Decision #140/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on June 14, 2018 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on June 26, 2017 reporting a headache from an incident on June 20, 2017. The worker offered the following description for the workplace incident:

I relating (sic) the headaches to the noisy environment that I have been working in in the last 2 months.

On June 20, 2017, the worker attended a doctor's appointment and reported complaints of headaches, fatigue, anxiety and inability to focus/concentrate since his office environment was changed. The doctor provided the diagnosis of "stress related headaches" and recommended one week off work.

In a discussion with the WCB on June 26, 2017, the worker advised that his work area had been relocated in late April/early May 2017 to a production area from his previous office location. He advised that he began to experience mild headaches shortly after the change in work areas. He further advised that his headaches got worse over time and he requested a change in work location from his employer's HR department.

The WCB advised the worker on June 30, 2017 that his claim was not acceptable. The WCB advised the worker that they reviewed his claim, including noise level readings of his new work area provided by his employer, but they were unable to relate the onset of his headaches with his new work area. It was noted that the noise level readings for his work area was comparable to a normal office setting and no other workplace factors could be found to account for his symptoms.

On September 4, 2017, the worker requested reconsideration of the WCB's decision to Review Office. The worker advised that he was exposed to unpredictable, uncontrollable and unexpected noises in his new work area and that led to his claim.

Review Office advised the worker on October 16, 2017 that his claim was not acceptable. Review Office was unable to conclude that the worker's reported headaches constituted a compensable injury. It was noted that both the worker and his doctor attributed a major role in the worker's development of headaches to stress. Review Office considered stress as a well-known contributor to headaches when reviewing the worker's claim. Review Office noted that as they could not verify that the worker was exposed to significant noise, the worker's stress was considered to be the most prominent and probable factor causing the worker's headaches. Review Office also noted that they could not conclude that the worker's headaches arose out of and in the course of his employment and that the change in the worker's work area was consistent with a "transfer" as that term is defined under subsection 1(1.1) of the Act. Accordingly, Review Office was unable to find that the worker's headaches were a compensable injury as the result of a workplace accident.

The worker filed an appeal with the Appeal Commission on November 21, 2017. An oral hearing was held on June 14, 2018.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On September 5, 2018, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

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 WCB's Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and provide that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

"Accident" is defined in subsection 1(1) of the Act as follows:

"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.

"Occupational disease" is defined 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; (b) peculiar to the particular employment; or (b.1) that trigger post-traumatic stress disorder; but does not include (c) an ordinary disease of life; and (d) stress, other than an acute reaction to a traumatic event.

Restriction on definition of "accident"

1(1.1) The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

WCB Policy 44.05, Arising Out of and in the Course of Employment ("Policy 44.05"), provides general information on the interpretation of the phrase arising out of and in the course of employment and states, in part:

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, when a worker is engaged in personal activities not related to or required by his or her employment the resulting 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 44.05.30, Adjudication of Psychological Injuries, sets out guidelines applicable to claims for psychological injuries. Relevant portions of this policy are as follows:

Accident

The definition of accident in The Workers Compensation Act (WCA)…has various components. A psychological injury can be caused by:

• a chance event; 

• a wilful and intentional act; or 

• the injury can be an occupational disease (an acute reaction to a traumatic event or post traumatic stress disorder).

Any of these events can injure a worker physically. However, they can also injure a worker psychologically without injuring the worker physically. 

Claims for psychological injuries cannot arise under the part of the definition of accident that refers to 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. That part of the definition applies to repetitive strain injuries such as carpal tunnel syndrome, musculoskeletal injuries and so on. 

Non-Compensable Psychological Injuries

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no wilful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

Worker's Position

The worker was represented by legal counsel. He called on a co-worker and former co-worker to give evidence of their knowledge of the work environment, particularly the noise in the workplace.

The worker's counsel submitted that:

This all started with the employer’s decision to move [the worker] from an office environment to a manufacturing production floor environment.

Regarding the medical evidence provided on behalf of the worker, legal counsel stated the medical information supports that the worker suffered a medical condition, an injury arising out of his being placed in the assembly/manufacturing floor environment.

