The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further wage loss benefits in relation to the July 8, 2019 workplace accident. A teleconference hearing was held on November 3, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further wage loss benefits in relation to the July 8, 2019 accident.

Decision

The worker is not entitled to further wage loss benefits in relation to the July 8, 2019 accident.

Background

The WCB received an Employer's Accident Report on October 18, 2019, reporting exposure due to poor air quality that had been occurring since July 8, 2019. The employer noted a facility across from their worksite had been "…burning oil and asphalt, which is creating a (sic) dangerous chemicals in the air." The employer reported that all their workers were sent home due to the exposure on October 17, 2019. Symptoms were noted to include difficulty breathing, headaches, muscle pain, trouble balancing, and anxiety.

The employer further noted that their Accident Report was also the Worker Report, as the worker was the one reporting the claim. The employer added that the "municipality was informed on July 8, 2019 regarding the air quality, but no test was done until October 9, 2019. The results came on October 17, 2019, at which point the employees were sent home."

The WCB contacted the worker on October 21, 2019 to gather further information. The worker advised the WCB that since the other company started working in early July 2019, it had been difficult to work due to the poor air quality, and the results of air quality testing done October 4, 2019 indicated the levels were unsafe. The worker noted that several employees indicated they had symptoms and were sent home, and WCB claims had been filed for all affected employees. The worker further advised that she had missed two weeks of time at work in July and August 2019 due to the exposure. The worker also advised that she was not sure who performed the air quality testing and she could not provide further information.

On October 28, 2019, the worker provided the WCB with contact information for the provincial agency who performed the air quality testing, and the WCB contacted the agency on October 29, 2019 to request a copy of the testing.

On November 13, 2019, the WCB received a copy of the chart notes and Doctor's First Report from the worker's attendance for medical treatment on July 12, 2019. The chart notes indicated the worker reported a cough, no runny nose, and some discharge in her throat as a result of fumes caused by a portable asphalt plant at work. The worker further reported she would suddenly feel pain in her right leg and shoulder, and had difficulty breathing when the wind was blowing in the fumes, but no fever or chills. The worker also reported feeling off balance after spending time in her office. The treating physician recommended the worker get fresh air if she was feeling unwell and seek medical attention if she continued to feel unwell.

On February 24, 2020, the worker provided information to the WCB regarding air quality testing, including photographs of the employer's air quality tester, the government officer's tester, and an air quality index chart. On May 22, 2020, the WCB advised the worker that as the testing location, date, or legitimacy of the testing could not be confirmed, the official test results from the agency which conducted the air quality testing would be required.

On July 2, 2021, the worker provided the WCB with a copy of the report they had received of the air quality testing conducted on October 4, 2019. The report noted two hours of air quality data was collected at the worker's worksite on October 4, 2019, and the air pollution over that period of time was found to have "significantly exceeded" the provincial 24-hour ambient air quality guidelines.

The testing information and the worker's file were reviewed by a WCB medical advisor on September 21, 2021. The medical advisor noted the worker sought medical treatment on July 12, 2019, but a diagnosis was not provided at that time. The medical advisor opined that based on the medical information on file, a probable diagnosis could not be established. On September 23, 2021, the WCB advised the worker that her claim was disallowed, as there was no medical evidence to establish a diagnosis in relation to her exposure to poor air quality at work.

On September 24, 2021, the worker contacted the WCB and provided information with respect to a second medical appointment she attended on October 19, 2019. The WCB requested a copy of the chart notes from that appointment, which were received on September 27, 2021. The notes indicated the worker reported an intermittent sore throat and cough since July 2019, which she related to being exposed to chemicals, and a current ongoing sore throat for one week, but no fever or ear pain. The treating physician diagnosed the worker with a sore throat, and prescribed a trial of antihistamine medication as the worker insisted her symptoms were due to environmental exposure. Also included with the medical chart notes was a copy of an April 2, 2018 chest x-ray and an emergency department discharge summary from the worker's attendance at a local emergency department on March 15, 2020.

