Decision #20/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim was not acceptable. A videoconference hearing was held on February 8, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is not acceptable.
On September 7, 2021, the worker filed a Worker Incident Report with the WCB reporting an incident at work on April 24, 2021. The worker reported noticing “…an irritant powdery substance…” inside their facemask. The worker described rinsing out the mask with water, and then approximately 30 minutes later, feeling a little sick. A few hours later, the worker was feeling increasingly sick and dizzy and contacted their supervisor to advise they were leaving work and would obtain a ride home from a family member.
The WCB received information from a local emergency department regarding the worker’s admission and subsequent transfer to a larger treating facility on April 27, 2021, as well as an initial physician’s report from the worker’s treating family physician. The consultation report dated April 27, 2021 from the larger treating facility noted the worker had been admitted and brought to the facility “…due to concerns about bizarre behavior and a recent onset of psychotic symptoms.” The consulting psychiatrist reported the worker had limited engagement with their treating healthcare providers at the facility but that the worker’s family member provided information describing the worker’s behavior as increasingly bizarre with increased paranoia and belief that everyone was watching them, including the family members. The family member also noted concern that the worker was not sleeping or eating properly and had been neglecting their house. The family member advised the psychiatrist they had contacted the authorities due to their concern for the worker’s safety. The treating psychiatrist noted the worker did not have previous contact with psychiatry and provided their impression the worker was presenting with “…recent onset of psychotic symptoms over the last five weeks with concerns about bizarre behavior and paranoid beliefs.”
The Doctor First Report from the worker’s treating family physician for an appointment on September 3, 2021 noted the worker’s report of being drugged at work on April 24, 2021 and not being the same since that time. The treating physician recommended a referral to psychiatry.
On September 7, 2021, the WCB contacted the worker to discuss the claim. The worker described that on April 24, 2021 they felt really sick around 1:30 pm and contacted their supervisor for a ride home as they felt they couldn’t drive. The worker reported a family member brought them home and they continued to feel sick. The worker also advised the WCB of concerns over issues at their job site and that they had not worked since they were discharged from the hospital.
On September 8, 2021, the WCB spoke with the employer who advised they were not aware of the worker’s claim and advised they would contact the worker’s supervisor for more information. The employer noted that when incidents occur, they require incident reports to be completed. On September 10, 2021, the employer provided the WCB with an Internal Investigation Report, completed by the worker’s supervisor, with copies of text messages between the worker and the supervisor where the worker advised they drank something out of their thermos, then felt sick and requested permission to leave for the day.
The WCB advised the worker on September 29, 2021 that it determined their claim was not acceptable as it could not be established there was an accident arising out of or in the course of their employment.
On October 11, 2021, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker re-stated the information they had previously provided to the WCB and provided photographs of their worksite, information regarding complaints they made against the law enforcement agency, and copies of communications between themselves and family members and their supervisor. On October 18, 2021, Review Office found the worker’s claim was not acceptable.
The worker filed an appeal with the Appeal Commission on November 3, 2021. A videoconference hearing was arranged for February 8, 2022.
Applicable Legislation and Policy
The Appeal Commission 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.
Section 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. The Act defines “accident” in s 1(1) 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,
(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.
The worker appeared in the hearing on their own behalf and provided a submission to the panel. The worker also provided testimony through answers to questions posed to them by panel members.
The worker’s position is that their claim should be accepted because on April 24, 2021 they felt ill at work after finding a powdery residue in their mask, and after drinking from their thermos, such that they left work early. Although the worker returned to complete another shift on April 26, 2021, they were hospitalized the next day and have not been able to return to work since that time.
The worker, in their submission described two specific incidents that occurred in the course of their workday on April 24, 2021. The first incident took place when the worker arrived at their first call of the day and put on their personal protective equipment (“PPE”). Soon thereafter the worker stated their nose and eyes were irritated, and as a result, the worker removed the equipment and looked inside of it. The worker described seeing “weird dust” or “a lot of powder” inside the PPE. The worker rinsed the equipment with their own water and wiped it dry with a napkin. The worker did not describe any further issues with the PPE.
The worker also described that a few hours later, they drank out of their own thermos, describing the contents as “not very good coffee” and felt sick after doing so. The worker stated they didn’t drink very much and spat it out, and that they felt dizzy afterwards. The worker further described feeling like “it was killing” him, like it was poison. The worker described feeling sick to their stomach and that the feeling worsened over about 20-30 minutes. As a result, the worker notified the employer they were not feeling well and would be going home. The worker testified to getting a ride home with a family member and specifically disputes the information from the employer that the worker drove themself home. The worker indicated they had a headache afterward but were feeling better by that evening and did not feel bad the next day.
