Decision #138/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he did not sustain an accident as defined in subsection 1(1) of The Workers Compensation Act (the "Act"). A hearing was held on November 8, 2012 to consider the matter.Issue
Whether or not the claim is acceptable.Decision
That the claim is not acceptable.Decision: Unanimous
Background
The worker filed a claim with the WCB for a neck/left arm injury that occurred on October 24, 2011. The Worker Incident Report describes the accident as follows:
I was in a course in a hot stuffy room. No breaks for a long time. I started to nod off and my neck flung back and then forward again injuring myself.
The Employer's Report of Injury or Occupational Disease form dated December 15, 2011 noted that the accident of October 24, 2011 occurred while the worker was at a training class that was off the employer's premises. The accident was reported to the employer on November 21, 2011.
Medical information received from a physician dated November 22, 2011 diagnosed the worker with a possible cord injury. On January 3, 2012, a neurologist reported that the worker may have a cervical radiculopathy or possible ulnar neuropathy.
On December 29, 2011, a WCB adjudicator contacted the worker to gather additional information concerning the injuries he incurred on October 24, 2011. The memo reports the worker said he was attending a training course and that he was in the classroom from 8:00 a.m. until noon. He took one hour for lunch and did not get any other breaks in the afternoon. The room was hot and stuffy which caused him to nod off. His head fell backwards suddenly and he injured his neck. About one week after the incident he began to have pain in his left hand and arm and he stopped work on November 22, 2011. The worker indicated that he delayed in reporting the incident as he did not want to complain or make a big deal about his injury. He thought his discomfort would go away on its own but it progressively became worse. The worker reported that he attended a physiotherapist and a chiropractor before seeing his doctor on November 22, 2011.
In a decision to the worker dated January 12, 2012, the WCB adjudicator acknowledged that the worker was in the course of his employment when the reported incident occurred; however, the mechanism of injury (nodding off while in the training course), was not an "event arising out of" his regular work duties and therefore no responsibility would be accepted for his neck and arm difficulties.
On January 20, 2012, the worker submitted information to the WCB which he felt supported his position that his claim for compensation was acceptable. The information included a Worker Injury Report and a Notice of Injury form signed by the worker with respect to the October 24, 2011 incident. The worker described the October 24, 2011 incident as "head fell backwards jarring neck." The worker indicated that he did not tell the WCB representative that he "nodded off" but that his head/neck snapped back causing his injury. The worker also suggested that the classroom environment (no fresh air, sitting inactively, no afternoon break) contributed to his injury.
On January 25, 2012, the worker was advised that the new information he submitted had been reviewed and that in the opinion of the WCB, an accident had not been established. Therefore no change would be made to the decision of January 12, 2012.
On April 13, 2012, the worker's union representative appealed the decisions made on January 12, 2012 and January 25, 2012. The representative noted that on October 24, 2011 at 3:15 p.m., the worker's head fell backwards and then forward resulting in injuries to his neck and left arm. This occurred while the worker was sitting and listening to the instructor in a hot and stuffy room without a break since returning back from lunch. He noted that the training course was held in an older building without a central forced air heating system. He noted that there was a limited exchange of air in the building to maintain an optimum level of air quality. The representative referred to results from indoor air quality monitoring ("IAQ report") dated March 20, 2012 to support that the high carbon dioxide levels and poor air quality in the classroom were responsible for the worker's injuries on October 24, 2011.
In a further decision dated May 4, 2012, the union representative was advised that the new information had been considered and that no change would be made to the decision of January 12, 2011. The WCB adjudicator indicated that while the environmental conditions in the training facility would have been unfavorable, there was no evidence that the environmental conditions were the direct cause of the worker's head snapping back during the training session. On May 11, 2012, the union representative appealed the decision to Review Office.
On June 25, 2012, the employer's representative submitted to Review Office that the weight of evidence clearly supported the adjudicative decision of January 12, 2012. The representative stated: "…there is no evidence on this file that would lead one to believe that the cause of [the worker] nodding off was induced by environmental hazards."
On July 9, 2012, Review Office confirmed that the claim for compensation was not acceptable. Review Office considered the Notice of Injury form dated November 21, 2011, the December 29, 2012 conversation between the WCB adjudicator and the worker and the hand-written Worker Injury Report signed by the worker. Review Office was of the opinion that the action of either "nodding off" or having the worker's head fall backwards did not meet the test of "arising out of" employment. Review Office noted that the evidence did not demonstrate a causal connection between the worker's head falling backward or "nodding off" and his employment.
Review Office also considered the IAQ report and the information submitted by the employer's representative. Review Office indicated that it preferred the information submitted by the employer. Review Office stated: "The file evidence indicated that the carbone dioxide levels were considered to be well below the levels required to cause serious physiological effects and that the worker was the only one to have reported a claim for injury. As such, Review Office was unable to substantiate that the environmental conditions were considered a hazard that led to the October 24, 2011 incident." On July 31, 2012, the union representative 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. The issue before the panel is whether the worker’s claim is acceptable. 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 key issue to be determined by the panel is the interpretation of the phrase “arising out of and in the course of employment” and whether the worker’s personal injury was caused by an accident which both arose “out of the employment” and “in the course of his employment.”
WCB Policy 44.05, Adjudication and Compensation, Arising Out of and in the Course of Employment (the “Policy”) provides guidance on determining this issue. It provides:
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.
