The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on May 7, 2025 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 March 6, 2024, reporting an injury to their lungs. The worker noted the date of incident as being the date they started working on May 17, 2021, and indicated a further date of March 5, 2024, being the date they reported their injury to the employer. The worker described starting employment with the employer on May 17, 2021, and not requiring any medications, and approximately 6 months later, being diagnosed with chronic obstructive pulmonary disease (COPD), with increasing symptoms that led to the worker believing they were having cardiac issues and undergoing medical testing for same. The worker notified their direct supervisor of the black mold they believed to be present in their worksite and contacted the provincial health and safety department to investigate. The worker then advised their supervisor they would not return to work until after they had sought medical treatment and their medical issues were dealt with.

On April 2, 2024, the employer submitted an Employer Injury Report to the WCB. The employer noted the worker was reporting “distressed breathing” due to mold at the worksite, which was being investigated, but did have other health conditions that could be causing their symptoms. The employer further noted the worker’s first day of work was May 3, 2021 and had noted the date of accident as being May 17, 2021 but had not reported the incident until 3 years later on March 5, 2024. The employer noted the worksite had been temporarily closed while the mold complaint was being investigated but they had job duties available for the worker at another worksite. A Modified/Alternate Work Offer was provided to the WCB indicating the employer had offered for the worker to return to work using an N95 respirator until the mold investigation was completed, with air quality testing completed on March 8, 2024. Also, the worker advised the WCB that the employer had offered them online safety training for modified duties.

The WCB spoke with the worker on April 2, 2024 to discuss their claim. The worker provided the WCB with a description of their job duties and advised that their worksite was an older building, with a lot of visible water damage to the walls. The worker further advised that shortly after starting to work for the employer, they began to experience difficulties with breathing, which had gotten significantly worse approximately a year and a half ago. The worker stated they had reported their belief the worksite had black mold to their supervisor. The worker described their symptoms as chest congestion, feeling stuffed up, tired and achy, feeling tightness and aching in their chest and feeling winded and wheezy walking up stairs. The worker also advised they were off work due to a hand injury and noticed improvement in their breathing while away from the worksite and after returning for 2 days, began to experience chest pains and worsening breathing again. When asked by the WCB, the worker confirmed they had previously had lung problems with their left lung, possibly due to a pneumothorax for which they had surgery in approximately 1990 and a 45-year history of smoking cigarettes. The worker also provided the WCB with a timeline of the medical treatment they had received and advised of their initial diagnosis of mild COPD, which had recently been upgraded to medium severe COPD. The worker confirmed the employer had offered modified duties of wearing an N95 mask while at work, which the worker refused as they noted difficulty breathing without a mask on and felt wearing a mask would make breathing more difficult. The worker also confirmed that they were emailed a link for safety training but were not provided with any direction or expectation to complete it.

The WCB received a functional abilities form, completed by the worker’s treating nurse practitioner, on April 15, 2024. The form indicated the worker’s ability to lift up to 25lbs and push/pull up to 25lbs but noted the worker could perform duties within those restrictions after spirometry testing was completed.

On April 16, 2024, the employer provided a copy of a Workplace Investigation Report on Refusal to Work to the WCB. The Report noted the worker’s refusal to return to work due to their belief they were being exposed to black mold, which was causing health issues. It was noted that the employer felt there was a possible risk of exposure and had offered the worker an N95 mask until the investigation was completed. As well, the Report noted the employer had also offered the worker a change in worksite while the investigation was being conducted. The Report concluded the employer’s offer to provide an N95 mask “…was sufficient in protecting the worker from any risk.” The employer did note that asbestos was found on the worksite, with remediation arranged to start on April 23, 2024. A further Right to Refuse Report was provided to the WCB by the employer on April 18, 2024. The Report noted the worker’s concerns regarding visible mold growth on the wall of the worksite but indicated after investigation, the employer had conducted an internal assessment including air sampling in the area of concern and while the sampling indicated a slightly higher exposure, the employer had offered the worker an N95 mask until mold and asbestos remediation had been completed. As such, the Report found the work was not dangerous to the safety and health of the worker. In addition, the Report indicated the worker had not provided medical information to support that they were unable to wear a mask/respirator.

The employer provided a copy of a Return to Work Modified/Alternate Work Offer to the WCB on April 23, 2024. The employer offered the worker job duties at another worksite until the remediation work was completed at the worker’s original worksite. The worker contacted the WCB on the same date to advise of their concerns regarding the modified work offer and that they will not be responding to it. On the same date, the employer contacted the WCB to advise they had discussed the modified work offer with the worker who had indicated due to a non-compensable health issue, in addition to their breathing difficulties, they were waiting for a specialist appointment on May 7, 2024 before returning to work.

Chart notes from the worker’s treating physician from August 2021 to May 2024 were received by the WCB on May 10, 2024. In addition, a copy of the worker’s May 7, 2024 spirometry testing was received by the WCB on May 13, 2024. Also on May 13, 2024, the WCB received copies of air sample reports conducted at the worksite on March 14, 2024 and May 8, 2024. The employer advised the WCB on June 20, 2024, the worker had been laid off from their employment due to the worker’s self-declared restrictions of only being able to work 2 days per week and not on Saturdays. On June 25, 2024, the WCB received a report from the worker’s treating physician noting improvement with the worker’s breathing and indicated the worker had returned to their baseline. It was recommended the worker could return to work with no restrictions. The worker’s file was reviewed by a WCB medical advisor on July 2, 2024, who opined the worker’s diagnosis of COPD was primarily caused by cigarette smoking with symptoms typical thereof, including chronic cough, shortness of breath with exertion and phlegm production, in addition to wheezing and chest tightness. The advisor further provided that there was no medical evidence to support a worsening of COPD symptoms as the result of environmental or occupational mold or suspected mold exposure. On July 3, 2024, the WCB advised the worker their claim was not acceptable as it could not be established the worker sustained an injury as the result of their employment.

