The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Subsections 1(1) of the Act provides:

"accident" means 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;

Subsection 4(1) requires that both parts of the test must be met: it must arise out of, and be in the course of, the worker’s employment.

Subsection 4(5) sets out a “presumption” where there is evidence available to establish one part of the test and the evidence is inconclusive or there is no evidence regarding the other part of the test. Under these rare circumstances, the presumption applies and allows for the establishment of a workplace accident.

WCB Policy 44.05, Arising Out of and in the Course of Employment, provides the following clarification of the terminology used in these sections of the Act.

Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

The Workers Compensation Act provides that where the accident arises out of employment, it shall be presumed the accident occurred in the course of employment unless the contrary is proven; and where the accident occurs in the course of employment, it shall be presumed that the accident arose out of employment unless the contrary is proven.

The Employer's Position:

The employer was represented at the hearing by legal counsel who presented the employer's position. It was their position that there is no evidence that the worker's disease, as opposed to the symptoms of the disease, arose from or in the course of work, the presumption in Section 4(5) of the Act does not apply, and the injury should not have been compensable. Alternatively, if there was evidence that the worker's disease or symptoms arose from or in the course of work, the presumption was rebutted by the medical and/or employer's evidence. In the further alternative, if the workplace was a cause of the injury, the employment was not a dominant cause and therefore the injury was not compensable.

The employer's evidence was that the worker had been caring for the same patients and administering the same medications as before. The worker had told the allergist that she ate a macaroon that day and the file indicated that she had eaten coconut shrimp. Allergy testing confirmed allergies to histamine, latex and a drug called Amantadine.

The employer had provided photocopies of the packaging for vinyl gloves they used to the WCB as confirmation that they do not use latex gloves. They also submitted 35 pages of medication records that listed the medications that had been administered to each patient in a one month period from April 2, 2009 to May 1, 2009. The employer's legal counsel noted that a WCB medical advisor had reviewed the list and opined that Amantadine was not on the list individually or in combination with other drugs. Further, the same medical advisor had identified the anaphylactic reaction occurs in previously sensitized persons on a re-exposure from a miniscule amount of allergen.

It was the employer's position that it is unknown what the original cause or initial exposure to the allergen was or, whether it was in a different workplace or outside of the workplace. The employer's legal counsel noted that there is nothing in the file's medical evidence that states that miniscule amounts of Amantidine were the likely cause of the worker's reaction on that day. It was the employer's position that there is no evidence that the worker's disease or injury arose in the course of work or from work and therefore, the presumption in subsection 4(5) does not apply and the injury should not be compensable.

In the alternative, the claim could still be one for occupational disease. The employer's legal counsel submitted case law regarding presumption and an occupational disease that stated: "Before a person could claim the benefit of presumption, that person would have to establish that the disease, as opposed to the symptoms, arose in the course of employment." The employer's position was that there is no evidence to suggest that the work caused the allergy and, in fact, it is unknown what caused the symptoms if there was no Amantadine in the workplace.

In response to the October 13, 2010 WCB medical advisor's opinion that: "The time course involved and her documented allergy to Amantadine would tend to support a relationship to the work environment" the employer's legal counsel submitted that this was the only medical evidence suggesting a relationship and is "tied to the existence of Amantadine in the workplace, of which there is no evidence."

The employer's legal counsel submitted that it was possible the worker had eaten something before work or at break. There was no conclusive medical evidence to suggest that her reaction might not have been caused by the macaroon, noting that testing was only for coconut, which is not the sole ingredient of a macaroon. Legal counsel suggested that it was possible that miniscule particles of latex could be in her food from the food manufacturing plant, not as factual evidence but in support of the employer's position that it is unknown what caused the reaction. The employer's position on occupational disease was that "the employment was not the dominant cause and therefore the injury should not be compensable."

Employer's legal counsel responded to questions from the panel. When asked about the presence of Amantadine in the workplace, counsel noted the evidence in regard to the list of medications dispensed was all that was provided. Counsel acknowledged that: "I don't have any evidence of whether there was Amantadine in the workplace at all, but what I can say is that it doesn't appear to have been or it wasn't dispensed that month."

The Worker's Position:

The worker was self-represented at the hearing. It was her position that she had started her shift at 7:00 p.m. on April 18, 2009 and had felt fine, had never had an allergic reaction before this night, and that 6 hours into the shift she had an allergic reaction in the workplace. She noted that two of the twelve workplace exposures she underwent allergy testing for had been positive.

The worker provided an overview of her workplace and duties. She said that the facility she was assigned to was a personal care home ("PCH") that also included an emergency hospital. Nightshifts were from 7:00 p.m. to 7:00 a.m. and included administering the 9:00 p.m. bedtime medications, sharing the task with the registered nurse on duty. They also shared the duty of administering medication throughout the shift for patients taking "as needed" medication.

The worker responded to the submission of the employer and clarified some of the evidence on the file and in relation to the employer's position. The worker noted that specific duties included re-stocking medications in the medication room, working with cleaning supplies and coming in contact with the clients.

