The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny her claim for compensation. A hearing was held on October 25, 2016 to consider the matter, the hearing reconvened on March 14, 2017 and reconvened again on November 29, 2018.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On November 29, 2012, the worker filed a claim with the WCB after being diagnosed with Methicillin-Resistant Staphylococcal Aureus ("MRSA"). The worker reported that she noticed a pimple on the back of her neck on November 10, 2012. It was itchy and she scratched it. She had a co-worker look at it and the pimple was popped. On November 16, 2012 she saw a doctor and was placed on oral anti-biotics. On November 17, 2012, the sore was really red and it was the size of her palm. As she was not getting better, she saw a doctor on November 19, 2012 and was sent to the hospital and was put on an IV. A swab was taken and she was diagnosed with MRSA.

On November 30, 2012, the worker advised a WCB adjudicator that she did not know if she came into direct contact with someone confirmed to have MRSA. She had been working with patients that have these superbugs. She worked on a ward that deals with hip and knee replacements. She did not know if she had any open wounds but maybe it was a pimple on the back of her head and that was the open wound or her hair follicle may have been the route of entry. The infection is located on the back of her neck/head. The worker noted that she was not aware of anyone at work or in her family that had contracted MRSA. The worker confirmed that a co-worker used gloves and a sterile needle to inspect and help her pop what they thought was a pimple.

The Employer's Accident Report dated December 3, 2012 stated, in part, that based on the advice of a manager and the infection control nurse, this was not a work-related incident. The employer outlined the view that the worker self-aggravated the wound and solicited coworkers to manipulate the wound which contributed to its size and severity. The employer noted that "proper routine practices prevents transmission of any nosocomial organism spread and this is the responsibility of all health care workers."

On December 10, 2012, an occupational health nurse advised the WCB that she was not able to confirm if there were any cases of MRSA in the hospital. She noted that the strain of MRSA that the worker had was community acquired.

On December 19, 2012, the infection control practitioner confirmed to the WCB that there was one patient whom the worker may have contact with who had tested positive for the same strain of MRSA.

File records confirm the MRSA diagnosis was C-MRSA-10 and that the strain of MRSA was Community Acquired.

On December 31, 2012, a WCB medical advisor stated, in part:

A right head wound culture report collected November 20, 2012 tested positive for MRSA. The PFGE (pulsed-field gel electrophoresis) pattern is not included in the medical information submitted by the hospital.

A nasal culture obtained November 20, 2012 also tested positive for MRSA and the PFGE pattern reported was C-MRSA-10.

The medical advisor stated that further information was required before he could comment on whether the worker's MRSA scalp wound was acquired at work.

On January 18, 2013, the worker was advised that her claim for compensation was denied as the WCB was unable to establish that her MRSA skin infection arose as a result of her employment. The adjudicator noted that there was only one patient within the hospital that had been diagnosed with the same strain of MRSA as the worker. However, this patient was admitted to the hospital after the worker ceased work due to her medical condition. On November 27, 2013, the worker's union representative appealed the decision to Review Office. The union representative provided additional information to support that the worker was likely exposed to the MRSA strain in the workplace rather than through the community.

On November 29, 2013, Review Office referred the worker's claim back to initial adjudication to consider the new information provided by the union representative.

On February 28, 2014, it was confirmed to the worker that her claim for compensation was denied. The adjudicator said she considered a report which showed that there were 36 confirmed CMRSA-10 cases within the hospital from October 2012 to September 2013. She said the information was not relevant as it did not provide proof that the same strain of CMRSA-10 was confirmed in the hospital at the time of the worker's potential exposure to the strain. The adjudicator noted that she obtained additional information and found there were five confirmed CMRSA-10 cases in the hospital from October 2012 to November 16, 2012. Out of the five cases, none of them were located in the same department where the worker was working.

The adjudicator confirmed that while there had been cases of MRSA identified to have the same strain of MRSA as the worker's, they were not admitted to the area of the hospital where she was employed. As MRSA was also prevalent in the community, the WCB was not able to establish that the worker's employment activities placed her at a greater risk for the development of MRSA. On March 7 and 18, 2014, the union representative appealed the decision to Review Office.