The worker requested reconsideration of the WCB’s decision to the Review Office on August 12, 2024 noting in their submission that they had no health issues prior to starting their employment with the employer but started experiencing breathing problems within months of starting work. The worker noted their symptoms improved after they stopped working. On October 18, 2024, the Review Office upheld the WCB’s decision the worker’s claim was not acceptable. The Review Office accepted and agreed with the opinion of the WCB medical advisor that exposure to mold does not result in COPD and accepted the worker’s self-reporting of approximately 45 year history of smoking, which is a widely-accepted cause of COPD.

The worker filed an appeal with the Appeal Commission on March 6, 2025, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has sustained “personal injury by accident arising out of and in the course of the employment”. Section 1 of the Act defines accident as a chance event occasioned by a physical or natural cause, that includes a wilful and intentional act that is not the act of the worker, or an event or condition and an occupational disease, that results in personal injury to a worker.

With respect to occupational disease, Section 4(4) of the Act states

Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

The WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker’s Position

The worker was present at the hearing and provided an oral submission for consideration by the panel. The worker also provided testimony, through answering questions posed to them by members of the appeal panel.

The worker’s evidence is that their exposure to black mold at their workplace affected their COPD. The worker states that they did not have any breathing problems until they started working for the employer.

The worker says that the black mold was visible at their workplace and that it affected their breathing. The worker also states that the breathing problems got worse over time but improved after leaving the workplace.

The worker’s position is that their claim is acceptable as the workplace conditions impacted their COPD.

Employer’s Position

The employer and their representatives were present at the hearing, including the Owner, the Controller and the Safety Representative. The employer’s representatives made an oral submission and answered questions posed by the members of the appeal panel.

The position of the employer is that there is no evidence that shows that the worker’s health issues are related to the mold exposure in the workplace.

The employer also states that the worker did not notify them of any concerns regarding mold or of any health issues. The employer states that it was only after the worker refused to return to work in March of 2024 that they were made aware of the issue.

The employer’s evidence is that once they were aware of the issue they took all necessary steps to investigate and rectify the mold issue. The workplace was remediated and once the work was complete and the workplace reopened, the employer advised the worker that they could return to work. The employer submits that they followed all safety protocols and offered the worker proper personal protective equipment, specifically a N95 mask, despite the air quality levels being at an acceptable level.

The employer states that the decisions of the WCB and the Review Office were correct and states that the worker’s appeal should be denied.

Analysis

The worker’s appeal arises from the WCB’s decision that their claim is not acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained an injury arising out of and in the course of employment. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore, the worker’s appeal is denied.

The panel considered whether the evidence supports a finding that the worker sustained an injury arising out of and in the course of their employment.

The worker’s evidence is that their COPD symptoms, specifically their ability to breathe, got worse in 2024. They attribute this to their exposure to mold in the workplace. The worker further states their breathing problems improved after leaving the workplace.

There is evidence before the panel that there was mold in the workplace. Air sampling testing indicated that there was a higher exposure to the mold indicator in the workplace when compared to an outdoor reference sample. That being said, the Safety and Health Officer’s opinion, set out in their report dated April 17, 2024, was that the work was not dangerous to the safety and health of the worker. The recommendation was that the worker wear an N95 mask, as an interim measure until the mold and asbestos abatement work is completed. The panel acknowledges that this accommodation was offered by the employer to the worker. The panel also acknowledges that the employer appears to have followed the workplace health and safety recommendations, and the mold was removed.

The worker states that the increase in the severity of their symptoms is the reason they reported their injury to the WCB.

The panel also considered whether there is evidence that the worker’s injuries did not arise out of their employment.

The worker’s shortness of breath was reported to their family physician on August 10, 2021. The worker’s physician queried whether the worker had COPD or allergies to mold, after the worker advised there was mold in their workplace. The worker underwent spirometry testing in September 2021, which showed moderate COPD pattern at that time. The worker was again referred for spirometry testing and underwent same in May 2024, after reporting shortness of breath to their physician. The evidence before the panel is that the worker had a history of smoking approximately 40-pack-years.

The worker indicated, when questioned by the panel, that their symptoms improved after being away from the workplace but then got worse again a few months later.

The panel also notes that the evidence from the worker’s spirometry testing in September 2021 indicates that the worker had symptoms for a few years and they worsened 5 to 6 months prior to the test. There was improvement shown on the spirometry testing in May 2024, however, the nurse practitioner noted on the Doctor Progress Report of June 17, 2024 that there was noted improvement of breathing with a new puffer. The Report also indicated that the worker’s recovery was satisfactory and “back to baseline.” The worker was cleared to return to work as soon as the workplace environmental issues were fixed and there were no restrictions on the worker’s return to work.

The panel relies on the opinion of the WCB medical consultant who opined on June 27, 2024 that exposure to molds has not been shown to be associated with the development of COPD and stated that there is no convincing evidence that exposures to molds act as a trigger for exacerbation (worsening of symptoms) of COPD.

The panel accepts that the worker is suffering from symptoms related to their pre-existing COPD diagnosis and that these symptoms have increased in severity. The panel is unable, however, to find that there is a connection between their symptoms and their exposure to mold in the workplace.

Based on the evidence before the panel, and on the standard of a balance of probabilities, the panel is not satisfied that the worker was injured as a result of an accident arising out of and in the course of their employment on or about August 10, 2021. The worker’s claim is therefore denied.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of July, 2025