The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 25, 2004. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The claimant is a machine operator at a fiberglass manufacturing plant. On February 26, 2003 the claimant fainted at work. In the Notice of Injury completed at that time, the claimant indicated that he suffered severe sinus blockage, resulting in a temporary blackout caused by chemical fumes. The claimant returned to his work station but later complained that his sinus condition was worsening and he was having difficulty breathing. He left work that day and did not return to work until March 5, 2003.

On March 6, 2003 the claimant completed a Workers Compensation Board (WCB) Accident Report in which he described the incident that occurred on February 26, 2003 as follows:

"Some time around 1:45 a.m. on Feb. 26/03 I apparently blacked out and fell approx. 30 feet from my main work station. I attribute this to the heat & chemical fumes found at my station, and the fact the entire ventilation system malfunctioned days earlier. [Co-worker] helped me to my feet, and [another co-worker] also witnessed my discomfort and difficulty I had standing. I experienced severe headaches, a swollen cheek and left eye, and difficulty breathing in the days that followed."

The claimant was first examined by a physician on March 5, 2003. The physician's report prepared on that date states that the claimant had been suffering from a flu like illness with an upper respiratory tract infection ("URTI") for the past two weeks. There were no findings related to the central nervous system, central vascular system or respiratory system other than the URTI. The diagnosis given by the physician was "syncopal episode at work NYD [not yet diagnosed]" and "Respiratory illness with acute bronchitis."

The Physician's report is reproduced below:

"SUBJECTIVE COMPLAINTS: Black out Feb. 26th, one week ago.

OBJECTIVE FINDINGS…Richard has been battling a flu like illness with an URTI with a cough, congestion, tightness in his chest, for the past two weeks. Approximately one week ago, while he was performing his regular duties at work, bare chemicals in the process of manufacturing drip into a disposable vat, he and another co-worker were exposed to fumes and approx. 30 ft away, when we was walking, he "blacked out" and does not remember the incidence. His co-workers found him sitting down on the floor but he does not report any seizure activity as observed by his co-workers. An incident report was made by his manager. He has no previous history of seizure disorder. He felt he had a headache and dizziness and therefore he left work two hours later.
He has been off work until March 5th, and is here for an examination.
Examination shows that there was no CNS, CVS, or Respiratory findings except his URTI.
He has what appears to be an acute mild bronchitis. He is expectorating mild amounts of sputum although it is intermittent.

DIAGNOSIS…….: Syncopal episode at work, NYD
Respiratory illness with acute bronchitis"

On March 19, 2003, the WCB adjudicator requested information from the employer regarding the malfunctioning ventilation system referred to by the employee. The employer advised that the air removal system in the plant was not operating for one shift on February 17, 2003.

The employer also provided the WCB with a laboratory report of air quality measurements for the detection of styrene and acetone conducted by their lab technician on February 28, 2003. According to the report, styrene emissions were detected and measured to be 5 parts per million. There was no measurable amount of acetone detected in the plant.

In a memo on file dated April 17, 2003, the adjudicator noted the following information provided by the employer's lab technician: "She tested [the claimant's] work area after his complaints (see report on file). The exposure limit for Styrene is 50 PPM, the standard was to be reduced to 20 PPM. As per the report the actual reading was 5 PPM. There is no regulation for the Acetone."

In a letter dated May 15, 2003, the WCB adjudicator advised the claimant that his claim for compensation was denied.

The adjudicator noted that the evidence did not support a relationship between the claimant's symptoms on February 26, 2003 and the previous malfunction in the ventilation system that occurred on February 17, 2003 given the information that the air system was capable of fully exchanging the air in the plant within 27 minutes.

The adjudicator also referred to the air testing done on February 28, 2003 that indicated detectable levels of styrene were well within allowable standards and that there was no measurable detection of acetone. The adjudicator noted that the medical information indicated that the claimant had a flu like illness with an upper respiratory tract infection for the previous two weeks. The adjudicator concluded as follows:

"There [sic] information from the employer does not support that there were any air problems on February 26, 2003 or residual problems from the previous air system problem. The medical supports that you had flu like illness and infection, there is no indication of a chemical induced condition. Therefore it is the opinion of Rehabilitation & Compensation Services that there is insufficient information to establish that your condition was caused by the exposure to chemicals at work. As such your claim for compensation has been denied."

An appeal submission was filed with the Review Office on October 28, 2003 by the claimant's union representative seeking reconsideration of the adjudicator's decision.

