Decision #99/13 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her health concerns were not caused by her work environment. A hearing was held on June 13, 2013 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In late May 2012, the worker filed a claim with the WCB for a numerous of symptoms she was experiencing which she attributed to inadequate air flow, mold and high levels of carbon dioxide in the office building where she worked. The symptoms included: lack of energy, heaviness in her arms, tongue swelling, voice constriction, a compression feeling in her head, headaches, heart racing, lips going numb and tingling, bloating, diarrhea, eye secretions and short term memory loss. The worker indicated that her symptoms started prior to August 11, 2011 but they were minimal. The worker advised that she had been working in the building for three and a half years and that an asthma condition had been ruled out by respiratory testing.

When speaking with a WCB case manager on July 11, 2012, the worker indicated that she had a severe reaction on June 15, 2012 and missed three hours from work. Her symptoms included disorientation, inability to think or talk and shortness of breath. She attended a walk-in clinic and was told to stay off work for two days.

The WCB obtained indoor air quality ("IAQ") test reports which were performed at various points in time.

IAQ testing conducted in early 2009 concluded that temperature was slightly higher than acceptable and the relative humidity level was below the accepted standard for office environments. Carbon dioxide (CO2) levels appeared to be higher during the work week with indoor averages of 900 ppm. Weekend levels dropped to 450 ppm. The elevated CO2 during the work week indicated the need for improvements to ventilation rates. All other basic IAQ parameters appeared to be within an acceptable range and required no further action at that time. Additional indoor air parameters such as, but not limited to, particulate matter, formaldehyde ozone, mercaptans, volatile organic compounds and bio contaminants were out of the scope of the 2009 testing.

A report dated September 8, 2011, indicated that ionizing radiation (including radon) was subject to ongoing investigation at the worksite location and there was no evidence of imminent risk.

On September 30, 2011, a site inspection was conducted to evaluate indoor air quality in general and to asses for potential sources of air contaminants in response to worker health concerns. Measurements taken during the evaluation included general IAQ indicators of temperature, humidity, carbon dioxide and carbon monoxide. Also measured were respirable particles and volatile organic compounds. The report identified moisture leading to growth of mold as a potential issue. Potential contaminants from below the carpet in the basement was a situation that it was felt warranted examination. Damaged ceiling panels contributing to elevated particulate concentrations and evidence of rodent activity were the other two conditions identified in the report.

In March 2012, an IAQ assessment was conducted. The conclusion was that temperatures and relative humidity at the time of the audit were acceptable. Ambient outdoor temperatures were noted to be above seasonal norms and many windows were open during the test period. CO2 levels appeared to be within acceptable range with one area of concern being the worker's office, with readings of 1100 to 1460 ppm during occupied hours. This could be corrected with ventilation air. Carbon monoxide and nitrogen dioxides were not collected. Hydrogen sulphide did not appear to be present at the time of testing. Additional indoor air parameters such as particulate matter, formaldehyde ozone, mercaptans, volatile organic compounds and bio contaminants were out of the scope of this testing.

An Occupational Hygiene Report dated August 29, 2012 was prepared by an outside consultant. The assessment was part of an ongoing project to address concerns expressed by staff regarding symptoms including fatigue, headaches, loss of memory and difficulty concentrating. High levels of CO2 had been identified by doctors as a potential cause for the symptoms. The report noted that past surveys showed that the CO2 levels were high enough to suggest there was inadequate fresh air in some parts of the building. The levels, however, were well below the level that would cause symptoms in a normal healthy person. Mold samples suggested an indoor source of mold, and this was to be investigated.

After summarizing the results of the investigation, the report concluded as follows:

  • Air samples showed there was a significant difference in the quality of the office environments between the basement area and the 2nd floor. The basement where the concerns were strongest had more molds and a different population of molds.
  • Carpet samples in the basement appeared to be the source of the basement molds.
  • Conditions were aggravated by the lack of fresh air in the building and the lack of fresh air was a likely contributor to the complaints.
  • It was recommended that the basement carpets be removed and the entire basement area be thoroughly cleaned. The rest of the building should also get a thorough cleaning.
  • To prevent future problems, moisture levels in the concrete basement walls and floors should be addressed.
  • Consideration should be given to providing tempered fresh air to the occupied areas.

