The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A hearing was held on November 15, 2022 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 May 7, 2021 reporting an injury to his lungs/chest due to an incident at work on April 24, 2021. The worker described that while he was performing alternate sanitizing duties, a painter was painting a room, and he was exposed to paint fumes throughout his shift. The worker noted "I felt some chest pain and my eyes were watering because of the fumes."

In a discussion with the WCB on May 10, 2021, the worker advised he started to feel "…woozy, chest started to feel tight then hard to breath (sic)." After his shift, his breathing felt worse and he had chest pains, so he went straight to a local emergency department. The worker noted he had not spent a significant amount of time in the area that was being painted, but was in the area three or four times during his shift, for approximately 10 minutes each time while filling his sanitization bottles, and had to walk through the area as well. The worker further noted the fumes could be detected in the area where they ate. The worker also noted he was feeling approximately 90% better since being placed off work.

The Emergency Visit Summary for the worker's attendance at the emergency department on April 24, 2021 was received by the WCB on May 11, 2021. It was noted that the worker presented to the emergency department with chest pain and advised he had been experiencing that pain since approximately 12:00 pm that day. The worker further advised he was at work doing light cleaning when he experienced the chest pain, after which he also noted pain to his neck and shoulders. The worker also noted he had a rash on his leg. An x-ray taken at the time of the examination noted a mild amount of fluid in the worker's lungs and the worker was discharged with diuretic medication and a recommendation that he follow-up with his treating family physician. EKGs performed that day were also noted to be essentially normal. A differential diagnosis of early congestive heart failure or a viral infection was noted, and the attending physician provided a discharge diagnosis of atypical chest pain.

On April 26, 2021, the worker had a virtual visit with a local walk-in clinic, reporting he had a new cough since the day of the accident, had ongoing chest tightness but was feeling 50% improved since the workplace accident on April 24, 2021. The treating clinic physician diagnosed the worker with atypical chest pain and recommended the worker follow-up with his family physician. Two weeks off work was also recommended.

On May 5, 2021, the worker attended an appointment with his family physician. The worker reported shortness of breath, fatigue and chest tightness after being exposed to paint fumes at work. The physician noted the worker underwent chest x-rays with some pulmonary edema indicated. A further x-ray, taken May 5, 2021, was found to be normal. The family physician provided a diagnosis of pneumonitis secondary to paint exposure and recommended the worker return to work on May 10, 2021.

On June 29, 2021, a WCB internal medicine, allergy and immunology consultant reviewed the worker's file and opined that the clinical information on file did not substantiate a specific medical diagnosis to account for the worker's reported symptoms.

On July 8, 2021, the WCB advised the worker that his claim was not acceptable as there was no evidence to support a causal relationship between his chest pain/symptoms and intermittent inhaling of paint fumes at work on April 24, 2021.

On August 9, 2021, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative submitted the worker was subjected to "…frequent exposure to oil-based Paint fumes on April 24, 2021, causing shortness of breath/chest pains…" and noted the symptoms were consistent with oil-based paint poisoning and required him to attend at a local emergency department. The worker's representative further noted the worker's treating healthcare providers supported the worker exhibited symptoms which were consistent with oil-based paint poisoning. On September 27, 2021, the employer provided a submission in support of the WCB's decision.

On October 15, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found that the initial test results provided no evidence of a level of exposure or rationale to explain the worker's medical findings. Review Office acknowledged and placed weight on the opinion of the WCB medical consultant who was unable to find a causal connection to the work environment, related to the exposure to and inhalation of paint fumes. Review Office noted the worker had very limited exposure to the fumes from the ongoing painting, and that the medical investigations, assessments and evidence centred on the worker's non-compensable medical issues and did not provide evidence of an inhalation or toxic exposure having occurred. Review Office concluded that based on the noted activities, the limited exposure to the paint fumes, and no evidence of a medical correlation to the event, they were unable to establish the worker had sustained an inhalation injury or accident due to paint fume exposure.

On June 1, 2022, a worker advisor acting on behalf of the worker appealed the Review Office decision to the Appeal Commission, and an oral hearing was arranged for November 15, 2022.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 6, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations made under The Workers Compensation Act (the "Act"), and policies established by the WCB's Board of Directors. As the date of injury is identified as April 24, 2021, the applicable legislation is the Act as it existed at that time.

Subsection 4(1) of the Act provides that compensation shall be paid where a worker suffers personal injury by accident arising out of and in the course of employment.

What constitutes an accident is defined in subsection 1(1) of the Act, 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, 

(b) any 

(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.

"Occupational disease" is also defined in subsection 1(1), as follows:

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; or 

(b) peculiar to the particular employment; or 

(b.1) that trigger post-traumatic stress disorder; 

but does not include 

(c) an ordinary disease of life; and 

(d) stress, other than an acute reaction to a traumatic event.

The WCB's Board of Directors has established Policy 44.05, Arising Out of and in the Course of Employment, with respect to determining whether an injury is the result of an accident arising out of and in the course of employment. The Policy states, in part, 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 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.