Counsel submitted that:

The nature of his job is very technical and requires a significant degree of concentration, focus and lack of distraction. And that’s what office environments are meant to provide to employees. This isn’t a function of production of things that are physical on the part of [the worker] as the production floor is geared towards, this is a production of ideas, concepts, abstract things ... Hence, the reference to focus, concentration and lack of distraction.

[The worker] had worked in that same area two years previously before his move into the mechanical engineer planning department, but in a different capacity. He wasn’t an ME planner, he was a lead hand, a charge hand, and he was responsible for making sure that those machines operated regularly and continuously, and that product was produced from that department. That nature of that work, it was compatible for that particular environment. That’s the reason why he initially was placed in an office environment after becoming a MEP, mechanical engineer planner.

He was removed from the manufacturing product floor to the office where all the other ME planners were located, and that makes sense under the circumstances, because the nature of the job that he was now required to do as an ME planner. That lasted for two years. There were no issues with that workplace environment … And it wasn’t until he was moved into that environment on the assembly floor that he began to have issues with that workplace, and his ability to perform the work that was expected of him by his employer.

It wasn’t long after his move into the production floor environment that he began to have difficulties with sudden and unexpected noises that impeded his ability to concentrate, and it wasn’t long after that he began complaining about it. And it came to the point because these complaints weren’t being heeded by management, that he felt that, he actually became quite desperate in terms of his situation to the extent that he went and visited his doctor, and explained to his doctor what was happening and why it was happening, and this is in June of 2017.

Regarding the worker's medical condition, the worker's counsel noted the medical reports on file including the following:

• a July 2017 letter from the worker's family physician indicating that the worker's blood pressure was tested and was higher than usual. The concern wasn’t damage to the ears, rather it was noise levels causing him to be unable to do his work.

• an August 2017 letter from the family physician indicating that the biggest concern was not the hearing damage but the worker's psychological wellbeing, and ability to do his work in a noisy environment.

• the October 18, 2017 report from a psychologist which indicated that the worker's job involves technical, exacting computer-based work that requires a high level of concentration. That the worker was exposed daily to loud intermittent bursts of noise that were aversive, unpredictable and uncontrollable and that these characteristics that render noise an acute stressor which completely destroyed the worker's ability to concentrate. He noted that the worker experienced on a daily basis, headaches, increased blood pressure, a rumination on how to persuade his superiors to acknowledge his problems with the workplace and the noise levels that he was suffering from. That the worker's condition was affecting his sleep, he was -- which was chronically disrupted and he was suffering from stress-related exhaustion, marked symptoms of anxiety, and profound disappointment. The psychologist reported that accumulative effect of all those things, took a severe toll on his work performance, as well as his physical and psychological health. In his opinion, the worker was seriously disabled as at the time of that report that he wrote based on the numerous visits that they had had.

• the November 1, 2017 letter from the psychologist noted that the intermittent bursts of noise, yelling, hammering, use of power tools, loud music, large overhead doors opening and closing, forklift beeping, had an effect on the worker's condition. The psychologist diagnosed the worker's condition as having met the DSM criteria for major depressive disorder, moderate with anxious distress.

• in November 2017 the worker's family physician wrote that since the end of June the worker had increased blood pressure readings.

• the February 16, 2018 report from the worker's psychologist where the psychologist said that at that time the worker was fully capable of returning to work as an ME, with the only restriction being that he be provided a quiet room, free of production-related noise spikes.

The worker's counsel advised that the worker had a pre-existing blood pressure condition that was being treated, and was under control. He also noted that the worker's family physician indicated that a change of workstation caused distress detrimental to the worker's health and general wellbeing. As well, the family physician advised that he has seen the worker over the last 14 years and there was never any psychological concerns.

The worker's counsel noted the worker's disability insurer denied further coverage on the basis that it was the workplace environments on the clean floor that was the cause of the medical condition, rather than his occupation.

Witness 1 - Summary of Evidence

The worker's counsel called a co-worker to give evidence on the working conditions in the clean room. The witness advised that:

• he is a graduate of a mechanical engineering technology program and is a full-time employee of the employer having worked for approximately two and a half years in a similar positon to the worker and is referred to as an MEP. He had also worked part-time for the employer and as a co-op student. 

• his work involves technical work. He does work on specifications, customer specifications, interpretation of specs, creation of work flow processes and creation of technical documentation. 