On November 25, 2021, the worker's file was again reviewed by the WCB medical advisor, together with the new medical information. The medical advisor noted that the April 2, 2018 x-ray indicated the worker's lungs were clear; the October 19, 2019 chart notes reported normal physical examination findings; and the March 15, 2020 emergency department report noted all the worker's vital signs were normal. The WCB medical advisor opined that "The normal physical examination findings and normal chest x-ray do not substantiate a specific medical diagnosis." On December 1, 2021, the WCB advised the worker there would be no change to the decision that her claim was not acceptable, as there was no medical evidence to establish she had an accident causing an injury in relation to her employment.

On December 1, 2021, the worker requested that Review Office reconsider the WCB's decision, noting that none of the healthcare providers she had seen were specialists and that they could therefore not properly evaluate her difficulties, which included headaches, muscle pains, and trouble balancing.

On December 21, 2021, Review Office determined that the worker's claim was acceptable. Review Office found that the worker consistently reported problems with breathing after being exposed to poor air quality while at work, and that this could result in breathing difficulties. Review Office noted the worker reported a cough, discharge in her throat, and difficulty breathing on July 12, 2019, which did not represent a significant delay in symptom onset or seeking medical attention.

Review Office further found that the air quality testing documented emissions which significantly exceeded the air quality guidelines, with the report noting that the general population could experience symptoms such as coughing and throat irritation when the levels were high. Review Office found those symptoms were consistent with the symptoms reported by the worker. Review Office therefore concluded that the worker suffered an injury arising out of and in the course of her employment on July 8, 2019, and returned the worker's file to the WCB's Compensation Services to determine if there was entitlement to benefits.

On January 20, 2020, the WCB requested information from the employer regarding the worker's time loss. On January 22, 2022, the employer advised that the worker had taken personal time on July 12 and 31, August 5 and 9, and October 17, 2019. On January 26, 2022, Compensation Services advised the worker that they had determined she had missed two hours of work to attend for medical treatment in July 2019, and she was entitled to wage loss benefits for that time only.

On March 3, 2022, the worker requested that Review Office reconsider Compensation Services' decision to allow only two hours of wage loss benefits. The worker provided a list of dates she had taken off work due to similar symptoms such as weakness, dizziness, chest pains, cough, and loss of balance, and submitted she could not properly function at work on those dates.

On April 7, 2022, Review Office determined that there was no entitlement to further wage loss benefits. Review Office noted the dates the worker listed with respect to July 2019, and found the only entitlement to wage loss benefits was to attend medical treatment on July 12, 2019, which the WCB had approved and paid. Review Office found the treating physician had recommended at the time of the July 12, 2019 appointment that the worker was able to resume her work duties, and they could not account for the worker missing further time from work that month, as no further medical treatment was sought in July.

Review Office further stated that the WCB medical advisor had reviewed the attending physician's report with respect to an October 19, 2019 medical appointment, and noted the worker's physical examination findings were normal and the physical examination sounds "…were within normal limits." Review Office also concluded, therefore, that the worker's need for time off work from October 21 to 24, 2019 was not medically supported.

On July 19, 2022, the worker filed an appeal with the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation

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 date of the July 8, 2019 workplace accident are applicable.

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.

Subsection 4(2) provides that 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 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.

Worker's Position

The worker was self-represented on the appeal. The worker submitted copies of letters from her treating physicians, dated May 21, 2022 and July 15, 2022, respectively, in advance of the hearing, and made an oral submission at the hearing. The worker also responded to questions from the panel.

The worker indicated that starting on July 8, 2019, they noticed dark emissions coming from the facility across the street, and blowing onto their property and into their plant. The worker stated that it was like a cloud, both inside and outside their plant, and that she and the other workers could not function normally. The worker said she had many symptoms, as she described to the WCB and to the two physicians she saw at the time, including trouble breathing and a headache, loss of balance, a sore arm and shoulder, and being unable to move her leg, and noted that other workers had experienced similar symptoms as well.

