The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission is required under The Workers Compensation Act (the “Act”) to make its decisions in accordance with the Act and relevant WCB policies.

There are two issues that the panel was asked to consider.

The first issue is whether the worker’s claim is acceptable. Subsection 4(1) of 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.

The key issue to be determined by the panel deals with causation and whether the condition complained of by the worker was caused by an accident arising out of and in the course of employment.

The second issue is whether or not the employer is entitled to cost relief.

Cost relief is governed by WCB Policy 31.05.10 (“the Policy”). The Policy provides that cost relief is available to eligible employers in a number of circumstances including “where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition”.

Worker's Position

The worker did not attend the hearing.

Employer's Position

The employer was represented by an advocate and the Safety Coordinator. The employer representative provided a written submission on both issues and reviewed the employer's position. The safety coordinator answered questions posed by the panel. The employer is a business involved in the growing and marketing of a specific product [the vegetable].

The employer representative submitted that the evidence shows that no workplace accident took place and that the worker's condition was completely unrelated to his work duties. He stated that the cause of the worker's collapse at work has been determined to be a gastrointestinal (GI) disorder unrelated to his employment. The employer representative disagreed with the Review Office conclusion that the smell of the vegetable constituted a hazard. He noted that the worker was exposed to the smell of the vegetable without previous incidents or problems. He also noted that since his return to work, the worker has not had a reaction to the vegetable.

As an alternate appeal the employer is seeking cost relief. The employer representative advised that the employer is seeking 100% cost relief on the claim pursuant to Schedule A of the Policy as it believes the claim is caused by a pre-existing condition. He submitted that the prior condition is the primary cause of the accident. He stated that the pre-existing condition is a non-occupational gastro-intestinal disorder which began the day before the workplace incident.

The employer's safety coordinator responded to questions from the panel. He provided new information about the employer's operation and the worker's duties which was not previously before the WCB.

The safety coordinator explained that the worker is a delivery driver who is responsible to load his own truck. Only top quality vegetables are sent to the worker's delivery list. The vegetables are loaded on pallets which would be ready for him in the fridge. He would pull them out of the fridge with a hand jack and load them one pallet at a time. He described this as a long process. He noted that the fridges are located close to the loading area. The load includes bulk and pre-packaged vegetables.

The safety coordinator advised that the worker would not be exposed to the growing area as it is separate from the fridge area where the worker picks up his load. He advised that the fresh vegetables are on the premises for one to three days, after which the vegetables are removed from the workplace. These fresh vegetables do not have a strong odour. There are different varieties of the vegetable, some with more odour but none with a strong odour. He said that the smell in the fridges does not differ from the smell in the plant.

Regarding the possibility that there would be rotten vegetables in the fridge, the safety coordinator said this would be unlikely as the fridges are checked regularly. He said that there would not have been any product in the fridge older than one or two days.

The safety coordinator advised that the plant is fully cleaned twice each year and that the fans are also dismantled and cleaned at these times.

Analysis

Issue 1: Whether or not the claim is acceptable.

For the employer's appeal to be accepted the panel must find that the worker's illness was not caused by his employment. The panel did find, on a balance of probabilities, that the worker's illness was not caused by his employment. The panel finds that the worker was suffering from an illness before he attended work on September 6, 2009 and was ill when he reported to work. The panel also finds that his employment neither caused nor worsened his illness and that the act of smelling the vegetables as asserted by the worker in the file was not a triggering event.

In reaching this decision the panel relies on the information recorded in an Emergency Record of a healthcare facility prepared at 9:00 a.m. on the day of the incident. The record notes that the onset of the worker's symptoms began at 15:30 the day before the work incident. It states he was feeling bad and had an upset stomach after eating mushrooms. The record notes symptoms as "dizzy, nausea, vomiting." The worker's condition was diagnosed as gastroenteritis. The panel finds that the worker's gastroenteritis as diagnosed by the emergency physician is not related to his employment.

The panel also finds that the act of smelling the vegetables at work did not trigger the incident and further, on a balance of probabilities, that the incident did not result from a hazard of the workplace. The panel notes that the worker had been employed at the workplace for approximately 4 years before the incident and never had a reaction to the smell of the vegetables before the incident and similarly has not had a reaction since returning to work after the incident.

The panel places significant weight upon evidence provided by the safety coordinator at the hearing. Specifically, his evidence was that the vegetables are unlikely to have a strong odour because the vegetables are moved on a daily basis, are stored for a limited time in fridges, are monitored closely so that no bad product will be shipped. The panel notes that the worker removed one pallet of vegetables without any reaction and returned to get another pallet at which time he became dizzy and fainted. If the smell of the vegetables was a triggering event, the panel believes that the worker would have reacted when he retrieved the first pallet.