WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 167/08

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 167/08 BEFORE: M.F. Keil: Vice-Chair M. Christie: Member Representative of Employers D. Broadbent: Member Representative of Workers HEARING: December 6, 2007 at Windsor Oral Post-hearing activity completed on December 28, 2007 DATE OF DECISION: September 9, 2008 NEUTRAL CITATION: 2008 ONWSIAT 2388 DECISION(S) UNDER APPEAL: WSIB ARO decision dated May 12, 2006 APPEARANCES: For the worker: For the employer: Interpreter: S. Dajczak, Lawyer D. Snelling, Lawyer N. Stewart, Laotian Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 167/08 REASONS (i) Introduction to the issue [1] The now 54 year old worker had worked for the accident employer since 1994 as a mushroom picker. According to a letter dated September 25, 2003, from her family physician Dr. A. Opeitum, she first sought treatment for an itchy rash on November 25, 2002 (onset of a week s duration). She returned to her family doctor on January 24, 2003 (with one visit in between to a walk-in clinic). At that point she related that her rash was worse at work. Dr. Obeitum referred her to allergist Dr. Lyanga who referred her to dermatologist Dr. D. Toth. In his report of February 23, 2003, he diagnosed the worker as having prurigo papularis (known as itchy red bump disease). Dr. Toth described her as having multiple excoriated papules over the thighs, lower legs and trunk and a few lesions on her arms. A May 2, 2003 allergen test was negative for mushrooms. [2] On June 13, 2003, Dr. Opeitum filled out a Form 8 indicating the worker's rash was off and on, but recurred when she returned to work. The worker returned to work in August of 2003, at which point the rash came back worse than before. Dr. Opeitum authorized her off work and by September 15 th the condition had completely resolved. [3] Board occupational hygienist P. Sampara performed an exposure assessment. In his memorandum of March 22, 2005, he noted the worker's history that her clothing got wet during mushroom picking and that she brushed up against the mushrooms when she reached across the beds. The rash began on her torso and then spread. The worker believed her rash was from the chemicals in the liquid sprayed on the mushrooms. The employer, on the other hand, maintained that the mushrooms had to be dry when picked to retain freshness and prevent spoilage. The employer provided further information that two chemicals chlorine bleach and calcium chloride - were used in their growing process. The employees would wear nitrile gloves and cotton aprons while working to minimize chemical exposure. [4] The occupational hygienist concluded it was unlikely that the worker was exposed to pesticides and it appears that she minimal exposure to low concentrations (about 100 ppm) of bleach solutions. Exposure to bleach solutions at high concentrations (greater than 1% to 2%, or 10,000 to 20,000 ppm) can cause skin irritation. He did note that a search of the database had found several reports of dermatitis from exposure to various types of mushrooms and suggested a Board Medical Consultant might wish to comment. [5] Board Occupational Medical Consultant Dr. Smith gave his opinion in a memorandum dated April 1, 2005, that, since the worker's had no mushroom allergy and absent significant direct irritant contact to the area of the skin affected there would be no employment relationship between the rash and the worker's mushroom picking duties. [6] The worker's representative asked Dr. D. Hellyer from Occupational Health Clinics for Ontario Workers Inc. (OHCOW) to see the worker and provide an opinion. She confirmed the worker's history as set out and noted the worker remained asymptomatic at present. The physician concluded:

3 Page: 2 Decision No. 167/08 What would support an allergic basis for the rash was the elevated absolute cosinophil count as well as a mild positive rash test In reviewing the medical literature, there is evidence of contact dermatitis occurring with white pom pom mushrooms and with shitake mushrooms. It is reasonable to suspect the reaction occurred due to exposure to components of the substrate. [7] The Appeals Resolution Officer (ARO) in his decision of May 12, 2006, concluded the worker had not established entitlement for contact dermatitis and there was no causal link between her condition and her exposure to mushrooms and/or chemicals at her place of employment. [8] The issue before this Panel is whether the worker's prurigo papularis arose out of and in the course her employment as a mushroom picker. This would include a finding as to whether workplace exposures caused, significantly contributed to or aggravated her condition. (ii) Site visit [9] The Panel visited the workplace on the hearing day in order to obtain an accurate view of the working conditions. The following represents our factual findings based on our own observations, the worker's testimony and that of the company president. [10] The employer's building contains 16 identical growing rooms. The rooms are kept fairly humid (88%-90%) and with low lighting. Plastic tubes (bags) near the ceiling bring in filtered air and serve to humidify the area. The air comes out through small holes in the pipes as a mist to keep the room suitable for mushroom growth. It is pure water as it is steam from the boiler. The only chemicals used on the boiler are anti-scale ones. Environmental controls have been in place since The humidity is computer controlled. [11] There is an air bag (tube) every other aisle. The mist goes off at scheduled times. The air bags are changed as they age and crack. They last for years. Specific staff monitors the tubes to ensure they re straight with no slices. The air bag technology was the same in 2002 as it is currently. [12] The mushrooms are grown in beds and there are 6 stacked tiers of them extending toward the ceiling. For the top tiers the employees are on a raised metal platform so they can reach the mushrooms. The beds are approximately 24 inches wide. When a worker is picking from the top tier, it is possible for his/her shoulders to get wet from condensation in contact with the air tube. If a worker is of short stature (as the worker in this case is), it is also possible when on the top tier that she will rub her torso against the bed frames when reaching to pick the mushrooms in the middle of the bed. This can lead to some minimal moisture contact. Such contact would be limited to work on the top tier by virtue of the positioning and height of the platform from which workers operate. [13] The bleach is used 2-3 days before the picking commences. The employees wear aprons and gloves with hats or nets.

4 Page: 3 Decision No. 167/08 [14] During the worker's testimony, she explained that she attributed her rash to the big spill of smelly black water that happened on one occasion shortly before her rash first appeared. It poured on her from the air bags while she was working on the top tier; it did not get on the mushrooms, only her. The worker was so wet that she had to change her clothes. It was after that the rash came on and, then, being at work just made it worse. It cleared up when she was not at work and reappeared when she returned. [15] The worker confirmed that her son (who had also been employed at the plant) had been killed in a car accident quite some time before her rash problems (October 31, 1999 being the date on the death certificate). She took a couple of weeks off work and then returned and worked steadily until the problems surfaced three years later. (iii) Relevant law and policy [16] The definition of, and provisions for, an accident are set out as follows in the current Act: 1(1) in this Act, accident includes, (a) a wilful and intentional act, not being the act of the worker, (b) a chance event occasioned by a physical or natural cause, and (c) disablement arising out of and in the course of employment; ( accident ) 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. (2) If the accident arises out of the worker's employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker's employment, it is presumed to have arisen out of the employment unless the contrary is shown. [17] For the principles of decision-making, the relevant section of the Act states in part as follows: 124(2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits. [18] Board Operational Policy Document No , entitled Adjudicative Process, sets out the following points for adjudicators to consider when examining proof of accident: Does an accident or disablement situation exist? Are there any witnesses? Are there discrepancies in the date of accident and the date the worker stopped working? Was there any delay in the onset of symptoms or in seeking medical attention? [19] The policy goes on to state that, if it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, an opinion is sought from the Medical Advisor.