…
Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of the worker’s employment, where a worker is engaged in personal activities not related to or required by his/her employment, the resultant injury would not be compensable. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.
The worker’s position:
The worker was assisted by a union representative in the appeal. It was submitted that based on the IAQ report, it was probable that the carbon dioxide levels in the room on the date of the accident were at least 1840 ppm or higher. This was a level that is high enough to cause fatigue, headaches and an increased perception of warmth and unpleasant odours. As such, it was within the realm of possibility that the worker sustained the injuries to his neck and arm when his head fell backward and then forward due to the fatigue caused by the environmental conditions in the room. It was noted that the Policy states: "While workers are on the employer's premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises." It was submitted that on the balance of probabilities, the high carbon dioxide levels and poor air quality in the room were responsible for the worker's injuries on October 24, 2011. It was further contended that WCB Board Policy 44.05 was satisfied, as that policy states: "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." It was contended that the contrary had not been proven but that the evidence established that the accident arose out of and in the course of the worker's employment.
At the hearing, the worker made it clear that he did not have any health or social issues which would cause him to suffer from sleep deprivation. He stated that he had never had a problem with staying awake and alert in the daytime. On the day of the accident, he recalled struggling to stay alert. His body went limp and his head fell backwards. The worker was adamant that he did not fall asleep. He stated that he lost consciousness.
The employer’s position:
A representative from the employer appeared at the hearing. It was submitted that in order to conclude that the worker's problems arose out of and in the course of his employment, there would have to be compelling evidence that would indicate that the worker's nodding off was due to environmental conditions in the room. This was not established in that the reconstruction of the conditions as contained in the IAQ report revealed that "the maximum observed temperature, humidity, carbon monoxide and carbon dioxide levels were all found to be well below the levels required to cause serious physiological effects." The employer noted that numerous individuals had used that particular training facility every week day from October 3 to November 8, 2011 and no other participants reported being similarly affected. There was no evidence on file which would lead one to believe that the cause of the worker's nodding off was induced by environmental hazards. It was therefore submitted that the panel confirm the WCB's decision.
Analysis:
In order for the worker's appeal to be successful, the panel must find that the environmental conditions to which he was exposed while taking a course on October 24, 2011 were responsible for his neck injury. There must have been some environmental factor which caused him to lose consciousness such that he lost his head posture and suffered an acute injury to his neck. On a balance of probabilities, we are not able to make that finding.
The exact conditions which were present in the room on October 24, 2011 cannot be known at this time as no readings were taken on that date. The best evidence we have regarding the conditions is the information contained in the IAQ report which monitored room conditions on March 14, 2012. Although the tests were conducted approximately five months after the date in question, the panel feels that the readings were generally indicative of the conditions on October 24, 2011. Evidence given at the hearing was that the outdoor temperature at 3pm on both days was similar (9.6 degrees versus 10.5 degrees Celsius) and there was minimal variance in the number of occupants in the room.
At the hearing, the worker identified three environmental factors which he felt contributed to his neck injury: relative humidity, room temperature and carbon dioxide levels. The panel has considered all three factors but we are unable to conclude that any of the factors, or the combination of any or all of the factors, caused the worker to lose consciousness.
According to the IAQ report, the recommended humidity range demonstrated to provide the majority of office occupants with an acceptable level of comfort is 25 - 60%. The results shown in the IAQ report graph show that the humidity did not exceed much over 30% in the test readings. This is well within acceptable comfort ranges.
With respect to the room temperature, the IAQ report indicated that after peaking at 25 degrees Celsius over the noon hour, the temperature remained between 23 and 24 degrees Celsius for the duration of the afternoon. While this temperature may be slightly beyond what is considered an acceptable level of thermal comfort (20.0 - 23.3 degrees Celsius according to the IAQ report), there is no evidence that an indoor room temperature at this level would cause a loss of consciousness. Indeed, common experience would indicate that it would not.
Finally, with respect to carbon dioxide, the IAQ report showed the levels climbed from a mid-day low of 1200 ppm to a peak of 1840 at 3:00 pm before dropping to 1400 ppm by 4:00 pm. At the hearing, the worker provided some figures from an engineering website which suggested that general drowsiness would be experienced at levels from 1000 to 2500 ppm, and adverse health effects at 2,500 to 5,000 ppm. The IAQ report cited guidelines from the American Conference of Governmental Industrial Hygienists (ACGIH) which set out a threshold limit value of 5,000 ppm for an 8 hour workday, with a ceiling exposure limit of 30,000 ppm for a 10 minute period based on acute inhalation data. As the panel understands the ACGIH guidelines to be the accepted standards used by occupational hygienists in Manitoba, we prefer to apply these standards. We find that peak carbon dioxide levels of 1840 ppm fall far short of the 5000 ppm level which would be required to cause serious physiological effects, such as losing consciousness. We acknowledge that the room may have been uncomfortable and that subjective symptoms such as fatigue, headaches and increased perception of warmth and unpleasant odours may have been experienced, but we do not find that a loss of consciousness would have been caused by that level of carbon dioxide.
Overall, the panel finds that the evidence does not establish that there was an environmental factor which caused the worker to lose consciousness and suffer an injury to his neck. In the absence of a causative environmental factor, the panel must conclude that the worker's injury did not arise out of his employment and that his claim is not acceptable.
At the hearing, the union representative submitted that: "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 panel is of the opinion that the presumption has no application in the present case as there is contrary evidence available which is sufficient to displace the presumption.
The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 7th day of December, 2012