• he was initially in the main offices where all ME technical staff were located. He described it as a typical office environment with approximately 16 desks located within that office space with a fairly quiet environment. 

• he moved to the clean room in 2017 and the worker moved shortly after. 

• he initially found it difficult to work in the clean room and had to get used to the environment. There was both noise and lighting issues. 

• he wore a hat and pair of blue tinted safety glasses while at his desk to help limit the reflections. 

• he noted that some of the equipment was noisy and listed the sources of the noise. He advised:

o "Cloth cutters…Those machines do create a fair bit of noise. It is a mechanical and metal gear set which drives them, and it’s a rack-and-pinion system… 

o There’s also a vacuum noise which is constantly emitted from the cloth cutter itself, just since it has to hold the material down onto the cutting table. You always hear that vacuum draw, and there’s also a beeping noise when that is operating... 

o The forklift was a bit of a nuisance, it came in and out several times throughout the day, or several times in an hour, in waves, and that has a very, very loud horn and reverse beacon. Normally those wouldn’t be such an issue, but since it is just a very large, big, open, airy box type environment, those beacons and horns do echo throughout the room and it is, they are quite loud and disruptive. They squeal, the tires also tend to squeal on the forklift when it’s going through turns, when it’s loading or unloading. It’s metal on metal contact with the metal tools of which it is handling… 

o Other items would be the overhead door. The overhead door tended to, that would open any time the forklift was going in or out of the clean room… 

o Other pieces which were annoying were the actual manufacturing process itself. Normally lay-up is quite quiet, but this is a manual process that is done by operators. Operators have conversations, operators play radios. 

o Continuing on the lay-up, the other one of the biggest nuisances for me was the vacuum bags… 

o …another noise would be the actual mould tools themselves when they are being transported." 

• he advised that:

"So the noise bothered me because it was a distraction. I would find that it would kind of disrupt my work, or it would disrupt my train of thought. It made it very tricky to try and concentrate when doing my technical work. Yes, that’s, that would be how it would have disrupted my work"

• he wore earplugs, hearing defenders, and at times noise canceling headphones and listened to music. 

• on 3 occasions, he raised concerns about the noise and was moved out of the clean room to the office after the third complaint. 

• in his opinion, the production floor is much louder than the office. 

• on one occasion, in the clean room, the worker was present during noise testing and found it peculiar that the fork lift was not in operation at that time. 

• another time, when in the office, an employee walked by a noise recorder whistling and slammed the door on his way out. 

• when in the clean room, he was wearing ear plugs, and most nights when he went to bed he wore ear plugs. He wore ear plugs for 16 out of 24 hours and his ears were starting to get sore. He denied having hearing problems. 

• he worked one-third of his day on the production floor and two-thirds at his desk. 

• regarding leaving the clean room and returning to the office, he advised that:

"I noticed that I enjoy my work more. I can honestly say that my quality of life has improved since being back in a proper office environment. I would say that my work quality is probably a bit better, I find myself having an easier time organizing my work now."

Witness 2 - Summary of Evidence

The worker's counsel called a former co-worker to give evidence on working conditions in the clean room and the office. The witness advised that:

• MEs did all of their day to day assignments, e.g. clocking and printing out any OP sheets. 

• on the shop floor, you would hear the guys doing all their lay-up and things. 

• it was noisy. 

• working on the shop floor (clean room), it would be a lot more difficult with all the things, because when, before the office was built we were on the shop floor, and it was somewhat difficult to do the work on the shop floor because of the noise and the banging and constant drilling... 

• regarding noise testing in the office, on one occasion he saw an individual from a different department screaming into the testing device. He instructed the individual to stop. He also suggested that another test be conducted.

Worker's evidence

In answer to a question from the panel regarding performing MEP duties on the production floor when he was first promoted to the position, the worker advised the he followed a senior ME planner just to learn the job.

Regarding the clean room, the worker commented that:

It’s probably one of the nicest places to work, as a production worker. It’s not a good place to work as an office.

Regarding his job duties, the worker confirmed that his job duties as an MEP did not change when he was moved to the clean room from the office.

In reply to a question about his transfer to the clean room, the worker advised that:

My supervisor told me that they wanted the MEs to go into that work environment, and we were also told that all the MEs would be going out onto the shop floor, that they would be, everybody would be moved out of that office. Within a year that would be happening.

