WCAT # 2007-950-AD

NOVA SCOTIA WORKERS’ COMPENSATION APPEALS TRIBUNAL

Appellant: [X] (Worker)

Participants entitled torespond to this appeal: [X] (Employer) and

The Workers’ Compensation Board of Nova Scotia (Board)

_____________________________________________________________________

APPEAL DECISION_____________________________________________________________________

Representatives: [X]

Form of Appeal: Oral Hearing, June 16, 2009, Halifax, NS

WCB Claim No.(s): [X]

Date of Decision: October 30, 2009

Decision: The appeal of the November 9, 2007 Board Hearing Officerdecision is denied, according to the reasons of AppealCommissioner David Pearson.

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CLAIM HISTORY AND APPEAL PROCEEDINGS:

The Worker filed a report of accident with the Board on August 31, 2006. The Workerindicated that she had developed symptoms affecting her upper body, and that she firstnoticed these symptoms in May 2003. She related these symptoms to low-level exposuresto contaminants over a 4 ½ year period. She noted toner dust and corrugated cardboarddust in particular. The Worker also noted symptoms of traumatic stress, which she saidrelated to workplace bullying that had occurred over the previous four years. The Workernoted that the symptoms were reported to her Employer by her husband in May 2003 ata time when she was in hospital.

The Worker stopped working in May 2003 as a result of her symptoms. She returned towork in August 2003 and continued working until July 2004, when her Employer suspendedand then terminated her employment.

In a Board Case Manager decision of July 31, 2007 the Worker’s claim for compensationwas denied. The Case Manager decided that there was insufficient evidence to linkworkplace exposures to her symptoms. In addition, the Case Manager decided that theWorker’s stress was non-compensable in that it did not result from an acute reaction to atraumatic event. The Worker appealed the Case Manager’s decision to a Hearing Officer. The Hearing Officer denied the Worker’s appeal in a November 9, 2007 decision, forsubstantially the same reasons given by the Case Manager. The Worker appealed theHearing Officer’s decision to the Tribunal.

At the Tribunal level, there were a number of pre-hearing disclosure requests made andsatisfied. These requests were mostly for information in the control of the Employer,relating to the properties of materials used in the workplace, as well as to maintenanceissues related to equipment and the electrical system at the Employer’s premises. Therewere also requests by the Employer for additional medical records of the Worker,particularly from Dr. Roy Fox and Dr. MacNeill, the Worker’s primary treating physicians. Medical-legal reports were provided by Dr. Fox at the request of her representatives, aswell as the result of questions asked by counsel for the Employer.

The Tribunal issued a preliminary decision and order on March 17, 2009, to address theconfidentiality of information disclosed during the appeal process.

The Tribunal held an oral hearing on June 16, 2009. There were two witnesses at thehearing. The Worker testified on her own behalf, and M. F., executive director, testified forthe Employer. The witnesses answered questions on direct examination, as well as byopposing counsel on cross-examination. The following exhibits were tendered at the

This decision contains personal information and may be published. For this reason, I have not referred to the

participants by name.

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hearing:

Exhibits 1-7 are photographs of the Employer’s workplace, demonstrating its physicallayout, as well as the location of the heating and ventilation system;

Exhibit 8 is a drawing of parts assembled as part of the “Enerscan” contract;

Exhibits 9-11 are photographs of parts used in the “Enerscan” contract;

Exhibit 12 is a photograph showing a client of the Employer performing some of the workfor the “Electrobraid” contract;

Exhibit 13 is a job description for the Worker’s position as “Community EmploymentCounsellor (Job Coach)”;

Exhibit 14 is a representative sample of the material produced and sent out for the“Electrobraid” contract. It contained promotional materials and a short length ofElectrobraid.

As there was a great volume of evidence compiled with this appeal, counsel prepared jointbooks of documents, two containing medical evidence, and two with non-medical evidence. It was agreed that these document books would be used by all participants at the hearing,as well as by the witnesses. The document books mirrored the contents of the Board claimfile, and all subsequently filed evidence and submissions, but catalogued it for betteraccessibility.

Both counsel agreed that written submissions would be provided post-hearing. TheWorker’s Adviser provided submissions on June 26, 2009. The Employer providedsubmissions on July 24, 2009 and July 27, 2009. The Worker’s Adviser filed replysubmissions on July 30, 2009.

