Decision #107/99 - Type: Workers Compensation
An Appeal Panel hearing was held on June 22, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on June 22, 1999.
Whether the claim is acceptable.
That the claim is not acceptable.
On April 15, 1998, the claimant submitted an application for compensation benefits stating the following:
- "On April 3rd, 1998, had occasion to arrest ten (10) persons at 154 (street name). At least three (3) of the accused were coughing and spitting up phlegm. Two (2) days after exposure to these persons, the writer developed a severe cough and chest pain. The writer was subsequently diagnosed with a bacterial chest infection which required a course of antibiotics for treatment."
A WCB adjudicator subsequently spoke with the claimant by phone and the following information was obtained:
- the claimant, along with 3 other police officers arrested 10 squeegee kids. At least 3 of the kids had bad coughs and were spitting up phlegm. The claimant indicated she never came in contact with any phlegm and was not directly coughed upon. The claimant and the other officers were enclosed with the kids in a poorly ventilated room in a boarding house for over two hours. Upon arresting the kids, the claimant and the other officers had to conduct a search of each of the accused persons. The claimant denied coming into contact with anyone who had a cold/cough in the preceding weeks. Two days after being exposed to the coughing the claimant developed the cough.
Following primary adjudication's consultation with a WCB medical advisor on two occasions, the claimant was advised on May 13, 1998, that in accordance with Sections 4(1) and 1(1) of the Workers Compensation Act (the Act), her claim for compensation would not be accepted. Primary adjudication stated that according to the WCB medical advisor, bronchitis can be caused by viral or bacterial infection or exposure to chemical agents. The bacterial and viral agents causing bronchitis are airborne. The general public was at risk of contracting bronchitis in daily exposure to both symptomatic and asymptotic persons in social and professional contacts. In the claimant's case, it was unclear as to the cause and nature of the illness suffered by partly being arrested and there was no confirmation that they suffered from bacterial bronchitis.
Based on the above, primary adjudication could not determine that the probable cause of the claimant's illness was her workplace exposure. On August 12, 1998, legal counsel for the claimant appealed this decision to the Review Office.
On October 2, 1998, the Review Office confirmed primary adjudication's decision that the claim for compensation was not acceptable. It had not been established that the claimant's diagnosed bronchitis was as a result of her work related activities on behalf of the employer.
In arriving at its decision, the Review Office noted that the other police officers involved in the arrests had not to this date reported any adverse condition or difficulty as a result of this incident. As well, it was noted that none of the people arrested underwent any health or medical tests to determine if they too had contacted bronchitis. The Review Office stated that it had not been shown the claimant had become infected with bronchitis as a result of her work place activities. Since this had not been conclusively shown and the diagnoses had not been attributed to this one incident, the Review Office felt that a relationship between an injury and accident had not been established.
On April 12, 1999, legal counsel appealed the Review Office's decision and a hearing was conducted on June 22, 1999.
The claimant, through her advocate, has requested the Appeal Panel to overturn the decision of the WCB denying acceptance of a chest condition diagnosed as bronchitis. In order for a claim to be acceptable sections 1(1) and 4(1) of the Act must be satisfied. These sections read as follows:
Section 4(1) of the Act states:
- 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.
Section 1(1) of the Act states:
a chance event occasioned by a physical or natural cause; and includes
- A wilful and intentional act that is not the act of the worker,
- event arising out of, and in the course of, employment, or
- thing that is done and the doing of which arises out of, and in the course of, employment, and
- an occupational disease
and as a result of which a worker is injured.
The claimant indicated that she and three co-workers were in a closed and confined environment with a number of "squeegee kids" who were hacking, coughing and spitting. Apparently several of these kids commented that they hoped she and her co-workers would get sick with what they had. She was not spit or coughed upon. The period of exposure was stated to be approximately six hours.
The claimant indicated that approximately four days following her exposure to the "squeegee kids" she came down with a condition which was similar in presentation to what she had been exposed to when in contact with the "squeegee kids". Three days of employment were lost as a result of her diagnosed bronchitis.
The Panel in arriving at its decision considered the file information and the claimant's testimony at the hearing. Unfortunately, the Panel cannot establish that the claimant's diagnosed condition of bronchitis was the result of her exposure to these "squeegee kids". We note in particular that the claimant's co-workers did not contract the same malady despite their similar exposure. The nature of the illness (of the "squeegee kids") was never confirmed.
Bronchitis is an illness which may be contracted by the general public through daily living and daily public contact. It cannot be established on balance of probabilities that there is a relationship between the coughing of the "squeegee kids" and the subsequent diagnosed bronchitis of the claimant. Therefore the claim is not acceptable.
R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller
R. W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of August, 1999