WORKERS COMPENSATION APPEAL TRIBUNAL

BETWEEN: [PERSONAL INFORMATION] CASE ID #[PERSONAL INFORMATION] EMPLOYER/APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT AND: [PERSONAL INFORMATION] RESPONDENT

DECISION #202

Appellant

Patricia McPhail, representing the Employer

Respondent

Tanya Robertson, Solicitor representing the Workers Compensation Board

Respondent

Maureen Peters, representing the Worker

Place and Date of Hearing

Tuesday, October 21, 2014 Quality Inn on the Hill 150 Euston Street Charlottetown, Prince Edward Island

Date of Decision

January 12, 2015

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Facts and Background

1.

The Appellant is appealing IR decision #[PERSONAL INFORMATION] of the Internal Reconsideration Officer (IRO), dated June 26, 2014. [Appeal Record – Tab 1]

2.

The Worker was employed with the [PERSONAL INFORMATION].

3.

The Worker filed a Worker’s Report, Form 7, with the Workers Compensation Board on April 25, 2013 due to her itchy eyes, runny nose, coughing, sneezing and headache which she attributed to air quality in the workplace. She initially filed an Employer’s Report, Form 7 dated April 16, 2013. [Appeal Record – Tab 2]

4.

The Appellant filed an Employer’s Report, Form 7, dated April 18, 2013. [Appeal Record – Tab 3]

5.

The Worker attended the office of her physician, Dr. Paul Corney, on several occasions regarding her symptoms. There were two appointments in April 2013, one appointment in May 2013, one in June 2013, one in September 2013, and two in October 2013. [Appeal Record – Tab 4]

6.

Dr. Corney gave the Worker a note requesting an environment assessment for the Worker’s workspace which was dated April 8, 2013. [Appeal Record – Tab 5]

7.

On May 28, 2013, the Board received information regarding the indoor air quality testing of the Worker’s [PERSONAL INFORMATION] performed by [PERSONAL INFORMATION]. [Appeal Record – Tab 6]

8.

[PERSONAL INFORMATION] sent an email to Kate Marshall dated June 12, 2013 in which she provided the results of the indoor air quality test. A further email was sent

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from [PERSONAL INFORMATION] to Melanie MacDonald on July 9, 2013 with the results of the testing. [Appeal Record – Tab 7] 9.

On July 24, 2013, a decision letter approving the Worker’s claim for allergic rhinitis with headache was issued for temporary wage loss benefits and medical aid benefits by Melanie MacDonald, Entitlement Officer. [Appeal Record – Tab 8]

10.

There were several issues identified at the workplace including a broken zone valve which resulted in too much heat going to the Worker’s [PERSONAL IFORMATION], plumbing issues in the room across from the Worker’s[PERSONAL IFORMATION] and improper use of a cleaning product by cleaning staff. [Appeal Record – Tab 6]

11.

In a phone call between the Entitlement Officer and [PERSONAL IFORMATION], on June 4, 2013, it was confirmed that the [PERSONAL IFORMATION], did not have a mechanical ventilation system and the windows and doors were shut tight during weekends and other [PERSONAL IFORMATION], closures. [Appeal Record – Tab 16]

12.

On November 8, 2013, Melanie MacDonald issued a decision letter relating to the Worker’s needs for time off on October 23 and 30, 2013. [Appeal Record – Tab 9]

13.

On November 1, 2013, the Worker was seen by Dr. Lori Connors, an allergy specialist in Halifax.

In a report dated November 4, 2013, Dr. Connors wrote that the Worker

suffered from non-allergic rhinitis and that it was most likely irritant rhinitis related to exposure in the workplace. [Appeal Record – Tab 10]

14.

There was evidence on the file that the Worker’s condition improved while she was away from the workplace following a back injury in December 2013 and that her symptoms returned when she resumed working. [Respondent’s Appeal Record – Tab 14]

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15.

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On December 11, 2013, a new decision letter from Melanie MacDonald was issued amending the diagnosis for the Worker’s claim to non-allergic irritant rhinitis. [Appeal Record – Tab 11]

16.