ISSUE AND OUTCOME:

Did the Worker suffer a personal injury by accident which arose out of and in the course of her employment.

No, there is insufficient evidence to show that the Worker has suffered a personal injuryby accident which arose out of and in the course of her employment, due to workplaceexposures.

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ANALYSIS:

The Workers’ Compensation Act, S.N.S. 1994-95, c.10, as amended (the “Act”) applies tothis appeal.

The Worker seeks recognition that her symptoms, and resulting disablement, were causedby exposures in her workplace. The Worker’s Adviser indicated at the outset of thehearing that he was not pursuing the post-traumatic stress syndrome as a separate issue,but would address the impact of stress on the Worker’s multiple chemical sensitivity(“MCS”).

Background

The Employer is a non-profit organization whose aims are to provide vocational supportfor intellectually challenged adults. The Employer operates a restaurant, where some ofits clients work. It operates a print shop, producing cards, brochures and other printedmaterial. It has a pre-vocational program, which supports clients with high needs in thingssuch as socialization and communication. The Employer has a small business program,which assists clients with work experience and skills. In addition, the Employer has acommunity employment program, in which two job coaches assist clients find and maintainwork in the broader community. This is where the Worker was engaged. The Employeralso has a recreation and leisure program for those individuals who are not capable orready for the other programs. It is located in a different building.

The Worker began working for the Employer as a Community Employment Counsellor (JobCoach) in May 2000. She stopped working in July 2004. Both counsel agreed that exhibit# 13 accurately details the Worker’s job duties. Essentially, she was to assist clients findand maintain employment. The assistance is full-spectrum, from resume preparation andinterview skills, to meeting prospective employers, and monitoring employment situationsas they proceed. The Worker also managed and worked along side clients in smallbusiness ventures which she developed.

Law and Standard of Proof

Section 10(1) of the Act provides that the Board will compensate workers for personalinjuries which arise out of and in the course of employment.

It is not necessary to establish causation to a scientific certainty. The threshold forestablishing causation is met if there is sufficient evidence from which a reasonableinference of causation can be drawn between the Worker’s injury and the workplaceconditions.

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The workplace does not need to be the sole cause of the Worker’s symptoms. Rather, itneed be only a significant or material cause.

The standard of proof is outlined in s. 187 of the Act. That section says that where thedisputed possibilities are evenly balanced on an issue of compensation, the issue will beresolved in a worker’s favour. The Court of Appeal in Nova Scotia (Workers’Compensation Board) v. Johnstone, [1999] 181 N.S.R. (2d) 247 commented on s. 187 atParagraph 19,

... the worker has the primary burden of proof but, in the case of occupationalillnesses as opposed to accidents, his or her own knowledge is likely limitedto the fact of the employment and the fact of the sickness. His or herphysician may not have the specialized knowledge to offer an expert opinionas to a causative link between the workplace and the malady. The Boardhas resources, investigative powers and expertise which may not beavailable to the Worker. Section 187 of the new Act appears intended tooffset this imbalance by relieving the worker of the requirement of proving hisor her claim beyond the balance of probabilities...

The reduced standard of proof in s. 187 is available only to workers. For those opposinga worker’s claim, they must meet the ordinary balance of probabilities standard.

The participants both used a similar framework for analysis in determining causation in thiscase. That framework was derived from previous Tribunal jurisprudence, and provides amore particular and individual procedure for analyzing causation in cases of environmentalillness syndrome (“EIS”) and multiple chemical sensitivity (“MCS”). I adopt that frameworkfor this decision. It requires a decision-maker answer the following questions:

(1) what was the type of exposure;

(2) is there a temporal relationship between the exposure and the symptoms;

(3) are there prior health problems; and

(4) what is the worker’s condition on removal from the substance or exposure.

I will address each below.

Building Layout

The Employer provided a drawn representation of the floor plan (located at Tab 5A), aswell as several photographs of its current layout. The Worker took issue with both in somerespects, indicating that they were different than the layout when she worked for the

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Employer. Employer witness, M.F. did not prepare the plan, but added some informationto it to make it current. She acknowledged that it may not be entirely correct.

With respect to the floor plan, the Worker said the print shop was not accurate in that therewere two big photocopiers there, as well as a cutting machine, a laminator, a counter anda large banner-making machine. The Worker said the chemicals and paper were all storedon shelving on the back wall.