On May 5, 2014, the employer's representative supported the adjudicator's decision that the worker's community-associated CMRSA skin infection did not arise out of her employment.

On July 14, 2014, Review Office asked a WCB medical advisor to review file information and provide a medical opinion as to whether the work environment was the dominant cause of the worker's condition. The medical advisor noted that the worker worked as a nurse on a particular ward. Between the period October 2 and November 16, 2012, five CMRSA-10 cases were present in the hospital. The information on hand did not allow him to determine if the five cases were active infections or colonized asymptomatic patients. None of the 5 CMRSA-10 culture-positive patients were located in the same ward as the worker's. With the lack of direct contact with the patients or equipment in the patients' rooms, he was not able to establish a relationship between the patients with CMRSA-10 and the worker.

On July 21, 2014, Review Office determined that the claim was not acceptable. Review Office accepted the WCB medical advisor's opinion of July 14, 2014. Review Office stated: "…all that can be concluded from the evidence is that MRSA-10 was present to some extent in the workplace. MRSA is not peculiar to or characteristic of a particular trade or occupation and is not peculiar to the worker's particular employment. We do not find that the worker was at greater risk through her employment than the risk associated with ordinary living experience."

On June 1, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was held on October 25, 2016, reconvened on March 14, 2017 and reconvened again on November 29, 2018 when an infectious disease specialist was available to provide testimony.

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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 1(1) of the Act provides a definition of "accident" as follows:

"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; 

(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;

Board policy 44.20, Disease/General, sets out guidelines applicable to claims for occupational disease. It also provides a definition of the phrases "peculiar to the particular employment", "ordinary disease of life" and "dominant cause of the occupational disease." The definitions are as follows:

"peculiar to the particular employment"

A disease will be described as peculiar to the particular employment if: 

1. there are factors identifiable in that workplace that are known to cause the disease; or 

2. there is scientific evidence acceptable to the WCB that the particular workplace is the cause of significantly increased risk of the disease even though the cause has not been identified, or 3. a factor can be identified at the workplace as being the proximate cause of the disease.

"ordinary disease of life"

An ordinary disease of life is a disease that can be commonly acquired from a variety of life situations. A disease will not be considered to be an ordinary disease of life if the risk of contracting the disease through the employment can be shown to be greater than the risk associated with ordinary living experience.

"dominant cause of the occupational disease"

If the combined effect of the employment causes exceeds the combined effect of the non-employment causes then the work will be deemed to be the dominant cause of the disease.

Worker's position:

The worker was assisted by a union representative and labour relations officer as well as a labour relations support person at the hearing.

It was the worker's position that the appeal should be allowed and the claim should be accepted.

During her submission, the worker provided a description of her illness, noting the seriousness of the infection, the very extensive treatment she was required to undergo, her difficult recuperation period and the very significant impact the infection has had on her life. It was submitted that although there was no direct evidence as to the exact date, time or activity during which the worker may have been exposed or infected with MRSA, the worker nonetheless was employed in a facility where there were confirmed cases of community acquired CMRSA-10, the very same strain which she acquired. Although the worker was not in direct contact with any MRSA positive patients, therefore reducing the likelihood that she acquired the infection directly from a patient, it was nonetheless noted that it is possible to acquire the infection indirectly off surfaces in the facility, including shared equipment or even patient files. Handwashing audits revealed that only a limited percentage of healthcare staff effectively wash their hands when dealing with patients, thereby increasing the risk of indirect exposure for others.

The worker also pointed out that she was not involved in any of the type of activities outside work which would place her at higher risk for contracting MRSA. She was not, for example, attending a gym, public pool, daycare or church on a regular basis nor did she live in crowded or unsanitary conditions. None of her friends or family had been diagnosed with MRSA. The chances of her having contracted the infection outside of work was, therefore, in her view quite low.

In the circumstances, the worker submitted that it was more likely than not that she acquired the infection during the course of her employment as a nurse at the hospital at which she worked than from the community. The worker also submitted that the nature of her employment was the dominant cause of her compensable injury and the claim should, therefore be adjudicated as an occupational disease.

