The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that they are responsible for 21.08% of the claim costs. A videoconference hearing was held on May 25, 2022 to consider the employer's appeal.

Issue

Whether or not the employer should be responsible for 21.08% of the claim costs.

Decision

The employer should be responsible for 21.08% of the claim costs.

Background

The employer filed an Employer's Accident Report with the WCB on October 22, 2018, indicating the worker reported an injury to both his hands and fingers that occurred on October 15, 2016 and was reported to the employer on October 15, 2018. The employer described:

The worker reported that his hands and fingers go numb & turn white due to working in cold temperatures. He said that his doctor was investigating whether he had Raynaud's disease and related that the use of pneumatic tools contributed to his condition.

The worker filed a Worker Incident Report on October 24, 2018, also reporting an injury to his bilateral hands and fingers that occurred on October 15, 2016, noting that: "This is cause (sic) by working with pneumatic tools over the years and in cold conditions which triggers the condition." The worker indicated in his Report that he occasionally worked outside and was continually twisting and turning and squeezing his hands while using and holding the tools. The worker reported he first noticed the onset of his symptoms in the last couple of years and the symptoms were getting worse, with his hands and fingers turning white and losing all feeling.

On November 5, 2018, the WCB received a Doctor's First Report for the worker's appointment with his family physician on October 12, 2018. The physician noted that the worker reported his "hands going white and cold and painful in cooler conditions." The physician reported a normal examination of the worker's hands, but queried a diagnosis of Buerger's disease and recommended restrictions of avoiding working in cold conditions.

On November 6, 2018, a WCB adjudicator spoke with the worker, who confirmed his treating family physician had not done any testing and he had not been seen by a specialist. The adjudicator advised the worker that his claim would not be accepted as there was no diagnosis which could be related to his employment. A formal decision letter was sent to the worker on the same date.

Additional medical evidence was placed on the worker's file, including a report from a rheumatologist who noted the worker's "…hands have a diffuse erythematous discoloration…" but found the worker did not have an auto-immune disease or other vascular cause for the diagnosis of Raynaud's disease; chart notes from the worker's treating family physician from October 12, 2018 to May 29, 2019; and copies of medical information from another WCB claim the worker had filed.

On July 31, 2019, the employer provided a submission to the WCB setting out concerns with the worker's claim. The employer included detailed information regarding the worker's job duties and the length of time the worker would have been using pneumatic tools while performing those duties. The employer submitted that the worker's claim was not acceptable as the evidence did not support a causal connection between the worker's work activities and his symptoms. On January 23, 2020, the worker provided a detailed response to the employer's submission, describing his work duties and responsibilities and noting his treating healthcare providers supported his job duties caused the difficulties he was experiencing with his hands and fingers.

The worker's file was reviewed by a WCB medical advisor on March 3, 2020. The medical advisor noted the worker's rheumatologist had diagnosed the worker with Raynaud's phenomenon, with testing done to rule out "…autoimmune, vasculitic, and cryoglobulin disorders…" The advisor went on to note that nerve conduction studies performed May 8, 2019 indicated the worker had "…neuropathic findings in the median nerve distribution bilaterally…raising the possibility of Hand-Arm Vibration Syndrome (HAVS)." The medical advisor further opined that there are no specific diagnostic studies which might confirm Raynaud's phenomenon, but given the suspected HAVS diagnosis and the findings on the nerve conduction studies, the worker might want to seek treatment from a vascular specialist. The medical advisor recommended the worker avoid exposure to cold until a further assessment could be conducted. On April 28, 2020, the WCB's Compensation Services advised the worker that based on the currently available medical information, a causal connection between his job duties and his hand/finger difficulties could not be established and his claim was not acceptable.

On May 12, 2020, the WCB received a Doctor Progress Report from the worker's family physician for an appointment the worker attended on May 11, 2020. The physician noted findings on examination of "slightly paler hands with numbness in the thumb also this discolouration hands is variable due to vibration and temperature." Restrictions of light duties only were noted. On May 21, 2020, the family physician provided a further report to the WCB and opined "…I have seen him since October 12, 2018 with severe Raynaud's disease of his hands presumably related to using vibratory tools over a long period of time…" and set out the dates on which he had seen the worker. The physician also noted the worker's condition had not settled, and if anything, was getting slightly worse.