With respect to the blowers, the Worker said there was a blower that emptied directly overher desk, rather than around the corner as indicated on the plan. In addition, the Workerrecalled the second blower by the print shop being located in the print room where the biggreen cutting machine was located, rather than outside as the floor plan shows. As for thethird blower in the offshoot area, the Worker thought it was located more in the middle ofthe room, rather than farther down as the plan indicates.

The Worker also noted that the metal ventilation pipes shown in the photographs were notthere when she worked there.

M.F. did not recall any of the blowers being moved, but indicated that when the airconditioning was added [after the Worker left. M.F. acknowledged that the plan was onlyher best recollection of where they were. She allowed that they may have been locatedwhere the Worker indicated. M.F. said that the large green machine was a folder, and itwas too big to fit in the print shop, and was located just outside an adjacent room.

(1) Exposures

(a) Cardboard dust

The Employer had a contract to produce personal pan pizza boxes. Cardboard sheetswould come to the site on pallets, with the outline for the box pre-perforated. The job ofthe clients was to punch out the pizza boxes, and discard the remaining cardboard. Thework was done in the offshoot area, located between the Worker’s desk and the areawhere the Electrobraid cutting was done. The personal pan pizza box contract ran fromSeptember 2002 to March 2003, and produced approximately 139,116 punch outs.

By all accounts, this was dusty work, with cardboard dust particles filling the air. TheWorker said that masks and aprons were provided to those that wanted them, and thatwater bottles were provided to clients who wanted them because of having a dry throat.

M.F. acknowledged that this was a dusty and dirty job. She indicated that the Employerconsidered using dustbane to keep the dust level down, but the odor was thought to beunpleasant. M.F. indicated that her recollection of the problem was one of getting clothesdirty, not of inhalation problems. She noted that there were white paper masks at the site,

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but she was not sure why.

Given the complaints of dust and dirt from this work, and the offer of aprons, masks andwater, it is reasonable to conclude that cardboard dust was airborne. While the Workerdid not perform this work, she would have breathed the dust in because it became part ofthe ambient air in the office.

(b) Electrobraid

The Electrobraid contract ran from January 2001 to August 2003, and producedapproximately 23,724 items. The clients were responsible for assembling advertisingpackages for this product. Each package contained a section of Electrobraid and webbing,and promotional product information.

The Electrobraid was received in bulk, and clients cut small sections of it on a table, usinga hot knife. The webbing was cut into 50 ft. lengths using the hot knife. There was onlyone person cutting the Electrobraid at a time. M.F. said that some of the rope was sentpre-cut, and the clients only had to assemble the advertising package, while othersrequired cutting of the rope before assembly.

The cutting process caused some smoke. Occupational health and safety (“ OH&S”)minutes in March and April 2002 documented this as a concern. The Worker said thesmoke would accumulate and lay over the whole offshoot area, and the air would be blue. She said it caused coughing. The Worker was uncertain how long the work would go onbefore the room filled with smoke. As a result of these complaints, the Employer stoppedfurther cutting in April, until a small exhaust fan was installed in May 2002. The fan wasinstalled in an outside wall behind where the cutting took place, and this exhausted thesmoke and fumes outdoors. The Worker conceded that this measure was effective atremoving the smoke and fumes generated with cutting the product.

M. F. said that the Worker’s exposure would have been minimal, as she did not spend alot of time in the area where the cutting took place.

I accept the Worker’s evidence that smoke filled the offshoot area by times because of thiswork. The company minutes documented that problem. The extent of the problem isunclear, however, as there is no evidence of complaints being made between January2001 and March 2002. I infer from this that smoke filling the room to the point where theair was blue and staff were coughing was not a constant problem. The lack of complaintsprior to March 2002 supports that conclusion. There is no evidence that any problem withsmoke and fumes existed after the fan was installed in May 2002.

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(c) Printers / Photocopiers

There were usually four photocopiers in the print room, along with inkjet and RISO (ink-based) colour printers, as well as other pieces of equipment for creating banners andcutting stock, folding, etc. The Worker conceded that she was not responsible forperforming any of the printing jobs, changing the toner in the photocopiers, or the ink in theprinters.

