The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny his claim for respiratory difficulties which he attributed to the chemicals he was exposed to at his workplace. A hearing was held on May 29, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On March 1, 2011, the worker filed a claim with the WCB for respiratory difficulties that he related to chemicals that he was exposed to in his workplace. The worker stated:

I am allergic to chemicals at work. I get shortness of breath, dizziness, headache, my eyes get burning and inflamed. Eyes get weepy. I inhale these chemicals all the time. I work in this environment 8 hours per day. When I am not at work, I feel okay. When at work, I get all the symptoms. The doctor has asked for a list of all chemicals.

The date of accident was November 8, 2010 and it was reported to his employer on December 21, 2010. The worker indicated that he delayed in reporting as he thought he would find out sooner which chemicals he was allergic to.

Information from the employer as outlined in the Employer's Accident Report dated March 8, 2011 stated:

April 2010 the worker presented to the company a medical note from 2006 indicating he needed to stay away from chemicals. The worker was accommodated in the office environment while the company tried to validate the outdated medical restriction. The worker was asked on several occasions even prior to the accommodation to provide the company with a list of chemicals he is allergic too. He was advised that the accommodation was temporary, and was informed that the accommodation would end if the requested information was not provided.

By November 2010 the worker did not provide the company with the list of chemicals to support his claims. His accommodation in the office ended and he returned to his assembly tech position on November 22/10. December 21/10 the worker was sent home because he refused to perform the necessary assembly tech duties and his manager could not keep the worker safely away from potential unknown irritants.

The WCB obtained medical information which consisted of test results and consultation reports dating back to 2005. These reports were reviewed by a WCB medical advisor on July 6, 2011. The WCB also spoke with the worker and his employer to gather additional information related to the worker's job duties, work history, reporting details, medical symptoms, the use of respiratory apparatus and the type of chemicals that were used in the workplace.

On July 11, 2011, the worker's claim for compensation was denied as the WCB was unable to confirm that the workplace chemicals were the cause of the worker's respiratory difficulties. The decision stated:

"You have indicated as an Assembly Technician and Technician Plastics you have become sensitized to methyl ethyl Ketone (MEK) and other solvents used on parts. You are exposed to these chemicals eight hours a day...your claim was reviewed in consultation with the Workers Compensation Board (WCB) medical advisor. The advisor confirmed a pre-existing allergy to dust mites and mould, sleep apnea and previous bilateral cataract surgery. There is no evidence to support aggravation or enhancement of these conditions. He also noted there have been no reports of a specific chemically induced allergy and no past or current history of asthma on the medical reports. He further states respiratory irritants are capable of causing irritation of the nose, throat, eyes and headaches however these symptoms would be temporarily (sic) and not necessitate a prolonged absence from the workplace. These irritants can be avoided by use of engineering controls and the use of protective clothing, gloves and a respiratory mask. A diagnosis of sleep apnea is not a contradiction to the use of a respirator mask...Although the medical findings indicate you express complaints of irritation of the nose, throat, eyes, dizziness and headaches, there are no objective findings confirming that the exposure to irritants at work (dust and chemicals) is the cause of your respiratory difficulties."

On October 27, 2011, the worker's union representative contended to Review Office that the worker's claim for compensation was acceptable on the basis of an occupational disease. On November 28, 2011, Review Office referred the claim file back to Rehabilitation and Compensation Services to conduct a further investigation of the claim and to provide the worker with a new decision.

Following receipt of medical chart notes and a report from the allergy specialist dated February 24, 2012, the file was again reviewed by the WCB medical advisor on March 26, 2012.

On April 23, 2012, the worker was advised that there would be no change to the previous decision to disallow his claim. The letter stated:

"...your employer confirms that on August 8, 2011 you were temporarily accommodated in an office setting away from chemicals. These alternate duties were provided at the recommendations of the specialist which was based on the assessment report and the chemical restriction check sheet.

