The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A hearing was held via teleconference on January 28, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker is entitled to wage loss benefits for August 12, 2013 in relation to his compensable injury of July 19, 2013.

Decision

That the claim is acceptable; and

That the worker is entitled to wage loss benefits for August 12, 2013 in relation to his compensable injury of July 19, 2013.

Decision: Unanimous

Background

While inside his work vehicle on July 19, 2013, the worker was stung by a wasp on the palmar aspect of his right hand. On July 21, 2013, the worker attended a hospital facility for treatment because of an infection caused by the wasp bite. The worker missed work on July 22 and 23, 2013 and returned to his regular work duties on July 24, 2013.

On August 16, 2013, the worker advised the WCB that he missed work on August 12, 2013 due to abdominal pains/diarrhea which he believed was caused by the medication he was taking for the July 19, 2013 wasp bite.

The WCB obtained information concerning the worker's medical treatment on August 12, 2013. On August 30, 2013, a WCB medical advisor confirmed that the worker's antibiotic associated diarrhea was related to his workplace injury of July 19, 2013.

In a letter dated September 9, 2013, the employer was advised that the WCB was accepting that the worker's right hand injury had arisen out of and in the course of his employment and that the worker was entitled to wage loss benefits for July 22 and 23, 2013 and August 12, 2013. On September 9, 2013, the employer appealed the WCB's decision to accept the worker's claim and to pay wage loss benefits.

On October 31, 2013, a second WCB medical advisor reviewed the file information and stated:

• The current diagnosis was Clostridium difficile ("C. difficile"), secondary to antibiotic use for infection resulting from the workplace wasp sting.
• Recovery from this condition can take up to several months.
• Flagyl is required to treat the infection.

On October 31, 2013, Review Office considered the employer's appeal and confirmed that the worker was in the course of his employment on July 19, 2013 and that the wasp sting constituted a chance event arising out of the worker's employment. Review Office confirmed that the worker was entitled to wage loss benefits for July 22 and 23, 2013 as he attended medical appointments on these dates as a direct consequence of the insect bite.

With respect to wage loss benefits on August 12, 2013, Review Office placed weight on the WCB medical opinion of August 30, 2013 that the worker's use of antibiotics to treat his compensable infection led to the development of his bowel problem. Review Office determined that the secondary infection, specifically C. difficile, was a compensable injury or a further injury arising out of the delivery or treatment for the original injury. It therefore concluded that the worker was entitled to wage loss benefits for August 12, 2013.

On November 4, 2013, the employer appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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 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, 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.

WCB Policy 44.10.40.10, Insect Bites (the “Insect Bites Policy”) specifically addresses injury caused by insects. It provides:

Insect bites or stings will be considered as chance events occasioned by a physical or natural cause and will be considered compensable when it is determined that they arise out of and in the course of employment and disable a worker.

The Administrative Guidelines to the Insect Bites Policy further provides as follows:

The WCB will consider the nature of the worker's employment when determining if the incident arose in the course of employment.

Where the nature of the employment caused the worker to have increased exposure to insects (e.g. the worker was employed as a gardener), it is more likely that the insect bite(s) occurred in the course of employment. However, an office worker's claim for a bee sting may require further substantiation to determine if the definition of accident has been met.

The employer’s position:

A representative from the employer participated in the hearing via teleconference. The employer was appealing both the WCB's decision to accept the claim, as well as the decision to allow wage loss benefits for August 12, 2013. With respect to claim acceptability, the employer noted that just because a worker was in the course of employment, this did not necessarily mean that the worker was covered by WCB because there also must be a determination of risk exposure. The material contribution test must be applied to determine causation. It was submitted that in this case, there were no real employment factors which would attract wasps and that being stung by a wasp was not a typical or normal hazard to which the worker was exposed. The worker was not in a greater position of hazard and therefore the claim should not have been accepted by the WCB.

