The Appeal CommissionThe Workers Compensation Act of Manitoba

Description of the Incident

The worker reported that an incident occurred at work on January 20, 2009, which he described as follows:

“I am an environmentally-ill person. I work with accommodation. I am sensitive to chemicals. Part of the accommodation is a special office where I can avoid chemicals. Signs are posted on the doors listing things that cannot be brought into my office. I returned from lunch at 2:00 pm on Jan 20-09. I found the main office area overwhelming with the smell of a pine-scented cleaner so I held my breath and went into my office. When I inhaled, I found my office had also been cleaned with the pine-scented cleaner. I became disoriented, nauseated and sick. I called out to my assistant and said I had to leave. I sent an email to my boss…indicating I was leaving.”

The worker left work on January 20, 2009 and returned on January 26, 2009. He did not seek medical attention.

The employer reported that only the hall outside the worker’s office had been cleaned.

In a letter dated June 8, 2009 to the Appeal Commission, the worker advised that he had spoken to the caretaker following the incident. The caretaker advised that he had washed the worker’s office floor with hot water leaving the interior doors open so the floors would dry quickly.

According to the worker, this could trigger his environment illness as chlorine evaporating from the water was identified by his physician as a trigger; the mop used by the caretaker would have been contaminated by the floor cleaner; and the fact that both interior doors to his office were left open allowing gases from the fax, laser printers and photocopy machines to enter his office could all lead to a reaction. He described his reaction as triggering across multiple body systems.

Prior Claim

The worker has been employed with the same employer since 1987. In April 2005 the worker filed a claim with the WCB in which he reported allergic reactions to volatile organic compounds. He indicated that he was allergic to petrol, diesel, gasoline, and any type of aerosols, and chemical hardeners that includes anything that dries, hair spray, lacquers and paint. According to the worker’s accident report the worker “said he gets a rash, rapid decrease in blood pressure, irregular heartbeat, loss of cognitive function he cannot read or understand English, focus of eyes, tennitis [sic]”. The worker reported that he had these problems since 1986.

In discussions with the WCB case manager, the worker advised that he did not know when his symptoms started but that he has had them for 20 years. However, he only recognized that they were work-related in 2004. The worker stated that fumes and chemicals at work cause him to feel high or drunk lasting for 2-3 hours and then he will crash, losing his ability to concentrate and suffering gastrointestinal distress such as cramping.

The worker advised that he had symptoms of memory loss and sometimes cannot find his way home from work if he has been exposed to chemicals for a long period of time. He also advised of an incident where he got lost driving his wife home from a location that was not associated with work or exposure to chemicals.

The worker described problems reading, noting that he can read the paper at home, but that sometimes he cannot read the paper at work, as the concentration of chemicals is higher at work and he is exposed for longer periods of time.

The worker described a skin condition involving red flushes and rashes that he has had for more than 20 years. His skin discoloration comes and goes and may be present for weeks at a time.

The worker explained in a letter to the WCB dated February 7, 2006 that it is only when he is exposed to chemicals in the workplace that his red flushes lead to a profound loss of ability.

The worker advised that when he is affected by volatile organic compounds his left wrist, which was previously injured, will swell. He stated that this inflammatory process affects the muscle systems in his entire body. His sense of smell also changes when he is around chemicals.

The worker stated that he is bothered by all volatile organic compounds. He stated that all petrochemical based substances, plywood, carpeting and anything that contains chemical hardeners caused his symptoms to return. The worker identified the photocopier, fax and computer printing machines as causing him symptoms.

The worker noted that there were some volatile organic compounds that did not cause him symptoms. He reported that he swims regularly and that the exposure to chlorine in the water does not cause him any problems. He also reported that he has smoked for 15 years and smoking does not cause him problems, nor does drinking 20 cups of coffee per day.

In March 2005 the employer made changes to accommodate the worker’s condition by disconnecting his office from the main ventilation system, installing a HEPA filter, electric baseboard heater and exterior door for fresh air control. The worker reported that these accommodations helped but he continued to have flare ups when he left his office.

The worker advised the case manager that he is making a claim to WCB at this time because he fears in the future he will lose all cognitive ability and be unable to claim when this occurs.

