Decision #115/16 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on June 22, 2016 to consider the worker's appeal.

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 a lung condition that he related to the inhalation of fumes on May 9, 2015 while using a hot knife to melt EPS boards. The worker stated that after he inhaled the fumes he became nauseous and felt a sharp pain in his back. As his symptoms progressively worsened, he attended a hospital facility for treatment.


The Employer's Injury Report indicated that the worker was cutting lines in styrofoam on May 9, 2015 when he started to feel unwell and went home at 11:00 a.m. Later that day the worker was taken to the hospital and was diagnosed with pneumonia.


When speaking with a WCB adjudicator on July 10, 2015, the worker stated he was working with EPS foam for a couple of hours on May 9, 2015 before he took in a big breath. He has used the same product for about 20 years but this was the first time he got a whiff of the product. There was no wind outside that day. The worker said he always had asthma but never had pneumonia or anything similar to it. He was currently working his regular duties.


On July 16, 2015, the employer advised the WCB that the worker uses a hot wire to cut Styrofoam as part of his regular job duties. He performed this type of work every 2 or 3 weeks and it took about 4 to 5 hours. The employer noted the worker developed severe allergies a few years ago and required special mold-repellant paint in his home. The employer noted that according to the Material Safety Data Sheets ("MSDS") for Styrofoam, fumes are caused when it is burned but they do not burn Styrofoam.


The worker's file contains medical reports related to his hospital stay and from a respiratory specialist who saw him for an assessment on June 17, 2015.


On August 17, 2015, a WCB medical advisor reviewed the file information and stated:


The diagnosis reported by an emergency room doctor related to an admission to [hospital] May 10, 2015 was probable pneumonia. He was discharged home May 15, 2015 and a discharge summary completed by an internist was community acquired necrotizing pneumonia. A diagnosis of pneumonia was based on clinical symptoms, physical examination findings, lab and imaging studies.


The potential causes of community acquired pneumonia include a wide variety of bacteria, mycobacteria, and viruses. Risk factors include: alterations in the level of consciousness, Tabaco smoking, alcohol consumption, toxic inhalations, pulmonary edema, uremia, malnutrition, use of immunosuppressive agents, cancer, bronchiectasis, pre-existing viral illness, HIV infection, bronchial obstruction.


In a decision dated August 17, 2015, the worker was advised by Compensation Services that his claim for compensation was denied as the WCB was unable to establish a relationship between his lung difficulties diagnosed as community acquired necrotizing pneumonia, an ordinary disease of life, to the inhalation of fumes. On November 23, 2015, the Worker Advisor Office appealed the decision to Review Office on the worker's behalf.


In a decision dated December 23, 2015, Review Office confirmed that the worker's claim was not acceptable. Review Office noted there was no evidence on the claim file to support that the worker's diagnosis of pneumonia arose out of and in the course of his employment and therefore it could not review the appeal or adjudicate the claim as an "occupational disease."


Review Office referred to the information the worker provided to the attending physician when he attended the emergency room for treatment. The worker did not report inhaling fumes to the physician but described a twist injury when climbing the scaffold on May 9, 2015. The worker did not report inhaling fumes until he saw a specialist on June 17, 2015, over a month later, when he reported the fumes had made him nauseous and had caused him to almost pass out.


Review Office referred to the employer's evidence that they heat Styrofoam to cut it but do not burn it. The employer also advised that they called the manufacturer who advised them they do not wear respirators when working with the product. Review Office noted that the worker works outside and if there were any fumes, they would quickly dissipate.


Review Office also noted that when the worker initially arrived at the hospital, a chest x-ray showed no evidence of pneumonia. By May 12, 2015, a CT scan confirmed left sided pneumonia. The worker developed a fast moving type of pneumonia which was aggressive in nature.


Review Office noted that the worker first noticed his pneumonia symptoms developing at work and this in itself does not make a claim acceptable. Review Office accepted the opinion of the WCB medical consultant dated August 17, 2015. On February 10, 2016, the worker advisor appealed Review Office's decision 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 Board of Directors.


Subsection 1(1) defines accident as:


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


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.


The key issue to be determined by the panel deals with whether the worker sustained an accident at work.


Worker's Position


The worker was represented by a worker advisor who provided a written copy of his submission. The worker's wife also attended the hearing. The worker provided the panel with a video demonstrating the operation of the type of cutting tool he was using at the time of the incident. The worker answered questions from his representative and the panel.


The worker advisor advised that the worker's primary position, which is supported by the worker's consulting respirologist, is that the inhalation of polystyrene fumes caused an acute upper respiratory irritation responsible for much of the symptoms the worker presented with at the hospital later that that same day.


Alternatively, if the panel finds that the worker's symptoms are more consistent with the diagnosis of community-acquired necrotizing pneumonia (CANP), the worker asks the panel to consider if the inhalation incident caused this illness to develop, in that the symptoms of this condition were triggered by the inhalation event, and therefore caused an aggravation of a likely pre-existing, asymptomatic condition.


The worker advisor noted that the Review Officer did not accept that the worker had inhaled fumes by cutting the polystyrene board (EPS Board) because there was no mention of inhalation of fumes in the initial hospital reports.


The worker advisor submitted that the lack of mention of inhalation of fumes was because the worker's primary complaint upon arriving at the hospital was that of a perceived left mid-back pain. At that time the worker had thought he had pulled a muscle in his back and reported a work-related back injury. The worker advisor noted that the back pain turned out to be due to "pleuritic chest pain" which was identified on imaging studies.