In an addendum to the report dated August 29, 2012, the consultant stated:

I have just sent you my technical report on the [worksite]. This is an addendum with some subjective comments:

1. There are staff working in the building that are seeing their doctor, and I understand specialists in workplace issues. I was advised that there seems to be a general agreement their symptoms are related to conditions at work. My problem is that there does not appear to (sic) a clear definition of what those conditions are so that they (sic) problem can be addressed.

2. Also, staff report that the symptoms occur when at work, and disappear when away from work. This is usually evidence that there is a workplace issue, and supports the doctor's diagnosis.

3. Sampling within the building has shown that there are conditions such as mold and inadequate fresh air that are also associated with the symptoms expressed by staff. In particular there are molds in the area of concern associated with the symptoms. These same molds are not present in areas where staff claimed working conditions were better.

Individually the points raised do not make a strong argument for immediate action. However, together they do make such an argument.

Reporting of symptoms by the worker to health care practitioners is well documented on file.

The family physician reported that in September 2009, the worker came to his office complaining of vertigo and upper respiratory symptoms. He could not be sure if the symptoms were related or not with the problems with her workplace exposure. When seen again on August 29, 2011, the worker had clear concerns with her workplace environment. The worker complained of rashes, dizziness, puffiness in the eyelids, headaches, swelling of the tongue and oropharynx. There were two other co-workers with the same complaints. The physician noted that the worker was referred to an occupational health physician and a tentative diagnosis was made of exposure to higher than usual levels of carbone monoxide in the workplace.

In a report dated September 7, 2011 to the Workplace Safety & Health Division, a physician identified three workers (including the worker of this claim) who came to the clinic with work-related issues. The workers noted increased symptomatology of headaches, myalgias, arthralgias and increased fatigue. These symptoms all resolved when the workers were away from the workplace. It was suggested that the symptoms may be consistent with a sick building syndrome.

On April 9, 2012, the family physician reported that the worker had been checked for allergies in the past and was tested positive for severe allergies to mold.

On April 23, 2012, an occupational health specialist reported that the carbon dioxide levels in the worker's place of work appeared to be high and that moisture was detected in the ceiling suggesting that mold could be present in the building. He noted that the worker was undergoing some respiratory testing. He indicated "As the work place appears to have poor quality indoor air, I think that exploring ways to either limit [the worker's] time in the building or improve the quality of the air should be implemented."

In a further report dated May 29, 2012, the occupational health specialist reported that the worker's lung function tests and methacholine challenge tests were all normal and there was no evidence of bronchoreactivity suggestive of asthma.

In a doctor first report for an examination dated May 31, 2012, the physician documented "poor air quality and mold in work environment, chronic cough/wheeze/tongue swelling, headaches." The diagnosis was cough/headaches due to poor air quality/mold.

On June 27, 2012, the occupational health physician stated: "…in follow up of my letter to you from earlier this month of June 6, 2012. In it I mentioned that the daily elevations in carbon monoxide were in the 900-1000 ppm range. This was an error. In fact, it should be carbon dioxide. This level of carbon dioxide would be a marker of inadequate fresh air entering the workspace and has been associated with workers complaints."

On July 11, 2012, the WCB case manager referred the worker's file to a WCB medical advisor to review the file and answer specific questions related to the current diagnosis and whether the level of carbon monoxide and or mold in the workplace were responsible for the worker's symptoms. On October 3, 2012, the medical advisor stated:

  • There was no specific diagnosis that would cover the variety of non-specific symptoms reported. The physical examinations by various physicians have not revealed any specific diagnosis and pulmonary function tests and methacholine challenge testing had been negative and has ruled out asthma at this point.
  • The levels of carbon dioxide were not high enough to cause the symptoms reported. Typical indoor office carbon dioxide levels are in the range of 600-800 ppm. Elevated levels function only as an indicator that building ventilation should be improved. "ACGIH, An American Industrial Hygiene group has published TLV (threshold limiting values) guidelines for carbon dioxide in confined spaces at 5000 ppm, based on long-term exposure studies."
  • No specific workplace restrictions are warranted and improvements to the building ventilation would be appropriate.