The alleged route of exposure is that the Worker inhaled contaminants from this equipmentby there being inadequate ventilation in the print room, and because air from the print roomwould mix with general office air because there was no fresh air coming into the buildingand no exhaust for contaminated air. There were also suggestions that power supplyproblems contributed to or compounded the exposures from the equipment.

There is conflicting evidence of a toner odor in the workplace, as well as to the source ofthat odor. No air sampling or ozone testing of any kind was done. I am left to drawconclusions from the evidence generally.

The Worker said that she could smell the heat from the photocopiers. She also said thatshe could smell toner odor, but that she would get used to the smell being present.

M.F. said that the Worker was not responsible for changing toner. She indicated that notmuch was kept in stock, perhaps two cartridges, and the rest was ordered as required.

The presence of toner odor was cited by a Department of Environment and Labourinspector at the time of September 23, 2004 and June 30, 2005 inspections. Both of theseinspections occurred after the Worker stopped work. No toner odor was noted at the timeof January 10, 2002 and June 14, 2004 inspections, during which time the Worker was stillworking.

The September 23, 2004 inspection report cited not only toner odor, but the absence ofan active source of ventilation. The inspector must have suspected the photocopiers asbeing the source of the problem, as the Employer was ordered to find out from themanufacturer of the copier what the recommendation was for acceptable ventilation.

On November 1, 2004, Kim Strong of Maritime Testing visited the site. In his report of thesame date, he indicated that no toner odor was present at the time of his visit. He thoughtthe new air conditioning units were the source of the odor, and that it came from inadequate filters on the units, and/or the lack of traps on the drain lines. Mr. Strong saidthat it was possible that the odor was ozone from the various printers, but noted that onlydry toner was used, and that this was not the probable source. He offered testing forozone to rule this out.

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The Employer wrote Strong back the same date, November 1, 2004, asking that ozonetesting be done as soon as possible. The Employer informed Strong that the airconditioning installer would install the new traps, upgrade the filters, and they wouldconduct yearly inspections.

A November 4, 2004 letter from Eastwing Products indicated that the P-trap drains werenot required in this application, and that the filters used were industry standard, andrequired replacing every four months. The Employer did not have a routine filterreplacement procedure at that point, but indicated that one has been put in place.

I take from this correspondence that Eastwing thought the lack of traps and/or type of filterswas the source of the odor. While the lack of a routine replacement procedure for thefilters was a possible concern, the air conditioning units had only been installed a fewmonths before, and it is unlikely that they would have been contaminated in that shortperiod of time so as to cause the toner odor.

With respect to the ozone testing, Strong contacted “Compass” the supplier of the copiers,and asked for the manufacturer’s information about ozone levels. Compass provided aNovember 19, 2004 letter, identifying the chemical emissions from the Konica 7075 modelas, ozone - 0.004, 0.006 mg/m3, styrene - 0.019, 0.023 mg/m3, and dust - 0.030, 0.038mg/m3. In a November 24, 2004 letter, Compass provided the chemical emissions of the8031 model as, ozone - 0 mg/m3, styrene - 0.001 mg/m3, and dust - 0.02 mg/m3.

On November 24, 2004, Strong advised the Employer that based on the manufacturer’sinformation about ozone, dust, and styrene levels from the Konica 7075 and 8031 models,as well as the threshold limit values (“TLV’s”) for those kinds of particulate, that ozonetesting should not be required. He said, “provided that the equipment is well maintainedand working properly, testing should not be necessary.”

The 7075 manual confirms that when the copier is in use, ozone is generated in “small,non-hazardous amounts.” It says that the copier has two ozone filters, which are to bereplaced at certain intervals. Notwithstanding, the manual says that an ozone odor “maybe detected after long periods of use in a poorly ventilated room.” It notes that this can beavoided by adequate ventilation at regular intervals.

The 8031 manual similarly states that a “negligible amount” of ozone is generated duringnormal operation, and that an “unpleasant odor may ... be created in poorly ventilatedrooms during extensive machine operations.”

The June 30, 2005 OH&S inspection report noted that there was still no active source ofventilation, toner odor was present, and the windows and a door were open to outside air.

It seems to me that if Strong was correct that the toner odor came from the new air

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conditioning units, the measures taken after that to address the possible sources of thatodor (air conditioning traps and filters) had been addressed by the time of the June 30,2005 inspection report. Notwithstanding those measures being addressed, there was atoner odor still present. And this odor was present even though the windows and doorswere open. The evidence from the manufacturer of the copiers indicated that thosemachines should only be operated in well-ventilated rooms, and even under normal (well-ventilated) operation, some toner or ozone odor was produced. The lack of adequateventilation and air exchange would permit toner odor to remain in the ambient air.