In reply to a question about how his condition progressed, the worker advised:

I would find another task where I had to go to another, end of the plant or whatever to investigate, because a lot of things go wrong around the plant. So I found myself almost neglecting doing the computer work, and I was spending more time. Like I should have been spending 60/40 percent, 70/30, 70 percent probably on the computer stuff, and I was spending maybe 10 percent. And it was because I would be working there and these things would be distracting me, so it was easy for me to just get out of the building. I would just leave and go and do whatever else. And then finally it was, I had to get the stuff done, so I had to be concentrating on my work, came into there, and it was just blowing me apart. And I would be concentrating on it and these trigger noises would come up, and as days progressed it would get worse, and worse and worse. And I don’t know if it was because I was starting to get sleep deprivation, and then, and the longer you’re without sleep, the easier you are to get irritated, and that’s what was happening, until I was ready to snap.

Regarding the commencement of the worker's headaches, the worker explained that he had headaches for about three weeks, but as the weeks progressed the headaches were getting more intense. By his last week he was getting actual pain in the eye. It would start in the front, and he felt them right behind the eye socket.

When asked what would make the headaches go away, the worker replied "being away from work."

The worker confirmed that he has been using blood pressure medication for 14 years, and before the transfer to the clean room, he had no significant spikes in his blood pressure readings.

The worker confirmed that he did not return to work in the week of February 26, 2018 as requested by the employer based on a medical report from the treating psychologist. He advised his refusal was due to unresolved issues with the employer.

Closing Comments

In closing, the worker's legal counsel submitted, in part, that:

• This arose out of a decision of the employer to put [worker] in a workplace environment that wasn’t conducive to the nature of the work that he was requested and required to perform.

• It was disruptive, it was unpredictable, and it caused the medical condition which arose out of the workplace that the employer placed him in.

• The employer had an opportunity to rectify the situation, and didn’t. As well the other individual that had been placed in the same area was also experiencing difficulties.

• This is a compensable claim, this falls within the purview of the legislation, and there is medical evidence, and there is testimony to corroborate and support the claim.

The worker commented:

…they provided me a tool, which was that office, knowingly, that it was causing me pain and suffering. It could have potentially caused me to die on the work job. I could have had a stroke, I could have had a heart attack. I chose my wife, my kids and myself above my job, and I should never have to choose that. My employer should work with the doctors, should work with me, should be compassionate, understanding.

Employer's Position

The employer was represented by a representative from the employer's Occupational Safety and Health Division who was accompanied by an Employee Relations Officer.

The employer representative outlined the employer's position and answered questions regarding the workplace, noise within the workplace, causes of the noise, and noise testing.

He submitted that:

…we still agree with the WCB’s original decision that the claim is not to be accepted, as this one is not a hearing loss, nor is it related to an actual accident within the workplace. Then, but an injury or illness suffered as a result of a transfer to a different location from the original one. Such event, it’s not an accident as per The Workers Compensation Act, as well as the Workers Compensation Board’s internal policies, and accordingly, [employer] agrees on the previous decisions made by WCB, and submits that the appeal be dismissed.

In reply to a question, the employer representative acknowledged that the office and the clean room are physically different, but he said that there is not a large difference with respect to noise. He also advised that at one point all the MEPs worked on the production floor.

Analysis

The issue before the panel is whether or not the worker's claim is acceptable. For the worker's appeal to be approved, the panel must find that the worker sustained an injury by accident arising out of and in the course of employment. For the reasons that follow, the panel was not able to make this finding.

In making this decision the panel notes:

1. The Doctor's First Report from a physician provides a diagnosis of stress related headaches; and

2. The letter written by the worker's long time family physician on November 15, 2017 which indicates, in part, that:

…I can report that this change of work station has influenced his work capabilities in that it has had a huge detrimental influence on his mental condition…

I believe the effect of changing his work station and causing distress has been detrimental to his health and general well being (sic).

The panel finds that the physicians' comments support a finding that the worker's symptoms arose from stress related to a change in the worker's work station, being the relocation of his work station to the clean room.

