The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A reconvened Appeal Panel hearing was held on November 30, 1999, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this case on November 30, 1999.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

On September 8, 1998, the claimant submitted a claim for compensation benefits indicating that he started to notice swelling of his right hand at the start of his shift on August 18, 1998. When he returned to work on August 19, 1998, at 11:00 p.m., his right hand was still swollen and by the end of his shift, both hands had become swollen, his arms were covered with red spots and his feet and toes were covered in large blisters.

The claimant later advised an adjudicator with the Workers Compensation Board (WCB) that he felt his condition was due to his employment as there was something in the material he was handling on the night of his shift. He stated that he alone had been handling this particular material and that there was something on the roll when it came off the truck. The material had come from Korea and there was probably something contaminated on it.

File information contains material safety data sheets which were submitted by the employer. Workplace Safety & Health attended the job site but found no causal agent for this condition at the workplace. It was also noted that no other workers had any similar reactions as the claimant.

On August 20, 1998, the claimant sought treatment from a general practitioner and the diagnosis was "? contact reaction to material at work".

On August 24, 1998, the claimant was admitted to hospital with signs of skin eruption, polyarthralgia and diarrhea. The attending physician at the time stated that he was uncertain as to the cause of the claimant's condition. "Pemphigus or pemphigoid would seem unlikly in this age group. A postviral or post Mycoplasma syndrome involving both arthritis and skin eruption is possible."

Following consultation with a WCB medical advisor on December 12, 1998, the WCB's Claims Services determined that the claim was not acceptable. Claims Services indicated, "To date, no definitive diagnosis has been established, although it has been suggested that this condition was post-viral. As such, the WCB is unable to establish a connection between this condition and the workplace and, as such, the claim has been denied."

On April 15, 1999, a union representative requested Review Office to reconsider the above decision. The union representative stated that the attending physician confirmed the belief that the claimant's condition arose out of his workplace. The submission stated, in part, that the claimant's symptoms appeared while he was at work, after handling new material (polypropylene) from Korea. "The claimant handled five to six rolls of polypropylene from Korea on that particular shift. The material was wet, moisture dripping on the worker's skin, on the floor and on the machines. Since this was new material from Korea any consequences and reaction as a result of handling this material are unknown. Therefore, it is our position, that on the balance of probabilities, the claimant's condition arose out of his work activities."

In a decision letter, dated May 7, 1999, Review Office stated it was satisfied that the weight of evidence, based on the available information on file, failed to establish that a work-related hazard or accident was the likely cause of the injury experienced by the claimant. Review Office indicated that non-occupational risk factors were a more probable cause of the claimant's particular injury. Review Office concluded that the claimant was not entitled to benefits under the prevailing workers compensation statute for the effects of what was most likely a viral type of infection in August 1998.

At the request of the union representative, an Appeal Panel hearing was held on August 3, 1999, to determine whether or not the claim was acceptable. Following the hearing and discussion of the case, the Appeal Panel requested additional information be obtained from Workplace Safety & Health and from the employer.

On August 12, 1999, Workplace Safety and Health confirmed that no follow-up investigations were carried out to determine what caused the claimant's condition.

On September 10, 1999, the employer responded to the Appeal Panel's enquiry as follows:

"There are no records that the claimant handled "SK6/42U" between August 17 and 19, 1998 as alleged.

Pages 2, 3, and 4 - enclosed, outlines what material were used by the claimant and each cutter between August 17 and 19, 1998.

Page 5 - enclosed, is a list of material assigned to each worker on the claimant's shift.

The next 10 pages are copies of work order forms signed (highlighted) by the claimant between August 17 and 19, 1998.

The liquid used on the South Korean fabric is water. They use a water jet to carry the filling yarn across the warp yarns during the weaving process rather than a mechanical shuttle which damaged the yarn."

The above information was forwarded to all interested parties for comment. In rebuttal to the employer's submission, dated September 10, 1999, the union representative wrote to the Appeal Commission on September 17, 1999, indicating the following:

• the work order forms submitted by the employer were either incomplete or inaccurate as they did not reflect the accurate production level for the dates in question, namely August 17, 18 and 19, 1998. The employer instead should be submitting the daily cutting sheets for each machine and its operator, signed by the operator after the orders are completed.
• according to the work order forms submitted by the employer, the claimant produced only 375 pieces on August 17, 1998. Refer to page 9 of the employer's report. "That represented only about 1 or 1 1/2 hours of work. Yet it is indicated by the employer that on August 17th Mr. [the claimant] worked a shift from 11:00 p.m. to 7:30 a.m. The expected production quota per shift for each employee is between 1500 and 2000 pieces.
• the claimant produced 1700 pieces on August 18, 1998 which was more realistic. On August 19, 1999, however, the claimant again produced only 700 pieces which was far below his normal production quota.
• the daily cutting sheets, which were distributed by the plant manager prior to every shift, would indicate the total production for that machine operator including any orders to be redone from previous dates which were written in by the operator.
• with respect to the water that was being used for the South Korean material, it was unknown how long the material was stored in warehouses or on the ship coming from South Korea. Water can also be contaminated.

On September 28, 1999, the Appeal Panel met again to discuss the case and determined the following:

• That the August 3, 1999, hearing be reconvened and that the employer's plant manager be subpoenaed to attend;
• That the plant manager bring to the hearing the following employer records:
  • the time frames showing when the sample product of "SK642U" was received at the plant and when it was completely used up;
  • the quantity or number of rolls of SK642U received at the plant;
  • the daily cutting sheets showing when the SK642U product was cut and the names of the cutters/operators.
  • cutting records for August 17, 18, 19, 1998.

On November 30, 1999, a reconvened hearing was conducted.

Reasons

Section 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 accordance with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of Section 1(1) of the Act. That is, "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."

We find that the weight of evidence does not, on a balance of probabilities, support the claimant's contention that his condition arose out of and in the course of his employment. The company records reveal that the claimant did not handle the South Korean fabric on the dates as alleged. The Material Safety Data Sheet records the South Korean product as causing no hazard with normal industrial use. There has been no suggestion or assertion that the employer was not properly using the product. In addition, there was no evidence introduced establishing that other employees who handled the South Korean product developed similar problems as the claimant.

We find that the dampness of the product was simply the result of the unique water-based manufacturing process used by the South Korean textile manufacturer and that it did not, on a balance of probabilites, contain a hazardous agent or agent which would cause skin irritation. Based on the weight of evidence, the claimant did not sustain an accident arising out of and in the course of his employment. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

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

Recording Secretary, B. Miller

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

Signed at Winnipeg this 13th day of December, 1999