Decision #182/05 - Type: Workers Compensation

Preamble

A non-oral file review was held on October 20, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In March 2004, the worker contacted the call centre at the Workers Compensation Board (WCB) to report that he had contracted West Nile disease during the course of his employment as a restaurant and bar manager at a rural golf course. The worker provided the call centre with the following information:

“I first went to the hospital on Aug. 29, 2003 and I was diagnosed with West Nile disease approx. 2 weeks later. Approx. two weeks before Aug. 29, 2003 I started to feel crabby and tired, no energy. I finally decided to go to the [medical clinic] on Aug. 29, 2003 to see a doctor, [doctor’s name] just thought I had an inner ear infection but I had to come back on Sept. 1, 2003 because I didn’t feel any better. On Sept. 2, 2003 I saw my own family doctor [doctor’s name] at the Hospital and she admitted me to the hospital where they did tests and said I had West Nile Disease. On Sept. 19, 2003 it was confirmed that I did indeed have West Nile.

Basically, I spent my whole summer at the golf course, from dusk to dawn, we are right near a river [name] so the mosquitos (sic) were on the golf course and one of them must of bitten me and given me West Nile Disease.”

On April 15, 2004, a WCB adjudicator contacted the worker and obtained additional information regarding his work duties, the onset of his symptoms, etc. The worker felt that his condition was work related as he spent 90% of his waking hours at the golf course. He stated that he was claiming for medical treatment, lost wages and mileage to attend medical appointments.

On April 28, 2004, the adjudicator spoke with the employer. The employer indicated that the worker was employed as a restaurant manager and he may have worked outside on Friday nights for BBQ’s and for special events 1 to 2 times per week. The worker would spend less than 10% of his time working outside. The employer indicated that the mosquitoes had not been bad at the golf course for the last 4 years and they did not have to spray. He was not aware of anyone else at the golf course that had contracted the condition.

Medical information contains laboratory test results along with reports from the worker’s treating physicians. The worker was diagnosed with West Nile meningitis syndrome and sinusitis according to a hospital discharge report.

In a decision dated May 27, 2004, the adjudicator advised the worker that his claim for compensation was denied as she was unable to establish a relationship between his work environment and his medical condition. On November 25, 2004, the worker appealed this decision to Review Office and provided the following information for consideration:

  • his employment at the golf course involved outdoor banquets that constituted more than 10% of his time at work;
  • the “clubhouse” did not deter the entry of mosquitoes as can be attested by other employees;
  • his job throughout the day entailed picking up and delivering groceries and stock for the clubhouse;
  • the building is situated alongside a river which he felt could be characterized as a “mosquito haven”;

As the above information had not been considered by the worker’s adjudicator, Review Office referred the case back to primary adjudication to consider the new information.

On February 16, 2005, the adjudicator met with the worker to discuss his claim together with the information submitted with his letter of November 25, 2004. On the same day, the adjudicator advised the worker that the new information did not allow her to alter her previous decision. The file was then referred to File Access at the WCB and then to Review Office.

Prior to considering the worker’s appeal, Review Office sought the medical advice of the WCB’s internal medicine specialist. The Review Officer also recorded in a memo dated April 27, 2005 the discussions that he had had with the worker.

In a decision dated April 28, 2005, Review Office outlined its position that the worker’s West Nile did not arise out of his employment and thereby confirmed that the claim was not acceptable. In reaching its decision, Review Office took into consideration the nature of the worker’s job duties and the hours of his employment and was of the view that the worker was at the lower end of the risk scale for being bitten by a mosquito carrying the West Nile virus. Review Office indicated that “Presumption has been rebutted.” On August 30, 2005, a worker advisor appealed Review Office’s decision and a non-oral file review was arranged.

Reasons

Chairperson MacNeil and Commissioner Finkel:

Subsection 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 subsection 1(1) of the Act. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes

(a) A wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease

and as a result of which a worker is injured.”

As the background notes indicate, the worker was employed as a restaurant and bar manager of a rural golf and country club at the time of his alleged accident. In the worker’s accident report form dated August 29, 2003, he stated in part as follows: “Basically, I spent my whole summer at the golf course, from dusk to dawn, we are right near a river [name] so the mosquitos (sic) were on the golf course and one of them must of bitten me and given me West Nile Disease”. The worker’s medical healthcare givers confirmed on September 19, 2003 that he had indeed contracted the West Nile virus.

WCB policy 44.10.40.10 specifically deals with the subject of insect bites. The policy states: “Insect bites or stings shall be considered as chance events occasioned by a physical or natural cause and shall be considered compensable where it is determined that they arise out of and in the course of employment and disable a worker.” According to the administrative guidelines the WCB will take into account the nature of the worker’s employment when determining if the alleged incident arose in the course of employment. An insect bite injury will be treated as being compensable, if the employment imperils the worker to a higher risk of similar type of injury than would be the case of normal risk to the public at large. In other words, “Where the nature of the employment caused the worker to have increased exposure to insects (e.g., the worker was employed as a gardener), it is more likely that the insect bite(s) occurred in the course of employment.” Therefore, it is necessary to establish a causal connection or relationship between the insect bite or injury and the worker’s employment or work activity.