Employer's position:

The employer was represented by a disability management consultant, a human resources consultant, and a WCB coordinator.

It was the employer’s position that the claim was not acceptable and the Review Office decision should be upheld. The worker was identified as having the community acquired strain of MRSA, not the hospital acquired strain. It was further noted that the medical literature indicated that up to one third of the population are carriers of staphylococcus bacteria, the vast majority of whom are asymptomatic. Infection with the community acquired MRSA is more likely than the hospital acquired MRSA to manifest itself in skin infections, such as boils, abscesses or cellulitis. It is not possible to determine whether the 'pimple' was the first sign of the infection or whether the infection was acquired when treatment was administered by a co-worker at the hospital at which the worker was employed.

Although there were cases of MRSA in the hospital around the time that the worker acquired an infection, none of the patients were located in her department. As such, there was no direct exposure while at work. Given that the worker was on vacation or away from work for a three week period just prior to contracting the infection, the employer submitted that it followed that there was a greater chance that she contracted the infection in the community than indirectly at work. At a minimum, it could not be concluded, on a balance of probabilities, that the worker acquired the infection at work.

The employer further took the position that MRSA did not constitute an occupational disease as MRSA was not peculiar to a hospital environment. It was, rather, as prevalent in the community as in a healthcare setting. It was, therefore, an ordinary disease of life that could be acquired from a variety of situations and hence, not an occupational disease.

The employer therefore submitted that the appeal should be denied.

Analysis:

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find that the worker's MRSA infection arose out of and in the course of employment. The test is based on a balance of probabilities. In other words, at issue on this appeal is whether it is more likely than not that the worker contracted the infection at work as opposed to having contracted the infection in the community. For the reasons that follow, the panel is unable to make that finding.

The panel reviewed the evidence and explored extensively the extent to which the worker may have contracted the infection directly from an infected patient while at work. Although it was clear that there were cases of MRSA in the hospital at which the worker was employed around the time that the worker acquired the infection, the evidence disclosed that the worker neither worked in a ward that contained patients documented to have been infected with MRSA nor had any direct contact with any patients documented as having MRSA. There was general agreement, therefore, that it was unlikely that the worker acquired the infection from direct contact with a known infected patient.

As far as indirect contact was concerned, it was clear from the evidence including the evidence from the medical practitioners as well as the infectious disease expert who testified at the hearing that community acquired MRSA is ubiquitous. It was, in other words, extremely prevalent in the community. It was the opinion of the infectious disease expert that if MRSA were not acquired through direct contact, the likelihood of contracting MRSA from indirect contact from a hospital setting was low. Hospitals, in other words, are not any more or less likely to be a source of contamination than other areas of the community. In fact, given the extensive handwashing expected of healthcare personnel, it was even less likely rather than more likely that a person would acquire a community acquired strain of MRSA from a hospital.

With respect to the suggestion that MRSA infections were an occupational disease, the panel notes that it cannot simply be assumed that because a worker is employed in a hospital, the worker is more likely to develop an MRSA infection than the general population. In order to reach this conclusion, there must be actual evidence to establish the link. After a careful review of all of the evidence, including the oral testimony of the infectious disease expert, the panel has concluded that the scientific evidence to support this conclusion was not available. Because of the prevalence of MRSA in the community, it is not possible to conclude that the worker's employment activities put her at greater risk for the development of MRSA. We cannot, therefore, conclude that the worker's MRSA infection was anything other than an ordinary disease of life.

After a careful review of all of the evidence, the panel concludes that it is simply not possible to know how or when the infection was acquired. Although it is clear from the evidence that even though there were cases of MRSA in the hospital around the time that the worker acquired the infection, in the absence of evidence of direct exposure, it is not possible to determine whether the infection was contracted at work or in the community. As such, we are not, on a balance of probabilities, able to conclude that the infection was work related.

For these reasons, we must find that the worker’s claim is not acceptable. The appeal is dismissed.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 24th day of January, 2019