On October 16, 2012, the worker was advised that the WCB was unable to establish an accident arising out of and in the course of her employment and therefore her claim for compensation was denied. The case manager considered the following factors when making her decision:

  • Air quality testing results showed that the carbon dioxide results were at 900 ppm. The rating showed that an improvement in the building ventilation system was warranted however it was not an indicator for a health hazard. A small amount of mold was noted in the basement and the humidity levels were below average for an office environment.
  • The Environment Specialist noted that the worker's pulmonary function tests and methacholine challenge tests were normal.
  • When seen by an allergist in 1992, the worker had reactions to tobacco and Hormodendrum. When examined in August 2012, the workers eyes, ears, nose and chest had essentially normal findings. No testing was done at the time.
  • The opinion expressed by the WCB medical advisor dated October 3, 2012.

On November 13, 2012, the worker appealed the case manager's decision to Review Office. The worker indicated: "Regardless of the ratings that you suggest in the workplace as acceptable we are working in a over-crowed (sic) house not a commercial building with steam heat, no forced air furnace with proper ventilation or ducts in order to supply fresh air through an air exchanger. I know I do not suffer these health issues once I leave the office and will continue to support the fact that this building is making us sick. As new staff and old staff suffer from inadequate fresh air sources and deal with headaches, pressure and fatigue I feel it is very unreasonable to disregard our concerns as not being building related."

On January 28, 2013, Review Office determined that the claim was not acceptable. Review Office noted that the WCB had been unable to identify any airborne pathogens from the air quality testing or through any of the worker's test results which would scientifically or medically provide an explanation for her symptoms in relation to her workplace. Any findings within the workplace of any airborne pathogens were of no greater harm than would be generally found or expected outside the workplace.

Review Office noted that the worker felt generally worse at work than when away from work. Review Office stated that this, in itself, did not provide on a balance of probabilities that her condition or symptoms were related to the workplace when all other medical and scientific findings provided otherwise. On March 8, 2013, the worker 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 Workers Compensation Act (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 medical condition was caused by an accident which both arose “out of the employment” and “in the course of her employment.”

WCB Policy 44.05, Adjudication and Compensation, Arising Out of and in the Course of Employment (the “Policy”) provides guidelines for determining this issue. It states:

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 worker’s position:

The worker was self represented at the appeal. She described her job as being responsible for carrying out complex and specialized administration responsibilities, including some human resource functions and the day to day operation of their office. There was no back up for her position, so when she was absent from work, it would take a toll on the office, as well as her workload. Her health has always been very good and she never had any breathing or respiratory problems until she started working at the location in question. She did have minor seasonal allergies but had never missed work due to these allergies.

The worker started working at the worksite location on May 25, 2010. She first noticed that by the afternoon, she and other staff were experiencing a lack of energy and they were exhausted by the end of the day. They opened windows to allow fresh air to come in, as their building was very old and had steam heat. The worker was unsure as to the exact course of events, but at some point, she moved her workstation to the basement of the building, and later to the 2nd floor. Her evidence was that over time, she developed rashes, discharge in her eyes and her lips would tingle and go numb. She would suffer from extreme headaches and pressure in her temples, problems concentrating, and had difficulty breathing with her heart pounding. She would lose her voice as her throat felt like it was being constricted. Her tongue would swell to twice its size. The more time she spent at the downstairs location, the more severe and prolonged her symptoms would become. She was eventually moved to the 2nd floor where she did not have as many breathing problems. There were, however, still times where she would have to go down to the basement and as soon as she would go downstairs, she could feel something down there that was reacting with her. The worker therefore tried to minimize her time in the basement.

Despite efforts by her employer in September 2012 to clean the worksite as recommended, she was still having headaches and symptoms. Other staff members were experiencing similar symptoms and also seeking medical attention. Workplace Safety and Health became involved, but their equipment was not able to indicate the source of the problem. There were high levels of carbon dioxide as well as a high level of moisture in the basement. An open grate was identified as having a large amount of air flow coming out of it and there was a recommendation that it be capped. The worker felt that this was not done very effectively. The worker's evidence was that the building was very old, with asbestos pipes in the basement, steam heat and various pipes and tunnels connected to the building. There was also rodent activity in the basement.

