Worker v. Employer, 2010 CanLII 26851

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100053

OBJECTION BY: Worker

PARTICIPANTS: Worker, Worker’s Representative, Employer

HEARING: N/A

ISSUES

The worker requests:

1. Entitlement to a physical condition arising out of workplace exposures to chemicals, pesticides, mould and filthy working conditions;

2. Psychotraumatic entitlement; and

3. Entitlement to traumatic mental stress.

HOW THE ISSUES ARISE

This now 58 year old head Caretaker was employed by a school board in September 2000, when she made a claim regarding nausea, abdominal cramps, vomiting and diarrhoea in reaction to chemicals, mould, dirt and insects. She also claimed the onset of a seizure disorder.

The worker stated she had been working at a school where there was significant evidence of black mould in the bathrooms, pool area and in the dressing rooms. She advised of filthy conditions and insects.

The September 25, 2000 hospital report advised of a seizure disorder, abdominal cramps, nausea and weight loss. Upon discharge, the worker had prescriptions for Dilantin, Ativan, Paxil and Keflex. The report also indicated that she had a two year history of stomach problems.

The employer was contacted to obtain the results of mould testing found on the school premises, and the claim was subsequently referred for an investigation.

In the October 2001 investigator’s report, the worker confirmed that she had cases of stomach flu three to four times during the previous two years and her new symptoms were similar. She did not work at the school in question until the beginning of July 2000, during summer cleanup. She described how her team of caretakers faced numerous cockroaches and significant black mould at the facility. During her first three weeks there (in July), she performed extensive cleanup duties herself, and she pressure-washed mouldy walls and doors (without protective equipment) and applied pesticides.

After the first three weeks, she supervised the other caretakers and a contractor who performed these duties. She claimed she still had some exposure to pesticides and other chemicals.

The worker advised the investigator that she had no symptoms until the night of September 11, 2000 (around midnight). She began experiencing nausea, extreme stomach cramps, diarrhoea, vomiting and a splitting headache. She laid off work and continued to feel these symptoms until she saw her family doctor on September 21, 2000. She had lost 17 pounds by this point.

On the following day, the worker experienced a “grand mal seizure,” and she was taken to hospital. She was discharged on September 30, 2000 without residual symptoms of nausea, headaches, vomiting or diarrhoea, but she continued to feel significant skin sensitivity. Also, she experienced some instances of leg and arm spasms, along with some temporary loss of speech. Her family doctor suggested to her that these were possible panic attacks. Sometime in October 2000, she suffered a psychological breakdown that included the fear of leaving her home and the feeling of being crawled over by cockroaches.

The Material Safety Data Sheet (MSDS) information regarding the cleaning products and pesticides was obtained.

The worker was referred to Dr. Wills at the St. Michael’s Occupational Health Clinic for an assessment. However, the worker did not appear at her May 8, 2002 appointment nor did she call to reschedule.

Given the lack of medical and psychological information available on file, the worker’s claim was denied in a letter of May 9, 2002.

After the worker’s representative made submissions regarding the types of chemical exposure, the nature of the exposures was reviewed in the Occupational Hygienist Report of November 7, 2003. The report advised that, based on the available evidence, the worker may have had occasional low level exposure to the insecticide, “Bug-X”. She had some small exposure to Roach killer paste, which did contain Boric Acid (an irritant), but she had worn a respiratory mask and gloves when using this product.

The general cleaning products were only considered to be irritants. The floor stripping chemical, if high concentrations were inhaled, could have caused respiratory system irritation and temporary nervous system impairment. The mould exposure was not seen as causing an effect on the nervous system.

The November 27, 2003 Occupational Medicine Consultant review found insufficient evidence in the reporting to conclude that the worker had any physical effects with regard to pesticides, solvents or any other exposures. However, it was suggested that the psychological information be reviewed by the WSIB psychological consultant.

The December 11, 2003 psychological consultant review found that no psychotraumatic entitlement could be allowed as there was no accepted claim of exposure. It was also suggested that traumatic mental stress entitlement was not appropriate, as there was little

evidence that the worker experienced any workplace related “sudden and unexpected traumatic event” (as defined under the Traumatic Mental Stress Operational Policy).

The medical and psychological reviews were accepted by the claims adjudicator (CA) who denied the worker psychotraumatic entitlement and traumatic mental stress entitlement in the letter of December 23, 2003.

The worker objected to the decision and the claim was referred to the Appeals Branch. However, the objection was withdrawn due to a lack of contact.

The appeal was restarted in 2009.

SUBMISSIONS

The worker’s representative has forwarded several submissions dated March 16, 2009; November 3, 2009; December 11, 2009, February 12, 2010; March 18, 2010; and April 13, 2010.

ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS

I have reviewed the record and have examined the evidence. The keys issues in this appeal include:

1. The sufficiency of the medical evidence and evidence of exposures to support that the physical symptoms experienced by the worker beginning September 2000 were the result of workplace exposures.