Additional medical was received from your physician and specialist and the file was reviewed by a Workers Compensation Board medical advisor. He notes that a pre-existing asthma has not been diagnosed by objective testing. Typically, a pulmonary function test or methacholine test is the accepted method for diagnosing asthma. Based on the patch testing, allergies to dust mites and mold has been reported. The skin patching test to industrial chemicals was negative, indicating that there was no evidence of allergic sensitization to any of the chemicals tested. In the absence of sensitization to these chemicals, the chemical exposure in the workplace previously reported would be expected to cause an upper respiratory irritation only and symptoms would be temporarily and not necessitate a prolonged absence from the workplace. There is also currently no medical evidence to support a diagnosis of asthma and no specific contraindication to use a respirator face mask.

Based on new medical information received, it is the opinion of Rehabilitation and Compensation Services that a relationship between your condition and your employment activities cannot be established. According to information obtained from the specialist there is no evidence to support aggravation or enhancement of a pre-existing respiratory condition. There are no reports of a sensitization to a specific chemically induced allergy. These irritants can be avoided by use of engineering controls and the use of protective clothing, gloves and a respiratory mask. A diagnosis of sleep apnea is not a contradiction to the use of a respirator mask."

On July 25, 2012, the Worker Advisor Office appealed the WCB's decision to deny the worker's claim. It was submitted that the worker's claim was acceptable as an occupational disease

peculiar to the worker's particular employment as the evidence supported that he developed an adverse reaction due to exposure to chemical irritants in the workplace. The worker advisor stated in part:

"He reported respiratory difficulties dating back to 2006, which were attributed to chemicals in the workplace. He has confirmed exposure to chemical irritants at work and sought timely and appropriate medical attention for his resultant symptoms. The WCB's medical advisor has accepted the likelihood of chemical exposure resulting in irritation, however, the treating allergist has justified her opinion that [the worker's] reactions have been much more severe and have in essence caused a permanent sensitivity."

A submission was made to Review Office by the employer's advocate on September 24, 2012. The employer's position was that the worker's claim was not acceptable as the worker advisor provided no new information to support the acceptance based on WCB policy 44.20. The medical facts failed to identify a "disease" as required in the application of the policy.

On October 22, 2012, Review Office determined that the worker's claim was not acceptable.

Review Office noted that the worker filed his claim on March 1, 2011 after being off work for almost two and a half months. The worker's claim was for wage loss benefits from December 2, 2010 onwards, the date that his employer instructed him to go home for refusing to perform the duties of an assembly technician. When seen for treatment on December 21, 2010, the medical chart notes did not confirm that an examination was performed or that the worker provided subjective complaints that he may have been experiencing. Subsequent appointments with his doctor and an allergy specialist also failed to suggest a clinical examination was performed or that the worker reported any complaints.

Review Office accepted the WCB medical advisor's opinion that none of the accepted methods for diagnosing asthma had been performed. There was also a lack of evidence supporting the connection that any chemical sensitivity or aggravation had occurred due to workplace exposure given the absence of any documentation regarding symptomology at the time the worker ceased work.

On February 12, 2014, a solicitor acting on the worker's behalf, appealed Review Office's decision to the Appeal Commission and a hearing date was arranged.

Reasons

Applicable Legislation

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

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).

Subsection 4(4) of the Act provides:

4(4) Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

Subsection 1(1) of the Act provides the following definitions:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a willful 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;

occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than an acute reaction to a traumatic event;

The worker is appealing the WCB decision that his injury claim is not acceptable.

Worker's Position

The worker was represented by legal counsel who examined the worker and made a submission.

In answer to questions from his counsel and the panel, the worker advised:

· that he was hired as a technician and later trained to be an inspector. He described the tasks involved in each position    and explained how he used the chemicals which he believes caused his symptoms

· he would react to chemicals in certain positions when he worked as a technician

· he was able to work, symptom free, in areas of the workplace where the chemicals are not prevalent

· he was able to work, symptom free, at a position (inspector) where he did not directly use the chemicals

· in 2005 he was prescribed an inhaler for a flu and cough condition which he believes were caused from use of chemicals in the workplace. He said the condition resolved.