I accept the view that the photocopiers and printers emitted ozone, and that this waspresent throughout her employment. Thus, she would have experienced some exposureto ozone by it being present in the office air generally.

Ventilation For Photocopiers

The November 24, 2004 letter from Strong advised that the manufacturer of thephotocopier “does not require local ventilation of this equipment.” The letters fromCompass do not address ventilation requirements. It may be that this information cameverbally from Compass to Strong. In any event, it does not accord with the informationprovided in the user manuals for both the Konica models. For the 7075 model, the manualsays that the copier should only be installed in surroundings which are “dry, clean and wellventilated.” The copier should only be operated in temperatures between 10-30 degreesCelsius, and where humidity levels are between 10-80 percent. The informationrecommends against installation where temperature varies considerably. The 7075 manual also says that “ammonia or other gaseous fumes, extremely dustyconditions as well as strongly varying levels of humidity and/or room temperature can havea negative effect on the performance of the system, leading to a deterioration of the copyquality.”

The 8031 manual is consistent in saying that the machine should always be used in a “wellventilated location...” and that “[o]perating ... in a poorly ventilated room for an extendedperiod of time could injure your health.” It advises locating the machine in a well-ventilatedroom.

There is other evidence that says ventilation should be provided, particularly where thereis a group of photocopiers together. The Employer engaged G.S. Evert Engineering toaddress ventilation issues raised by the September 23, 2004 inspection report. In aFebruary 8, 2005 report, Ewert said:

We generally apply some form of exhaust when photocopiers are groupedtogether such as you have at your facility. However, as discussed on site,the ventilation requirements for the approximately 40 occupants would be the

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higher demand...

To address the ventilation issues, Ewert proposed either a “basic exhaust system whichrelies on infiltration from the rest of the building and any openings in the buildingconstruction to provide make up air” or “a heat recovery ventilator which exhausts air fromyour facility but also provides fan forced make up air from the outside to replace theexhaust air.”

At the time of the June 30, 2005 inspection report, the Employer told the inspector thatfunding was being sought for a ventilation system. The inspector ordered that the systembe installed before doors and windows were required to be closed. The Employerindicated that an air exchanger was installed sometime between November 2005 andFebruary/March 2006 (Chain of Events, pg. 720 non-medical docs).

While there is good evidence that the photocopiers should have been located in a well-ventilated area, and that the Employer’s site did not meet these requirements, there is littleevidence about the effect of this lack of ventilation. There is evidence from themanufacturer that heat may affect photocopier performance, and there is testimonialevidence that the paper would stick together at times of high humidity. There is, however,no evidence to demonstrate that inadequate ventilation would increase the ozone, styreneor dust levels coming from the machines.

Power Issues

There was some evidence provided with respect to power supply issues at the workplace.The Worker said the photocopier kept shutting off, and it was thought to relate to someelectrical problem. Using the central vacuum would cause the system to shut downsometimes. The Worker said that the Employer considered upgrading its electrical serviceentrance.

There is evidence to indicate the problem was investigated, but that no conclusions weredrawn as to the source of the problem. A line conditioner was put in, but that was the onlyconcrete measure taken.

There is no evidence, either in the copier manuals or otherwise, to indicate that theseissues affected the level of emissions coming from the copiers.

(d) Enerscan

This company supplied different galvanized parts to the Employer, and the clients wouldassemble these parts into different products destined for use on power poles. Theassembly took place in the offshoot area. The parts came pre-galvanized in boxes or pails. No galvanizing occurred on site. One source said that the contract ran from February 2003

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to July 2004, producing approximately 60,690 parts. M.F. agreed as to the start date, butsaid that the contract continues to date.

At one point during the term of the Worker’s employment, there was a concern aboutflakes of the galvanized coating coming off during assembly. The Worker said the clientshands were becoming very dirty, and it was thought that the galvanizing was coming off theparts. This is the exposure concern raised by the Worker. The Worker was notresponsible for doing this work herself, and the potential route of exposure would havebeen through the ambient re-circulated air.