The worker submitted that when she visited the two physicians on July 15 and October 19, 2019, respectively, she could not provide them with the information from the environmental assessment report and they did not perform a thorough examination as a result. The worker noted that although the air quality testing was done October 4, 2019, the information was not made available to the employer until July 2021, and based on the information in that report, there was exposure to dangerous levels of emissions containing very tiny particulate matter which could be life threatening. The worker submitted that based on the research, such emissions can get into the blood stream and can have not only short-term but also long-term effects.

The worker submitted that the decision to deny further wage loss benefits should be overturned based on the recent letters she had provided from her treating physicians. The worker noted that both physicians confirmed they did not have the environmental assessment or test results when they saw her in 2019. The worker submitted that the panel should therefore not rely on the earlier reports from the physicians to draw conclusions with respect to her entitlement to ongoing benefits.

In conclusion, the worker submitted that she was so sick as a result of the chemical exposure at work that she had to take time off work, as indicated, and that she is entitled to further wage loss benefits.

Employer's Position

The employer was represented at the hearing by its owner, who made a submission in support of the worker's position and responded to questions from the panel.

The employer's representative noted that the exhaust fumes from the facility across from them came onto their property and into their shop. He said that sometimes it was like being inside a cloud or fog. It was not bad every day, but some days it was completely foggy, and they would be breathing in these fumes. The representative noted that the test results showed that the emissions were "way off the scale," extremely high and dangerous.

The employer's representative stated that he knew for a fact that the worker was sick and not doing well. He submitted that while the doctors said the worker was fine, this was because they did not have the air quality reports. The representative said they had to fight to get those results released and he could not understand why the reports were not provided earlier. He stated that since the testing results were not made available to them for almost two years, they could not provide them to the WCB or the healthcare professionals to get the proper treatment at the time. The representative indicated that he has his own health issues now, including headaches and coughing, and submitted that no one knows what the long-term side effects of this chemical exposure might be.

Analysis

The issue before the panel is whether or not the worker is entitled to further wage loss benefits in relation to the July 8, 2019 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker has a further loss of earning capacity as a result of the July 8, 2019 workplace accident. Based on our review of all of the evidence and submissions which are before us, and for the reasons that follow, the panel is unable to make that finding.

The worker has an accepted claim based on poor air quality/chemical exposure in the workplace. The panel accepts that the evidence supports the worker was likely subjected to excessive levels of chemical exposure at various times in the workplace, starting on or about July 8, 2019 and continuing through to October 2019.

The panel is also satisfied that the level or extent of the exposure varied, and was better or worse at different times. When asked at the hearing whether the exhaust fumes were the same throughout this period of time, the worker stated that there was a really black cloud on July 8, 2019, and the exhaust continued after that, but there was definitely less some days, depending on the wind. The employer also indicated that the smoke was not bad every day and the level of smoke or emissions would depend on the wind.

The worker confirmed at the hearing that she has been paid two hours' wage loss benefits relating to her attendance to seek medical treatment on July 12, 2019, but has not received any other wage loss benefits from the WCB with respect to her workplace accident and injury. The worker has indicated she took time off work on July 12 and July 15 to 19, 2019, as well as October 21 to 24, 2019, due to the workplace exposure and injury.

The panel notes that a finding that the worker was exposed to poor air quality or chemicals is not in itself a sufficient basis to establish that the worker is entitled to additional time loss or wage loss benefits. For the worker to be entitled to wage loss benefits, the evidence must establish that the worker was unable to work, and therefore suffered a loss of earning capacity, as a result of her July 8, 2019 exposure or workplace injury.

The panel has reviewed and considered all of the medical evidence which is before us, and is satisfied that the medical evidence does not support the worker was fully disabled or unable to work following the date of the workplace incident, and in particular, during the periods of time for which she is seeking further compensation.

In this regard, the panel notes that the worker sought medical attention on July 12, 2019 and October 19, 2019. In the report and chart notes from the worker's July 12, 2019 attendance, the physician noted the worker's reported symptoms, including a cough and some discharge in her throat, as well as difficulty breathing when the wind was blowing in the fumes and feeling off balance after spending time in her office. The physician noted the worker did not have symptoms at the time of the appointment, and had indicated that no other staff reported symptoms. The physician went on to note that the worker was not disabled from work, and recommended she get fresh air if she was feeling unwell and seek medical attention if she continued to feel unwell, especially if others were feeling unwell at work.