In its submission, the union representative argued that exposure to any number of chemicals in the work place, including styrene and acetone, can cause respiratory systems as experienced by the claimant following his black out on February 26, 2003, and these symptoms were related to chemical exposure at work. The submission included a medical report dated October 15, 2003 from the claimant's examining physician addressed to the union representative. The report reproduces the physician's notes of his examination of the claimant on March 5, 2003 set out above and further refers to the claimant's reported history of asthma. The report contains the following statement:

"In response to your specific question, it is very likely that his respiratory symptoms could have been brought on by the chemical exposure, especially as they were inhaled."

The Review Office referred the case back to primary adjudication for further investigation of the chemical agents used in the workplace, problems with the heat and ventilation system in the plant, and details of the incident on February 26, 2003.

The adjudicator contacted the employer for further information. The employer advised that a number of chemicals are used in production, however, Workplace, Health and Safety regulations only measure for styrene and acetone emissions.

By letter dated March 1, 2004, the employer provided the WCB adjudicator with Material Safety Data Sheets ("MSDS") on all of the chemicals used in the production process. The employer further advised as follows:

"On the date of the incident, and indeed for most of the time, the mean temperature in the area in which [the claimant] works is maintained around 20 degrees Celsius. The exhaust air and make up air systems, both operate with a capacity of 10,000 cu. Ft. per min. There is also another exhaust system servicing other machines in the department which operates at 8000 c. ft. per min. The air in the plant is fully exchanged at approx every 16 to 17 minutes."

In a decision dated April 22, 2004, the adjudicator confirmed that no change would be made to the previous decision to deny the claim. The adjudicator was of the opinion that while there was an exposure to chemical fumes on February 17, 2003, there was no evidence of ongoing or subsequent exposure and given the delay in seeking medical treatment until after the claimant returned to work on March 5, 2003, the cause of the URTI and blackout was not established to be related to his work.

On June 23, 2004, Review Office considered an appeal submission from the union representative dated June 3, 2004. Review Office confirmed that the claim was not acceptable. In reaching its decision, the Review Office concluded as follows:

"The employer has provided information indicating that the average temperature at the worker's station was 20 degrees Celsius, which the Review Office does not consider to be an excessive temperature. The employer has also provided information regarding the events surrounding the break down of the air exhaust system, its repair, and that the system changes the air in the building approximately every 17 minutes.

The worker's argument that his symptoms manifested themselves 24-48 hours later is not supported by the evidence available to Review Office. The exhaust system broke down on February 17, 2003, and the worker blacked out on February 26, 2003, some 9 days later. Review Office is of the opinion that any residual odours from the system breakdown would have long since dissipated.

In addition, as medical treatment was not sought until March 5, 2003, there is no evidence to support the upper respiratory tract infection was caused by exposure to work chemicals. Although the physician has provided an opinion on this matter, there is no medical evidence to support it."

On July 23, 2004, the union representative filed an appeal of the Review Office decision and a hearing was held on November 25, 2004. The employer's representative and the claimant and his union representative were present at the hearing.

Claimant's Submission

At the hearing, the union representative argued that the Review Office erred in failing to find a relationship between the February 17, 2003 malfunction of the ventilation system and the claimant's symptoms and black out that occurred on February 26, 2003. The union representative argued that the claimant's blackout resulted from his URTI symptoms and related difficulty breathing and that these URTI symptoms were an ongoing progression and worsening of symptoms initially experienced by the claimant as a result of chemical exposure that occurred when the ventilation system malfunctioned on February 17, 2003.

Reasons

Section 4(1) of The Workers Compensation Act ("the Act") provides that compensation will be payable to workers who have suffered a personal injury "arising out of and in the course of the employment". In order for this panel to accept the worker's claim, we must be satisfied, on a balance of probabilities, that the worker's symptoms were causally related to his employment duties.

The panel first considered the argument put forward by the union representative, that the claimant's symptoms were related to a workplace incident that occurred on February 17, 2003.

