The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to wage loss benefits from March 27, 2021 to April 16, 2021; and 

2. They are not entitled to wage loss benefits from May 28, 2021 to May 30, 2021.

A videoconference hearing was held on May 10, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits from March 27, 2021 to April 16, 2021; and 

2. Whether or not the worker is entitled to wage loss benefits from May 28, 2021 to May 30, 2021.

Decision

1. The worker is entitled to wage loss benefits from March 27, 2021 to April 16, 2021; and 

2. The worker is not entitled to wage loss benefits from May 28, 2021 to May 30, 2021.

Background

On April 9, 2021, the worker filed a Worker Incident Report with the WCB reporting an injury to their face, with the date of incident indicated as March 13, 2020. The worker noted on the Report they had ongoing issues wearing face masks, as they had been mandated to, due to the Covid-19 pandemic. The worker also noted they had issues with their skin prior to the workplace accident. On the Report, the worker indicated the face masks provided initially were noted to be out of date in November 2020 and after that time they were provided with different masks, which they were able to wear for a few times until they experienced difficulties. A further different type of mask was provided in January 2021, with which they also experienced symptoms such as nose sores, eye irritation and itching skin. A third different type of face mask was provided after that date which caused a rash on their right cheek.

The employer submitted an Employer's Accident Report to the WCB on April 14, 2021. The date the accident was reported to the employer was noted to be December 12, 2020, with the description of the accident being "Face has rash, lungs hurt from wearing masks."

The WCB contacted the worker on April 15, 2021 to discuss their claim. The worker advised they began working for the employer in June 2020. Prior to that time, with their previous employer, they were also mandated to wear face masks but the worker had no issues. The worker further advised they had an appointment on September 24, 2020 with their family physician and the worker was diagnosed with a latex allergy; however, when questioned by the WCB, the worker noted that allergy had not been confirmed by testing. The worker then provided a chronology of the different types of masks they had attempted to wear, all of which they reacted to. The worker indicated to the WCB that their main concern at the time was their respiratory issues experienced when wearing the face masks at work, and described breathing issues they encountered on January 19, 2021 when another type of face mask was provided to them. The worker then reported in March 2021, they had taken some holiday time and their skin issues cleared up and they did not have breathing issues. It was reported they were off from February 27, 2021 to March 5, 2021 and their symptoms improved slightly; worked March 6, 2021 and March 7, 2021, and experienced irritation inside their nose from the nose piece on the mask, along with tenderness and swelling on the right side, and then were off on holidays again from March 8, 2021 to March 21, 2021 with improved symptoms again. Once they returned to work on March 23, 2021, wearing yet another type of mask, they reported irritation to the inside of their nose and breathing issues. At an appointment with their family physician on March 24, 2021, they were provided with a sick note to be off work unless the employer could accommodate their restrictions. The worker advised they were off work on March 27, 2021 and March 28, 2021 as the employer was not sure of which type of face mask the worker could use. The worker advised they were to be referred for allergy testing, and the WCB stated a decision could not be made on the worker's claim until such time as that testing was completed. On April 15, 2021, the worker provided additional information on their claim, along with photographs of their face.

The WCB, on April 18, 2021, received a copy of the worker's family physician's report for an appointment they attended on September 24, 2020. At that appointment, the worker reported a rash on their right temple, which they reported was from their mask. On examining the worker, the treating physician noted redness and a raised area and noted it "…looks allergic". Topical medication was prescribed and the worker was diagnosed with eczema. On April 20, 2021, the worker advised the WCB they had been referred to an allergy specialist. On April 26, 2021, the worker contacted the WCB to advise they had been provided with an accommodation by their employer which would require them to only wear a face mask going to and from the worksite as they would be performing job duties alone in an office. However, the worker reported even the short periods of time when they were required to wear a mask left them with a headache, itchy/scratchy eyes and their chest felt heavy like it was harder to breathe.