The worker advisor disagreed with the suggestion that cutting the material with a hot knife cannot produce fumes as the knife only heats the material, but does not burn it. He noted that the MSDS for EPS BOARD contradicts this finding as it indicates under the heading "Health Hazards" that "fumes from heated cutting tools can also cause upper respiratory tract irritation."

Regarding the risk factors which the worker had which may have placed him at a greater risk to develop pneumonia, the worker advisor submitted that this does not preclude that the condition might have been caused or aggravated, or the symptoms themselves triggered by the inhalation incident.


The worker advisor placed weight upon the July 10, 2015 report of the respirologist, which noted that the appearance of respiratory symptoms followed fast after the inhalation of fumes of burning (melting) styrofoam during hot blade knife cutting. The respirologist also noted that the worker felt unwell almost immediately after the inhalation. She stated that:


The picture, in my opinion, is quite suggestive of acute inhalation injury by the fumes of polystyrene foam. It is well documented in the literature that fumes released during thermal operation of this type can cause respiratory irritation.


The worker advisor submitted that the respirologist's comments support a cause and effect relationship exists between the inhalation incident and the acute onset of the respiratory symptoms.


The advisor also noted that the WCB medical advisor also identified toxic inhalation as a risk factor for the development of pneumonia.


In answer to questions the worker provided details on the worksite, activities on the day of incident, onset of symptoms and treatments including the following:


  • he was fine before he started cutting the EPS BOARD

  • he started cutting EPS BOARD at about 8:30 AM

  • he was working on a scaffold with a co-worker cutting the EPS BOARD

  • he leans in to the EPS BOARD as he cuts with his right hand

  • the EPS BOARD is easy to cut with the hot knife but that it can get stuck

  • he did not wear protective equipment (mask or breath protection) and it is not worn in that industry

  • to avoid fumes he would take a deep breath and cut as quickly as possible

  • he inhaled fumes and then got a pain on the left side of his back

  • it worsened so he stopped work and went to an Emergency Ward

  • his condition worsened to the point that he could barely walk

  • there was no wind on the day of the incident

  • there was no overhang on the building that they were working on

  • he was working about 10 inches away from the wall where the EPS BOARD was attached

  • he missed 3 weeks of work do to the injury.


Employer's Position


The employer did not participate in the hearing.


Analysis


The worker is appealing the WCB decision that his claim, which he believes arises from exposure to fumes in the workplace, is not acceptable. For the worker's appeal to be approved, the panel must decide that the worker was injured by accident arising out of and in the course of his employment, or in other words; that the worker's injury was caused by his exposure to fumes from the EPS board which he was cutting while working on May 9, 2015. The panel was not able to make this finding.


The panel notes that the initial diagnosis provided by the physicians at the hospital he attended after the incident, is that the worker suffered from community acquired pneumonia. The panel attaches significant weight to the evidence of the early hospital visits. There was no reference to inhalation when the worker attended the hospitals for treatment. Nor did the worker's complaints cause the medical staff to consider and test or treat for inhalation of a noxious substance.


The panel has reviewed the MSDS for EPS board, the product that the worker was cutting when he inhaled fumes. The MSDS does not suggest or identify a serious health consequence for inhalation. Under the heading PRINCIPAL HEALTH HAZARDS, SIGNS & SYMPTOMS OF EXPOSURE the form indicates:


Inhalation: If overcome by exposure, remove individual to fresh air. If systems (sic) persist provide oxygen and obtain medical attention.


The panel further notes that the worker's evidence regarding his activities on May 9, 2015 does not suggest that he was overcome by exposure.


The panel also notes that the industry practice is not to wear protective gear. This was confirmed by the employer and by the worker.


The panel acknowledges that on the day in question, the worker was working in close proximity to fumes arising from cutting EPS board but that he was not in a confined space. He was on a scaffold erected outside a residence. The panel also notes the worker has been working with this product for 18 years without incident.


The worker advisor asked the panel to accept the opinion of the respirologist set out in a July 10, 2015 report. The panel notes the respirologist saw the worker about one month after the incident, when his symptoms had largely resolved, and that her opinion relies heavily upon the description of the incident provided by the worker. She noted that:


"He recalls that the day that the symptoms started, in the morning he inhaled a lot of fumes (more than usual) from melting styrofoam (during the process of cutting styrofoam with a hot knife blade). The fumes were so strong that he almost passed out and he became acutely nauseous. He came down from the scaffold he was on and experienced chest discomfort almost immediately."


This description of events differs significantly from the information provided by the worker nearer the incident. The panel accepts the information provided nearer the incident and is not able to attach weight to the opinion of the respirologist as it is based on different information. The panel also notes that the respirologist provided comments on the hazards of cutting the Styrofoam board but did not review the MSDS for the product.


As an alternative position, the worker advisor asked the panel to consider whether the inhalation incident caused the worker's pneumonia to develop, that the symptoms of this condition were triggered by the inhalation event, and therefore caused an aggravation of a likely pre-existing, asymptomatic condition. The panel is not able to make this finding. The panel acknowledges that the worker may have inhaled fumes from cutting the EPS board but finds that the evidence does not establish that this inhalation incident could have aggravated or enhanced the worker's pneumonia.


In conclusion, the panel finds, on a balance of probabilities, that the worker was not injured by accident arising out of and in the course of his employment. Specifically the panel finds that the worker's injury was not caused by his exposure to fumes from the EPS board which he was cutting while working on May 9, 2015.


The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of July, 2016

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