The Panel has reached the conclusion, after considering all of the information on file and evidence presented at the hearing, that on the balance of probabilities, the evidence does not support a relationship between the February 17, 2003 ventilation malfunction and the claimant's URTI symptoms and blackout on February 26, 2003. The Panel has reached this determination for the following reasons:

• The claimant testified at the hearing that he can detect mild odours from the chemicals that he works with regularly and they get noticeably stronger if there is a ventilation problem in the plant, but he did not recall any increase in odours on February 17, 2003. If the claimant had experienced a serious chemical exposure resulting from the breakdown on February 17th, one would expect that he would have detected odours;
  
  
• There is no evidence that the claimant reported any symptoms on February 17, 2003. The claimant left his shift on the morning of February 17, 2003 without reporting any symptoms on that day or increase in symptoms in the following week. The claimant referred to evidence in the MSDS for chemicals used at the plant that indicate symptoms may be delayed 24 to 48 hours following exposure. In this case, the claimant testified that he did not report or recall experiencing any symptoms within that time frame following the breakdown of the ventilation system. When testifying, the claimant could not attribute his symptoms to anything that he could recall occurring on February 17, 2003;
  
  
• The claimant testified that he had continued to work his regular shifts after February 17, 2003 until February 26, 2003 although he did take sick time for a few hours on February 20, 2003, but he could not recall why he was off sick that day;
  
  
• In the Notice of Injury completed on February 26, 2003, the claimant makes no reference to an exposure on February 17, 2003 as the cause of his symptoms.
  
  
• The claimant testified that as a result of chemical exposure at work he sometimes experiences symptoms that he referred to as "snow track head". These symptoms will clear up after 15 minutes in fresh air. He also indicated that occasionally he will have symptoms such as sinus problems, puffy eyes and a swollen face, which will clear up after one or two days off work. The Panel notes that from February 17, 2003 until the blackout incident on February 26, 2003 nine days passed, including two days off work between shifts. If chemical exposure on February 17, 2003 was the likely cause of the URTI symptoms, one would have expected the symptoms to have cleared prior to February 26, 2003;

With respect to the medical evidence on file, the Panel notes that according to the physician's report made at the time of initial examination on March 5, 2003, the claimant related his blackout to exposure on February 26, 2003 to chemical fumes from a disposable vat used in the manufacturing process and there is no mention of a previous incident of chemical exposure on February 17, 2003.

The Panel also notes that the physician's statement that "it is very likely that his respiratory symptoms could have been brought on by the chemical exposure, especially as they were inhaled" does not support a relationship between the February 17th ventilation problem and the claimant's symptoms as the statement appears to refer to the inhalation of fumes from the vat on February 26, 2003.

The Panel has therefore concluded that there is insufficient evidence to support a causal relationship between the February 17, 2003 ventilation system malfunction and the claimant's symptoms that led to his time off work.

The Panel has also considered whether the claimant's symptoms were related to the heat and chemical exposure at his work station on February 26, 2003 and concluded that this was not the case.

With respect to the problem of heat at his work station, the claimant clarified at the hearing that heat was not a problem and that it only gets uncomfortable in the summer.

With respect to possible chemical exposure while at work on February 26, 2003, the Panel notes that the evidence did not indicate that the plant was not properly ventilated or did not meet the applicable health and safety standards.

The employer explained that there are approximately 10 chemicals involved in the manufacturing process that when mixed result in styrene emissions. Acetone is used in the manufacturing process as a cleaning solution. According to the employer, the plant's exhaust system had been assessed by the Department of Workplace, Health and Safety in late 2002 or early 2003 and its styrene and acetone emissions were well within industry standards. The employer also conducts internal testing whenever a problem is brought to their attention. For that reason tests were conducted on February 28, 2003 following the claimant's syncopal episode, in which the styrene level was well below the level considered hazardous and no acetone was detected.

While it is possible that the claimant may have been exposed to chemicals on February 26, 2003 that were not detected two days later, the period of time that he took to recover from these symptoms does not suggest an acute exposure to chemicals.

The claimant testified that when exposed to chemicals at work he either recovers within 15 minutes of breathing fresh air or after one or two days of rest. This is consistent with the scientific information on these chemicals. In this case, the claimant was still suffering flu like symptoms on March 5, 2003, although he had already been off work for six days.

When examined on March 5, 2003, the physician diagnosed the claimant as suffering from an upper respiratory tract "infection" with cough, congestion and tightness in his chest for the past two weeks. The physician diagnosed an "infection", generally referring to a bacterial or viral illness that the claimant had been suffering for approximately one week prior to February 26, 2003. While the physician later expressed an opinion that the inhalation of fumes on February 26, 2003 could cause the respiratory symptoms, the panel is of the view that the physician's opinion is inconsistent with the evidence given that the claimant suffered from URTI symptoms for one week prior to February 26, 2003.

The Panel therefore concludes that there is insufficient evidence to establish on a balance of probabilities that the claimant's symptoms were causally related to a work related exposure to chemicals and the claim for loss of wages is denied.

Panel Members

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

Recording Secretary, B. Miller

M. Thow - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of January, 2005