In a letter to the WCB dated February 7, 2006, the worker described his physical and mental condition in 2003 and 2004. He listed his symptoms as problems with his left arm that was injured and was not responding to treatment; his back was in a brace; he suffered from a red flush, rashes, eczema; recurrent ear infections; mood swings and cognitive impairment; visual disturbances; hearing impairment; loss of motor skills; and loss of strength and stamina. He wrote that his symptoms were profound and they only occurred in the workplace as a result of exposure to chemicals.

Medical Information

The worker was assessed by a number of specialists to identify the cause and treatment of his symptoms. Most of the medical reports before this panel were also part of the worker’s prior 2005 claim.

The worker was referred by his family physician to an allergist in 2003. In the allergist’s report dated August 14, 2003, it was noted that the worker has a history of symptoms very suggestive of allergic rhinitis (hay fever) for more than 20 years. It was noted that while on a canoe trip the worker developed acute rhinitis, itchy eyes and a pruritic vesicular rash. Testing indicated that the worker was allergic to mites, weed pollens, mold spores and cat dander.

On a follow up visit on March 3, 2004, the allergist reported:

“He is sure that his rhinitis and skin problems are being brought on by something in the house. These clear up when he is at his sister’s house. The only obvious difference is that there are no scented materials in his sister’s environment. I suspect there is also a little bit more stress in his own home with teenage kids. It is interesting to note that despite the fact that he is exposed to a lot of chemicals at his workplace, he feels better there.”

On April 8, 2004 the worker attended at the hospital emergency department. The patient record indicates that he was complaining of palpitations and multiple physical complaints such as ringing in ears, mania, depression, diarrhea and nausea. According to the patient record, the worker attributed the symptoms to a withdrawal from some sort of chemical at work such as the photocopier toner solution. The worker advised that he had not been at work for 2 to 3 days. The record also notes that the patient mentioned that he was experiencing an abnormal mood that day described as “manic-depression”. An EKG test was normal and the worker was sent home.

On April 13, 2004, the worker again attended at the hospital emergency department. The medical officer noted that the worker complained that exposure to photocopy chemicals at work triggered a cascade of reactions such as increased flatulence, weeping sores on face, malaise, confusion with deterioration to mania and/or psychosis. The worker advised that these were lifelong symptoms with increased deterioration since January. The patient record indicates that the worker would not allow the medical officer to talk to his family. The diagnosis was indicated as “delusional disorder”. The worker agreed to follow up with his physician.

The worker was referred by his physician for a psychiatric consultation. The psychiatric report dated June 9, 2004 noted that the worker indicated a history of believing that he experienced a reaction to photocopier fumes. The worker reported “mental fog” and “inability to read/understand” at work. The worker thought that various smells in the environment triggered some sort of allergic reaction. He thought various perfumes, scented soaps, certain household products, perhaps some chemical products, and the photocopier fumes, somehow triggered allergic reactions. The psychiatrist was of the opinion that the worker may have a DSM-IV diagnosis of a Delusional Disorder and that he might benefit from antipsychotic therapy. The psychiatrist noted that it may be difficult to convince the worker to try this medication as he plans to pursue environment interventions.

The worker was seen by his physician on June 14, 2004 and the meeting notes indicate that the worker complained of symptoms of “depression/bipolar”. When seen again on November 14, 2004, the physician noted a diagnosis of anxiety and somatization disorder.

On August 19, 2004, the worker was examined by a dermatologist, following a referral from his allergist. According to the dermatologist’s report dated October 12, 2005, the worker reported a lifelong skin condition that was cyclical. The worker described lesions occurring mainly on his face and occasionally on his upper arms and chest. The dermatologist noted that the history and clinical lesions seen were typical for a neurodermatitis with neurotic excoriations and explained that this condition is not uncommon and is, in his experience, mainly a reaction to stress. Anti-depressant medication was recommended. The physician also stated that he did not see any skin changes at that time that would suggest an allergic reaction to any chemicals.

