Decision #03/06 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on September 7, 2005, at the request of an advocate, acting on behalf of the worker. The Panel discussed this appeal on September 7, 2005 and again on November 21, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On December 13, 2001, the worker filed a claim with the Workers Compensation Board (WCB) for “inhalation – fumes” that she attributed to her work environment. The worker stated, “I became very fatigued, weight loss, sleepy spells, dizzy spells, experienced shortness of breath (difficulty breathing at times) due to the exhaust fumes from trucks. Nauseous feeling all the time. Stressed (hair loss) & depressed (crying), chest pains.” The date reported to the employer was November 13, 2001.

In a report to the WCB dated December 21, 2001, the employer noted that the worker filed a claim for weekly indemnity benefits but was told to apply for worker’s compensation benefits before they could adjudicate the claim. The employer indicated that the worker filed a claim with its section manager on December 14, 2001. A letter was also received from a doctor which stated that the worker’s condition was caused by her employment and environment which was stressful and full of fumes; that she was tested for carbon monoxide and her levels were in the upper range of normal; and that the worker was not suited for her current position and was unable to work because of her symptoms.

The employer indicated that the worker started employment on April 23, 2001 and had been working in the cash room area since her hire date. There were 14 other employees in the cash area that sorted, counted and processed cash. The area was self-enclosed and separate from the rest of the branch. The environment was considered non-stressful. With respect to carbon monoxide levels, the employer noted that its branch facility had been checked twice for the detection of carbon monoxide and general air quality. One of the tests was performed on March 27, 2001 and the results were found to be well within acceptable limits. The employer indicated that the worker was not directly exposed to vehicle exhaust while carrying out her duties. If the worker was exposed to higher than normal CO levels, it was not while working with them. No other employees working within the cash location or throughout the facility were similarly affected.

During a telephone conversation on January 8, 2002, the worker advised a WCB adjudicator that her symptoms started in May 2001 at which time she advised her family that her body was breaking down. She started to get nosebleeds and became fatigued. She started to lose weight and hair. She noticed that she would have crying spells. The worker said she advised her co-workers of the difficulties she was having and that some of them were showing symptoms of nosebleeds, crying spells, complaints about fumes, etc. The worker noted that on her regular days off she would feel somewhat better although it was not enough time to notice a difference. By Monday, her problems would start all over again. The worker advised the adjudicator that the fumes in the workplace were a problem. There was no ventilation in the cash room. The drivers would constantly leave their trucks running in the enclosed building. She was unsure why the trucks were constantly running but the doors were always closed for security reasons. The employer did carbon monoxide testing but only seemed to have them done on scheduled days when they were able to clear the trucks out of the building and have the fans running.

File records revealed that the WCB contacted several co-workers that the worker claimed were experiencing similar symptoms as she was. The adjudicator also sought the medical advice of a WCB internal medicine consultant concerning a diagnosis and an opinion as to whether or not there was a cause and effect relationship between the worker’s difficulties and her work activities.

In a decision dated April 10, 2002, the adjudicator determined that the claim for compensation was not acceptable. The adjudicator noted that the information he obtained from the co-workers confirmed that they were having similar symptoms and complaints about the work environment but there was no objective medical information to substantiate their complaints about the carbon monoxide fumes in the workplace. The adjudicator commented that a WCB specialist (internal medicine consultant) reviewed the file information which included air quality testing performed in the workplace. The environmental studies that were carried out between January 23 and 31, 2002 showed the levels of nitrous oxide and carbon monoxide to be in the acceptable range. The worker’s carboxy hemoglobin level of 7.5% indicated exposure to cigarette smoke. Based on the weight of evidence, the adjudicator felt there was not enough substantial information to support that the workplace caused the worker’s symptoms. It was felt that there were other underlying factors that may be contributing to her ongoing difficulties.

On July 11, 2002, a worker advisor appealed the adjudicator’s decision of April 10, 2002 to Review Office. The worker advisor outlined her position that there was overwhelming evidence to show that the work environment was causing physical harm to the worker and her co-workers due to a ventilation problem.