On June 23, 2020, the worker's file was reviewed by a WCB internal medicine consultant. The internal medicine consultant agreed with the treating physicians' diagnosis of Raynaud's phenomenon to account for the worker's hand symptoms to cold exposure. The consultant stated that Raynaud's phenomenon can be primary or secondary, and that in individuals with secondary Raynaud's phenomenon, the phenomenon is associated with an underlying medical condition or specific exposure. The consultant noted that the rheumatologist had ruled out several medical conditions typically associated with Raynaud's phenomenon. The consultant stated that one of the exposures associated with the development of secondary Raynaud's phenomenon is hand vibration, also known as vibration-induced Raynaud's phenomenon or vibration-induced white finger. The consultant noted that the influence of hand vibration is considered in terms of the intensity and duration of vibration exposure, and that the "…required duration of cumulative exposure to vibration to provoke vibration-induced Raynaud phenomenon is in the order of thousands of hours, typically two thousand plus hours."

The WCB internal medicine consultant further noted the worker's advice on the file that he worked with pneumatic and vibratory hand tools and did so daily while performing his job duties, but that the worker did not clarify or specifically estimate how many hours he would have spent in a day or week using powered, vibrating tools, and there was no confirmation on the file of the cumulative exposure the worker would have had over his working career to vibratory tools. The consultant opined that if the worker's exposure to hand-held tools that vibrate could be substantiated in the order of two thousand hours, the likely diagnosis to account for his hand symptoms to cold exposure would be vibration-induced Raynaud's phenomenon or vibration-induced white finger.

The WCB requested additional information from the employer regarding the length of time each work day the worker was using vibratory tools and how long the worker had been employed with the employer. On September 18, 2020, the employer provided sample work sheets for some of the worker's job duties to the WCB to indicate an average time the worker was using vibratory tools. On September 30, 2020, the employer also provided information with respect to the worker's employment history. On October 5, 2020, Compensation Services advised the worker that based on an average of 39.14 minutes per day of vibratory tool usage and the 1930 days he had been employed with the employer, he was significantly below the cumulative time threshold for occupational exposure to vibration as noted by the WCB internal medicine consultant.

On October 7, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker set out his concern regarding the information the employer had provided with respect to his job duties and tool usage, and provided a detailed response indicating he believed that three to four hours per day was a more accurate accounting of his daily tool usage. On December 30, 2020, the employer provided a submission in response to the worker's request for reconsideration, including additional information regarding vibratory tool exposure. The worker responded to that submission on January 8, 2021, and provided a listing of his work history on January 13, 2021. On January 14, 2021, Review Office returned the worker's file to Compensation Services and requested further investigation into the worker's previous employment history and possible vibratory hand tool exposure.

Between February and October 2021, the WCB contacted the worker's previous employers to gather further information. Previous employers provided the WCB with time periods of employment, along with estimates of vibratory tool usage for the worker. In a memorandum to file dated November 5, 2021, the worker's WCB adjudicator detailed the information received from the employer and the previous employers. The adjudicator confirmed that based on the worker's cumulative exposure to vibratory tool use over a 25-year period prior to developing symptoms, the worker had more than 2,000+ hours of vibratory tool use, and concluded that "…the worker's symptoms and diagnosis of Raynaud's phenomenon is medically accounted for in relation to the worker's high impact vibratory tool use." In a further memorandum to file dated November 5, 2021, the adjudicator calculated a cost allocation of 78.92% to the worker's previous employers and 21.08% to the employer. On November 12, 2021, Compensation Services advised the employer that the worker's claim for a long-latency condition had been accepted by the WCB, attributed in part to his employment with the employer, and that 21.08% of all costs associated with the claim would be charged to their firm.

On January 12, 2022, the employer requested that Review Office reconsider Compensation Services' decision on cost allocation. The employer disagreed with the WCB's method of calculating the cost allocation, noting the allocation "…only accounted for overall work history, rather than exposure to vibratory tools." The employer further disputed the information collected by the WCB from the worker's previous employers, noting that information provided by previous employers was based on subjective estimates and some employers could not provide the required information, which resulted in the employer being allocated a higher percentage of the costs.

On February 7, 2022, Review Office determined that the employer was responsible for 21.08% of the claim costs. Review Office accepted that it was the overall exposure that was responsible for the development of the worker's compensable injury. Review Office further found the worker had been employed in his occupation for over 24 years, with ten different employers, and the file evidence supported he had used vibratory tools at all of those places of employ and a compensable injury developed as a result of his overall equipment usage. Review Office found that the costs of the claim should be dispersed among all the employers who contributed to or were involved in the development of his condition, and that the 21.08% calculation done by the WCB's Compensation Services was correct.

On February 15, 2022, the employer appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies established by the WCB's Board of Directors. The provisions of the Act in effect as at the October 15, 2016 date of accident are applicable.

Section 105 of the Act provides as follows:

Allocation of cost of occupational disease 

105 Where an occupational disease is contracted gradually, the board may allocate, in such manner as it considers fair and just, the cost of a claim among employers who have employed the worker in the employment to which the board determines the occupational disease is due.