On January 16, 2014, the Worker had a follow-up appointment with specialist, Dr. Lori Connors. Dr. Connors’ report dated January 17, 2014 was received by the Board on February 4, 2014. The report stated that the Worker had a non-allergic rhinitis which was exacerbated by workplace exposures. In that report, Dr. Connors indicated that the Worker advised that since she had seen her there had been an air exchanger/purifier installed in her [PERSONAL IFORMATION],; however, she had noted no significant change in her symptoms. She also stated the Worker commented that when she was off work, she did not have any rhinitis symptoms at all. [Appeal Record – Tab 12]

17.

The Appellant filed a request for Internal Reconsideration of the December 11, 2013, decision disputing that the non-allergic irritant rhinitis was related to the workplace. The Request was dated February 27, 2014. Additional arguments were filed on April 22, 2014. [Appeal Record – Tab 13]

18.

On May 29, 2014, Maureen Peters, on behalf of the Worker, filed a response to the Appellant’s request for internal reconsideration. [Appeal Record – Tab 14]

19.

The Internal Reconsideration Officer (“IRO”) denied the Appellant’s request in decision IR #[PERSONAL IFORMATION], dated June 26, 2014. [Appeal Record – Tab 1]

Issue

20.

Did the Worker’s non-allergic irritant rhinitis arise out of and in the course of employment in accordance with Board Policy?

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Appellant’s Argument

21.

The Appellant argued that Section 4 of Policy POL-71 “Arising Out of and in the Course of Employment” required that personal injury must be shown to have arisen within the time and space boundaries of the employment.

22.

The Appellant also argued that Section 1 of Policy POL-69 “Allergies” required that workers who are exposed to substances specific to that workplace that cause adverse reactions may receive compensation for medically confirmed reactions.

23.

The Appellant argued that if there was no evidence that the Worker’s condition could have resulted from the workplace, a decision must be made to deny the claim and that the “Benefit of Doubt” was not able to be used as a substitute for lack of evidence.

24.

The Appellant further argued that it must be established that the substance causing the Worker’s reactions be specific to the workplace. The Appellant argued that with the diagnosis of non-allergic irritant rhinitis, the irritants which caused the Worker’s reactions must be irritants that are specific to the workplace. However, the Appellant argued that there were no irritants identified in the workplace which may have caused the Worker to have adverse reactions.

25.

The Appellant argued that to be specific to the workplace, the substance cannot be something generally found in other places frequented by the Worker such as public places, outdoors, vehicles, home or another indoor space.

26.

The Appellant quoted decisions from Workers Compensation Boards across Canada which found that something more than just a temporal connection was required to establish causation.

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27.

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The Appellant argued that there could have been non work related factors contributing to or causing the Worker’s symptoms and there was evidence that the Worker was experiencing sinus issues in December 2011 which were not related to the workplace.

28.

The Appellant looked at the air quality test performed by [PERSONAL IFORMATION], and stated that the reports indicated that the workplace including the Worker’s former [PERSONAL IFORMATION], did not have any significant air quality issues which would have caused the Worker’s symptoms.

29.

With regard to the medical evidence, the Appellant argued that medical opinions connecting the Worker’s symptoms to the workplace were based on information provided by the Worker which could only be considered subjective. The Appellant looked to the objective medical information regarding the skin prick allergy testing on the Worker which was negative. [Appeal Record – Tab 10]

30.

The Appellant further argued that without a specific substance having been identified as probably having caused the Worker’s adverse reaction and without evidence that all other reasonably possible causative factors were considered and ruled out, the evidence did not weigh in favor of finding for the Worker. The factual and objective evidence for finding against the Worker outweighed the subjective and speculative information for finding for the Worker and on a balance of probabilities, her claim should not be allowed and benefits should not be granted until such time as a substance specific to the workplace was identified as having probably caused the Worker’s reaction.

Respondents’ Argument

31.

The Respondents argued that the starting point for any claim for compensation is Section 6(1) of the Workers Compensation Act, R.S.P.E.I. 1988, Cap W-7.1 (“Act) which states that compensation shall be paid for “personal injury by accident arising out of and in the course of employment.” Policy POL-68 states that the Board must weigh all relevant

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evidence to determine whether or not it supports a claim for compensation and that these decisions are made on a balance of probabilities, a degree of proof that is more probable than not.

