The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 28, 2005, at the request of a worker advisor, 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

On December 14, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for lung difficulties that occurred in the workplace on December 8, 2004. The worker stated, "At the start of the work day, came down out of the cab of the combine. Chest tightened up & started to have trouble breathing. Ambulance was called & was transported to hospital."

The employer's accident report confirmed the description of accident as noted above. The employer advised the WCB that the worker has had asthma attacks in the past and that it did not know what triggered the worker's asthmatic attack at the workplace.

On December 21, 2004, the employer advised the WCB that the worker had been released from hospital and was recovering at home. The employer reiterated that nothing happened at the workplace to cause the worker's asthmatic attack.

During a telephone conversation that took place on December 22, 2004, the worker told a WCB adjudicator that he was uncertain as to what exactly caused his condition but there were molds, dusts and sewer smells in the workplace all the time that could affect his asthma. He said that he had done nothing out of the ordinary on the day of accident and that he had gone about his normal duties. He started his shift and worked about 20 minutes. He got onto the combine and then down again to hand someone a tool when he had his asthma attack.

Initial medical information consisted of two hospital reports dated December 8, 2004. One report described the worker's history and entrance complaints and the other was a consultation report by an internist to the family physician.

On December 30, 2004, Rehabilitation & Compensation Services denied the claim for compensation in accordance with subsections 4(1) and 1(1) of The Workers Compensation Act (the Act). The letter stated, in part:

"Medical information obtained indicates that you have been having difficulty with your asthma over the past two to three weeks. The illness started with a sore, scratchy throat and then worsening shortness of breath. A few days prior to that, you had gastrointestinal illness involving vomiting and diarrhea. While at home on December 6, 2004, you felt short of breath and in the morning at work you developed severe shortness of breath and had to be brought into the hospital by ambulance."

"The evidence provided suggests that you have a long history of asthma affected by a number of environmental factors. However, the asthma attack that you had at work on December 7, 2004, was not triggered by any specific incident (irritant) at work. In light of this information, the WCB is unable to determine that the difficulties you were having on December 7, 2004, were a result of your environment."

In a letter to the family physician dated January 4, 2005, an allergist concluded the following: "Mr. [the worker] seems to be sensitized to different environmental allergens specifically perennial allergies like house dust mites. He is also sensitized to different molds specifically to mainly Cladosporin and mold."

In a submission to Review Office dated February 24, 2005, a worker advisor appealed the WCB's decision to deny the claim. The worker advisor referred to the medical information on file dated December 8, 2004 and to WCB policy 44.05 and subsection 4(5) of the Act. Information was also submitted by the employer which provided details about the environmental conditions of an agriculture machinery repair shop. Based on this evidence, the worker contended that his working on a combine in an environment with high levels of dust and mold was the thing that was done and the doing of which that triggered his December 8, 2004 asthma attack.

On March 17, 2005, Review Office confirmed that the claim was not acceptable. Based on a balance of probabilities, Review Office found that the whole of evidence had not established a work related trigger responsible for the worker's exacerbation and resultant time loss effective December 8, 2004 onward. On May 5, 2005, the worker advisor disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

Subsection 4(1) of 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 subsection, the Panel must, initially, be satisfied that there has been an accident within the meaning of subsection 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."

The worker testified at the hearing that he regularly experienced breathing difficulties whenever he performed repairs to farming combines and that he wanted to get away from this type of work for several years. He asked to be removed from combines yearly since 1995 but was still working on them. Approximately 5 to 7 weeks prior to his December 8, 2004 incident, the worker attended the hospital emergency room on three or four occasions because of breathing difficulties. The worker also testified that five months prior to his asthma attack the combines were cleaned with compressed air whereas before that they were cleaned in the wash bay. The evidence was that the cleaning with compressed air distributed dust and irritants in the work environment.

We accept the worker's evidence that his work environment contained several potential irritants, which could reasonably be expected to aggravate a pre-existing asthmatic condition. We find that the worker's December 8, 2004 asthmatic attack was, on a balance of probabilities, precipitated by such irritants as dust and mold present in the workplace environment. We further find that the worker sustained an accident arising out of and in the course of his employment resulting in an aggravation of his pre-existing asthma.

The claim is therefore acceptable and accordingly the worker's appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
J. MacKay, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of September, 2005