· the materials that he is exposed to and which he believes caused his reaction include a cleaner MEK, and sealants BMS5-95- Proseal 870A, BMS5-95 N CL - B1/2-Proseal, BMS5-92, and BMS5-142,

· he last worked on the employer premises on September 6, 2013 when he was sent home by the employer

· he has not sought further medical attention since being sent home

· his current health status is very good

Regarding his reaction to the chemicals, he advised that:

· he has not had to leave work early due to a reaction in the workplace

· he has not missed work due to a reaction in the workplace

· he recovers from workplace exposure in about 15 minutes after leaving the workplace

· he has not had a severe reaction and is not aware of the condition anaphylaxis

· he has not been prescribed an Epipen (epinephrine autoinjector) or other medication for anaphylaxis

· he has not been tested for asthma

· when he works with chemicals he experiences symptoms including: headaches, dizziness, drowsiness, shortness of breath, nausea, eye inflammation, burning and tearing eye

· in addition to the chemicals at work, he has trouble with cigarette smoke. About 3 months ago he was exposed to a cloud of smoke which caused a sore throat and very bad cough.

The worker's representative submitted that the worker's claim is acceptable. He advised that the worker agrees with the July 25, 2012 submission by the Worker Advisor Office that the worker has developed a permanent sensitivity and that the claim is acceptable as an occupational disease peculiar to his particular employment because the evidence supports he developed an adverse reaction due to exposure to chemical irritants in his workplace. The worker's representative submitted that the worker has developed asthma as a result of his workplace exposure.

In support of his position, the worker's representative noted that the worker saw an allergist who diagnosed the worker with asthma. He noted that in a report dated April 6, 2011, the allergist advised that she cannot tell which particular agent is aggravating the worker, except by his own history. The allergist completed a Chemical Restrictions Check-Sheet in April 2011 which indicated that the worker is subject to severe asthma/anaphylaxis if exposed to the particular chemicals noted to be present in the workplace. In a further note dated February 24, 2012, the allergist advised that "I stand by the severity listed to Epoxy resin, Pro-Seal 870A, BMS5-95 NCl-B1/2 Pro-Seal and BMS5-142 compound on the chemical restriction check sheet dated April 29, 2011."

The worker's representative noted that the allergist placed significant emphasis on the worker's history in making her recommendations. He submitted that it is within the allergist's scope of expertise to provide an opinion on the relationship between the worker's symptoms and exposures.

The worker's representative also noted other physicians supported the worker's position that it is possible for the worker to react to substances in the workplace. He referred to the worker's current family physician who suggested that "the best way to approach this situation is to re-assign [worker] to an area where he is no longer exposed to the things that he believes causes his problem." He noted that the employer's physician also expressed concern about the worker's sensitivity and reactions to substances in the workplace and that the WCB medical advisor acknowledged that some of the chemicals appear to be potential respiratory irritants and upper respiratory irritation is possible.

The worker's representative acknowledged that there is no definitive statement by a physician that the workplace exposure caused the worker's symptoms but said that it is probable that it caused the symptoms and that this meets the evidentiary burden of proof on a balance of probabilities.

The worker's representative suggested that the panel should give weight to the worker's evidence as he testified in a straight forward manner, answered questions spontaneously without hesitation and without contradictions.

Employer's Position

The employer was represented by an employer advocate and accompanied by the employer's Claims Administrator, HR. The employer representative outlined the employer's position and answered questions from the panel.

The employer representative submitted that the claim is not acceptable as an occupational disease under the Act and WCB Policy 44.20 because there is no diagnosis of disease on the file. She acknowledged there is a series of symptoms but no diagnosis. She noted that the only restriction on the claim is to avoid dust mites and mold. She noted that the worker's allergist had access to all the MSDS (material safety data sheets) pertaining to the chemicals used in the workplace but did not provide a diagnosis. She also noted that the worker was not tested for asthma.

