The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding the duration of wage loss benefits related to her compensation claims for accidents occurring on July 18, 2011 and August 21, 2011. A hearing was held on October 8, 2014 to consider these matters.

Issue

Date of Accident: July 18, 2011:

Whether or not the worker is entitled to wage loss benefits.

Date of Accident: August 21, 2011:

Whether or not the worker is entitled to wage loss benefits after August 22, 2011.

Decision

Date of Accident: July 18, 2011:

That the worker is not entitled to wage loss benefits.

Date of Accident: August 21, 2011:

That the worker is not entitled to wage loss benefits after August 22, 2011.

Decision: Unanimous

Background

Date of Accident: July 18, 2011

The worker filed a claim with the WCB for symptoms she experienced on July 18, 2011 which she related to her exposure to fragrances in the workplace. The worker reported symptoms of headache, sinus pain and a burning sensation in her eyes.

On July 20, 2011, the treating physician completed a Sickness/Wellness Certificate which stated in part that the worker was fit to return to work. The physician also indicated that depending on the worker's symptoms and work environment, she could stay off work between July 21 and 25, 2011.

On August 22, 2011, a WCB case manager spoke with the worker regarding her claim. The worker indicated that she had allergies to scents, certain medications and MSG. The worker indicated that she had seen an allergist in the past but not recently. She noted that scents at the workplace had caused her problems over the years and she was on the health and safety committee because of it. The worker indicated that she supposedly worked in a scent free environment and that it was suggested or reminded to people not to wear scents. This was not enforced by the employer and she continually had reactions due to her co-workers wearing scents in the workplace.

The worker stated that she had been exposed to visitors who had entered the workplace who wore scents and there was nothing she could do to avoid them. When the employer removed her from having interactions with the visitors, she got better. Her difficulties were mainly with co-workers who continually wore scents and she likened the exposure to perfume/scents, to chemical poisoning.

The worker indicated that she saw her treating physician on July 20, 2011. She was advised to remain off work until July 25, 2011 to give her employer the opportunity to make a safe work environment. The worker indicated that she lost time from work on July 22 (7 hours), July 23 (8 hours) and July 24 (8 hours). She was fine at the beginning of her shift on July 18, 2011.

The worker also stated that on August 21, 2011, she walked into a manager's office and was hit with a wall of cologne. The office was thick with it so she backed out of the office. The worker indicated that she went out to get some fresh air and shortly after this, a visitor who wore heavy perfume, came to speak with her and she got away from her as quickly as possible.

In a report to the WCB dated September 3, 2011, the treating physician indicated that the worker suffered from migraines and allergic/vasomotor rhinitis from exposure to colognes or perfumes.

He noted that the worker should not be working in positions with the likelihood of heavy exposure to these substances.

On November 2, 2011, the WCB case manager accepted the worker's claim for compensation as a no time loss claim and medical bill payments were made by the WCB.

On July 31, 2012, the WCB case manager called the employer and spoke with the worker's previous manager as her current manager was not available. He noted that he was the worker's manager last year when the worker was having a lot of sensitivities at work. The worker was obviously affected by perfume or cologne exhibiting physical symptoms and he would place her in a different office away from the smell and sometimes would direct her to go home. The worker had a very sensitive nose to smells. He said the employer tried to accommodate her in different areas to keep her away from visitors as the visitors wore copious amounts of perfume. He said they tried to enforce a non scent policy in the workplace but this was difficult to enforce.

In a decision dated July 31, 2012, the worker was advised that the WCB accepted her claim for the event of July 18, 2011, however she was not entitled to any wage loss benefits as the medical documentation did not provide clinical findings to support ongoing time loss away from work. The case manager made note that a 1 to 2 day time loss after an event was reasonable based on a WCB healthcare opinion. In early August 2012, the worker appealed the decision to Review Office.

On October 12, 2012, Review Office determined that the worker was not entitled to wage loss benefits between July 18 and 24, 2011 related to the symptoms produced by her exposure to fragrances at work on July 18, 2011.

Review Office accepted that the worker suffered a compensable aggravation (caused by fragrances at work), of her non-compensable respiratory condition, which leaves her susceptible to flare-ups. In Review Office's opinion, the WCB was responsible only for the effects of the aggravation occurring on July 18, 2011, which according to medical opinion on file would have resolved within 48 hours.