Worker's Position

The worker was represented by a worker advisor, who filed a written submission in advance of the hearing, and made an oral presentation at the hearing. The worker responded to questions from his representative, and the worker and his representative responded to questions from the panel.

The worker's position, as outlined by his representative, was that the evidence shows his workplace exposure to oil-based paint fumes, a known respiratory irritant, caused lung inflammation and edema, known as pneumonitis, and his claim is acceptable.

The worker's representative submitted that there is no dispute the worker was exposed to paint fumes on the accident date. The dispute is with respect to the level of exposure. The worker's position was that the oil paint fumes were at a sufficient level to cause lung irritation, and that this was especially so for a person with any sort of underlying lung condition.

The worker gave evidence regarding his duties and the facility and area where he was working. The worker stated that the station where he filled his sanitizing bottles was right in the area where the painter was working on April 24, 2021. The worker said it took 2 hours for him to complete his rotation with respect to sanitizing the facility. He said he would go to the sanitizing station twice a day, and the spot where he collected the sanitizer was approximately 35 meters away from the room which was being painted. He noted that he would also go to his locker to get his lunch, on breaks and at the end of the day, and his locker was approximately 10 meters from the room being painted. The worker said that the door to the room was held partially open and there was an industrial fan which was blowing the exhaust to the outside of the room.

The worker said at one point as he came back to fill his bottles, the paint smell was so strong that he could feel it coming into his lungs and his eyes were watering. As he was coming back around 11:30 am, he could feel his breathing was not up to par, he was lightheaded and his eyes were watering. By the end of the day, his chest was so tight, his eyes were still watering, he had pain in the back of his neck and he could barely talk, at which point he knew he had to go to emergency.

The worker said he was later referred to a specialist who told him he had some form of chronic inflammatory lung disease (COPD) because of his years of smoking when he was younger, and that the paint fumes reacted to the COPD to cause it to flare up. The worker said his symptoms gradually went away, and it took about 2 weeks for them to do so. He said he feels pretty good now.

The representative submitted that it was determined in this case that the worker has COPD, and because the worker was previously asymptomatic, the treating healthcare professionals had to look into all causes of his shortness of breath and increased heart rate. It was noted that the worker's symptoms were reported to have improved by 50% by April 26, 2021 when he spoke to the walk-in clinic doctor. The representative submitted that this is consistent with pneumonitis, or swelling of the lungs cause by an irritant, especially in the environment of pre-existing COPD. The worker was only suffering minimal respiratory symptoms by May 5, 2021, and he went back to work within 2 weeks. It was submitted that COPD having now been identified, the worker has to undergo yearly scans for progression to lung cancer.

Employer's Position

The employer was represented by its Workers Compensation Specialist, who made an oral submission at the hearing and responded to questions from the panel. The employer's position was that they agreed with the WCB and Review Office decisions that the worker's claim is not acceptable, and his appeal should be dismissed.

The employer's representative submitted that the evidence does not establish an accident occurred to cause an injury as defined under subsection 1(1) of the Act. It was submitted that in the employer's view, there is no evidence to support a causative relationship between the worker's reported symptoms and the exposure to paint fumes on April 24, 2021.

The employer's representative noted that the evidence shows the worker did not spend a significant amount of time in the area where the painting was taking place. There were potentially a couple of short time frames where the worker was in the vicinity of paint fumes and may have been exposed to those fumes. The worker said that 3 to 4 times during his shift, he had to refill his sanitization bottles near the room where the painting was being done, and that this would take approximately 10 minutes each time. The worker stated he started work at 5:30 am, the painting did not start until 9:30, he started noticing symptoms around 11:00 am., and his shift ended around 1:00 pm.

It was noted that the worker reported he attended the hospital emergency department right after his shift. The emergency department report indicated he presented with chest pain, noted back pain to neck and shoulder, and there was no fever, cough or shortness of breath. The representative submitted that the emergency department conducted a fairly comprehensive examination, and the physical examination showed no respiratory distress. A number of tests were run, and the doctors came to no conclusion other than diagnosing the worker at discharge with atypical chest pain, which the representative described as a "catch all phrase."

The employer's representative noted that while the worker was subsequently diagnosed by his family physician with pneumonitis, it was the employer's understanding that no investigations were conducted specific to that diagnosis. The representative noted that the WCB consultant opined in her June 29, 2021 report that in the absence of objective pulmonary investigations, a diagnosis of pneumonitis secondary to paint exposure was not substantiated by information on file.

The employer's representative asked that the panel give significant weight to the June 29, 2021 opinion of the WCB consultant who specializes in internal medicine, allergy and immunology. The representative submitted that the consultant methodically evaluated all the medical information submitted on the file at the time, provided a clear opinion regarding the relationship of the worker's issues to the exposure to paint fumes on April 24, 2021, and specifically noted that the medical information did not substantiate a specific medical diagnosis.