2. If and only if the claim for occupational exposure is accepted, then we may look at the sufficiency of the evidence to support that the exposure related condition caused the worker’s psychological condition.

3. The sufficiency of the evidence to support that the worker suffered at least one workplace related sudden and unexpected traumatic event (as defined under Operational

Policy 15-03-02 – Traumatic Mental Stress) that led to her psychological condition.

When a worker claims a condition that is not specifically addressed by Workplace Safety and Insurance Board (WSIB) operational policies, the condition and claim would be adjudicated on its own merits. In this appeal, the worker has outlined a number of symptoms, but no specific diagnosis is being claimed.

In regard to the issue of entitlement to an organic condition arising out of workplace exposures, I note the following observations:

1. The September 25, 2000 report from the Stevenson Memorial Hospital advised that the worker had a long history of stomach-related problems including 4-5 incidents that had occurred in the previous two years.

2. According to the statements made by the worker to the investigator, she spent her first week (July 4-10, 2002) hauling garbage bags. She spent one hour during this week applying cockroach paste (with a small plunger) around baseboards, toilets and wall openings. While doing this, she wore gloves and a mask. During the worker’s second and third weeks, she used a pressure-washer to remove mould from walls and doors. After a room was cleaned, she applied some pesticides. By July 17, 2000, she had a team of four caretakers to supervise, and she would inspect their work. It does not appear she was involved in the application of pesticides or the direct use of the cleaning fluids from that time until her layoff of September 11, 2000.

However, she did claim that she was able to smell the pesticides in certain parts of the school.

3. The worker fully acknowledges that she did not experience the onset of her condition until September 11, 2000. This would be after a period of minimal to non-exposure to any pesticides and cleaning chemicals (as compared to early July 2002). The question of the temporality of the exposure to the onset of symptoms is raised.

4. The Occupational Hygienist review found little evidence of any significant exposures that would lead to the claimed symptoms.

5. The Occupational Medicine Consultant found little available evidence that could connect any occupational exposure to the symptoms experienced by the worker.

6. I have no available medical reports before me that objectively state that the worker’s organic symptoms arose from workplace exposures.

Given the above-noted evidence, I find there is little basis on which to accept that the worker’s symptoms experienced on and after September 11, 2000 were related to workplace exposures. Her claim for a condition related to workplace exposures is denied.

As the worker does not have any accepted claim for any exposure related organic condition, there is no basis for psychotraumatic entitlement. Under Operational Policy 15-04-02 – Psychotraumatic Disability, entitlement may only be accepted where the psychological condition develops as a result of a workplace-related injury or condition.

As indicated earlier, the key issue and the appeal for traumatic mental stress entitlement is the confirmation of at least one “sudden and unexpected traumatic event” at the workplace that would meet the narrowly defined definition under Operational Policy 15-03-02, and whether it directly led to a psychological reaction. The acceptance of at least one workplace sudden and unexpected traumatic event is a prerequisite for entitlement.

Under Operational Policy 15-03-02 – Traumatic Mental Stress, a sudden and unexpected traumatic event is defined as:

• clearly and precisely identifiable

• objectively traumatic, and

• unexpected in the normal or daily course of the worker’s employment or work environment.

The policy then outlines a number of horrific and life-threatening examples to further guide the decision-maker.

The worker claimed that exposure to mould, filthy conditions, chemicals and insects while on the job led to her psychological condition. This leads to the question of whether such exposures could be unexpected in the normal or daily course of the worker’s employment or work environment.

Essentially, the worker’s duties revolve around cleaning. Her job is to ensure that dirt, filth, mould and insects are eliminated from the work environment. Although the worker may have been more accustomed to working at cleaner schools, I cannot accept that she would not expect to come across these cleaning issues in her day-to-day cleaning-related work.

In the course of her duties, when the worker addressed these cleaning issues (or directed others to address these cleaning issues), the issues were addressed with cleaning tools that were common to her function.

As a result, I find little evidence to support that the worker experienced any workplace related sudden and unexpected traumatic event that would meet the criteria under Operational Policy 15-03-02. As evidence of such an event is a prerequisite for traumatic mental stress entitlement, I find that the worker does not have entitlement to traumatic mental stress.

CONCLUSION

I conclude:

1. There is insufficient evidence to support that the worker developed any organic or physical condition as a result of workplace exposures. Entitlement to an exposure-related condition is denied.

2. As the worker does not have an accepted workplace-related injury or condition, there is no basis to accept entitlement for any psychological condition arising out of the injury or the condition. Hence, psychotraumatic entitlement is denied.

3. There is little evidence to support that the worker suffered from any workplace-related sudden and unexpected traumatic event as is narrowly defined in WSIB Operational Policy 15-03-02 – Traumatic Mental Stress. As a workplace-related sudden and unexpected traumatic event is a prerequisite for traumatic mental stress entitlement, traumatic mental stress entitlement is denied.

The worker’s appeals are denied.

Dated: April 30, 2010

P. Prummel

Appeals Resolution Officer

Appeals Branch