In a rebuttal submission to Review Office dated September 10, 2002, the employer outlined its position that there had been no confirmation that the worker was exposed to any situation within the workplace that caused her symptoms.

On October 3, 2002, the worker advisor provided Review Office with additional information from a union representative which she believed further supported her position that the worker’s claim was an acceptable one.

In a November 15, 2002 decision, Review Office stated it was unable to establish that the worker’s inability to work beyond November 13, 2001 could be reasonably associated with her exposure to carbon monoxide fumes at work. In arriving at this decision, Review Office noted that air quality testing in the workplace showed that carbon monoxide levels were at acceptable levels and that carboxy hemoglobin testing performed on the worker showed her levels to be within the normal range. Review Office noted that the worker had only been seen by a general practitioner who felt that her problems were likely due to stress in the workplace. Review Office made reference to the opinion which was expressed by the WCB’s internal medicine consultant, namely, that the slightly elevated carboxy hemoglobin levels found in the worker were likely caused by her cigarette smoking and were not high enough to be responsible for the vast array of symptoms experienced by the worker.

On February 11, 2003, the worker advisor asked Review Office to consider new medical information that she obtained from an occupational health physician dated January 24, 2003. The worker advisor stated, “We submit that Dr. [occupational health physician] is of the opinion that the vehicle exhaust was an extra contaminate to the already poor quality of indoor air. Dr. [name] stated it contributed to Ms. [the worker’s] symptoms and her secondary depression was a direct sequela of the symptoms she experienced from her working condition. As such, we believe that Ms. [the worker’s] claim should be accepted.”

In a response to the worker advisor dated February 28, 2003, Review Office stated that the new medical information did not alter its decision of November 25, 2002, that the worker’s inability to work since November 13, 2002 could not reasonably be attributed to exposure to carbon monoxide fumes at work.

On March 7, 2003, the worker advisor requested the convening of a Medical Review Panel (MRP) based on a difference of opinion between the WCB’s internal medicine consultant and the worker’s occupational health specialist. In a decision dated March 27, 2003, the WCB’s occupational disease unit determined that a difference of medical opinion did not exist as both physicians agreed that the worker’s symptoms were not due to carbon monoxide poisoning and that air testing performed at the workplace confirmed that air quality was at an acceptable level. On April 25, 2003, Review Office confirmed that an MRP would not be convened.

On May 15, 2004, a second advocate acting on behalf of the worker requested reconsideration of the Review Office’s November 15, 2002 and April 25, 2003 decisions based on additional medical information and four photographs outlining the extent of the worker’s hair loss. On June 23, 2004, Review Office determined that the new information did not alter its previous decisions that the worker’s claim was not acceptable and that an MRP would not be convened.

In a submission dated October 7, 2004, the advocate provided Review Office with additional information from the treating physician dated August 17, 2004. On October 19, 2004, Review Office confirmed its earlier decision that the claim for compensation was not acceptable. Review Office indicated “…the worker’s absence from work since November 2001, due to depression, cannot reasonably be related to an ‘accident’ occurring at work…”

On November 19, 2004, the worker’s advocate appealed Review Office’s decision to deny the claim and an oral hearing was scheduled to take place on January 26, 2005. The hearing was cancelled at the worker’s request as her advocate failed to show for the hearing.

On June 28, 2005, a third advocate acting on the worker’s behalf, appealed the WCB’s decision to deny the claim. On September 7, 2005, an oral hearing was convened.

Following the hearing and after discussion of the case, the Appeal Panel sought additional information from the accident employer and Workplace Safety and Health. On November 3, 2005, all interested parties were provided with the additional information that was received by the Panel and were asked to provide comment. On November 21, 2005, the Panel met to discuss the case.

Reasons

The issue before the Panel is whether the worker’s claim is acceptable. For the appeal to succeed the Panel must find, on a balance of probabilities, that the worker’s physical and/or psychological conditions are causally related to the worker’s employment. The Panel was not able to make this finding.

Evidence and Argument at Hearing

The worker attended the hearing with a representative who made a submission on her behalf. The worker and her representative answered questions posed by the Panel. The employer was not represented at the hearing.

