The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A videoconference hearing was held on May 4, 2021 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 8, 2020 reporting injury to their right ring finger arising out of an incident at work on May 30, 2020. The worker reported they were advised by a treating healthcare provider they had developed a bacterial infection from work. The worker indicated they delayed in reporting the injury until June 5, 2020 as they were on holidays the following day and their supervisor was off work until that date.

On June 1, 2020, the worker sought medical treatment at a local emergency department reporting “…some itchiness to the right fourth finger” which had progressed to redness and swelling with the redness extending up to the back of the worker’s hand. The worker advised the treating emergency room physician they were not aware of how they may have injured their hand and noted they did not have a fever or chills. The physician examined the worker and found “…considerable redness and swelling to the fourth finger over the middle part of the finger to the dorsum of the hand” with a small pustule, as well as faint erythema extending to the third and fourth metacarpophalangeal joint region of the worker’s right hand. The treating physician diagnosed an infection to the right fourth finger with some extension to the hand and recommended intravenous antibiotics.

The worker attended for an appointment with an infectious disease specialist on June 3, 2020 reporting a painful right fourth finger. The specialist noted and lanced a small pustule on the finger, and the discharge was cultured. The culture was confirmed to be positive for methicillin resistant staphylococcus aureus (MRSA) and the worker was provided a note to remain off work until June 10, 2020.

On June 11, 2020, the physician providing the intravenous antibiotic care noted the worker had completed the treatment and reported “Marked improvement in swelling, no pain”. A small ulcer, noted to be quite shallow, was still evident and although noted to be unnecessary, the physician recommended the worker remain off work until the wound was completely healed.

The worker attended for an initial physiotherapy assessment on June 30, 2020 noting tenderness and weakness in their right hand, with decreased stamina and endurance. The physiotherapist noted mild tenderness and edema at the wound site but noted the worker’s current range of motion and grip strength to be adequate to perform their job duties once medically cleared.

A WCB medical advisor reviewed the worker’s file on July 28, 2020 and concluded the worker’s diagnosis was cellulitis of the fourth finger caused by an infection with MRSA bacteria. The medical advisor noted the information on file did not establish a causal relationship between the worker’s diagnosis and their job duties, stating “There is no evidence on file of direct contact between [the worker] and an established MRSA positive index patient or individual, i.e., an individual with active MRSA-related disease, or direct contact with an individual who is an asymptomatic carrier (via a process known as colonization).” Further, the WCB medical advisor noted the absence of evidence the worker suffered either a minor or major trauma to their finger or their skin while at work. The medical advisor stated recovery from cellulitis was normally within 1 to 2 weeks with antibiotic treatment.

The WCB advised the worker on July 30, 2020 that the claim was not accepted as it could not be established the MRSA infection arose as a result of their employment.

On September 1, 2020, the worker requested reconsideration of the WCB’s decision to Review Office, providing a detailed chronology of the events and description of the working environment, noting how it related to their job duties and outlining their belief their job duties resulted in the diagnosis of cellulitis.

At the request of Review Office, a WCB medical advisor reviewed the worker’s file and provided a further opinion on October 21, 2020. The medical advisor explained how MRSA infections occur, noting “The transmission of MRSA occurs typically through direct contact between an infected person and uninfected person, or by indirect contact through touching contaminated objects or surfaces that are part of the infected person’s environment.” Further, the WCB medical advisor noted that although there was limited evidence that those in the worker’s profession would have a “…slight increase in risk for the development of MRSA associated skin infections…” the strongest evidence to support the worker’s claim would be a close contact with a person who had tested positive for MRSA or who had an active symptomatic MRSA infection. A copy of the opinion was provided to the worker and the employer, both providing further responses.

Review Office determined on November 24, 2020 that the worker’s claim was not acceptable, giving weight to the opinions of the WCB medical advisors and noting that although the worker’s profession placed them at a slight increased risk for contracting MRSA, there was no evidence to support their job duties or work environment caused them to contract MRSA. Further, Review Office found there was no evidence the worker was exposed to or had direct contact with individuals who had MRSA. As such, Review Office found the worker’s claim was not acceptable.

