Decision #69/08 - Type: Workers Compensation
Preamble
The worker was employed as an educational assistant when she filed a claim with the Workers Compensation Board (“WCB”) on September 15, 2005 for symptoms that she related to exposure to mould and poor air circulation in the workplace. The claim was accepted by the WCB however the worker was informed that she was not entitled to wage loss benefits. The worker was advised that there was no medical information indicating that she was completely disabled from working and that her failure to participate in modified duties (by working at another location) eliminated her eligibility for wage loss benefits. The worker disagreed and a worker advisor filed an appeal with Review Office. On September 6, 2007, Review Office found that the worker was not entitled to wage loss benefits for the majority of the time she was absent from work as there was no evidence to show that her compensable injuries prevented her from working nor did she mitigate the consequences of her accident. It concluded that the worker was entitled to benefits for the period September 9, 2005 to October 2, 2005. The worker disagreed with Review Office’s decision and an appeal was filed with the Appeal Commission. An oral hearing took place on April 17, 2008.Issue
Whether or not the worker is entitled to wage loss benefits from October 3, 2005 to February 9, 2006.Decision
That the worker is entitled to wage loss benefits from October 3, 2005 to February 9, 2006.Decision: Unanimous
Background
In 2005, the worker was employed as an educational assistant in a public school. According to the worker’s accident report, the worker had had problems at work for over 3 years. She kept getting face infections and had to take antihistamine medication while at work. In the spring of 2005, the symptoms worsened when she started to get fevers, a red face and had difficulty breathing. She went off work at that time and over the summer, her symptoms improved. The worker was given medical clearance to return to work in September. Meanwhile, during the summer break, remediation work had been performed at her school and it was hoped that any air quality problems were resolved.
On September 6, 2005, the worker returned to work at the school. Unfortunately, shortly after being back at the school, she started to have problems again and was only able to work for a few days. The worker filed a claim with the WCB on September 15, 2005, indicating that she had a sore throat, difficulty breathing, nausea, rash on both arms and memory loss from environmental irritants.
In a medical report dated September 12, 2005, the worker’s treating physician reported that she was unable to return to work in the new speech room, library, ESL room, CERT room and life skills room “as there are environmental irritants causing nausea, clammy skin, sore throat, hoarse voice.”
According to notes made by the WCB adjudicator, on October 3, 2005 the worker advised the adjudicator that she had been off work for four months and that she did not feel healthy again until three weeks before she returned to work in September 2005. She only worked for three days prior to her symptoms returning. She was unable to be in the old part of the building for more than 40 minutes without reacting. The worker indicated that the employer offered her modified duties at the high school but the modified duties included working with a level three child who had behavior problems and since her specialty was in speech/resources, she would like to stay in this area. The worker was advised by the adjudicator that modified duties minimize wage loss for an injured worker. The worker said she did not feel trained to handle a child with behavioral problems.
According to October 4, 2005 notes made by the adjudicator, the worker advised that she had been asked by her employer to work at the high school but she wanted to continue her employment in her specialized position. The worker understood that her contract with the employer indicated that they could place her in any position that they wanted her to work in but she liked elementary school. The worker indicated that she could not survive in high school because she did not have any training in behavior management.
The adjudicator’s October 4, 2005 notes indicate that she informed the worker of the repercussions of refusing to participate in modified duties (i.e. WCB policy 43.20.20) . The worker indicated that she would speak with her employer again as to whether there were any other options for a return to work. The worker said she was willing to work modified duties when the environment was safe and when she could have her original position back.
An October 5, 2005 report from the treating physician stated that he gave the worker a note on August 15, 2005 stating that she would be fit to return to work especially as it was her understanding that her work environment had been cleaned of the mould. The worker was next seen on September 12, 2005 with complaints that she would get a red face and itchy skin when she was in the school. She would get a sore throat and ears and clammy skin and feel nauseous. The treatment plan for the worker was “to avoid exposure to the mould and other irritants at the school. The prognosis is excellent as long as she is not exposed to these irritants as she feels fine when she is away from the school. I do believe that there is a direct relationship to her complaints and the poor air quality at work, as well as the mould.”
On October 26, 2005, an indoor air quality and mould investigation report was completed which indicated that levels of carbon dioxide, carbon monoxide, temperature and relative humidity in test areas were within acceptable limits. The total airborne spore counts measured in all indoor air samples were either similar or lower than that measured in outdoor reference samples. Based on these findings, no recommendations were provided.