The worker consulted with an out-of-province psychiatrist on January 31, 2005. The psychiatrist provided a report dated February 21, 2005 noting that the worker was assessed for a constellation of physical symptoms that have been worsening since 2003 and include “swelling of the hands and feet, muscle pain and weakness, various rashes including a pimply rash on the ears and rashes on the wrists and elbows, photosensitivity resulting in [the worker] turning bright red in both sun-exposed and non-sun exposed areas, nasal congestion, changes in mood, specifically mood swings, cognitive changes including decrease in concentration, difficulty in understanding verbal and written communication, loss of coordination, and decreased sense of direction. [The worker] also reports fluctuations in heart rate and blood pressure based on self-monitoring”. The psychiatrist noted that the symptoms were not 100% reproducible and the worker reported that sometimes when exposures were avoided the symptoms cleared and sometimes they worsened.

The out-of-province psychiatrist expressed her diagnostic impression as follows:

“I have only met with [the worker] on one occasion for two hours and certainly have not taken a detailed enough history to have any diagnostic certainty. However, in view of the number of specialists [the worker] has already seen and the number of tests completed, most of which are reported as being in the normal range, and given the fairly consistent relation between exposures to food and volatile compounds and the emergence of symptoms, the diagnosis of Chemical Sensitivity should be considered.”

The recommendations for treatment included avoiding exposure to triggers by creating an oasis at home and at work from artificial scents and volatile organic compounds with a HEPA filter and a window that opens for ventilation as well as dietary changes and use of an infrared sauna.

In a report from the worker’s physician dated October 24, 2005, the physician who assessed the worker on numerous occasions during the period from January 2003 to May 2004 describes the worker’s history of symptoms. The physician records that the worker was treated for ear and eye infections in 2003, which the worker related to swimming. In June 2003 he was treated for complaints of a sinus infection that worsened on a canoe trip and he was diagnosed with rhinitis. In September 2003, the worker complained of a sore left wrist and thumb after tripping and falling onto his left wrist, and was diagnosed with a left wrist and thumb sprain. In April 2004 the worker presented with a history of attending the hospital emergency department for complaints of a bad reaction to photocopier fumes, indicating he was in a mental fog at work with reading difficulties and problems getting lost in locations such as the grocery store parking lot. The worker’s physician states that he agrees with the psychiatrist’s diagnosis of delusional disorder to explain the worker’s symptoms.

As part of the 2005 WCB claim, a WCB consultant reviewed all of the medical evidence on file and provided an opinion in a memorandum dated November 18, 2005. The WCB consultant was of the view that the most likely diagnosis for the symptoms presented by the worker was Delusional Disorder.

The panel also received a follow-up report from the out-of-province psychiatrist dated June 2, 2008, indicating that the worker had provided updated information on his progress over the past 3 ½ years.

The out-of-province psychiatrist noted that the worker had undertaken many of her recommendations including reducing his coffee intake, avoiding triggers, using an infrared sauna, but had not stopped smoking. The worker reported that he was now able to discern more clearly the symptoms associated with exposures at work, noting that his symptoms improve over a weekend away from the city and return through the week at work reporting symptoms of flushing, tinnitus, cognitive blurring and extreme fatigue. The physician recommended that in order to get more information on which chemicals are the most harmful to the worker, it is possible to get interdermal testing for common chemicals and other allergens and offered to provide a referral. The worker advised that no such testing was ever conducted.

The psychiatrist’s report also states that the worker has noted with some clarity that he is sensitive to chlorine and he has stopped going swimming at the local pool. The psychiatrist recommended that the worker install a whole house filtration system. The worker testified that he did not install a chlorine filtration system in his house.

Previous Review Office Decisions

In its decision dated March 1, 2006 respecting the worker’s 2005 WCB claim, the Review Office denied the claim holding that the evidence did not support a causal relationship between the worker’s condition and his work environment.

With respect to the worker’s present claim for chemical exposure that occurred on January 20, 2009, the worker was advised by the WCB adjudicator that his claim was denied on the basis that his symptoms were not related to his work duties or work environment.

In his request for reconsideration by the Review Office, the worker indicated that there were signs posted by the employer that indicated that his office should not be cleaned; that people have seen the sudden red flush when he is exposed to a high volatile organic compound environment; that the position paper of the Canadian Human Rights Commission on Environmental Sensitivities identifies the same red flush; that he is known to be chemically sensitive with many other debilitating symptoms when exposed; and that on January 20, 2009 “I became unable to function at any level on my employers’ behalf. I became very ill.”