5 Page: 4 Decision No. 167/08 (iv) The Panel's findings [20] Before putting forward its analysis, the Panel wishes to address the language issue. As best the Panel can ascertain the worker speaks almost no English. Her explanations to English speaking physicians were dependant on her daughter s translation. There are other Laotian speaking employees working for the accident employer; this still signifies that an intermediary would have been necessary. The Panel accepts this may well have caused some difficulties in communication and some misunderstandings may have arisen as a result. [21] This brings us to the worker's testimony the day of the hearing. For the first time the worker explained that a large spill of smelly black water (from the air bag) drenched her shortly before the onset of her rash. The Panel has considered whether language barriers would explain the fact that this fairly dramatic event had not surfaced earlier. In the final analysis, we are not persuaded this is the case. The worker's daughter accompanied her mother to the doctor and provided translation. The Panel can see no reason why the daughter would not have reported something so out of the ordinary (as the worker stated it only happened on one occasion) and proximate to the onset of the worker's rash if, indeed, the worker had told her about it. [22] Further, from the Panel's site visit we do not see how such an event could occur given there are only fine holes in the air bags to permit gentle misting. A spill such as the worker described would have involved breakage of the tube and would surely have been noticed and rectified as a safety concern. We make this finding on the premise that, if a large spill of water washed over the worker, there must have been a leak to render that possible. If it drenched the worker, it could have done the same to the mushrooms. This would not be acceptable at harvest time since we assume it would cause water damage. [23] Lastly, the water in the air tubes comes from the boiler and is pure water. This was not contested by the worker's side during the hearing. This having been established, the Panel cannot see how such water would be smelly or black. [24] Consequently, for both reasons of workplace mechanics and for reasons pertaining to the worker's account to physicians, we find this specific incident, on the balance of probabilities, did not occur. We recognize it was the worker's direct testimony that this did occur and she was adamant on this point. Nonetheless, while the worker gave her testimony with apparent sincerity on this point, it is not in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. The test for the credibility of interested witnesses, as discussed in the decision of the British Columbia Court of Appeal, Faryna v. Chorney (1951), 4 W.W.R. (N.S.) 171, (which was quoted with approval by the Ontario Court of Appeal in Phillips v. Ford Motor Co., [1971] 2 O.R. 637), must reasonably subject [her] story to an examination of its consistency with the probabilities that surround the currently existing conditions. The worker's account does not satisfy this test and, thus, the Panel prefers the contemporaneous accounting of the rash onset. [25] We find the worker's rash emerged in late 2002, first occurring on her torso and spreading to her arms and legs. We do not dispute the worker's assertion that the rash came on during the period of time she was at work; we cannot find, however, that it arose out of the employment.

6 Page: 5 Decision No. 167/08 [26] We come to this conclusion for a number of reasons. First, the worker had minimal exposure to bleach or any other chemicals. Her exposure was estimated at.5% to 1% of the dose needed to cause skin irritation. This level is so far below the amount required that we cannot find the chemical exposures to have had any effect. [27] Second, the worker testified negative for mushroom allergies. We make this observation in context of the fact that the worker had been employed in the same environment for over 8 years when the skin rash occurred. She worked under the same conditions and did the same work for this entire period. If there were a problem with the mushrooms or the substrate, one would have expected the problem to emerge earlier in the worker's employment history. [28] Third, if the worker's rash were precipitated by some kind of direct contact at work, the Panel does not understand why it would first appear on her torso area. The worker wore clothes and a cotton apron. There would have been no direct contact with her torso. The Panel acknowledges that it is possible that, when working on the top tier near the air tube, there was an opportunity to become slightly damp on the shoulder area as acknowledged by the employer. [29] This would not have been a regular or daily happening and it also would have been the same for the previous 8 years. Even if this occurred, it would not have affected the worker's torso. The Panel also acknowledges that it is possible for a shorter worker to rub her torso area against the bed frame while reaching to pick mushrooms on the top tier (given the height of the metal platform on which employees stand). The Panel can see no mechanism for irritation from the action. Moreover, this too would only occur when the worker was on the top tier (and there are six) and any contact with the frame would be intermittent. [30] In conclusion, the Panel can find no plausible workplace mechanism to explain the development of the worker's rash. The worker had a good work record. She performed physically demanding piece work for a number of years and was, by all account, a good worker. We can understand that she honestly believes her rash resulted from her exposure to mushrooms and/or chemicals at her place of employment. An honest belief is not sufficient, nor is it necessarily the case that because something happens at work, it follows that it happened because of work. [31] The dermatologist referred to prurigo papularis as a very non-specific condition that can sometimes just be the manifestation of sensitive skin or follicular eczema. What this signifies is that the origin and cause of the worker's rash may never be known. What the Panel does find is that the preponderance of the evidence does not substantiate that the workplace caused or significantly contributed to the worker's rash. Further, we can find no basis for concluding that the workplace aggravated her condition. No persuasive mechanism or irritating substance has been identified to support such a causal link. [32] On a final point, there is no medical basis, as far as we can see, for suggesting the worker has a contact dermatitis (as suggested by Dr. Hellyer). The worker saw a dermatologist early on while the rash was symptomatic and Dr. Toth never suggested this was the case. Given this state of affairs, we cannot conclude the worker had any kind of irritant reaction such as would be suggested by a diagnosis of contract dermatitis. [33] Accordingly, the worker's appeal cannot succeed.

7 Page: 6 Decision No. 167/08 DISPOSITION [34] The appeal is denied. DATED: September 9, SIGNED: M.F. Keil, M. Christie, D. Broadbent.