The worker filed an appeal with the Appeal Commission on December 11, 2020. A videoconference hearing was arranged and held on May 4, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. The Act sets out the definition of an accident in s 1(1) as a chance event occasioned by a physical or natural cause, as a result of which a worker is injured. The definition includes events arising out of and in the course of employment.

The Act provides in s 4(5) that when the accident arises out of employment, it will be presumed the accident occurred in the course of employment unless the contrary is proven; and when the accident occurs in the course of employment, it will be presumed that the accident arose out of employment unless the contrary is proven.

The WCB has established Policy 44.05, Arising Out of and in the Course of Employment to provide guidance on how it will determine whether an injury arose out of and in the course of employment. The Policy sets out that 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. The Policy goes on to note that while workers are on the employer’s premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises.

Worker’s Position

The worker appeared on their own behalf before the hearing panel, relying upon a written submission to the appeal panel dated April 26, 2021 (shared with the employer) and providing an oral submission as well as testimony in response to answers to questions posed by members of the panel.

The worker’s position is that as a result of job duties undertaken on May 30, 2010, they developed right ring-finger symptoms that were diagnosed and confirmed on June 3, 2020 to be the result of an MRSA infection. The worker’s position is that the infection arose as a result of suspected contact with MRSA arising out of and in the course of undertaking their job duties and that the infection was contracted through a micro-abrasion in the worker’s skin. As the infection occurred in the course of employment and arose out of employment, the worker’s position is that the claim should be acceptable as there was an injury arising out of and in the course of employment.

The worker noted that their profession and job duties make them more susceptible to encountering and becoming infected with MRSA, pointing to the WCB medical advisor’s opinion of October 21, 2020 as supporting this position in stating that those in the worker’s profession would be at a “...slight increase in risk for the development of MRSA associated skin infections."

In the written submission the worker described in some detail the nature of their work duties and scheduling. The worker further described the development of symptoms on May 30, 2020 and provided photographs of the affected finger.

In answer to questioning from panel members, the worker confirmed their practices in respect of use of personal protective equipment in the course of their work duties, as well as their handwashing practices. The worker described to the panel how they believe they may have come into contact with MRSA through skin to skin forearm contact (i.e. above the worker’s protective gloves) with an individual they were assisting, or through use of the same pen and tablet used by an individual they were assisting, noting that the electronic pen and tablet cannot be used with gloves on. The worker could not recall for the panel sustaining any abrasions or cuts on the date of accident and posited that MRSA could have entered through micro-abrasions resulting from dry skin, noting that the treating plastic surgeon suggested this as a possible means of encounter with MRSA.

In sum, the worker’s position is that their right ring finger MRSA infection was contracted arising out of and in the course of their employment, based upon the increased likelihood of contracting such an infection in the worker’s profession and given the worker’s exposure to a recently hospitalized individual on May 30, 2020. As an incident of skin to skin exposure occurred on that date and the worker’s symptoms arose soon thereafter on that date, the worker’s position is that they contracted the infection on May 30, 2020 in the course of their employment. Although the worker is not able to confirm that there was exposure to a confirmed case of MRSA through their work, neither can the employer confirm that there was not. Therefore, the worker’s position is their claim should be accepted on the basis of an injury arising out of and in the course of employment.

Employer’s Position

The employer was represented in the hearing by its workers compensation coordinator, who made an oral submission on behalf of the employer and answered questions posed by panel members.

The employer’s position is that the evidence does not establish a probable causative relationship between the worker’s job duties and the worker contracting the MRSA infection. The employer agrees with the prior decisions reached by the WCB in respect of this claim and takes the position that the worker’s claim cannot be accepted as there is no evidence that the injury resulted from an event arising out of and in the course of the worker’s employment.

The employer’s representative noted that the worker confirmed to the WCB and in their submission that they wore appropriate personal protective equipment at all times during their work except when remaining in the work vehicle for training purposes. The employer’s representative confirmed that all workers have access to and are provided with appropriate personal protective equipment when undertaking work duties.