The Board of Directors has established WCB Policy 31.05.15, Cost Transfer – Self-Insured (the "Cost Transfer Policy"), which provides a framework for removing claim costs from a Self-Insured Employer's Claim Costs Account and transferring them to another employer in Classes A to E (Cost Transfer).

The Policy provides that Cost Transfer may be provided to Self-Insured Employers where the claim involves cumulative trauma or long-latency occupational disease, as described in Schedule A to the Policy. Schedule A states, in part, as follows:

Cumulative Trauma

When the injury is a result of cumulative trauma, claim costs will be transferred to active employers on the basis of identifiable exposure with each employer. The WCB will confirm that the worker was exposed to an occupational hazard in the employer's workplace which contributed to the development of the cumulative trauma injury. … 

Long-Latency Occupational Disease

While the WCB makes decisions regarding Cost Transfer on a case-by-case basis, "long latency" is generally understood as involving a period of at least two years between the worker's last exposure to the harmful substance and the manifestation of the disease.

When the accident employer is a Self-Insured Employer, all claim costs are assigned to the Self-Insured Employer, with the following exceptions:

• Those costs that result from an injured worker's exposure to a hazardous substance while he or she was previously employed with a Class E Employer are assigned to the Cost Apportionment Fund.

• Those costs that result from an injured worker's exposure to a hazardous substance while he or she was previously employed with another Self-Insured Employer(s) are assigned to the other Self-Insured Employer(s) based upon the period of exposure. …

Employer's Position

The employer was represented by its Workers Compensation Officer, who made an oral submission to the panel, a written copy of which was provided in advance of the hearing.

The employer's position was that based on the information on file, the WCB's decision to allocate 21.08% of the claim costs to their firm was not "fair and just" as defined under the Act, and their appeal should be allowed.

The employer's representative submitted that the WCB attempted to obtain details of the worker's employment history, as it was determined during the adjudication of the claim's acceptability that the worker was exposed to vibratory tools outside the accident employer during his 27-year career. The representative noted that the claim was accepted based on the worker's hours of exposure to vibratory tools. The representative submitted that costs should be allocated on the same basis, not just on years of experience, as the exposure was not the same with each employer.

The employer's representative noted that although their firm provided detailed information with respect to the worker's actual exposure to vibratory tools with the employer, the WCB performed a simple cost allocation based on the worker's total employment history, in weeks, which effectively placed each employer at the same level of accountability.

The employer's representative submitted that the current cost allocation decision treated every year of exposure as equal, even though the file suggested there was a wide variety of vibratory tool usage outside the worker's employment with the accident employer. The representative noted that there is no evidence on file to suggest that the WCB made a determined effort to allocate costs based on estimated or actual exposure to vibratory tools, which was the primary criterion for the claim's acceptance. The representative submitted that the employer performed its due diligence, devoting significant time and effort to collecting information which showed the worker's actual cumulative exposure to vibratory tools while he was in their employ was 805.5 hours, but this was essentially ignored by the WCB, resulting in an unfair allocation of costs.

The employer's representative submitted that it is the WCB's responsibility to allocate costs based on the most accurate information available. The representative submitted that there is also a significant element of subjectivity in the applicable legislation with respect to cost allocation. The representative noted, in particular, that section 105 of the Act states that the WCB may allocate the costs of a claim among employers in such manner as it considers "fair and just."

The employer's representative submitted that their firm should not be penalized for the lack of response from previous employers or the WCB's failure to pursue the required data from employers who had little stake in the outcome. The representative argued that there was little incentive for the Class E employers to investigate the worker's claim thoroughly, as their 78.92% portion of the claim costs was allocated to the cost apportionment fund. The representative submitted that they were the only employer who was directly impacted by the WCB's cost allocation decision, due to their self-insured status.

The representative submitted that in their January 12, 2022 submission, they had recommended a number of ways to allocate costs based on the estimated cumulative exposure which the WCB had collected from some of the Class E employers, supplemented by the exposure estimates the worker had provided for most of his employment history. It ws submitted that these estimates should be used to differentiate the severity of exposure in the cost allocation calculation. The representative submitted that the individual employers have the opportunity to dispute their accuracy, and that absent contradictory evidence from those employers, the exposure claimed by the worker while employed with the Class E employers should be considered valid, and the allocation should be based on the information collected on file.

In conclusion, the employer's representative submitted that the employer should not be responsible for costs based on a generalized calculation of total years of employment, and the allocation of 21.08% of the claim costs to their firm was not fair or just. The representative therefore asked that the Review Office decision be overturned, and that the panel recommend the total hours of vibratory tool usage, as outlined in the employer's January 12, 2022 submission, be used as the basis to revise the cost allocation.