The worker saw a second physician on October 19, 2019. After noting the worker's complaints of an intermittent sore throat since July 2019 and a current ongoing sore throat for one week, the physician reported physical examination findings which were essentially normal, and that the worker was "in no obvious distress." The physician diagnosed the worker with a sore throat and prescribed a trial of antihistamine medication, given the worker's insistence that her symptoms were due to environmental exposure.

The panel finds that no time loss or restricted duties were recommended by either of the treating physicians, and the clinical evidence does not suggest that time off was required.

The worker has argued that the information provided by the physicians in their reports should not be relied on in determining the worker's entitlement to wage loss benefits as they did not have the air quality assessment reports at that time. The worker has placed considerable reliance on the two more recent letters from her treating physicians which she filed in advance of her appeal, noting that the physicians confirmed in their letters that they did not have the environmental assessment or test results when they saw her in 2019.

The panel is satisfied, however, that the earlier reports indicate that even though they did not have the official test results, the physicians were aware at that time that the worker felt her symptoms were caused by or related to chemical exposure or exhaust fumes in the workplace. By the time of the October 19, 2019 visit, the worker had noted in the Employer Accident Report that the results of the October 4, 2019 testing had come in and indicated the levels were unsafe.

In any event, regardless of whether the treating physicians were provided with the official results of the air quality testing when they saw the worker, or were specialists in environmental issues, the panel expects that the physicians would have noted any serious or concerning symptoms and findings, and ordered further tests if they appeared to be indicated, or referred the worker to a specialist.

In response to questions at the hearing regarding her absences from work, the worker advised that she was fully disabled between July 12 and 19, and October 21 and 24, 2019. The worker described being so ill during those periods of time that she could not even drag herself to work, and just lay in bed, unable to move.

When asked what happened between July 20 and October 20, 2019 that she was able to return to work, the worker stated that she had taken the time off work starting July 12, to at least try to recover a bit. She said that after that, she was still very sick, but continued working because this was their busiest season. She noted that she is not a regular employee, but one of the owners, the CEO, and the chief engineer of the employer company, and she had to be at work to ensure the company survived. The worker stated that if she is not extremely sick, she has to go to work, and would only be off work if she absolutely had to be.

The panel is of the view that the worker's description of her symptoms as provided at the hearing is inconsistent with the medical and other information on file, and raises issues with respect to credibility. In the panel's view, the symptoms which the worker described to the physicians on July 12 and October 19, 2019 were relatively minor, as compared to what the worker described at the hearing. The panel notes that in their letters of May 21, 2022 and the letter of July 15, 2022, each physician confirmed the findings from their examination of the worker in 2019 and that they had seen the worker on one occasion only. The panel further notes that each of the worker's reported periods of absence occurred immediately after one of the worker's medical appointments, and is unable to reconcile the worker's description of her symptoms and condition with the descriptions she provided to the physicians and the physicians' findings at or about the same time.

Moreover, the panel would have expected the worker to seek further medical attention if she was as sick or disabled as she indicated at the hearing, particularly as the treating physician advised her on July 12, 2019 to seek medical attention if she continued to feel unwell. The panel acknowledges the worker's position that she needed to be at work, but finds it unlikely she would have waited more than three months after July 12 to seek further medical attention if she was as sick as she has suggested.

In conclusion, the panel acknowledges the worker's and the employer's frustration with the situation they were faced with, but is unable to find, on a balance of probabilities, that the evidence establishes that the worker was disabled or unable to work as a result of the July 8, 2019 workplace accident.

The panel therefore finds, on a balance of probabilities, that the worker did not have a further loss of earning capacity, and is not entitled to further wage loss benefits, as a result of the July 8, 2019 workplace accident.

The worker'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 30th day of December, 2022