The Worker said that an employee of Enerscan came to the site to address this problem. That person wore welding gloves, and attempted to remove any loose material by rubbingthe pieces in her hands. M.F said that she was aware of the flaking problem with thegalvanizing on the parts, but was unaware of someone coming from Enerscan to addressthat issue.

It is evident that this was not a continuing concern, as there is no evidence that the flakingcontinued, or that this person had to continue to address the problem repeatedly.

There is insufficient evidence to show that the Worker would have been exposed togalvanizing material in the manner suggested. While the clients may have had dirty hands,and, on at least one occasion, there was some evidence of the galvanizing flaking off,there is no evidence that this became airborne or that it was inhaled.

(e) Mold

The Worker testified about the discovery of mold in the workplace. The Worker thoughtit was in two locations, removed on two separate occasions. The Worker said that thesupervisor of the Ladle restaurant told her that the mold removal was done with noprecautions to prevent release of the mold into the air. M.F. confirmed that mold wasdiscovered inside a wall when repairs were being done to a leaky sink in the Ladlerestaurant. In earlier correspondence to the Board dated March 18, 2007, M.F. confirmeda second occasion in July 2001, when a wall separating the men’s and women’sbathrooms was replaced because of mold.

M.F. testified that the contractor removed the mold discovered in the wall between thecanteen and the men’s washroom. She said that the contractor did not recommend (airquality) testing at the time. M.F. said that there was no ventilation between the Ladle andthe main area, or between the men’s bathroom and the main area.

The Worker thought the mold was removed in an inappropriate manner because anegative air system was not put in place. The Worker indicated that she learned of thesemethods through some of her previous work experience. She said that the absence of

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such a system would allow the mold spores to stay airborne. As there was no fresh airintake at the time, the mold would have remained in the building over the weekend, andallowed for exposure to employees on their return to work. M.F. said that no otheremployees complained of MCS or of exposure-related problems.

The Worker referred to OH&S minutes from June 26, 2001. It referred to mold removaloperations being done during working hours. She did not recall seeing the mold. TheWorker said an employee at the Ladle, a restaurant operated by the Employer on-site, thatcontractors had been in over a weekend and removed mold in the men’s washroom.

M.F. testified that the bathrooms and the Ladle restaurant had separate ventilationsystems, and that they had their own fans. She said there was no interchange of air withthe main work areas. The Worker conceded this point, adding that the fans only workedsometimes.

While there is evidence to support the presence of mold in the workplace on twooccasions, there is inadequate evidence to find that its method of removal had created anexposure hazard.

I conclude from this analysis that the Worker would have been exposed to cardboard dust,smoke from the Electrobraid contract, and ozone, dust and styrene from the printers andcopiers, by virtue of an inadequate ventilation system in the workplace which did notprovide fresh air or exhaust contaminated air. There is no evidence from which to assessthe level of these exposures. The cardboard contract took place for only a short periodfrom September 2002 to March 2003. As I found with the Electrobraid, the Worker wouldhave been exposed to the smoke, but because there were no complaints prior to March2004, it is most likely that the smoke generated before that was not to the degree whereis was considered a concern. With respect to the copiers, the only evidence aboutexposure levels came from the manufacturer. Strong said these were below the TLV forsuch chemicals. There is no evidence from which to find that the exposures were morethan as cited by the manufacturer.

Air Quality

The evidence is fairly uniform that the air quality was poor in the workplace. The Workersaid it was very poor; that there was no fresh air intake, or way to exhaust contaminantsin the air. The temperature was difficult to regulate throughout the work environment, andnecessitated the use of space heaters sometimes in the winter, and the opening of doorsand windows in the summer to assist with cooling.

The office was one large room, essentially, with room dividers separating the various workareas. These dividers did not extend to the ceiling. There was a shared ventilation systemfor the whole work area, and which re-circulated the office air by way of three blowers.

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There was no fresh air intake, and no exhaust to the outdoors, except for after the fan wasinstalled behind where the Electrobraid was being cut with a hot knife.

There are several notes in the minutes of the need for air conditioning, as well as concernsover smoke and fumes from some of the work carried on in the workplace.

The Employer acknowledged the lack of fresh air, and difficulty maintaining a propertemperature in the workplace. M.F. said that the Employer tried to improve the unevenheating by installing ductwork, as well as air conditioning to cool it off, but that thesechanges only occurred after the Worker’s employment ended.