Worker's Position

The worker did not participate in the appeal.

Analysis

The issue before the panel is whether or not the employer should be responsible for 21.08% of the claim costs. For the employer's appeal to be successful, the panel must find that the relevant provisions of the Act and/or Cost Transfer Policy were not properly applied in establishing that 21.08% of the claim costs should be allocated to their firm. The panel is unable to make that finding, for the reasons that follow.

The employer has argued that the current cost allocation of 21.08% of the claim costs to their firm is not fair and should be considerably lower. The panel notes that section 105 speaks to the allocation of the cost of a claim in such a manner as the WCB considers fair and just "among employers" who have employed the worker in the employment to which the occupational disease is due. The panel is of the view that the "fair and just" standard as set out in section 105 applies to all involved stakeholders, that is, costs must be allocated in a manner that is fair and just not only to the accident employer, but to all of the involved employers.

The panel accepts the employer's argument that Class E employers may be less inclined or motivated to provide information to investigate the worker's claim than an employer who is self-insured and therefore directly impacted by the cost allocation. The panel notes that Class E employers are nevertheless indirectly impacted by such allocation, as they pay into the cost apportionment fund to which such costs are assigned.

The panel accepts that an allocation based on the length of employment may not be the fairest and most just method for allocating costs in all circumstances, and that if there appears to be a better or fairer method for determining how costs should be apportioned in a particular case or situation, that method should be explored and potentially applied. The panel notes that the WCB was not required under the Act or the Cost Transfer Policy to allocate costs based on length of employment with each employer. The panel is satisfied, however, that such a method was fair and was properly applied in this instance.

The employer relied on the additional information they collected and studies they conducted as providing evidence that the worker had much less exposure to vibratory tool usage while in their employ than was originally indicated. That additional information included a review and summary of certain historical work orders, with a breakdown of work performed and extrapolation of average minutes of vibratory tool usage per day based on that information; a unionized employee survey of vibrating tool usage at eight different locations; and a December 11, 2020 report of a vibrating tool assessment done by an industrial hygienist at one of these locations.

The panel notes that most of the information provided in these reports or studies was self-reported or subjective, not objective. The employee survey of the approximate duration of pneumatic and vibratory tools per day listed a wide range of exposure times for employees not only at, but within, the different locations. The panel notes that the lowest numbers were at the location where the industrial hygienist's assessment was done, and that those survey numbers were markedly different from what was reported in the assessment.

The panel is of the view that the industrial hygienist's report is helpful and provides good information, but that the study was not very scientific, and the panel is not satisfied that the assessment is accurate with respect to the worker's use of vibratory tools. The panel notes that the assessment was done at a different location from the location where the worker had been working, was based on information provided by the manager and supervisor at that location, and was done more than four years after the date of accident.

The employer has argued that further information should have been obtained from the previous employers and it was up to those employers to counter the evidence on file as to the worker's exposure to vibratory tool usage while in their employ. The panel is convinced, however, based on the information on file, that it would be very difficult, if not impossible to obtain sufficiently reliable information with respect to the worker's use of vibratory tools on a daily or yearly basis from each of his ten employers over the more than 20 years prior to the date of accident.

The panel notes in this regard that the information which had been obtained by the WCB and the worker and was on file showed that many of the worker's previous employers were no longer active and/or no longer had records. The panel further notes that so many variables would be involved in determining the worker's exposure to vibration or vibratory tool use on a daily basis over that period of time, including the particular tools and types of tools the worker was using, the duration and intensity of his usage of such tools, and the quality and state of repair of the tools.

While the panel acknowledges the employer's efforts to obtain further information with respect to the worker's vibratory tool usage in his current employ, we do not accept that because the employer had such studies done, other employers should have to take similar steps to collect additional information, failing which the worker's own estimates should be accepted as valid and accurate and used to determine how claim costs should be allocated.

The panel notes that the employer had previously argued that the worker's subjective estimates as to his level of exposure with their firm were unreliable, over-exaggerated, and nowhere near accurate. Given their previous position with respect to such estimates, the panel is unable to accept the employer's position that it would nevertheless be appropriate or "fair and just" to accept the worker's estimates as accurate or valid with respect to these other employers and apply them in determining how the claim costs should be allocated.

Based on the foregoing, the panel finds that the relevant provisions of the Act and the Cost Transfer Policy were properly applied in establishing that 21.08% of the claim costs should be allocated to the employer. The panel therefore finds that the employer should be responsible for 21.08% of the claim costs.

The employer's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of July, 2022