The employer's representative also noted that the reference to COPD having been exacerbated appeared to have occurred sometime in 2022. The representative commented that he did not know when a diagnosis of COPD was made, but that it certainly appeared to be sometime after the incident. He submitted that while there appears to be some concern about COPD exacerbation, there is nothing concrete or more direct that confirms or provides a direct opinion that the COPD or potential COPD had been exacerbated by the April 24, 2021 incident.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered an injury by accident arising out of and in the course of his employment. The panel is unable to make that finding for the reasons that follow.

The panel notes there is no dispute that the worker was exposed to oil-based paint fumes for periods of time at work on April 24, 2021, and no dispute that such paint fumes are generally strong smelling. The panel notes that the worker stated that he never went into the room that was being painted. The panel takes the worker at his word that the fan inside the door of the room being painted was blowing out into the locker area.

The evidence shows the worker went directly to the hospital emergency department at the end of his shift that day, where it was noted that he was presenting with a chief complaint of chest pain. The panel finds that the reports from the emergency department do not support that the worker attended the hospital because he had been exposed to paint fumes or that he was suffering from a reaction to any such exposure. The hospital report indicates that the worker reported being at work "doing light cleaning" and "Afterwards noted pain to neck, shoulder" and "rash to leg." There is no indication that the worker was short of breath and the findings from the physical examination include a finding of "No respiratory distress." The panel is of the view that if the worker's symptoms were as severe as he has since reported, he would have referred to them when he attended at the emergency department and the attending healthcare providers would have noticed and made note of them. The worker said he remained at the hospital for 10 hours, but the treating healthcare providers were unable to arrive at a diagnosis other than the diagnosis of "atypical chest pain" which was provided when he was discharged.

In the report from the worker's virtual appointment with a walk-in clinic physician 2 days later, it was noted that the worker reported that the worker had "new cough" since April 24, 2021 and that the worker was now feeling 50% improved with his symptoms, and the physician similarly diagnosed the worker with atypical chest pain, while querying congestive heart failure.

On May 5, 2021, when the worker was seen by his family physician, he was now describing shortness of breath and difficulty breathing and the physician provided a diagnosis of pneumonitis secondary to paint exposure. The panel was unable to identify any particular pulmonary testing that was done to support that diagnosis, and the worker indicated at the hearing that he was only suffering minimal respiratory symptoms by May 5, 2021, and that he went back to work within 2 weeks.

The worker stated at the hearing that his family physician had referred him to a specialist who told him he had COPD. Following the hearing, the panel requested and received further medical information from the worker's family physician and the treating specialist in internal medicine and respirology. The information which was received indicated that the family physician referred the worker to the specialist on October 19, 2021 and that the worker was seen by the specialist approximately 8 months after the date of accident, on December 23, 2021. The panel has reviewed and considered the report from the specialist to the family physician relating to that attendance, as well as submissions provided by the parties relating to the additional medical information, and is of the view that the worker was referred to the specialist more as a precautionary step, out of an abundance of caution.

The panel notes that in his January 11, 2022 report to the family physician, the specialist noted that the worker had "no current respiratory symptoms." The specialist went on to state:

I think that [the worker] likely does have an element of mild COPD related to his remote smoking history. It certainly sounds like his one day of exposure to spray painting fumes exacerbated his obstructive lung disease resulting in significant respiratory symptoms. Spray painting is certainly known to cause occupational asthma and I do not think it is a stretch to imagine that it could exacerbate underlying obstructive lung disease.

The panel is unable to place significant weight on the specialist's report. As indicated above, the worker was referred to and saw the specialist many months after the workplace incident, and the specialist is relying on the description of the incident as outlined in his report, which refers to the worker's report of having "developed significant widespread symptoms, including shortness of breath" in the hours following his exposure to paint fumes, which is not consistent with what is identified in the report from the emergency department. The panel notes that there is no indication as to when such an "element of mild COPD" may have developed, and that the specialist indicates that this COPD is so mild that it does not require treatment. The panel further finds that the specialist's comments indicating that he did not think it "a stretch to imagine" that the incident "could" exacerbate underlying obstructive lung disease are speculative.

In response to questions at the hearing, the worker's representative noted that the diagnosis they were advancing was pneumonitis secondary to paint exposure, which means swelling of the lungs, usually caused by an irritant, and is the actual diagnosis on file, but noted there could very likely have been an aggravation of the worker's COPD, and they were also advancing that as a possibility in the circumstances. The representative submitted that the reaction to paint could be similar to a reaction to asthma or an allergic reaction or an aggravation of the COPD that the worker did not know he had, but either way, the issue is one of claim acceptability and the evidence of such an injury meets the definition of an accident and the claim should be accepted.

Having carefully reviewed and considered all of the evidence which is before us, and the submissions of the parties, the panel is unable to find that the worker experienced a reaction to paint fumes in the circumstances of this case.

Accordingly, based on the foregoing and on a balance of probabilities, the panel finds that the worker did not suffer an injury by accident arising out of or in the course of his employment, and the claim is not acceptable.

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 25th day of July, 2023