32.

The Worker’s position was that the evidence on file supported, on a balance of probabilities that her non-allergic irritant rhinitis arose out of and in the course of employment.

33.

The Respondents also reviewed Policy POL-69 “Allergies” and stated that there were issues identified at the workplace and there was medical evidence from a treating specialist confirming that the Worker suffered a reaction to substances at the workplace.

34.

The Respondents submitted that the wording of Policy POL-69 did not require that an actual substance be identified.

35.

The Respondents argued that there were a number of issues identified at the workplace such as a broken valve in the heater in the Worker’s [PERSONAL IFORMATION],, plumbing issues in the room across from the Worker’s [PERSONAL IFORMATION],, improper use of a cleaning product by cleaning staff, and water accumulation from a leaking wall sink which caused water to accumulate and settle in the middle of the [PERSONAL IFORMATION],

room located across the hall from the Worker’s

[PERSONAL IFORMATION],. There was a recommendation that the fridge be removed from the Worker’s [PERSONAL IFORMATION],. There were also recommendations that the mats be removed from the room along with any other items that did not need to be in the room as they could collect dust. [Appeal Record – Tab 16]

36.

There was Occupational Health & Safety Committee meeting minutes dated February 11, 2013, which indicated that there was an air quality inquiry in relation to another room in the [PERSONAL IFORMATION]. Also, in those Minutes it showed that at least one

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other staff member had concerns about air quality in the [PERSONAL IFORMATION]. [Respondent’s Appeal Record – Tab 9]

37.

The Respondent submitted that in regard to the general air quality, [PERSONAL IFORMATION],confirmed that the [PERSONAL IFORMATION]

did not have

mechanical ventilation and the windows and doors were shut tight over the weekends to prevent water coming in to cause the air to be “hot and smelly” when the [PERSONAL IFORMATION] opened. Also, [PERSONAL IFORMATION] confirmed there was another staff member who reported similar symptoms as the Worker. [Appeal Record – Tab 16]

38.

The Respondent submitted that the Worker reported she had suffered symptoms including itchy eyes, runny nose, coughing, sneezing, and headaches beginning in January 2013 and indicated that her symptoms began shortly after arriving at the workplace and were worse on Mondays and after long weekends. The Worker advised that her symptoms improved significantly when away from the workplace. [Appeal Record – Tabs 10 and 16]

39.

The Respondents submit that there was medical evidence on the file from both Dr. Lori Connors and Dr. Paul Corney. Dr. Connors saw the Worker on November 1, 2013 and in her report dated November 4, 2013, wrote that the Worker suffered from non-allergic rhinitis and that it is most likely irritant rhinitis related to exposure at the workplace. [Appeal Record – Tab 10]

40.

In a letter dated June 11, 2013, Dr. Paul Corney, the Worker’s physician, wrote that he believed her symptoms were consistent with workplace allergies. [Respondent’s Appeal Record – Tab 5]

41.

With regard to the Appellant stating that the Board did not consider non work related factors when adjudicating the claim, the Respondent suggested that the Worker’s medical

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history was requested and it confirmed that aside from a couple of sinus infections there were no previous allergy issues. The Worker underwent skin prick allergy testing on November 1, 2013, which ruled out many potential allergens and also during a conversation with the Worker on June 4, 2013, the Entitlement Officer confirmed that there were no issues or recent changes in her home environment. [Appeal Record – Tabs 10, 15 and 16]

42.

The Respondents submit that taking into consideration the circumstances of this case and the medical opinions on the file, a reasonable inference can be drawn that the Worker’s symptoms of non-allergic irritant rhinitis are related to exposure in the workplace.

43.

It is the Worker’s position that the evidence on the file supports a finding that her symptoms arose out of and in the course of employment.

44.

In the alternative, the Worker submitted that the evidence for and against the issue is at least equal in weight and therefore, the Tribunal must look to Section 17 of the Act.

Analysis/Decision

45.

The Tribunal must look to Section 6(1) of the Act regarding whether or not compensation shall be paid for “personal injury by accident arising out of and in the course of employment.”