The worker stated that part of the duties of the emergency hospital is to triage people who walk in on a regular basis; in fact, there had been a walk-in patient that night. Her duties also included administering and re-stocking medications for patients in the emergency hospital.

The worker's evidence was that at the time of the onset of the anaphylactic angioedema she was administering a medication to a client of the PCH. After the sudden onset, it had taken three to four hours for her condition to stabilize. Her symptoms were paralysis, swelling of the tongue, swelling of the throat, inability to breathe and it was a very traumatic experience. As the facility was in a remote location, the doctor was not present until two hours after the reaction began.

The worker also responded to questions from the panel. She stated that she had been a licensed practical nurse for 8 years and as a registered travel nurse with the current employer for approximately 8 months prior to the compensable injury. She said her placements included three northern Manitoba facilities as either an emergency nurse or PCH nurse on 12 hour shifts for a week then off for 4 days, when she would fly back to Winnipeg, then return for the next set of shifts. She indicated that shifts were both days and nights based on 7:00 o'clock start/finish times. At the time of the injury she was on the last shift of the shift cycle.

In response to the panel's questions in regard to medications, the worker's evidence was that they took turns every other day administering medication. The emergency hospital had stocked medication of every kind, and it was also her duty to clean and restock the medications. Once a month all the medications were counted and correlated to the pharmacy list, stock needed was re-ordered, outdated medication was removed and disposed. The worker noted it took roughly 4 hours to complete.

The worker's evidence was that to check medications, every container had to be physically lifted to read the date stamped on the bottom. Out of approximately 100 medications, twelve would be outdated. Bulk medications that they dealt with directly were in large containers and had to be transferred to smaller containers in the medication drawer.

Prior to coming to work for this employer, the worker said she worked for different agencies in all areas of hospitals and personal care homes as a replacement nurse. For one full year she was employed at a Winnipeg hospital and had worked in all of their units where needed.

Analysis:

The issue before the panel is claim acceptability. In order for the employer's appeal to be successful, the panel must find that the worker’s allergy and/or subsequent allergic reaction did not meet the circumstances set out in subsections 1(1), 4(1) and 4(5) of the Act. On a balance of probabilities, we are unable to make those findings for the reasons that follow.

In response to questions about her activities for the evening of April 18, 2009, the worker indicated that she felt okay at the start of her shift; it was a normal shift and she had worked the 6 hours before the reaction with no problems. She stated it was likely she could have eaten some nuts but she is not allergic to nuts and they did not bother her. She fed some patients a snack of arrowroot cookies with coffee, tea or juice around the 9:00 p.m. medication time.

In response to specific questions regarding exposures the worker stated:

• She did not eat any coconut shrimp.
• She did re-stock medication that is used on an ongoing basis from the medication room.
• She did not recall if Amantadine was part of the regular stock in the medication room.
• She did not specifically recall dispensing Amantadine that night.
• Most of the medication dispensed that night was in pill form, with some injection of insulin, and some medication was crushed and added to liquid in the tube feeds.
• There were 12 or 13 patients in the PCH facility and one walk-in patient in Emergency.
• The monthly cleaning of the medication room was not one of her duties that evening.

In analyzing and weighing the evidence both on the file and at the hearing, the panel finds that the worker had a pre-existing allergy which was previously unknown to her. This allergy was asymptomatic prior to the start of her shift. The panel is not concerned with how the allergy originally developed as the panel accepts this was an established pre-existing condition. Given this finding, the panel makes no finding on whether the worker's allergy is an occupational disease. In our view, the analysis should properly focus on subsection 1(1)(b) of the Act, with the "accident" being the exposure to an allergen which triggered the worker's pre-existing allergy and the "injury" being the allergic reaction, including angioedema and anaphylaxis.

The panel notes that the allergic reaction occurred 6 hours into the worker's shift while administering care to one of the patients. The panel also notes that anaphylaxis is a reaction that occurs within minutes of exposure. Given this, the panel finds that the exposure must have occurred at the workplace while performing duties of a nurse as required by subsection 4(1) of the Act i.e., "in the course of her employment." In making this finding, the panel places weight on the opinion of the WCB medical advisor who noted on October 13, 2010 that "the time frame and confirmed allergy to Amantadine tends to support a workplace cause." While not a confirmation that Amantadine was present, it does suggest, on a balance of probabilities, that the exposure to an allergen occurred during the worker's shift.

Having made the finding that the allergic reaction occurred in the course of her employment, subsection 4(5) presumption applies. The panel is then obligated through its inquiries to rebut the presumption by satisfying itself that the reaction did not arise out of the employment. After careful review of the evidence gathered at the hearing and the evidence provided in the worker's claim file, we find that the presumption is not rebutted.

In regard to the employer's position that the presumption has been rebutted, the panel finds that the evidence presented by the employer regarding the specific presence or absence of one substance, namely Amantadine, in the workplace is not sufficient to displace the statutory presumption that the worker's condition did arise from her employment, when other unidentified substances in the workplace could have been a trigger.