On questioning by members of the appeal panel, the worker confirmed that the PPE used in their work usually remains in the vehicle and belongs to the employer. The worker stated that most employees use the same PPE but sometimes they would just use whatever PPE was in the vehicle. The worker could not recall if on April 24, 2021 they brought the PPE to the vehicle at the start of the day or used the PPE that was in the vehicle. The worker also explained that the blue thermos that they drank out of on April 24, 2021 was their own and would likely have been in their personal bag.
On questioning by panel members, the worker advised that they did not go anywhere else that day and were feeling better by later afternoon or early evening. The next day was not a scheduled workday and the worker returned to work as scheduled on April 26, 2021, working the full day.
The worker stated that on April 27, 2021, police appeared at their home and arrested the worker, seizing some of the worker’s property as well. The worker described to the panel that they had made a complaint regarding the police actions to the appropriate law enforcement review agency. The worker was taken to the local hospital for assessment and then transferred to the nearest psychiatric treatment facility where they were held for 7 days.
The worker indicated that they sought to return to work with the employer after release from hospital and also sought other employment but were not successful in those attempts. The worker remains unemployed and relies upon government assistance benefits.
In sum, the worker’s position is that the claim should be accepted because the worker was at work when they first fell ill and because they have not been able to return to employment since April 26, 2021.
The employer did not participate in the appeal.
The issue on appeal is whether the claim is acceptable. For the panel to find that the claim is acceptable, it would have to determine that the worker was injured as a result of an accident arising out of and in the course of their employment. On the evidence before us, the panel was not able to make such a finding for the reasons that follow.
In their testimony, the worker described two specific incidents that occurred in the course of their workday on April 24, 2021. The first incident involved the worker experiencing irritation of their nose and eyes when they first put on their personal protective equipment (“PPE”) at work and seeing “weird dust” or “a lot of powder” inside the PPE. The second incident involved the worker feeling sick and dizzy shortly after drinking the coffee from their own thermos container. The worker’s symptoms worsened over the subsequent 20-30 minutes and as a result, the worker notified the employer they were not feeling well and would be going home with a family member. The worker indicated they had a headache afterward but were feeling better by that evening and did not feel bad the next day.
The WCB claim file documents that when the WCB contacted the employer in early September 2021, the employer confirmed the worker worked from 8:30-1:30 p.m. that day and that they worked again on April 26, 2021 but was no longer an employee. The employer subsequently investigated further and provided the WCB with copies of text messages between the worker and their manager from the afternoon of April 24, 2021 which indicate that the worker asked if they could leave to see their child and then asked for a ride home as “I just drank of a thermos made me feel sick almost like something in it. Don’t want to drive feel pretty sick.” The text messages provided indicate the worker then advised that they were done at 1:30 p.m. and that they found someone to give them a ride. The employer advised the WCB that the situation described by the worker to the manager did not seem to warrant an incident report and noted that the text messaging conversation did not “match” the report to the WCB.
The panel noted that the worker did not report to the employer on April 24, 2021 that they believed their symptoms related to their work but stated they did not feel well after drinking out of their thermos. The worker did not relay any other information to the employer regarding either of these incidents and did not report any incident to the WCB until September 7, 2021, more than four months later. In the initial report to the WCB, the worker reported the presence of an irritant in their PPE and later feeling sick but did not mention the contents of their thermos. When the WCB contacted the worker on September 7, 2021 to discuss the claim, the memorandum to file of that date indicates the worker did not at that time state what caused them to feel sick on April 24, 2021 but focused upon the subsequent events at home with respect to their personal property and police action.
The panel also reviewed the medical reporting from April 27, 2021 when the worker was brought to the local emergency department by police. The worker was at that time examined and referred for a psychiatric assessment which occurred later the same day resulting in an involuntary admission for further assessment. The panel notes that none of the medical reporting from April 27, 2021 includes any reference to the incidents the worker described, nor to the concerns expressed by the worker as to the powder in their PPE or the contents of their thermos. The only reference in the medical reporting from that date to the worker’s employment indicates the worker was no longer employed by the employer. The Doctor First Report provided by the worker’s treating family physician to the WCB on September 3, 2021 outlines that the worker reported they were drugged at work on April 24, 2021 and have not been the same since. The physician noted the worker was agitated but did not record any other findings.
On reviewing the totality of the evidence before us, the panel is unable to determine that there was any workplace accident, as defined by the Act. There is no evidence before us of any “chance event occasioned by a physical or natural cause…as a result of which a worker is injured” and the medical reports do not provide any evidence of an injury arising out of or in the course of the worker’s employment.
The panel is satisfied, on the standard of a balance of probabilities, that the worker was not injured as a result of an accident arising out of or in the course of their employment. Therefore, the claim is not acceptable and the worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 22nd day of February, 2022