The Employer said that work stopped and an exhaust fan was installed as soon as theconcern with smoke and fumes was raised. Minutes of occupational health and safetymeetings in March and April 2002 document staff complaints of smoke and fumes from theElectrobraid contract. Work was halted after the April complaint, and did not resume untilafter the exhaust fan was installed. The Employer said that the Worker’s exposure wouldhave been minimal, given the fact that she was not responsible for performing any of thiswork, and because she spent a good portion of her work time outside of the office. The Worker said that she was exposed to contaminants in the air from the work done byclients on various contracts. She said that a blower was located above and to the left ofher desk, which blew re-circulated hot and cold air directly down onto her work area. Shesaid the blower was open at the end, with no filter. She indicated that her computer, deskand the tables in the area would often be covered with fine dust and debris.

It would be difficult to say that the Worker was unaffected by work that was going on in theworkplace. The air was shared and re-circulated, without any capacity for adding fresh airin or exhausting contaminated air. This was the case throughout her employment, exceptfor the effect the Electrobraid exhaust fan had on the office air. This fan effectivelyremoved the smoke generated from cutting the rope and webbing, but there is noinformation as to what, if any, effect it had on exhausting contaminants generally from theworkplace.

I find the Worker would have been exposed to whatever contaminants were present in theair, by virtue of an air circulation system that re-circulated indoor air. One differencebetween her exposure and those of others in the workplace would be because of the timeshe spent working outside the building.

Opportunity for Exposure

The Worker acknowledged that she did not spend all her working time at the Employer’spremises. She estimated that one-quarter to one-half to ½ of her time was spent off-site. M.F. estimated that at least half of the Worker’s time was spent in off-site activities.

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The Employer provided summaries of the Worker’s hours spent at various on-site and off-site tasks over the 2000-2004 period. The information was gleaned from time sheetssubmitted by the Worker during this time. There was a general consensus that these werelargely accurate representations of the hours spent by the Worker at these tasks.

There are two sets of figures for each of the years, and they are slightly different. This wasnot explained. Calculating the percentage of hours spent off site from these figures resultsin percentages ranging from a low of approximately 40 percent of time spent off-site, to ahigh of approximately 60 percent. Most of the years were closer to 60 percent than 40percent. The average of all the years came out at 55.6 percent or 56.1 percent, dependingon which set of figures one used.

(2) Temporal Relationship Between Symptoms and Exposures

Potential Effects

There is no MSDS on cardboard. There is no evidence that the cardboard was anythingbut new and dry. Notwithstanding, as with any dust, it can be a respiratory irritant if oneinhales it.

The MSDS on the black polyester yarn webbing used in the Electrobraid contract notedunder inhalation, “not specifically concerned.” On combustion, the yarn produced carbondioxide, carbon monoxide, and “under certain conditions”, low molecular weightcompounds would be produced. The MSDS advises to “avoid exposure to fiber fly, dustand decomposition products of the finish by providing adequate suction and ventilation.” In terms of toxicological information, it says there is no risk to health provided that the fibermaterial is processed and handled properly. It does not address what is meant by properprocessing and handling. There is no information about chronic health effects.

As for the tinned wire in the Electrobraid, the MSDS says that it is non-hazardous in solidform, however, “caution and care must be exercised when melting, heating to hightemperature, or grinding operations are applied.” Under the heading, “effects ofoverexposure”, the data says that “upper respiratory tract irritation if inhaled can causeirritation to the nasal and mucous membranes. Can also give metal fume fever, nausea,and possible hair and skin discoloration, hepatic cirrhosis, pharynx and nasal perforation,eye irritation, brain damage and renal disease.” The MSDS does not list chronic effects.Use of a NIOSH approved respirator is recommended for toxic dust, fumes and mist. Localventilation is also recommended, as are gloves and safety glasses.

With respect to the polyester fiber and resin forming the coating over the tinned wire, theMSDS says that “thermal processing of fiber may generate fumes and vapors which maycause irritation to the nose and throat.” Thermal decomposition products are listed toinclude, “CO2, ethylene glycol, aldehydes and other C,H, and O compounds varying in

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chemical structure and molecular weight.” Chronic effects were “not available.”

There were several MSDS for the various colors of ink for the inkjet printers. In terms ofinhalation, all said that it may result in respiratory irritation. All of the sheets cautionedhowever, that “inhalation of vapor and ingestion are not expected to be significant routesof exposure for this product under normal use conditions.”