Review Office was satisfied that the worker's absences from work from July 22 to 24, 2011 was a preventative measure to avoid a flare-up of her non-compensable respiratory condition, rather than being necessary due to any residual effects of the compensable at-work aggravation on July 18, 2011. Any accommodations made by the employer to assist the worker in avoiding flare-ups of her condition were considered to be labour/management issues which are not under the jurisdiction of the WCB.

Date of Accident: August 21, 2011 claim:

At the advice of the WCB case manager, the worker filed a claim with the WCB for the events that occurred on August 21, 2011 when she suffered various symptoms at work when she was exposed to thick cologne when entering a co-worker's office and from another co-worker who was "covered in cologne." On the same day, the worker indicated that she was stopped by a visitor on the employer's premises who was also wearing perfume. The worker indicated that her symptoms including pounding in her ears, eyes, throat and head pain.

On August 23, 2011, the worker spoke with her WCB case manager and confirmed the events that occurred on August 21, 2011 as was outlined in the Worker's Report of Injury. The worker advised that due to her exposure to scents on August 21, she could not sit up, walk, think or focus. She had a severe headache and took medication for it. The worker noted that she attended a walk-in clinic on August 22, 2011 and the first available appointment with her family doctor was on September 14, 2011. The worker indicated that she was not returning to work unless her employer could guarantee she would have a safe work environment.

On December 12, 2011, a WCB medical advisor responded as follows to questions posed by the WCB case manager:

What is the reasonable time loss for aggravation of her pre-existing condition?

1. No allergic cause has been reported and following exposure to irritant environmental chemicals such as perfume, 1 - 2 days time loss after exposure is reasonable.

This worker remained off work until her employer could accommodate her in a different work environment. Are you in agreement to this?

2. Within reason. True allergy to perfume scent is quite unlikely and there is no evidence to support this. Anaphylactic reaction to perfume is quite unlikely. In this specific instance, her symptoms would be considered irritation secondary to a chemical irritant (perfume). The science supporting such relationships is fuzzy and inconclusive and there is no reliable diagnostic test for fragrance-sensitive individuals. Generally, if a person is sensitive to fragrances such as perfume, they may feel more comfortable at arm's length away from a person wearing that fragrance. Unfortunately, anxiety over exposure to an irritant scent can sometimes result in a desire to isolate oneself from fear of coming into contact with the irritant.

At the request of her treating physician, the worker was seen by a respiratory specialist on January 24, 2012. His impression was that the worker had vasomotor rhinitis which was triggered by irritants such as perfumes and colognes and other chemicals. The worker was instructed to continue using nasal steroids and to continue with irritant avoidance as best she could.

In a memo to file dated February 15, 2012, the WCB case manager documented that the worker returned to work in September 2011 and was accommodated with a different work area but she was still subjected to perfumes and colognes. On October 7, 2011, the worker went off work as she felt emotionally drained as nothing had changed at work.

In a memo to file dated May 2, 2012, the WCB case manager documented information she obtained from the worker's manager. The manager stated that he worked with the worker when she was already off work in October. He stated that he was trying everything possible to accommodate the worker in a position that did not expose her to scents. However, he would receive doctor's notes and her susceptibility to different things seemed to constantly change. It was an extremely difficult accommodation but there were jobs available where the worker could be accommodated.

In a further conversation with the worker's manager on May 2, 2012, the WCB case manager documented the following:

• the co-worker identified by the worker adamantly stated that he was not wearing any cologne when the worker came to his office on August 21, 2011. He could not recall if he had deodorant on but if he did, it would not have been an excessive amount.
• the second co-worker identified by the worker had since retired and it was not confirmed that he had contact with the worker on August 21, 2011.
• the manager could not control exposure to scent from the general public (the visitor).
• the worker had a lot of freedom in her job and if exposed to any scents she could get up and walk away from it. Any exposures would have been minimal.

On June 29, 2012, the worker was advised that her claim for compensation was denied as the case manager was unable to confirm through the employer that the worker had been exposed to scents on August 21, 2011. Therefore the WCB was unable to establish that an accident arising out of and in the course of her employment had occurred. On July 22, 2012, the worker appealed the decision to Review Office.

