The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The worker is employed by a federal government agency or enterprise and her claim is therefore adjudicated under the Government Employees Compensation Act (GECA). Under the GECA, an employee who suffers a personal injury by an accident arising out of or in the course of employment is entitled to compensation. The GECA defines accident as including “a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause.”

Pursuant to subsection 4(2) (a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under The Workers Compensation Act (the Act).

The WCB Board of Directors has made WCB policy 44.10.40.10 (the Policy) which specifically deals with the subject of insect bites. While the Policy is based upon the definition of accident under the Act, the panel is satisfied that in accordance with subsection 4(2) (a) the policy is applicable to GECA cases.

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.” In effect the Policy confirms that an insect bite can be an accident giving rise to compensation.

According to the Policy’s 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. The guidelines state, “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.

Worker’s Position and Evidence at the Hearing

The worker attended the hearing with a union representative who made a submission on the worker’s behalf. The worker answered questions posed by the panel.

The worker’s representative referred to information on the claim file in support of the worker’s claim, including the following information:

• Mosquito Larviciding log for 2006 for the municipality in which the worker worked. He noted that the log showed low, moderate and high concentration of mosquito larvae in various areas of the municipality and the application of high rates of larvicide to those areas between June 17, 2006 and July 28, 2006.
• Letter from a co-worker which states, in part, “…I recall [worker] spraying Raid at her station in the [building] due to the mosquitos in the building.” The letter noted that mosquitoes enter the building because delivery trucks leave the doors open when they unload. The letter indicates that many of the workers received bites from mosquitoes while working in the building.
• Information from Review Office that the sun rose at 6:25 AM and set at 8:36 PM on August 9, 2006.
• Information from Review Office that peak mosquito hours are around dawn and dusk.

The representative stated that the issue comes down to whether the worker’s employment caused her to have an increased exposure to mosquito bites and concluded that it did.

The representative noted that the worker arrived at work at approximately 5:45 AM, and began work at 6:00 AM. He submitted that the worker began work at the peak period for mosquito activity. He noted that as mosquitoes were in the building and that other staff received mosquito bites and that it was likely that the worker also received mosquito bites while working in the building.

He noted the significant larvae counts for the municipality in which the worker made deliveries and that the some delivery sites had tall grass and that clouds of mosquitoes would rise up from the grass when she walked through the grass. He submitted that the worker was at an increased risk of being bit during the day while performing these duties.

The representative submitted that the issue of whether the worker contracted the bite outside is a moot point because she could have been bitten at her work station inside the building.

Referring to the Review Office information on mosquito activity, the representative advised that the time during which the worker was active in her off-work hours was a time of reduced mosquito activity. He advised that the worker shopped at an indoor mall and lives in an air-conditioned house. He submitted that the likelihood of the worker being bitten by mosquitoes carrying West Nile virus away from the workplace was far less than while at work.

The worker’s representative noted the Policy and submitted that the worker‘s case meets the standard for acceptance under the policy. He submitted that the worker’s job is more analogous to the gardener referred to in the Policy’s administrative guidelines than the office worker.

Regarding the worker’s initial position that she only received one mosquito bite in 2006, the representative commented that “I think that it’s highly likely that she was bitten many times , didn’t remember them, she was focused on one particular incident because that was the one that she remembered…”

In answer to a question about the use of Raid, the worker advised that she did not bring Raid to work or have it in her car in 2006. She said that she didn’t have a major problem with mosquitoes in the building in 2006 and so did not bring it to work with her.

The worker was asked about her non-work outdoors activity. She acknowledged that she lives in a rural area. She stated that she does not spend time outside. She advised that she helped plant the vegetable garden in the spring but did not do other gardening. She arrives home from work around noon and goes into the house. She will often go into the city to shop. She said she goes out on Monday evening.

Employer Position

The employer was represented by a staff person who made a submission on its behalf.

The employer’s representative submitted that the facts and circumstances surrounding the worker’s claim do not demonstrate that her diagnosis of West Nile virus resulted from a workplace accident both arising out of and in the course of her employment.

The employer representative provided a breakdown of the worker’s work day and submitted that the worker worked outdoors approximately 3.25 hours each day.

The representative noted the worker’s initial claim that she remembered receiving only one mosquito bite in 2006. The representative agreed with the Review Office finding that the worker would have been bitten more than once in 2006.

The representative submitted that the claim does not meet the criteria set out in the Policy and should not be accepted.

Analysis

The issue before the panel was whether the worker’s claim is acceptable. For the appeal to be successful, the panel must find that the worker sustained personal injury as a result of an accident that arose out of and in the course of her employment. In other words the panel must find a causal link between the worker’s injury and her employment. The panel was not able to find a link between the worker’s injury and her employment.

The worker’s representative argued that the worker had an increased risk of exposure to mosquito bites through her work and that in accordance the Policy the worker’s claim is acceptable.

The panel notes the evidence provided by the employer that the worker works approximately 6.27 hours per day of which approximately 2 to 2.25 hours are spent in an office building with the balance being spent in her vehicle and at various rural sites. The panel also notes that the worker resides on a small acreage in a rural area.

At the earlier levels of adjudication, the worker had claimed that she received only one mosquito bite in 2006 which occurred while she was performing her employment duties at an outdoor site. The worker abandoned this position at the hearing.