On October 27, 2005, the treating physician made a diagnosis of mould exposure leading to allergic rhinitis and itchy skin rash. As the mould investigation report indicated that a low level of spores was present in the school, the worker would be referred to an infectious disease specialist to obtain an opinion on: “whether these level of spores are consistent with the symptoms that she has and what would be safe levels of spores for her to be able to work in that environment.”
According to November 7, 2005 notes made by the adjudicator, the worker indicated that she was not ready to go back to work because she had chronic fatigue. The worker indicated that an employer representative offered her modified duties working with a behavior student but she did not feel she was trained for this. The worker was asked whether training would be provided and she replied that “they did not get to that point of talking about it.”
On December 28, 2005, the worker underwent testing with an allergist. In a report dated January 3, 2006, the allergist indicated that intradermal testing was done to the penicillins because of a prior history of penicillin allergy. The skin tests were negative indicating the worker was no longer allergic to penicillin. Tests done to the inhalants did show positive reactions to Hormodendrum and aspergillus. The allergist concluded that the worker did show mould spore allergy.
In a report dated February 8, 2006, the allergist opined: “In summary, I believe that this patient’s upper respiratory complaints did relate to excessive exposure to mould spores in this particular area of the school which was not adequately ventilated, nor did it meet the regular standard for a classroom, ie a window. I believe that if (the worker) is in another area of the school which is not affected by this airborne allergen that she will be able to continue in her profession.”
On February 13, 2006, the worker returned to work. She did not return to the school that she was originally employed at but returned to a different school in a similar Educational Assistant position.
In a letter dated February 24, 2006, the worker’s union representative stated that on February 9, 2006, the worker received a return to work letter from her physician. On February 10, 2006 a meeting took place with the employer and a position was offered to the worker. The worker accepted the position and returned to work on February 13, 2006. “At no time before [the worker] received her return to work letter from her physician, was she offered employment from the Division.”
According to the adjudicator’s notes of February 27, 2006, the employer’s representative advised that he became involved with the claim in late October/early November 2005. The employer’s policy had been that when an injured worker is ready to return to work they have to let the employer know, including in what capacity (work restrictions). Since the worker had been off work, they had 15 to 20 positions that were posted but they did not call the worker because she had always stated that she would like to return to work at her prior school. The employer had a doctor’s note dated September 12, 2005 indicating that the worker may not return to work in the new speech room, library, CERT room because she would get nausea and clammy skin.
On March 14, 2006, the adjudicator advised the worker of her decision that there was no medical information on file indicating that the worker was completely disabled from working. The clinic note from her physician showed that she was capable of working in a completely different environment. Modified duties were offered by the employer to work in a different school where she would not have been exposed to mould. Therefore the worker’s failure to participate in modified duties eliminated her eligibility for wage loss benefits.
On April 4, 2006, the adjudicator’s supervisor reviewed the file and stated: “The employer was able to accommodate (the worker) in modified duties back in October, 2005. According to the emails, she did not contact them until Dec. 05. At that point she was not able to be employed until Feb. ’06. It is my view that had she contacted her employer in Oct. ’05 she would have been accommodated and as a result not entitled to any wage loss benefits.”
On April 26, 2007, a worker advisor appealed the adjudication decision dated March 14, 2006 to Review Office on the worker’s behalf. The worker advisor outlined her position that the worker was entitled to wage loss benefits from September 2005 to February 2006. She argued that there was no actual position ready for the worker to immediately step into as of September 15, 2005 and therefore the WCB erred in its position that the worker refused available work.
On September 6, 2007, Review Office determined that the worker was entitled to wage loss benefits from September 9, 2005 to October 2, 2005. Review Office indicated in its decision that the worker kept in regular contact with her employer and that the worker was advised by her employer to let them know when she thought she was capable of returning to work. The worker did so in December 2005 and a return to work in another position at another school was arranged. It noted that the employer was willing to accommodate the worker with alternate employment and that the worker chose not to actively discuss the option with them.