The worker outlined in his presentation an exhaustive description of the various functions/duties that he was required to carry out at the golf course as its restaurant and bar manager. We note, however, that these job duties to a significant degree kept him indoors as opposed to other golf course staff such as the maintenance workers and the greens/grounds superintendent. It is also noteworthy that there was no evidence adduced of any other staff members, club members or even the public at large (i.e., those persons who frequented the campgrounds located approximately 150 ft. from the golf course clubhouse) as having contracted the West Nile virus.

Subsection 4(5) of the Act provides in that “Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment”. However, before this rebuttable presumption can apply one must first come to the determination that either the accident arose out of the employment or that the accident occurred in the course of employment.

After having taken into consideration all of the evidence, we find that the nature of the worker’s employment did not give rise to his having a higher increased risk of exposure to insect bite(s) than would be the case for the public at large. We further find based on the preponderance of evidence that there is no causal connection between the insect bite and the worker’s employment. Inasmuch as we have determined, on a balance of probabilities, that the insect bite did not arise out of the worker’s employment the rebuttable presumption then does not apply in this particular case.

There being no accident as defined by the Act, the claim is therefore not acceptable. Accordingly, the worker’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner 

Recording Secretary, B. Miller

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

Signed at Winnipeg this 21st day of November, 2005

Commissioner's Dissent

Commissioner Day’s dissent:

This is the case of a worker who worked as a food service/bar manager at a rural golf course who contracted West Nile disease in the summer of 2003. He considers that he acquired West Nile disease while performing his duties.

I am satisfied, on a balance of probabilities, that the worker suffered an accident as defined in subsection 1(1) of the Act and that the contracting of West Nile disease arose out of and in the course of employment.

I am satisfied from the worker’s detailed written submission, the medical evidence and the other non disputed evidence from the Provincial Department of Health that this worker has contracted the West Nile disease while in the course of his employment and therefore his claim should be accepted.

In arriving at this decision, I have placed weight on the following evidence:

West Nile Program Information relating to the Central Region of Manitoba (This region covers the worker’s workplace)

  • Manitoba Health Planning assumptions note the greatest exposure to West Nile occurs in July, August and early September. They further note that peak incidence for transmittal of the virus is usually at the end of August and early September.
  • According to a report dated August 29, 2003 entitled Health Surveillance in Manitoba, it noted that the number of probable positive humans was 4 with the Central Region reporting 2 of the 4 positive human tests.
  • The dead bird surveillance report confirmed 22 positive dead birds in the Central region. The City of Winnipeg was tied in the number of dead birds but only had one positive human testing compared to the 2 in the Central region.
  • 22 out of 100 dead birds in the central region tested positive; whereas 22 out of 248 dead birds in Winnipeg tested positive.
  • A memo from the Program coordinator of the West Nile Virus Program states on August 2, 2005 “A bird that tests positive for West Nile virus represents the virus is present in a much broader area than the specific site it was discovered.”

Worker’s Information regarding the workplace

  • Dead magpie found ¼ mile from the clubhouse. No further testing was being done on dead birds in this area as an identified bird had already tested positive for the virus.
  • Photographs submitted by the worker revealed significant standing water in close proximity to his work area. Culex tarsalis mosquitoes lay their eggs on standing water.
  • No larvaciding or spraying had been undertaken by the employer.
  • The golf superintendent in a letter dated August 25, 2005 stated he had been employed in his capacity for 4 years and had not found dead birds on the golf course prior to or after 2004. The superintendent stated that he was not able to send the bird for testing as no further testing was being done as a result of the positive test in the area for West Nile Virus.
  • The worker’s employment period was from April to September from dawn to dusk essentially seven days a week. He took 2 days off during the summer in question.
  • A letter from the Board of Directors for his employer dated October 1, 2005 confirms the worker worked long hours, however, they did not know the exact number.
  • In addition to mosquitoes getting into the clubhouse, the worker picked up supplies, delivered food to golfers, worked in the outside BBQ shed, served food in a patio with torn screens, and cleaned golf carts after a round of play. He estimated that 50% of his time was spent outside the restaurant.

Analysis

The material on file from the Department of Health demonstrates a high percentage of infected birds and positive humans in the central region compared to the rest of the province. By virtue of the hours worked and his type of work, he was at greater risk than the general population in contracting West Nile virus.

I am of the opinion that the worker was exposed to mosquitoes more so at work than not. I base this on the hours he worked, i.e. 7:30 a.m. until dusk, 7 days a week with only two days off during the summer months. His opportunity to get bitten at home was possible but he spent most of daylight hours at work convincing me he would have received more bites in that environment.

The worker became ill during the month of August 2003 and was admitted to hospital later that month where the West Nile virus diagnosis was confirmed. This is the period of the greatest transmittal time.

Culex Tarsalis mosquitoes lay their eggs in standing water. There was considerable standing water close to his immediate work area. It is highly likely there were infectious mosquitoes in his work area.

Conclusion:

On a balance of probabilities, because of this worker’s very long hours, significant outside work, little time off, standing water, and West Nile virus found in a bird in the geographical area, I am satisfied that this worker had a greater opportunity than the general public to contract this virus.

I would award his claim and therefore allow his appeal.

M. Day, Commissioner

Signed at Winnipeg, this 24th day of November, 2005.

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