Decision #123/09 - Type: Workers Compensation

Preamble

This appeal deals with a decision made by the Review Office of the Workers Compensation Board (“WCB”) which determined that the worker did not suffer a personal injury by accident arising out of and in the course of her employment and did not suffer a personal injury due to an occupational disease that arose out of and in the course of her employment. A hearing was held on June 17, 2009 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On July 28, 2008, the worker filed a claim with the WCB for a left thumb condition diagnosed as Methicillin Resistant Staphylococcus Aureus (“MRSA”) which she attributed to her employment at a healthcare institution. The worker indicated “I am not aware of MRSA in the patients that I work with as their conditions are not supplied to us.”

The employer’s accident report dated August 1, 2008 indicated that:

“…on July 8 [the worker] noticed a bump on her thumb that was sore. The next day it was a blood blister, she let the pressure the (sic) off by popping it, it returned. By July 14 it was still there and very painful so she went to the OHN [occupational health nurse] who advised her to go to the doctor as her entire thumb appeared to be infected. She went to [name] walk in and was given an antibiotic. By the 17th the infection had spread into the palm of her hand and she went to family doctor office and was given a different antibiotic. Pain increased went to [name] Emergency on July 20. They took x-rays and lanced it and swabbed it. Overnight pain began shooting up arm. Monday morning went back and was given T3’s for pain. On Friday July 25….She was advised that it was MRSA, given a new antibiotic. She contacted [name] Infection Control…who advised that due to active MRSA infection/draining lesion the worker could not work until the infection was resolved and the staff member able to perform hand hygiene.”

The employer further stated:

“A review of all MRSA isolates at [institution] for the past two years reveals that this worker’s strain of MRSA has a completely different antibiogram from any of the strains in the facility during this 2 year time frame. The antibiogram of this strain is similar to that found in community settings. Strain pulse field gel electrophoresis pending…”.

On August 12, 2008, a WCB adjudicator was advised by the employer’s OHN that the worker was seen by an infectious disease specialist who reported that the worker’s MRSA was strain #7 which he determined to be community acquired. The nurse indicated that the employer did not have this type of MRSA so the worker did not contract this from her place of employment.

Medical information received from an infectious disease specialist dated August 20, 2008 stated:

“It is an MRSA which is not endemic to [institution] and is therefore from the community. That having been said, however, I think the infection of her thumb may well be in part a hospital-acquired infection because I think the pathogenesis of the infection is that she develops cracks in the epidermis of her hands as a result of the frequent hand washing and alcohol gel application, which is required as part of her job…It’s my hypothesis that the MRSA and perhaps the gram-positive bacillus that was not further identified but was cultured from the pus, both entered the thumb through one of these small cracks in the epidermis. Thus, although the bacterium, the MRSA, may have been acquired from some source in the community or person, the infection that it created was made possible by a break in the skin that was due to a work related practice.”

On August 25, 2008, the employer advised the WCB adjudicator that Manitoba Public Health had identified MRSA in the worker’s community, and specifically, in her area housing complex.

In a decision dated August 27, 2008, the worker was advised that her claim for compensation was not accepted as the WCB was unable to establish that her condition arose as a direct result of her employment. As a basis for her decision, the adjudicator noted that MRSA was community acquired, not hospital acquired.

On October 15, 2008, the worker appealed the WCB’s decision to deny her claim. Included with her submission was research material on MRSA and a newspaper clipping. The worker indicated that she was told by the infectious disease specialist that MRSA was an occupational disease and that she got it from her place of employment. As the worker’s submission contained additional information that was not seen by primary adjudication, Review Office referred the case back to that department to consider the new material.

In a memorandum dated October 24, 2008, the WCB adjudicator noted that the first mention of the worker having cracked hands was contained in a medical report dated August 12, 2008.

On November 25, 2008, the employer’s OHN confirmed that the worker’s job duties required hand washing and sanitizing that have been in place since the start of her employment. The OHN stated that hand washing/sanitizing would not be as often as healthcare aides or nurses but the worker did handle patients and patient’s equipment and would wash/sanitize her hands after every patient. The OHN also indicated that she reviewed her notes on the worker and she could not find any documentation regarding cracked or dry hands although the worker could have had cracked/dry hands and not made a formal complaint.

On December 2, 2008, a WCB medical advisor reviewed the file information and opined the following:

“In my opinion the MRSA is community acquired and the entry point is the breakdown of the skin due to “poking the blister” and not cracks in the skin due to frequent hand washing. None of the physicians have remarked on the presence of dry fissured skin which supports my view.”

In a decision dated December 3, 2008, the worker was advised that the additional information had been reviewed in consultation with a WCB medical advisor and it was still the WCB’s opinion that the worker had community acquired MRSA and that her condition was not a direct result of her employment. On January 20, 2009, a union representative appealed this decision to Review Office.

On February 11, 2009, Review Office was unable to find from the evidence that the worker suffered a personal injury by accident arising out of and in the course of her employment. In making this determination, Review Office relied on the following evidence:

· There were no residents that were symptomatic for MRSA #7.

· As the worker was required to hand wash and use an alcohol gel application after every patient, this in Review Office’s opinion would minimize the potential for contracting the contagious condition.

· The medical information supported that the diagnosis of MRSA #7 was known to be community based and not hospital acquired.

