The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the decision made by The Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on April 6, 2017 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On October 15, 2013, the worker filed a claim with the WCB for multiple injuries that she related to the following description of incident:

Feeling unwell since late October/early November 2012. Bad congestion, coughing, difficult breathing at times, fatigued, loss of appetite. This has been ongoing for close to 11 months now.

Possibly caused from dust created by building renovations. Renovations are ongoing. Witnesses: Co-workers.

The Employer's Accident Report noted that they started doing upgrades to the mechanical systems, furnace and duct work at the workplace. They were moving ceiling tiles from around July to October 2012. The work was done mostly at night. The employer indicated that the worker started to experience tightness in her chest, a sore throat, coughing, and sneezing in October. At first, they though it was a cold but it would not go away. If the worker was away from the office, her symptoms would clear up. Her symptoms would return within 3 hours after returning to work. Around 1.5 weeks ago they did an air quality test in the old office and as yet, they have not received the final results. The worker has worked in their building for 20 years.

On September 26, 2013, the worker spoke with a WCB case manager to discuss her claim. In late October 2012, the worker stated that she was exposed to dust and dirt from ceiling tiles being removed from above her desk and that she experienced health concerns because of it. When away from the workplace, her symptoms would subside. She had worked in the same building for over 20 years without any difficulties. She had no respiratory problems in the past.

On October 24, 2013, the case manager spoke with the worker's manager who indicated that the worker was a model employee and that she was rarely sick. In October 2012, HVAC systems were being worked on and all ceiling tiles were removed on a daily basis. This seemed to coincide with the worker's symptoms. When they moved to the new area, the worker went on her annual leave and her symptoms seemed to improve. Then on September 9, 2013, ceiling tiles were removed over her new desk area when she was on a break. There was ceiling dust on her desk and it was all open above her desk area. No one else was affected in the office.

Initial medical reports on file show that the worker was diagnosed with sinusitis and no evidence of asthma.

On November 7, 2013, the worker was advised by Compensation Services that her claim for compensation was denied based on air quality test results of her building which did not indicate a health risk and was considered safe for occupants. As the WCB was unable to confirm a specific irritant in the workplace which caused her health difficulties, it was unable to establish an accident arising out of and in the course of her employment.

On May 7, 2014, the worker's union representative submitted to the case manager that the worker's claim was acceptable. The union representative noted in her submission that the air quality testing which was done in July 2013 was a significant period of time after the worker first experienced symptoms. Included with the submission was a medical report dated January 10, 2014 from an allergy specialist which supported a diagnosis of chronic rhinitis and asthma precipitated by exposure to old dust.

A report is on file from an occupational health physician dated December 3, 2013 regarding an assessment of the worker that took place on November 26, 2013.

On July 28 and August 25, 2014, a WCB medical advisor reviewed the worker's claim and provided his opinion regarding the dominant cause of the worker's respiratory difficulties and its possible relationship to being exposed to dusts and molds in her work environment.

In a further decision dated October 31, 2014, the worker was advised that no change would be made to the decision made in November 2013. The case manager stated:

It was the Healthcare Advisor's opinion that there is no objective medical evidence to support a diagnosis of asthma. An Allergist's report indicated a diagnosis of chronic rhinitis and asthma precipitated by exposure to old dust. Lung spirometry testing was reported to be normal. It was noted skin allergy testing was positive for tree pollens, hamsters and mold. Previous air monitoring results failed to show a human health risk…I am unable to objectively support your symptoms are related to an irritant in the workplace…

On December 10, 2014, the union representative appealed the decision to Review Office.

On February 3, 2015, Review Office determined that the file evidence did not support that the worker had an accident as defined by the Act and therefore it was unable to account for the worker's difficulties in relation to the workplace.

Review Office noted that the worker was in contact with dust and debris in September and October 2012 and she did not experience any difficulties at the time. Review Office referred to medical reports on file to show that the worker continued to experience ongoing difficulties with no significant improvement when she was away from the workplace. In the December 3, 2013, doctor's report, the worker commented that she was experiencing stress in relation to difficulties with a co-worker and that it adversely affected her health. Review Office did not find these complaints were related to the claim filed by the worker regarding renovations conducted in her workplace. Review Office noted that tests results on file did not demonstrate a relationship between the difficulties experienced by the worker and her work environment and it agreed with the WCB medical consultant's opinion of August 25, 2014. On May 7, 2015, the worker's union representative 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.