On March 24, 2009, the Review Office confirmed that the worker’s claim was not acceptable. The Review Office indicated that it considered all file information including the worker’s prior inhalation claim. The Review Office held that the worker’s condition was not caused by the conditions of the workplace.

On June 8, 2009 the worker appealed the Review Office’s decision to the Appeal Commission. At the hearing, the worker appeared without representation. No one appeared on behalf of the employer.

Appeal Hearing

At the hearing the worker provided the panel with an excerpt from the Canadian Human Rights Commission (“CHRC”) Policy on Environmental Sensitivities, which indicates that individuals with environmental sensitivities experience a variety of adverse reactions to environmental agents at concentrations well below those that might affect the average person. The CHRC encourages employers to proactively address issues of accommodation for persons with environmental sensitivities with strategies to minimize exposure to triggers in the environment. These strategies include developing fragrance free and chemical avoidance policies, undertaking educational programs, minimizing chemical use and purchasing less toxic products and notifying employees in advance of construction, remodeling and cleaning activities.

The worker also identified likely chemical exposures on January 20, 2009 as the smell of the floor cleaner; the chlorine from the water; soap residue on the mop that was used to clean his office; and as the doors to his office were left open, exposure to chemicals from the photocopier machine in the area, such as ethyl alcohol.

The worker testified that he had been out of his office for lunch for approximately 45 minutes to an hour and the incident occurred when he returned and noticed that the outer office had been cleaned. He testified that his exposure from the time he returned to the outer office until he entered his own office and left the building was “under two minutes”. He testified that he left the interior doors to the office closed when he left for lunch and they were closed when he returned from lunch. He did not know how long they may have been open while he was absent.

The worker testified that when he walked into his office he was “reeling” and “triggering, across multiple body symptoms, all of, many of these things at once.” He described these symptoms as pain in his stomach, blocked feeling, increased tinnitus, a red flush and loss of cognitive function.

At the hearing, the worker had difficulty describing his symptoms and the loss of cognitive function that he experienced. For example, he testified that for the next 2 days he had a reading comprehension problem, which he described as a cognitive disability where he is unable to read or make sense of a newspaper and difficulty understanding people speaking to him. He also described his loss of cognitive function as an inability to do math, work on Excel spreadsheets or even read or write a letter. However, when asked what symptoms he specifically experienced on the day of the incident, the worker stated “I was still able to read, I think”. When asked whether he had difficulty reading or writing during the 2 days following the incident, he testified that he didn’t even try.

The worker was not sure whether or not he experienced blurred vision. He testified that he was concerned that his ability to drive may be impaired. He also testified that he drove home from the office following the incident and left the city the next morning driving for 2 hours. He explained that he was able to do this because the road was straight.

Analysis

Subsection 4(1) of The Workers Compensation Act (the “Act”) provides for payment of compensation benefits where “personal injury by accident arising out of and in the course of employment is caused to a worker”.

Subsection 1(1) of the Act defines “accident” as “a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of,

employment, and

(c) an occupational disease

and as a result of which a worker is injured.”

In order for the worker’s claim to succeed the panel must be satisfied, on a balance of probabilities, that an accident occurred at work as a result of which the worker was injured.

The worker’s position was that the employer breached the accommodation that was in place when his office was cleaned without his knowledge resulting in exposure to chemicals, which caused him an adverse reaction. In this case, the panel must be satisfied that the worker was exposed to chemicals at work that caused him injury.

After considering all of the evidence before us, the panel has concluded that this was not the case. The panel is of the view that on a balance of probabilities, the evidence does not indicate that on January 20, 2009 the worker was exposed to chemicals at work that caused him injury.