Review Office also was unable to establish that the worker suffered a personal injury due to an occupational disease that arose out of and in the course of her employment which resulted in the diagnosis of MRSA #7. In making this finding, Review Office relied on the following evidence:

· The worker reported July 8, 2008 as an injury date. Medical treatment sought on July 15, 2008, July 21, 2008 and July 28, 2008 did not mention that the worker’s hands were “cracked”. The first instance of cracked hands was noted on a medical report dated August 12, 2008.

· Review Office indicated that although there was mention of MRSA #7 in the area the worker resided, the worker established that she was unaware of anyone in her area being diagnosed with MRSA #7. The worker indicated that access to her home was via private entrance.

· Information obtained from the infectious disease specialist that 25 to 35% of the general population were asymptomatic carriers of MRSA.

On February 23, 2009, the worker’s union representative appealed Review Office’s decision to the Appeal Commission. He contended that the worker’s MRSA was a direct result of workplace exposures or in the alternative the result of a skin condition that resulted directly from workplace procedures.

Following the hearing held on June 17, 2009, the appeal panel requested further information related to MRSA. The information received by the panel was provided to the interested parties for comment. On November 16, 2009, the panel met further to discuss the case and considered final submissions by the worker’s union representative and the employer’s representative.

Reasons

Applicable Legislation:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Subsection 4(1) of the Act provides:

4(1) 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. (emphasis added)

The worker’s position:

The worker was assisted by a union representative at the hearing. It was submitted that two medical experts, including a WCB medical advisor and an expert in infectious disease, both supported that a workplace exposure caused the infection. A number of concerns were raised about the reliability of the evidence regarding the presence of MRSA #7. The worker specifically denied knowledge of MRSA being present in her housing complex or being contacted by Public Health in that regard. It was also noted that she had her own outside access to the building, her own laundry facilities, and minimal contact with other residents of the housing project. It was submitted that the infectious disease specialist’s opinion that the infection entered through cracks in the skin ought to be accepted by the panel and the worker’s claim accepted. The fact that medical reports did not note dry skin was not conclusive as this was not the central purpose for the examinations. One could only reasonably draw the conclusion that cracks were not present if the examination notes had specifically stated that no cracks were present.

The employer’s position:

An employer advocate and a representative were present at the hearing. The employer’s position was that the entry point for the MRSA was the punctured blood blister. The medical reports from the worker’s treatment on 5 occasions in July made no mention of cracked hands. It was further submitted that there was no conclusive evidence that the worker acquired the MRSA #7 infection from the patient and not at her housing complex. The panel was asked to confirm the WCB’s decision not to accept the claim.

Analysis:

The issue before us is claim acceptability. In order for the appeal to be successful, the panel must find that the worker’s MRSA #7 infection arose out of and in the course of employment. The test is a balance of probabilities. The key to deciding this appeal is determining whether it is more likely that the worker contracted the MRSA strain #7 at work, or whether it is more likely that she contracted it in the community. On a balance of probabilities, we are unable to prefer one source over the other, and as a result, the worker’s appeal must fail.

At the outset, we will address the issue of whether or not dry and cracked skin, which may have resulted from the job requirement to frequently wash and sanitize hands, was a factor in the worker contracting MRSA #7. While the medical opinion from the infectious disease specialist provides the hypothesis that the MRSA may have infected the worker through a break in the skin that was due to a work related practice, the panel is of the view that it is more likely that the infection entered through the blister which the worker popped on her thumb. This would provide the most obvious entry point for the infection. In that regard, we prefer the December 2, 2008 opinion of the WCB medical advisor. We also agree with his observations that none of the physicians who examined the worker in July 2008 remarked on the presence of dry fissured skin. While this is not conclusive, it speaks to an absence of evidence that her skin was in poor condition at the time of the infection. We therefore find that the worker’s MRSA #7 infection cannot be related to any dryness or cracking of her hands.

The remaining issue concerns the source of the MRSA #7 infection. As noted earlier, the panel finds that the evidence could equally support that the infection was either hospital acquired or community acquired.

Information provided to the panel from the infectious disease specialist indicated that, contrary to the employer’s assertions that there was no similar MRSA at the facility over the previous two year period, a type 7 MRSA infection was identified in a patient of the institution on April 15, 2008. In an attached email dated August 20, 2009, a medical microbiologist advised that the worker’s strain of MRSA and the strain cultured from the patient were part of the same epidemiologic cluster and were considered to be “indistinguishable”. While this is significant evidence, the panel notes that there is no evidence that the worker ever worked directly with this patient, and there is a gap of three months in the time frames. At best, all the panel can conclude from this evidence is that MRSA #7 was present to some extent in the workplace.

Information provided to the panel from Manitoba Public Health indicated that their records track incidences of MRSA according to postal codes. In the worker’s postal code area, there were seven cases of MRSA in 2008. Out of a total of 926 cases for 2008, this strikes the panel as a significant number. Although Manitoba Health does not track the specific strain, there was information on the WCB file which indicated that at least one other case of MRSA at the housing complex was identified to have the exact same gel field pulse (which was described as being akin to a DNA fingerprint). Thus there is evidence that MRSA #7 was also present in the worker’s immediate surroundings in the community.

In the panel’s opinion, it was equally possible for the worker to have contracted the MRSA #7 in either the community or at work. As such, we are not able, on a balance of probabilities (ie. be 51% satisfied), to conclude that the infection was work-related. For these reasons, we must find that the worker’s claim is not acceptable. The appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 23rd day of December, 2009

Back