46.

Policy POL-68 “Weighing of Evidence” states that when making decisions, the Workers Compensation Board must weigh all relevant evidence and determine whether or not it supports the claim for compensation. Decisions are made on a balance of probabilities and a degree of proof that is more probable than not.

47.

Policy POL-69 “Allergies” states as follows:

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48.

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1.

Workers who are exposed to substances specific to that workplace that cause adverse reactions may receive compensation for medically confirmed reactions.

2.

To prevent subsequent reactions to a similar substance, employers and workers are required, pursuant to the Occupational Health and Safety Act, to take every reasonable precaution to avoid exposure to the substance.

There were a number of issues identified in the email correspondence of May 28, 2014 between the Entitlement Officer and [PERSONAL IFORMATION]. Several issues were identified at the workplace. [PERSONAL IFORMATION] identified 8 items, as follows:

1. 2.

3.

4.

5. 6. 7.

8.

The room across the corridor from rm # [PERSONAL IFORMATION] had a plumbing issue which has since been repaired. Too much heat was identified in [PERSONAL IFORMATION] room. The zone valve has been repaired. During the repair I asked the plumbers to clean the heating radiators and investigate for moisture issues. The radiator was not extremely dirty and there was no sign of moisture issues. The [PERSONAL IFORMATION] JOHS Committee, during their annual inspection, recommended purging of unwanted materials in rm # [PERSONAL IFORMATION] and all other spaces at [PERSONAL IFORMATION] to minimize the dust accumulation. During one of my inspections it was noted that a cleaning product was improperly used. This product has since been removed and cleaners have been advised to follow their “safe cleaning procedures.” All basic IAQ [Independent Air Quality] parameters measured on several occasions were within acceptable levels during January to April. The boilers have been serviced and cleaned. There does not appear to be any contaminants entering the [PERSONAL IFORMATION] from the boiler room. The boiler room is sealed tightly. Once recommendation is replace the door sweep. Although it is still tight it is getting worn. ([PERSONAL IFORMATION]\ please follow up with [PERSONAL IFORMATION]) I do have one further measurement to perform. This will determine if there is unwanted particulate matter in the air. I will perform the week of June 15.

[Appeal Record - Tab 6]

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49.

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There were Minutes from February 11, 2013, of the [PERSONAL IFORMATION] Occupational Health & Safety Committee, showing that another staff member had concerns about air quality in the [PERSONAL IFORMATION].

50.

Both Dr. Lori Connors and Dr. Paul Corney stated that they believed that the issues with the Worker were likely related to exposures in the workplace or consistent with workplace allergies.

51.

Also, there was evidence on the file that the Worker’s condition improved when she was away from the workplace and that her symptoms returned when she resumed working.

52.

The report from Dr. Corney dated September 24, 2013 stated that the Worker had a summer free of allergies symptoms but had increased runny nose and sneezing when she came back to [PERSONAL IFORMATION].

53.

The Appellant argued that to be eligible for compensation under Policy POL-69 “Allergies” there was a need to identify a specific substance that was causing the allergy. The Tribunal disagrees with that interpretation and upon review of the POL-69, the wording does not state that a specific substance must be identified. POL-69 states that workers who are exposed to substances specific to that workplace that cause adverse reactions may receive compensation for medically confirmed reactions.

54.

The Tribunal finds that the Worker met both of those criteria in that she was exposed to substances specific to the workplace and she had medically confirmed reactions.

55.

The Tribunal finds that the Board considered non work related factors when adjudicating the claim in that they requested the medical history, the Worker underwent skin prick allergy testing and confirmed there were no issues or recent changes in her home environment.

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56.

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The Tribunal finds that the evidence on the file supports a finding that the Worker’s symptoms arose out of and in the course of her employment.

57.

The Tribunal does not find that section 17 applies as the evidence is not at least equal in weight.

58.

The Tribunal therefore dismisses the Appellant’s appeal.

59.

We thank counsel for their materials and submissions.

Dated this 12th day of January 2015.

P. Alanna Taylor, Chair Workers Compensation Appeal Tribunal Concurred:

Donald Cudmore, Employer Representative

Gary Paynter, Worker Representative