The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current health issues (vertigo, heat stroke) were not caused by his work or work environment and therefore his claim for compensation was not acceptable. A hearing was held on June 12, 2013 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 vertigo or dizziness which he experienced on February 26, 2010 during the course of his employment as a labourer. The worker indicated that he worked in a hot work environment and was wearing plastic coveralls when the vertigo occurred. The incident was confirmed by the employer and a witness.

On December 9, 2010, a WCB adjudicator contacted the worker to gather additional information. The worker indicated that he worked in a very hot environment and the thermostat was constantly at 75 degrees. The building was heated by an electric furnace and there was no air intake into the plant so the air was very stale. He wore plastic coveralls that did not allow his body to breathe and a dust mask that did not allow airflow. When performing any physical work his body temperature rose and he becomes off balance. If he can make it outside to cool down or disrobe, his body temperature and blood pressure drop back to normal. Prior to these episodes, he feels a burning sensation running up the back of his neck. The worker indicated that his family physician referred him to a heart specialist and he was also seen by a respiratory specialist, an ear, nose and throat consultant and a neurologist who was referring him for an MRI scheduled for January 16, 2011. The worker felt that his exposure to harsh chemicals and his work environment may be the cause of his symptoms.

The employer provided the WCB with Material Safety Data Sheets ("MSDS") related to products used in the plant.

On February 11, 2011, the worker was advised by the adjudicator that his claim for compensation was denied, as a cause for his symptoms was not known based on a review of the medical information from his treating specialists. As such, the WCB was unable to establish a relationship between his condition and an accident as defined in subsection 1(1) of The Workers Compensation Act (the "Act").

The WCB adjudicator again wrote the worker on September 4, 2012 to advise that no change would be made to the decision of February 11, 2011. The adjudicator noted that she reviewed new medical information from a neurologist dated May 26, 2011 who confirmed that after a series of tests, there were no clinical findings. The adjudicator also considered a letter from a Federal Health and Safety Officer dated June 6, 2012 which stated that an inspection of the employer's premises was carried out based on a complaint made by the worker and it was found that the employer complied with the requirements of the Act. On September 18, 2012, the worker appealed the decision that his claim was not acceptable to Review Office.

On November 6, 2012 Review Office determined that the claim was not acceptable as it was unable to find that the worker's health issues were related to his work environment. Review Office noted that the worker mentioned to both the WCB and his treating medical professionals that he had experienced a gradual onset of his health issues over the past seven to ten years and he had a family history of the same symptoms in two of his siblings. The worker also mentioned that he does not perspire and therefore did not require deodorant. Review Office noted that medical testing excluded everything from a cerebral and/or circulatory stroke to heart and lung issues to inner ear issues and have ruled out any neurological issues. Other than high blood pressure tests and other minor abnormality with some heart testing, all tests were negative for any relationship to the worker's symptoms.

Review Office noted that that there was an understanding on file that the worker was prone to heat stroke and should avoid overexertion and hot environments. The worker also suffered from migraine headaches.

A neurologist noted on March 30, 2011 that there could be some "mitochondrial problem" but there did not to seem to be any further follow up visits.

Review Office accepted as fact that no other worker had similar health issues in the same or similar work setting for over 30 years. It noted that the worker had been out of the workplace for almost three years and still suffered similar symptoms. Review Office concluded that the worker's health issues were not work-related and the issues of high blood pressure, being prone to heatstroke and the inability to sweat or any mitochondrial problem (hereditary issues) were not related to the worker's work with the employer.

Review Office also concluded that there was no evidence to suggest that the worker's vertigo on February 26, 2010 had anything to do with the workplace temperature or any other workplace hazards. The episode of vertigo was entirely related to the pre existing issues still being investigated which were causing the worker's current loss of earning capacity. On December 17, 2012, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

The worker disagrees with the WCB and Review Office decisions that his claim is not acceptable. The key issue to be determined by the panel deals with causation and whether the worker’s injury arose out of and in the course of his employment.

Worker's Position

The worker attended the hearing with a friend. He read a brief statement into the record. He asked that the panel obtain a report from the federal government on the condition in the employer's plant where he had worked at the time of the incident. The worker answered questions posed by the panel.

The worker advised that in 2006 he was concerned that he had a medical problem. He said that he had always had a problem with feeling cold and so wanted to work at the plant because it was warm. However, he found the plant to be too hot. He described the plant using a floor plan that he had drawn. Regarding the incident, he advised that he collapsed and could not walk and could not see. He attended the local hospital and was kept for a couple days. He said that he has not worked since the incident. He cannot perform physical labour and gets extremely tired. For example, it takes him twice as long to cut his grass. He describes his current lifestyle as sedentary while prior to the incident it was physical. He feels his condition has improved slightly and no longer has migraine headaches.

The worker told the panel about the various physicians he has seen and the tests he has undergone. He said that he thinks his condition is heat stroke but confirmed that his physicians have not made that diagnosis.

The worker described the various chemicals and processes he worked with in the plant. He advised that he did not see the MSDS for the chemicals in the plant. He also said that on occasion farm chemicals were stored in the plant. He said that he mixed chemicals which were applied to seeds. One chemical was blue in color and that the chemical would soak into his skin at the back of his neck, top of the shoulder, finger tips, wrists, sometimes his face. He advised that this chemical would wash off with warm water. The worker said that he used protective clothing including overalls and face masks which were supplied by the employer.

The worker said that he tried to get a report from the federal government but has been denied access.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker has appealed the WCB and Review Office decisions that his claim is not acceptable. For the worker's appeal to be successful, the panel must find that the worker's injury arose out of or in the course of his employment. The panel finds, on a balance of probabilities, that worker's claim is not acceptable.

As noted in the background, the worker collapsed at work on February 26, 2010. He has not worked since this date. The worker believes that he suffered heat stroke while working in a seed treatment plant. He identified his current symptoms as overheating and dizziness. He attributes his current condition to his work with the employer. He is currently taking medication for high blood pressure.

The worker expressed concern that he was exposed to various chemicals and combinations of chemicals which caused his current condition. The panel was not able to find a relationship between the worker's employment and his February 2010 injury and ongoing symptoms.

In particular, the panel considered the MSDS information on the chemicals that the worker was subjected to in the workplace. The worker confirmed at the hearing that he worked with 4 different substances. The panel reviewed the MSDS toxicity information of the substances and noted that the symptoms and health effects the worker complained of are not identified in the MSDS information. Given the above information, the panel concludes that the worker's condition was not, on a balance of probabilities, caused by the worker's exposure to these substances.

The panel also notes that the worker underwent extensive medical investigation which commenced prior to his February 2010 incident. The panel notes that the worker has seen a cardiologist, respiratory specialist, two neurologists including an out-of-province specialist, and an ear nose and throat specialist. As well numerous tests were conducted. The panel notes that none of the specialists have identified or confirmed a work-related condition or cause for the worker's symptoms.

Finally, the panel has considered the worker's request that the panel obtain a report of an inspection conducted by a federal government department/agency. The worker advised that there was an early report when the facility was first set-up but that this report would not be helpful because operations changed.

After the incident, he asked the federal government department to conduct an investigation of the plant including conducting air quality tests. He advised that he does not know if an investigation/inspection took place at that time; however, the panel notes that the federal government department indicated that an inspection was done in May 2012.

The worker acknowledged that this report would not be useful because the plant stopped operating in 2011. The panel is satisfied that the noted investigation/inspection report would have little probative value and has dealt with the appeal relying on the information which it considers to be the best available evidence, that being the MSDS information for the substances used in the plant and the medical information on file.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 15th day of July, 2013