The worker had seen not only her family physician, but also a homeopathic doctor and an occupational health specialist. After her first contact with the WCB in August 2011, she visited numerous doctors at walk-in clinics to document her symptoms. Her treatment providers supported the position that her symptoms seemed to be work related as the symptoms were not experienced when she was at home or when she left the building.

In December 2012, an air exchanger was installed in the building. Post-installation, the worker still had symptoms but not so severe as to cause her to miss work. Her headaches were still present, her tongue still swelled and she had difficulty breathing at times. Her concentration was also still affected.

The worker felt that her symptoms were related to her work environment as she did not suffer these effects at home. When she went to work, after a short period of time, she would get a funny taste on her tongue and then the symptoms of headaches and trouble concentrating would start. The worker felt that she had a responsibility to try and find the answers and that she had spent an enormous amount of time trying to figure out what was happening to her and the other staff. She felt that the effects of the mold and carbon dioxide in the workplace were contributors, as well as other contaminants in the building.

The employer’s position:

A representative from the employer appeared at the hearing. The employer noted that with an allergy claim, one of the difficulties is trying to figure out what is causing the issue. In order to be compensable, a condition must have been the result of an accident arising out of and in the course of employment. From the employer's perspective, if the hazard in the workplace is not identified, the employer cannot correct it. In this case, there was IAQ testing in 2009 and 2011, following which there were some changes made. More recently, there had been further investigations and the employer was in the process of trying to move the office, but was having difficulty finding alternate space.

The Act is intended to compensate for workplace injuries. It is not a general insurance program which covers non-occupational injuries. Before there can be coverage, the WCB must satisfy itself that the accident arose both out of and in the course of employment. The difficulty with this claim was establishing that the injury was related to the employment. Overall, the employer was in agreement with the decision made by the WCB but acknowledged that it would be helpful to have more information, such as allergy testing, which would be relevant to adjudication of the claim.

Analysis:

In order for the worker's appeal to be successful, the panel must make a positive finding that the environmental conditions to which she was exposed while performing her duties at the employer's premises were responsible for her medical condition. The panel must be satisfied that some environmental factor constituted a hazard which was responsible for any or all of the worker's reported symptoms. On a balance of probabilities, we are not able to make that finding.

This was a very difficult case to decide. The temporal connection between the onset of symptoms and workplace exposure was compelling, but ultimately, was not sufficient to establish a causal relationship between the work environment and the worker's medical condition. A work-related hazard has not, on a balance of probabilities, been established.

Despite numerous medical investigations, the worker's physicians were not able to identify a cause for the worker's complaints of symptoms. There was no evidence of a specific allergic reaction. In 1992, the worker had been seen for allergy testing at which time she showed reactions to hormodendrum and tobacco. The worker advised that more recent allergy testing, however, indicated no allergy to mold and only a reaction to dust mites. At the time of the hearing, the worker continued to smoke occasionally.

The medical reports from various physicians outlined a wide variety of symptoms reported by the worker, including headaches, eye irritation, tongue swelling, shortness of breath, vision changes, myalgias, arthralgias, fatigue and unexplained rashes. Observed physical findings were minimal and limited to mild tongue swelling, lips a little swollen and voice hoarse.

At the hearing, the worker reported experiencing tongue swelling to such a degree that her tongue swelled to twice its size and the imprint of her teeth were left on her tongue. She also reported experiencing a tinny taste on her tongue. Other symptoms reported at the hearing included inability to concentrate and memory loss. The October 3, 2012 report of the WCB medical advisor opined that there was no one specific diagnosis that would cover the variety of non-specific symptoms reported.

It is unfortunate, but given the wide ranging symptoms reported and the inability to identify a specific allergic reaction or toxin, the panel is unable to conclude on a balance of probabilities that there was a hazard in the workplace which was causing the worker's symptoms. There simply is not enough evidence that there was indeed a workplace exposure which was causing injury to the worker. In the absence of a causative environmental factor, the panel must conclude that the worker's injury did not arise out of and in the course of her employment and that her claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 9th day of August, 2013

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