With respect to whether the worker was entitled to wage loss benefits during part of the period she was absent from work, Review Office referred to sections 22 and 37 of The Workers Compensation Act (the “Act”), subsections 4(2), 39(2) and 60(2) as well as Policy 43.20.20, Modified and Alternate Return to Work with the Accident Employer and Policy 44.10.30.10, Practices Delaying Worker’s Recovery. It stated that it concurred with the adjudicator’s decision to accept the claim but also considered the worker was not entitled to wage loss benefits for the majority of time she was absent from work as there was no evidence her compensable injuries prevented her from working and it was not considered that she mitigated the consequences of her accident. On December 10, 2007, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
WCB Policy 44.40.10 (the “Policy”) deals with administration of wage loss benefits. The Policy provides that: “Compensation benefits are payable only where there is medical, or similar, evidence of a disability arising from a compensable incident or condition.” The Policy further provides that: “Wage loss benefits are based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker’s treating healthcare professional.”
Section 22 deals with the duty of a worker to co-operate and reduction of wage loss benefits if the worker fails to mitigate.
Worker’s Position
At the hearing, the worker provided the panel with a written copy of her submission. The worker’s submission was very detailed and identified numerous instances where poor communication of information occurred. The submission also takes issue with the manner in which the worker’s claim was adjudicated. The panel’s function, however, is not to comment on those issues and we have limited our review of the submission to only those points which relate to the question of whether the worker continued to suffer a loss of earning capacity during the relevant time. On that issue, the worker’s position was that she is entitled to wages for the entire time that she was absent from work. Medical reports confirm that she had developed a strong allergy to mould spores which were present in her workplace. We understand the worker’s argument to be that her main focus during her absence was to become healthy so that she could return to a safe and healthy workplace as soon as possible. Until she was able to meet with an allergist and know the cause of her allergies, she could not assess the possible health risks that she might have encountered in the alternate workplaces that she was offered by her employer.
Employer’s Position
A representative from the employer was present at the hearing. Rather than making a formal submission on the issue before the panel, the employer’s representative limited his comments to elaboration and/or clarification on certain points of evidence which were described by the worker in her submission.
Analysis
The issue before the panel is whether or not the worker is entitled to wage loss benefits from October 3, 2005 to February 9, 2006. In order for the worker’s appeal to be successful, the panel must find that during the relevant time period, there was medical or similar evidence of loss of earning capacity due to disability arising from a compensable incident or condition. The panel has made that finding.
At the hearing, the worker testified that she could not return to work earlier than she did because the test results confirming that she was allergic to mould were not completed by her allergist until December 28, 2005. Her position was there was no safe place to which to return to work because without knowing what would trigger her allergies, she could not know what she needed to avoid in order to be safe. Her employer could not have placed her in a modified position at another location because no one knew exactly which allergens would disable her. It was not until her allergist identified that the worker showed mould spore allergy to hormodendrum and aspergillus could the worker find a work environment which was safe for her.
The medical evidence confirms that her treating physician and allergist only supported a return to work in an environment where she would not be exposed to her allergens. The treating physician’s report dated October 29, 2007 states that: “As I have previously stated, she should have been able to return to regular full duties in early October 2005 if she was placed in an environment where there was no mould that she was allergic to.” Similarly, the allergist states in her report of February 8, 2006: “In summary, I believe that this patient’s upper respiratory complaints did relate to excessive exposure to mold (sic) spores … I believe that if (the worker) is in another area … which is not affected by this airborne allergen that she will be able to continue her profession.”
The panel finds that it was reasonable for the worker to await the results of her allergy tests before risking re-exposure to as yet unidentifiable allergens that might be present in an alternate work environment. Once she was armed with the knowledge of what type of allergens could disable her, then she could take steps to ensure that any new work environment would not hurt her.
A considerable amount of evidence was presented to the panel pertaining to whether or not an alternate position at another location was offered to the worker and whether the worker refused these alternate duties. The argument would be that if the worker refused to perform these alternate duties, she would have failed in her duty under section 22 of the Act to co-operate and mitigate her loss of earning capacity, thus disentitling her to wage loss benefits during the relevant period of time. Given the panel’s finding that it was reasonable for the worker to refrain from re-engaging in employment until such time as her doctors were able to identify her allergens, it follows that we do not find there was a lack of co-operation or failure to mitigate on the part of the worker.
The worker’s evidence was that she initiated back to work discussions with her employer on December 11, 2005, but that due to the upcoming holidays and administrative delays, she was not able to be placed in a new position until February 13, 2006. The panel finds that the actions taken by the worker were reasonable and timely, and she remains entitled to wage loss benefits for the intervening time it took to secure a new position in a safe environment for her.
For the foregoing reasons, the panel finds that the worker is entitled to wage loss benefits from October 3, 2005 to February 9, 2006. The appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 22nd day of May, 2008