On October 18, 2012, Review Office determined that the worker's claim for compensation was acceptable. Review Office's opinion was that the worker did suffer an exacerbation of her underlying allergic condition when exposured to scents at work on August 21, 2011. This was based on the worker's self reporting to co-workers and the findings of the physician that she attended the following day. Review Office indicated that responsibility should only be approved for the short term effects of the compensable aggravation of her underlying respiratory condition which occurred on August 21, 2011. Review Office indicated that any accommodations made by the employer to avoid flare ups of her underlying non-compensable respiratory condition, are labour/management issues which are outside the jurisdiction of the WCB.

Based on Review Office's decision, the worker was advised on November 1, 2012 that she would be paid time loss for August 22, 2011 inclusive. In January 2014, the worker appealed the decision to Review Office.

On March 20, 2014, Review Office determined that the worker was not entitled to wage loss benefits after August 22, 2011. Review Office noted that the worker's exposure to scents in the workplace caused her to have a reaction on August 21, 2011. The worker left early that day and did not return to work until September 17, 2011. The worker stated that she was following the direction given to her by the attending physician when he recommended that she not return to work until the employer enforced the no-scent rules within the workplace.

Review Office noted that the reaction the worker developed on August 21, 2011 was compensable. Review Office indicated that the medical evidence supported that the worker suffered a loss of earning capacity while her reaction resolved. Once the irritant was removed, the reaction to the irritant would have resolved within a few days. The worker's treating physician recommended the worker avoid future reactions but did not provide evidence of disability beyond that of the opinion offered by the WCB medical advisor (1-2 days time loss after exposure was reasonable.)

Review Office noted that the worker missed one shift on August 22, 2011 and then was scheduled off for August 23 to 25, 2011 as part of her regular days off. Review Office found a loss of earning capacity "arising out of and in the course of employment" in relation to the August 21, 2011 accident occurred only on August 22, 2011. This was the only medically justified day off where the worker experienced a loss of earning capacity.

On March 25, 2014, the worker appealed Review Office's decision on both claims to the Appeal Commission and an oral 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 WCB's Board of Directors.

The worker is employed by a federal government agency or department and her claims are adjudicated under The Government Employees Compensation Act (“GECA”). She has two accepted claims and is seeking wage loss benefits on each claim. The key issue to be determined by the panel, as it relates to both accidents, deals with the extent to which she suffered a loss of earning capacity as a result of her workplace injuries.

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years. The panel finds this provision to be applicable in the worker's appeal.

Worker's Position

The worker was represented by her union representative who made a submission on her behalf. The worker answered questions from her representative and the panel.

The representative addressed the underlying cause for each claim and the requests for wage loss on each claim. She noted that the worker has been diagnosed by an ENT specialist with vasomotor rhinitis which is triggered by irritants such as perfumes and colognes and other chemicals. She advised that the worker's condition is a pre-existing condition and has been worsening in recent years. She said that it has been difficult for the worker to avoid irritants in the workplace, notwithstanding attempts to accommodate the worker. She said that the accommodation did not prevent or diminish the worker's reactions.

The worker advised that she started working with the employer in the 1980s. She transferred to her current position in 2006. She deals with residents of a facility, members of the public and co-workers. Many people she deals with on a daily basis wear fragrances. There are also substances in the workplace which can elicit a reaction.

She advised that her condition began in the 1980s. She found that she was sensitive to colognes, cleaning materials and solvents. At first, her reactions were not significant but over time have become very serious and debilitating. Her symptoms can include nausea, nasal and throat irritation, poor concentration and migraine headaches.

Regarding her July 2011 injury, she said it was her worst reaction ever to exposure to substances. She advised that after she was exposed she left work suffering a severe migraine headache. She saw her family physician who provided a Sickness/Wellness Certificate dated July 20, 2011. The physician indicated that the worker can return to work "July 21 to July 25/11 depending on symptoms and work environment." The worker's position is that her family physician provided medical authorization for her to be away from work until July 24, 2011 and that she should be paid wage loss for this period.

The worker advised that she returned to work but had symptoms on a daily basis. On August 21, 2011, she suffered another significant exposure when she entered the office of a co-worker which smelled of cologne. She had further exposures on this date and left work.

The worker returned to work on September 17, 2011 and worked until October 7, 2011. She said that by this point her medications were not providing relief. Her family physician advised her to take time-off.

She said she returned on November 4, 2011 but as there was no appropriate accommodation, she stopped work. She did not return to work and ultimately retired from her employment in 2014. She said that her physician advised her not to return to an unsafe area.