The worker attended for testing with an allergy specialist on May 18, 2021 for an initial evaluation and patch testing, then again for follow-up on May 21, 2021. The specialist noted the worker's initial reporting of issues with the use of old face masks but noted the worker continued to report issues with various types of masks. The specialist further noted the worker was now using a respirator and their skin had cleared up. The worker advised the allergy specialist they tended "…to develop rashes, rosacea or acne…" with many soaps or lotions and reported irritation and swelling using products that contained latex. After the initial skin test, the specialist noted an immediate reaction to latex was negative, with the patch tests also reporting negative after 48 and 72 hours. The specialist opined the worker did not have a specific allergy to latex, rubber chemicals or any of the materials in the masks provided but it was their belief the worker developed an irritation related to sweat, friction or heat under a face mask. It was recommended the worker change masks frequently, every one to two hours, and use a device to keep the mask material away from their skin.

On June 2, 2021, the worker contacted the WCB to advise they had missed time on May 28, 2021, May 29, 2021 and May 30, 2021. After the WCB requested clarification, the worker advised they had missed time on those dates as they believed their employer had not provided them with adequate safety measures, including fit testing the face masks recommended by their treating family physician. The worker noted they had been fitted with their new face mask on May 31, 2021. On July 16, 2021, the employer contacted to the WCB to gather information on the worker's claim and advised that, after being fitted for the recommended mask, the worker advised they found it uncomfortable and returned to using the same type of mask they had originally advised caused their skin and breathing difficulties.

The worker's file was reviewed by a WCB medical advisor on July 20, 2021, who opined the worker's diagnosis was "…an irritant contact dermatitis to excesses of sweat, friction and/or heat in relation to a surgical mask to account for [the worker's] facial skin symptoms. In a note to file on July 22, 2021, the worker's WCB adjudicator indicated the date of injury for the worker's claim would be updated to September 24, 2020, being the date the worker first sought medical treatment for their skin difficulties. On July 27, 2021, the WCB advised the worker their claim was accepted for contract irritant dermatitis; however, only medical aid benefits for treatment of the condition would be accepted as there was no medical evidence to support the worker required time off work due to the condition.

The worker's representative requested reconsideration of the WCB's decision that the worker was not entitled to wage loss benefits on September 1, 2021. The representative noted that, since the start of the Covid-19 pandemic, the worker was required to wear personal protective equipment (PPE) in accordance with public health orders and they continued to attempt different types of masks in order to meet the requirement. The representative advised that the worker continued to experience difficulties and could not wear the face masks as required by the public health orders and because of those orders, the employer could not accommodate the worker. As such, the worker was entitled to wage loss benefits. On October 15, 2021, the employer's representative provided a submission in response to the worker's representative's submission in support of the WCB's decision the worker was not entitled to wage loss benefits from March 27, 2021 to April 16, 2021.

On November 2, 2021, the worker's representative contacted Review Office and requested an additional issue be added to the request for reconsideration, that the worker is entitled to wage loss benefits from May 28, 2021 to May 30, 2021. On November 3, 2021, a formal decision letter stated that the worker was not entitled to wage loss benefits from May 28, 2021 to May 30, 2021, as it was determined the worker chose, under their right to refuse unsafe work, not to work those days, which was not related to their WCB claim or the workplace accident. On November 10, 2021 and November 12, 2021, the employer's representative provided additional information in relation to the public health orders in place during the times the WCB said the worker was not entitled to wage loss benefits. Additional responses from the worker's representative and the employer's representative were received on November 30, 2021 and December 1, 2021.

On December 8, 2021, Review Office found the worker was not entitled to wage loss benefits from March 27, 2021 to April 16, 2021 and from May 28, 2021 to May 30, 2021. Review Office accepted the evidence from the employer's representative that the accommodated duties offered by the employer and attempted by the worker were appropriate and met the requirement directed by their healthcare provider that the worker only wear a face mask for a few minutes at a time and not have to wear a face mask for most of their shift. The employer's representative also noted the worker was not totally disabled as a result of the accepted contact dermatitis diagnosis and the accommodated duties which involved working in a private office were acceptable. Review Office noted the worker's ability to perform those modified duties on April 22, 2021 indicated the worker would have been capable of performing those duties from March 27, 2021 to April 16, 2021. With respect to the time loss for May 28, 2021 to May 30, 2021, Review Office found it was the worker's choice to refuse to work during that time because the worker felt it was unsafe. Review Office further found the accepted contact dermatitis was not active at the time and as such, the worker did not miss time due to the workplace accident but rather an employment-related matter unrelated to their WCB claim.