With respect to the payment of wage loss benefits for August 12, 2013, the employer's position was that the WCB and its medical advisor did not take into consideration the fact that the worker had some underlying diseases and that he took various types of medication which were not related to his workplace injury. These factors were not taken into account when the WCB medical advisor gave the opinion that the worker's secondary C. difficile infection was related to antibiotics taken for the wasp sting. It was also noted that the worker did not develop the secondary condition until three and a half weeks after the initial dose of the antibiotics. The employer submitted that on the balance of probabilities, there could be more than one trigger to the onset of C. difficile and therefore the WCB made an error in deciding that the worker was entitled to wage loss benefits for his time loss on August 12, 2013.

The worker’s position:

The worker was self-represented at the appeal hearing. The worker acknowledged that in some regards, the employer was correct in saying that the work did not necessarily expose the worker to increased risk of being stung by a wasp. In this situation, however, the worker stated that he was driving in a vehicle supplied and required by the employer with the windows rolled up when he was stung by the wasp. The worker felt that there were two contributing work factors that attracted wasps to the vehicle. First, the smell of gasoline was a trigger which brought the wasps into the vehicle. Second, the worker was wearing a highly decorative vest which was florescent in colour. It was submitted that this also attracted the wasp towards the vehicle.

With respect to the wage loss resulting from the secondary condition, the worker acknowledged that he suffered from another medical condition; however, his treating physician advised that under no circumstances would the C. difficile have occurred regarding his other medical condition. This was a different incident which was not related.

Analysis:

In order for the employer's appeal on claim acceptability to be successful, the panel must consider the nature of the employment and find that the environmental conditions to which the worker was exposed in the course of his employment on July 19, 2013 did not substantially contribute to the wasp sting. On a balance of probabilities, we are not able to make that finding.

Contrary to the worker's submission, the panel does not feel there is sufficient evidence before it to conclude that either the smell of gasoline or the florescent color of the worker's vest acted in this case to attract the wasp into the vehicle. We do, however, note the worker's evidence at the hearing that while in the work vehicle, he would keep the windows closed. The only time when the windows would be rolled down was when the worker had to periodically get out of the vehicle to perform his duties. The reason for keeping the window down was because sometimes the doors would lock when the driver stepped out of the vehicle. The worker's practice was therefore to roll the window down when he left the vehicle and then he put it back up once he returned to the driver's seat. In the panel's opinion, the fact that the worker was required to keep the window rolled down while performing his duties increased the likelihood that an insect could enter into the vehicle. The worker estimated that he would spend the majority of his eight hour shift driving around in the vehicle and in the panel's opinion, while he was inside the vehicle, the worker was exposed to increased risk of contact with the insect, with little ability to avoid such contact while the vehicle was in motion. The panel also notes that once confined in the vehicle, there was a greater likelihood of aggressive behavior on the part of the insect. The panel is satisfied that the nature and conditions of the worker's employment were sufficiently unique such as to create increased exposure and a potential hazard which in this case resulted in the wasp sting. We therefore find that the wasp sting arose out of and in the course of employment, and that the claim was properly accepted by the WCB. The employer's appeal on this issue is dismissed.

With respect to the issue of entitlement to wage loss benefits for August 12, 2013, the panel finds that the worker is entitled to wage loss benefits for his time loss on August 12, 2013 which was caused by the effects of the C. difficile condition, which we find was a secondary injury. The WCB medical advisors clearly related the development of the C.difficile symptoms to the antibiotics taken for the original compensable wasp sting injury and the file indicates that the medical advisors were aware of the worker's other medical condition. Further, the worker's evidence at the hearing was that the medication he took for the other condition never changed during the relevant time. He had been on the same dosage for approximately a year and a half and had never had any complications with diarrhea or stomach cramping with its use. As such, the panel finds that the C. difficile is more likely to be related to the new antibiotics which were taken for the wasp sting, as opposed to the medication which was being taken for the other medical condition.

We therefore find that the worker is entitled wage loss benefits for August 12, 2013 in relation to his compensable injury of July 19, 2013. The employer's appeal on this issue is also dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 21st day of March, 2014