The worker said that while the employer has offered some accommodation to the worker, the accommodated positions did or would not prevent exposures. She said that the exposures can come from fragrances worn by co-workers, residents and visitors. She believes that some co-workers and residents will wear excess fragrance intentionally knowing that she will have a reaction.

The worker's representative noted that the family physician suggested that it can take up to several weeks for the worker's medications to be effective. She noted that the employer did not contest that the worker suffered the reactions and was aware of the worker's difficulties in the workplace. She advised that the employer only offered one accommodated position although it did note there were other avenues to pursue. The worker acknowledged that an offer to take residents off-site was not acceptable because it conflicted with her personal schedule. She also said that the nature of her duties prevented her from just leaving the work area.

The worker's representative advised that the worker is seeking benefits for July 19 to 24, 2011 and beyond August 22, 2011.

Employer's Position

The employer was represented by a manager who advised that the employer agreed with the Review Office decision. The employer representative described the physical layout of the workplace. He said that it was available for the worker to leave an area if she was not feeling well. He advised that they discussed possible accommodations but said that the issue was complicated because the worker was also being accommodated to deal with an unrelated personal issue and identified new concerns when a possible accommodation was identified.

Analysis

The panel finds that in adjudicating this claim, it must focus on the injury that the worker sustains from exposure to the substance. The worker's sensitivity is not the injury, rather the injury is the reaction that develops from the workplace exposure. [The evidence on file is that].

It is the reaction which leads to the worker's increased medical difficulties and her absence from work. Once the symptoms have resolved, the worker is fit to return to work although she continues to have sensitivity. The worker's sensitivity is not a compensable condition. There is no evidence that the worker's employment caused the worker's sensitivity. There is also no evidence that the worker's employment enhanced the worker's sensitivity. Therefore, the worker is only eligible for wage loss benefits on the dates that she has confirmed debilitative symptoms from the exposure which prevent her from working.

The panel finds that actions such as remaining away from work to avoid exposure are not injuries for which wage loss is payable under the Act.

Date of Accident July 18, 2011:

The worker is seeking wage loss benefits for the period July 21 to July 24, 2011. The panel understands that the worker suffered an exposure on July 18, 2011 and that her next shift was scheduled for July 22, 2011.

For the worker's appeal of this issue to be successful, the panel must find that the worker was medically unable to work during this period. The panel finds that the medical evidence does not support a finding that the worker was unable to work for the period July 21 to July 24, 2011.

In arriving at this decision, the panel notes the December 21, 2011 opinion of the WCB medical advisor. In reply to a question about a reasonable period of time loss for an aggravation of a pre-existing condition, the medical advisor responded that "No allergy cause has been reported and following exposure to irritant environmental chemicals, such as perfume, 1-2 days time loss after exposure is reasonable."

Relying upon the WCB medical advisor's opinion, the panel finds that the worker would have been medically recovered and able to return to work by July 21, 2011. The panel also finds there is no medical evidence indicating that the worker was unable to work. The panel finds the family physician's Sickness/Well Certificate of July 20, 2011 does not provide evidence of the worker's inability to work between July 21 and July 24, 2011 as a result of illness.

The worker's appeal of this issue is dismissed.

Date of Accident August 21, 2011:

The worker remained off work from August 21, 2011 until September 17, 2011 and left work again on about October 7, 2011. She did not return to work again although she attended a meeting to discuss return to work on November 4, 2011, and retired on June 14, 2014. Her representative asked the panel to determine the appropriate period of wage loss after August 21, 2011.

The panel notes that the worker missed one shift on August 22, 2011 and was scheduled to be off work for August 23 to 25, 2011.

For the worker's appeal to be approved, the panel must find that the worker was medically unable to return to work after August 22, 2011. The panel was not able to make this decision. The panel accepts that one day of wage loss occurred after the August 21, 2011 exposure. The worker is entitled to wage loss benefits for August 22, 2011. This finding is consistent with the December 21, 2011 opinion of the WCB medical advisor.

However, the panel is unable to find sufficient medical evidence to support an inability to return to work at any time after August 22, 2011. There was no medical evidence to confirm that the worker's reaction continued to be symptomatic at that time and that the worker could not perform her employment duties. The evidence does not support a finding that the worker was unable to work any day after August 22, 2011.

The panel finds that time loss after August 22, 2011 was due to preventive reasons and that the worker did not sustain a loss of earning capacity due to this injury beyond this date.

The worker's appeal on this issue 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 27th day of October, 2014