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 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.

Subsection 4(4) of the Act deals with the issue of causation as it relates to an occupational disease. That Subsection 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.

The term “occupational disease” is defined in Subsection 1(1) of the Act as follows:

“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’s Position

The worker was assisted at the hearing by a worker advisor. It was submitted that the worker’s severe upper respiratory symptoms were triggered by two separate events at work. During each event, the ceiling tiles directly above the worker’s work station were removed and dust and debris fell directly onto her work station. Following each triggering event, the worker says she developed severe congestion, shortness of breath, extreme fatigue, and loss of smell and appetite, among other symptoms. Her symptoms interfered with her ability to continue working.

Prior to the two triggering events, the worker had no history of respiratory issues or allergies and was asymptomatic of any respiratory symptoms. She had been working at the same building for approximately 20 years without difficulties and had rarely missed a day of work due to illness. She says that the onset of her symptoms corresponded to the first incident involving dust and debris on her work station and the second incident corresponded to a worsening of her condition. The worker submitted that the dominant cause of her upper respiratory difficulties was associated with the two occasions when debris and dust fell on her work station. The panel was therefore asked to overturn the decision of the WCB Review Office and accept the claim.

The Employer’s Position

The employer was represented by its workers compensation coordinator. The employer submitted that the decision of the decision of the Review Office was correct and should be upheld.

The employer noted that renovations had been ongoing in the building for two years prior to the development of symptoms by the worker. At one point during the renovations, the worker had been moved to a different office in a different location. Despite the move, the worker continued to experience symptoms. Air monitoring testing was done but failed to show a human health risk. Power vacuuming of the HVAC system failed to reveal anything unique in the dust and a workplace irritant that could be causing the worker’s symptoms has not been identified. In the circumstances, the employer submitted that a causal connection to the worker’s symptoms and the workplace cannot be established. As such, the claim should not be accepted.

Analysis

The issue before the panel is whether the worker’s appeal is acceptable. In order for the worker to succeed, the panel must find, on a balance of probabilities, that the dominant cause of her medical condition was her employment. The panel is unable to make that finding.

There is some suggestion that the worker may have been suffering from an asthmatic condition. The panel notes, however, that a consistent diagnosis of asthma has not been established. Although proposed as a diagnosis by one physician, all other physicians who have examined the worker have concluded that she does not suffer from asthma. Lung spirometry test results were normal as was the methacholine challenge. Further, the worker’s symptoms did not respond to an inhaler. In the circumstances, the panel is unable, on a balance of probabilities, to find that the worker was suffering from an asthmatic condition during the relevant period.

The more consistent diagnosis has been chronic rhinitis. The cause of the rhinitis, however, remains unclear. While rhinitis may be the result of a response to the presence of certain allergens, monitoring results failed to show a human health risk or identify a potential irritant. Allergy testing conducted on the worker was positive for certain pollens, hamsters and a particular type of mold. Those allergens, however, were not found to be present in the building. The panel has difficulty, therefore, finding a causal connection between the worker’s symptoms and exposure to the workplace. Further, if the worker’s symptoms were indeed related to workplace exposure, we would have expected the symptoms to improve when the worker was away from the workplace. Although the worker was under the impression that her symptoms improved when away from the workplace, the medical evidence does not support that conclusion. The worker had a number of extended absences from work but at no time did she completely recover from her symptoms, and a doctor’s report from December 2013 observed that despite an eight week absence, there had been no improvement in the worker’s symptoms.

Based on the evidence before us, the panel therefore finds, on a balance of probabilities, that the worker’s rhinitis is not causally related to the workplace. In reaching this conclusion, the panel notes that our findings are consistent with the opinion of the WCB medical advisor. We are, therefore, in agreement with his findings.

For the foregoing reasons, the panel finds that the worker’s claim is not acceptable. The worker’s appeal is therefore dismissed.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 2nd day of June, 2017