The worker's representative filed an appeal with the Appeal Commission on December 17, 2021. A videoconference hearing was arranged for May 10, 2022.

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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states:

Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “… where an injury to a worker results in a loss of earning capacity…”. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Policy 43.20.25, Return to Work with the Accident Employer, (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Return to Work Policy describes suitable modified or alternate work as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

Worker’s Position

The worker was assisted by a worker advisor, who made a presentation to the panel. The worker and the worker advisor responded to questions from the panel. The worker’s position was that public health orders required the worker to wear a mask but the masks provided to the worker aggravated the worker’s skin condition. The worker suffered an injury which prevented the worker from working. The employer did not accommodate the worker, thus the worker is entitled to wage loss benefits.

Employer’s Position

Two representatives participated in the hearing on behalf of the employer. The employer’s position was that there was no medical documentation indicating that the worker was incapable of work. Significant efforts were made to fit the worker with the proper mask. The employer accommodated the worker by providing a private office where the worker was not required to wear a mask and not required to leave the office for more than a few minutes at a time.

Specifically regarding the worker’s claim for wage loss benefits for the period May 28 to 30, 2021, the employer stated that suitable accommodation and masks were provided. The worker chose to leave work due to questions about the effectiveness of the mask; the worker did not leave work due to an injury or an allergic reaction, thus the worker’s time loss during that period was not due to a compensable injury.

Analysis

The worker has an accepted claim for irritant contact dermatitis due to excesses of sweat, friction and/or heat in relation to wearing a surgical mask, causing facial skin symptoms.

On March 24, 2021, the worker’s physician prescribed that the worker required accommodation at work in that the worker was not to wear a mask for more than 2-5 minutes at a time and must not wear a mask for most of the day. The worker was not to work until the accommodation had been attained. The employer provided the panel a copy of emails exchanged between the worker and the employer which confirmed that the worker gave a copy of the prescription detailing the required accommodation to the employer on March 24, 2021. On March 25, 2021, the employer noted that the only way to accommodate the worker would be to identify a location where a mask would not be needed. An email dated March 26, 2021 indicated that the employer had not yet found a way to accommodate the worker. In an email dated April 1, 2021, it was noted that accommodation still had not been found.

Email communications between April 1, 2021 and April 5, 2021 indicated that the employer continued its attempts to find a suitable mask which would allow the worker to continue with regular duties.

In an email dated April 16, 2021, the employer acknowledged the need to accommodate the worker. The employer proposed that the worker could use a private office and suggested a return to work on April 22, 2021. The worker did return to work on April 22, 2021 with the proposed accommodation in place.

Having received the physician’s prescription requiring accommodation, it is evident that the employer’s efforts continued to be focused on finding a mask which the worker could tolerate wearing. Despite these efforts, a suitable mask was not found. Accommodation was not in place until April 22, 2021 which is when the worker returned to work.

The panel accepts that the worker continued to have a compensable injury requiring accommodation which was not offered until April 22, 2021. Accordingly, the worker was not able to work during the period March 27, 2021 to April 16, 2021 due to their compensable medical condition.

As noted, the worker returned to work on April 22, 2021, with the required accommodation in place. The worker’s physician saw the worker on May 18 and May 21, 2021, and reported that the worker’s skin had cleared up and was “fairly clear” at that time. However, the worker became concerned that the mask which the worker was wearing at the time may not provide sufficient protection. The worker determined that they would not report for work from May 28 to May 30, 2021. There was a lack of medical evidence to support the need for the worker to be off work during this period of time due to their compensable injury. The worker’s concern was of a health and safety nature and the worker's inability to attend work was not due to an injury by accident arising out of and in the course of employment, as required by the Act.

Accordingly, the panel finds that the worker is entitled to wage loss benefits from March 27, 2021 to April 16, 2021; and the worker is not entitled to wage loss benefits from May 28, 2021 to May 30, 2021.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 19th day of May, 2022