The employer representative advised that the worker failed to provide medical information regarding the substances that he is allergic to so that the employer could address the issue of the worker's return to work.

The Claims Administrator advised there are approximately 1200 bottles of MEK on the employer's premises. He also confirmed that the worker remains an employee of the employer.

Analysis

The issue before the panel is whether or not the worker’s claim for respiratory difficulties is acceptable. At the hearing, the worker's representative argued that the worker's condition was asthma and chemical sensitivity. In order for the worker's appeal to be successful, the panel must find on a balance of probabilities that the worker sustained an injury by accident arising out of and in the course of employment.

After carefully reviewing the evidence on file and the evidence submitted at the hearing, we are unable to find that the worker sustained injury by accident. We are unable to find that the worker developed or acquired an occupational disease. Accordingly, we dismiss the worker's appeal.

We attach weight to the worker's evidence at the hearing in support of our decision. In reply to questions the worker advised that:

 ·he has not had to leave work early due to a reaction in the workplace

· he has not missed work due to a reaction in the workplace

· he recovers from workplace exposure in about 15 minutes after leaving the worksite.

· he has not had a severe reaction and is not aware of the condition anaphylaxis

· he has not been prescribed an Epipen (epinephrine autoinjector) or other medication for anaphylaxis due to exposure to   any substance

· he is not sure that he has asthma

· he has not been tested for asthma

We find that the above information is not consistent with a finding that the worker has asthma/anaphylaxis.

We attach significant weight to the March 26, 2012 opinion of the WCB medical advisor who opined:

My first comment after reading [allergist's] February 24, 2012 letter is that asthma has not been diagnosed to date with any objective testing. The accepted methods for diagnosing asthma include: a history compatible with asthma, and pulmonary function tests (evidence of reversible respiratory obstruction) or methacholine tests confirming the clinical suspicion. I see none of these investigations on file. Allergies to dust mites and mold have been reported, based on skin tests done, but there have been no formal pulmonary function tests performed to my knowledge. The skin patch testing to industrial chemicals was negative indicating that of the chemicals tested, there was no evidence of allergic sensitization by any of the chemicals tested. In the absence of sensitization to these chemicals, the chemical exposure in the workplace previously reported would be expected to cause upper respiratory irritation only.

...If specific pulmonary function testing is done which indicates that [the worker] is indeed asthmatic, then I will review the file again.

We note the report of the family physician who provided medical services to the worker between April 2009 and January 2010. This physician reported that in his opinion, the worker's only respiratory condition is that of moderate obstructive sleep apnea. He also opined that no causal relationship exists between the worker's sleep apnea and any exposure to chemicals and solvents at his workplace. He advised that during his contact with the worker "...he never complained of any symptoms regarding his respiratory health apart from a solitary upper respiratory tract infection and no ongoing difficulties with coughing, wheezing, dyspnea or chest discomfort." We note that during a portion of this time period, the worker worked in an area with the chemicals that he believes cause his symptoms.

At the hearing, the worker's representative submitted that the panel should accept the worker's allergist opinion that the worker has asthma/anaphylaxis. In her February 24, 2012 report the

allergist refers to the worker's severe reactions. When asked about severe reactions, the worker could not recall a severe reaction and he said that he recovers from exposure within 15 minutes of leaving the workplace. We did not find evidence of a severe reaction by the worker to chemicals in the workplace.

We also note that the tests generally used in diagnosing asthma appear not to have been performed and are therefore we unable to find that the worker suffers from asthma.

Regarding the irritation which the worker complained of, we note that the WCB medical adviser opined that "the irritants can be avoided by the use of engineering controls and the use of protective clothing, gloves and a respirator mask." The panel also noted the irritation mentioned in the worker's incident report was related more to his eyes: burning, inflamed and weepy. File evidence confirmed these symptoms were present following the worker's bilateral cataract surgery and return to work on modified duties.

In conclusion, we find, on a balance of probabilities, that the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
B. Simoneau, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 9th day of June, 2014