Regarding the worker's symptoms, the panel notes the worker's response to a question about whether he suffered symptoms on weekends. He replied, in part:

Weekends, I wouldn’t experience headaches. And honestly, when I would get into work I wouldn’t have those headaches. The headaches wouldn’t start until I heard either the door rapidly going up. And honestly, if I was working not at the computer, like if I could spend a day where I wasn’t at the computer and I wasn’t going to have to think, those noises didn’t bother me.

The panel finds that the above comments suggest a psychological condition and not a physical injury.

The panel also notes the opinion of the consulting psychologist set out in a letter dated November 1, 2017 to the worker's family physician. The psychologist noted the worker's complaints and symptoms:

1) Headaches that began by mid-morning and became more severe as the day progressed. [The worker] took over-the-counter headache medication but found it to be ineffective.

2) Subjective symptoms of increased hypertension, which were particularly worrisome for [the worker] given a prominent history of hypertension and stroke, as well as his own longstanding treatment for hypertension.

3) Nearly constant rumination at work and at home about how to persuade his superiors of the potentially disastrous effects his new environment was having on the quality of his work and on him personally.

4) Extreme frustration and sense of helplessness when [the worker's] superiors overtly dismissed his numerous complaints and refused to even visit his new work station to hear firsthand the noise about which he was complaining.

5) Sleep that was chronically and severely disrupted due to lying awake at night worrying about what for him was an increasingly intolerable work situation for which there appeared to be no remedy or end in sight.

6) Stress-related exhaustion from attemptong to do his job well while badly sleep-deprived and under very adverse conditions.

7) Marked symptoms of anxiety (e.g., nausea, sense of foreboding) and depression (e.g., social withdrawal, loss of interest in activities he previously enjoyed, hopelessness).

8) Profound disappointment and sense of betrayal when he came to believe that test noise level readings had been falsified so as to portray his complaints about excessive noise as groundless.

He opined that:

In my professional opinion, [worker] clearly meets the DSM-V criteria for 296.22 Major Depressive Disorder (moderate, with Anxious Distress).

The worker's counsel asserted that "This arose out of a decision of the employer to put [worker] in a workplace environment that wasn’t conducive to the nature of the work that he was requested and required to perform."

The panel finds that the worker sustained a psychological injury as a result of the change in the conditions of his employment.

The panel finds further that the worker's psychological injury, while arising while he was at work, is excluded as an accident by virtue of subsection 1(1.1) of the Act which provides that:

The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

The panel finds that the worker's conditions also fall under the Psychological Injuries policy which provides, in part:

Psychological injuries that occur as a result of burn-out or the daily pressures or stressors of work will not give rise to a compensable claim. The daily pressures or stressors of work do not fall within any part of the definition of accident because there is no chance event, no wilful and intentional act and no traumatic event.

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident. [emphasis added]

The panel finds that the change in the work environment noted by the worker's counsel was in the words of the Act "a change in respect of the employment of the worker." The transfer or relocation of his work station to the "clean room" resulted in the symptoms, both physical and psychological, that the worker experienced.

The panel considered whether the changes in the worker's blood pressure which he claimed occurred while at work constituted an accident under the Act. The panel was not able to make this finding. The panel finds that the symptoms which the worker reported were more likely related to the stress he suffered as a result of the relocation of his workspace. The panel finds this falls within the exclusions from the Act noted in Paragraph 1(1.1) of the Act.

There was discussion at the hearing about noise level testing and whether the results of the tests were tainted due, in part, to intentional acts performed by other employees. While there is some evidence of irregularity in the testing procedures, the panel does not attach significant weight to the noise level testing.

This is not a hearing loss claim nor a claim for physical damage suffered by the worker due to noxious noise. The panel acknowledges that there are spikes in the noise level but the tests result do not show continuous noxious noise that would damage a worker's hearing. The panel also notes that a co-worker, who was also an MEP was able to perform his duties with the use of various hearing protection devices, including ear plugs and ear phones.

The panel does not find that the workplace noise was the cause of the worker's physical symptoms of headaches and high blood pressure. Rather, as noted earlier, it was the relation of his workplace and the subsequent non-compensable psychological stress conditions that led to these symptoms.

The panel finds, on a balance of probabilities, that the worker's claim is not acceptable.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of October, 2018

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