The panel has reached this conclusion taking into account the following factors:

• The medical evidence indicates that the symptoms the worker has described are lifelong symptoms and are related to diagnosed conditions not associated with work or exposure to chemicals. The red flush and skin condition has been observed as occurring on many occasions outside work and in situations not associated with exposure to chemicals. The dermatologist reported that the worker described a lifelong skin condition that was cyclical. The hospital medical officer reported that the worker described that his multiple symptoms were lifelong;
• The dermatologist diagnosed the worker’s skin condition as neurodermatitis with neurotic excoriations, a condition commonly associated with a reaction to stress. The dermatologist noted that he did not see any skin changes that would suggest an allergic reaction to any chemicals. Anti-depressant medication was recommended, however, the worker did not undertake this therapy;
• The allergist diagnosed the worker as suffering from rhinitis. In the allergist’s March 3, 2004 report it is noted that the worker associated his rhinitis and skin problems with his home environment and indicated that he felt better at work despite the presence of chemicals there. The allergist also noted that this condition may be related to stress;
• The worker’s complaints have been assessed by a number of physicians who have diagnosed him as suffering from psychological disorders. The emergency medical officer assessed the worker as suffering from a delusional disorder. The psychiatrist who assessed the worker in 2004 indicated that he may have DSM-IV Delusional Disorder and recommended anti-psychotic medication, which the worker did not follow. The worker’s physician noted symptoms of “depression/bipolar” and diagnosed the worker as suffering from anxiety and somatization disorder. The worker’s family physician agreed with the diagnosis of delusional disorder as did the WCB consultant who reviewed all the medical information on file in 2005;
• The panel notes that the out-of-province psychiatrist suggested that the worker suffers from multiple chemical sensitivity. However, the psychiatrist pointed out that she had only met with the worker on one occasion for two hours and had not taken a detailed enough history to have any diagnostic certainty. She also indicated her understanding that other causes of his symptoms had been ruled out, which as outlined above the panel has concluded is not accurate;
• The out-of-province psychiatrist’s opinion was also stated to be based on the fairly consistent relation between exposures to food and volatile compounds and the emergence of symptoms. The evidence before the panel however, indicates that the relationship between exposures and symptoms in the worker’s case was often not consistent. For example, the psychiatrist states that the worker noted that he was sensitive to chlorine and she recommends that he install a home filtration system. The evidence indicates that the worker swam regularly in a chlorinated pool for many years and indicated that this soothed his symptoms.
• In order to determine which chemicals are the most harmful, the out-of-province psychiatrist recommended interdermal testing for common chemicals and other allergens. The panel notes that no testing was undertaken, even though the worker identified a number of common chemicals that he believed were harmful to him such as chlorine and ethyl alcohol from the photocopier.
• The psychiatrist also referred to the negative effect that ambient air quality at work and exposure to toxins has on the worker’s symptoms. One of her recommendations was that the worker stop smoking. After questioning by the panel, the worker admitted to smoking 3 to 4 cigarettes daily at work;
• The panel does not accept the worker’s contention that he reacted to chlorine that evaporated from the water that was used to clean his office. As indicated above, the evidence does not indicate that the worker is sensitive to chlorine;
• The worker testified that that he would have been exposed to photocopier fumes that entered his office while his office was cleaned and the photocopier fumes would have caused him a reaction. We do note the worker indicated that he left the office for lunch and passed by the photocopier with no reaction, but testified that he knew that the photocopier was running while he was away at lunch because he could smell it when he returned to the office. The worker also testified that there was an overwhelming smell of pine-scent when he returned after lunch, but it was later determined the floor was washed with hot water only. However, the panel is of the view that the worker’s testimony that he smelt photocopier fumes is not credible. In our view there was insufficient evidence to indicate that the worker was exposed to photocopier fumes that caused a reaction;
• The panel notes the extremely short period of less than 2 minutes during which time the worker may have inhaled any chemical;
• The panel also notes the inconsistent evidence that the worker provided concerning the symptoms which he suffered as a result of the incident. He expressed an inability to do any work and referred to a loss of cognitive function. However, the worker first testified that he was unable to read and later testified that he could read. He also testified that he didn’t try to read. He didn’t know whether or not he had blurred vision. He expressed a concern about his ability to drive, yet he drove home and drove 2 hours outside the city the following day;
• The evidence indicates that prior to leaving the office the worker advised his assistant that his office had been cleaned and he needed to leave. The evidence does not indicate that the worker described his symptoms to any of his co-workers. In this regard, the worker testified as follows: