh air supply across her workstation as the air moved through the shop."

We rely upon the diagnosis provided by the worker's treating physician. The physician reported that she treated the worker for muscular pain in the right shoulder girdle. She provided the opinion that the cold draft could have caused muscle spasms which caused pain. We consider this to be the likely cause of the worker's condition. This is supported by the worker's description of the impact of the cold draft on her back while she was working. She advised that she felt cold and her muscles were always tense, this in turn altered her posture. She then developed muscle pain and could not continue working.

We note that the worker did not have symptoms prior to the move to the new premises. It is only when she worked under the cold draft that she had symptoms. The fact that she has not experienced further symptoms since the draft was reduced supports this decision.

We find that the requirements of the Act have been met. The worker suffered an injury by accident which arose out of and in the course of her employment. The worker's appeal is allowed.

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 22nd day of November, 2004

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