The worker’s representative provided information on the worker’s background including her employment prior to commencing work with the accident employer. He described the working conditions at the accident employer’s premises and the onset of the worker’s symptoms. He expressed concern about the circumstances under which the air quality tests were performed and submitted that the tests “…have no credible validity…” in determining the worker’s claim. The representative also stated that cigarette smoking cannot be considered the cause of her problems.

With respect to the worker’s condition, the representative stated “…the physical symptoms have been relieved as a result of not having that exposure. But what you have is a breakdown physically of the immune system, which is setting the disposition of the psychological disorders that she faces.”

The worker advised that the early symptoms were nausea and dizziness. She also had nose bleeds. She confirmed that when she was away from the workplace the nausea, dizziness and nose bleeds stopped. The worker advised that she also suffered extreme weight loss, hair loss and depression. In reply to a question, the worker advised that she has not been referred to physicians who specialize in chemical exposures.

As noted in the background, subsequent to the hearing the Panel sought additional information with respect to air quality testing and workplace safety and health committee meeting minutes.

Analysis

After considering the entire file, including the evidence and arguments submitted at the hearing, the Panel finds that the worker’s claim is not acceptable and that the worker’s medical problems are not caused by inhalation of fumes at the workplace.

Dealing firstly with the worker’s physical condition, the Panel finds that the worker did not suffer carbon monoxide poisoning at work. In arriving at this conclusion the Panel relies upon the following evidence:

  • Results of the worker’s carbon monoxide test which showed a carbon monoxide level of 7.5%. The Panel notes that the family physician, in a report dated January 9, 2002, comments that any reading less than 10% is considered normal. As well a WCB specialist noted that the worker is a smoker and that smokers may have higher levels of carbon monoxide than the general population. This result suggests the worker’s carbon monoxide levels are not indicative of carbon monoxide poisoning.

  • A report by an occupational health physician dated January 24, 2003 which states “I do not think her symptoms are related to carbon monoxide poisoning.”

  • Results from two tests performed in the workplace for carbon monoxide and nitrogen dioxide demonstrated that peak levels of gases were below accepted levels for health and safety purposes. These tests were performed by a third party after the employer received complaints from staff regarding air quality. The Panel notes that no tests were performed during the period that the worker was employed in the workplace and that the tests are limited in their application.

  • Evidence that some of the worker’s symptoms would clear up when she left the workplace. This was reported by the worker, her treating physician and psychiatrist. The Panel finds that any symptoms related to air quality cleared up when the worker left the workplace, and did not have any long term effect.

The Panel finds that the evidence does not support a finding that the worker’s physical difficulties arose out of carbon monoxide poisoning or any other air quality issues at work.

Dealing with the worker’s psychological difficulties, while various physicians have diagnosed the worker with depression, the Panel notes that the worker’s claim is for inhalation of fumes. The Panel finds that the medical evidence does not establish that the exposure to fumes caused the worker’s depression.

As the Panel has found that the worker’s physical difficulties did not arise from the exposure to fumes, the Panel finds that the worker’s psychological condition is not compensable as a sequela of the physical difficulties. Such a claim is dependant on the acceptance of the claim for physical difficulties.

In support of these conclusions, the Panel notes the opinion of the occupational health physician in a report dated January 24, 2004 that “It is likely that she developed a secondary depression, possibly out of concern regarding her symptoms and working conditions.” The Panel notes the further opinion of this physician set out in a report dated August 17, 2004 that “I do not think that [the worker’s] ongoing psychiatric symptoms are related to her previous carbon monoxide and/or poor quality air exposures.”

The Panel also notes that the worker’s family physician and treating psychiatrist relate the worker’s depression to stress due to her work situation. There is also evidence on file which suggests poor morale in the workplace. These comments point more to a diagnosis of “stress”, which the Panel notes is specifically excluded from coverage under The Workers Compensation Act (the Act).

Given the above, the Panel finds that the worker’s physical difficulties and her depression cannot be related to an “accident” arising out of or in the course of employment as required by the Act.

Accordingly, the claim is not acceptable and the appeal is declined.

Panel Members

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

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of January, 2006

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