The employer pointed the panel to consider that there is no evidence that the worker was exposed in the course of their work duties to any person with confirmed symptomatic or asymptomatic MRSA infection and further that there is no evidence of any trauma to the worker’s skin barrier that would render the worker vulnerable to such infection. The worker’s suggestion that they contracted MRSA through a dermal micro abrasion is speculative and not supported by any evidence. The worker’s risk of contracting MRSA through their work is further mitigated by the consistent use of personal protective equipment. The employer’s representative noted that the WCB medical advisor provided a clear opinion that direct contact with MRSA was required in order to contract MRSA and that in this case, there is no such evidence.

With respect to the worker’s contention that their profession is more vulnerable to contracting MRSA infections, the employer’s position is that MRSA is an ordinary disease of life, prevalent in the community and not peculiar to the worker’s profession.

The employer’s position is that the worker’s claim is speculative in that the worker is unable to confirm that there was any contact with a confirmed case of MRSA arising out of and in the course of their employment, and that even if there was such a contact, there is no evidence that the worker contracted the same strain of MRSA as any such contact.

In sum, the employer’s position is that there is no evidence to support the worker’s claim that they were injured as a result of an exposure to MRSA arising out of and in the course of their employment. The worker’s claim should therefore not be accepted, and the appeal should be denied.

Analysis

The issue on appeal is whether the worker’s claim is acceptable. For the appeal to be successful, the panel would have to determine that the worker was injured as a result of an accident as defined by the Act. The panel was not able to make such a determination for the reasons that follow.

The Act defines an accident as including an event that occurs arising out of and in the course of employment, and as a result of which a worker is injured. WCB Policy 44.05 provides guidance to the panel in determining whether or not the injury sustained arose out of and in the course of the worker’s employment, and in the application of the presumption contained in s 4(5) of the Act. This policy sets out that an injury or illness is said to have “arisen out of employment” if the activity giving rise to 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.

In considering whether the injury, cellulitis in the worker’s right ring finger caused by an MRSA infection, was sustained arising out of their employment, the panel noted that there is no evidence of any confirmed exposure to MRSA resulting from the conditions or obligations of the worker’s employment. The worker’s assertion that they may have been exposed during a call on May 30, 2020 is therefore entirely speculative. While the panel accepts the WCB medical advisor’s statement that in the worker’s profession, there is a slight increase in risk for the development of MRSA associated skin infections, this slightly increased risk does not mean that the worker was exposed. In this regard, the panel also noted the worker’s evidence as to their careful use of personal protective equipment, as well as frequent washing to prevent exposure to and transmission of disease. The worker’s use of protective equipment and frequent handwashing would minimize rather than further increase their associated risk. On the evidence before the panel, we are unable to find on a balance of probabilities that the worker’s finger infection was sustained or contracted arising out of their employment.

The panel also considered whether there is evidence that the worker’s MRSA infection arose in the course of their employment. In considering this question, the panel noted that not every symptom or ailment that arises at work is the result of an injury at work. The worker testified that they first noted symptoms on their right hand in the afternoon of May 30, 2020. The evidence provided by the WCB medical advisor that the symptoms of MRSA can manifest at any time between 1 – 10 days after exposure. Although the worker is adamant that they were exposed to MRSA at an assistance call on May 30, 2020, they are unable to confirm that to be the case. Further, the worker testified they had no prior skin-break injury that they were aware of. Given that a MRSA infection can manifest at any time between 1 – 10 days after exposure and given that the worker is unable to confirm when the exposure occurred, whether on the date the symptoms manifested (May 30, 2020) or earlier, the panel is unable to find on a balance of probabilities that the worker’s injury was sustained in the course of their employment.

The panel found the worker to be a credible witness on their own behalf, but ultimately the worker’s position is based solely upon speculation and does not amount to sufficient evidence to establish, on a balance of probabilities that the MRSA infection was sustained as a result of an accident arising out of and in the course of the worker’s employment. As the evidence does not establish either that the worker’s injury was sustained arising out of employment nor that it was sustained arising in the course of employment, the presumption found in s 4(5) of the Act is not applicable.

On the standard of a balance of probabilities, the panel concludes that the evidence does not establish that the worker’s MRSA infection was sustained arising out of and in the course of their employment. Therefore, the worker’s claim is not acceptable, and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of May, 2021