For the Konica machines, there were several MSDS for the Developer, Drum and Toner(in various colors). For the developer, no inhalation effects were noted. It was followedwith a caution that a minimal respiratory tract irritation may occur with exposure to a largeamount of any non-toxic dust. Under chronic effects, note was made of a two yearinhalation study involving rats, where no lung changes were found at the lowest exposurelevel, which it said was the level most relevant to potential human exposure. In higherexposure groups, some fibrosis was noted to have developed.

For the drum, inhalation was not a possible route of exposure under normal use conditions.

As for the toner, all the colors had the same inhalation effects as was listed for thedeveloper, i.e., that minimal respiratory tract irritation could occur with exposure to a largeamount of any non-toxic dust. As for chronic effects, the MSDS said that prolongedinhalation of excessive dusts may cause lung damage. Use of the product as intended,however, was said not to result in the inhalation of excessive dust. Under toxicologicalinformation, the results of the same two-year study cited under on the “developer” MSDSwas repeated. The same or similar health effects were noted on the MSDS for toner used in the Kyocera,Xerox, and Sharp copiers.

For the RISO ink printer, the MSDS noted under “inhalation” that “vapour or mist inunusually high concentrations generated from heating this ink, or as from exposure inpoorly ventilated areas, may cause irritation of the nose and throat, headache, andnausea.”

From the MSDS information, it appears that there was potential for upper respiratory tractirritation from the Electrobraid contract, the cardboard dust, and the toner, by virtue of theinadequate air handling in the office. The more serious effects were restricted to cases ofoverexposure, and given the particulars of the types of exposure the Worker may havehad, there is insufficient evidence to characterize those as cases of overexposure.

The next question to ask is whether there is medical evidence to show an injury of that typeat the time of the potential exposures.

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Symptoms

The medical evidence is comprehensive. The Worker’s family doctor, Dr. MacNeill,provided her chart, as did Dr. Roy Fox. Each has a number of consultation reports fromvarious specialists, whom the Worker saw to sort out her symptoms.

The Worker started work for the Employer in May 2000. Any potential exposures from theElectrobraid contract would have occurred between January 2001 and April 2002, whenwork ceased so that the exhaust fan could be installed. Exposures from the cardboardcontract would have occurred between September 2002 and March 2003. There was noevidence about whether printing or copying occurred more at one time than another. I hadthe impression that printing and copying occurred as a regular part of the Employer’sbusiness throughout the Worker’s employment.

Between May 2000 and May 2003, there were no reports of upper respiratory symptoms. There were, however, a number visits to the doctor where physical symptoms wereattributed to stress at work. In February 2002, the Worker reported several physicalcomplaints, including decreased appetite, poor sleep, abdominal cramps, and diarrhea. She felt shaky at work, her mind raced about work issues, and she cited increased stressat work. Dr. MacNeill put the Worker off work for two weeks.

The Worker testified about feeling singled out or targeted at work by her Employer. Sherelated a conflict that arose the Christmas before, when a party she planned was on thesame date as a work party. She felt there were hard feelings over this, and that it wasimpacting how her Employer treated her at work.

The Worker again cited increased stress at work in October 2002, with physical symptomsexperienced as pain between her shoulder blades. A similar complaint was made inDecember 2002, with increased work stress causing sleep disruption, decreased energyand interest, as well as poor memory and concentration. The Worker reported a headachein January 2003, again noting that she was under stress.

Dr. Fox said in one of his reports, that the history of the Worker’s present illness began inMay 2003. At that time, the Worker sought medical attention because she found herselfunable to exercise on her Nordic Track machine in the way she normally did. She foundherself with chest pain and tightness, as well as shortness of breath, and pain down herleft arm. Of significance, this occurred at home, and not at work. One might anticipate thatif work exposures were the problem, that symptoms would manifest in that environmentfirst.

The Worker’s symptoms were investigated for a cardiac origin during an in-patientadmission to hospital. The Worker remained off work until August 2003 while she wasbeing investigated. Her symptoms were determined to be non-cardiac in nature,

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notwithstanding some minor blockages evident on an angiogram. Dr. Koipillai, cardiologist,questioned whether the Worker’s symptoms might be due to coronary artery spasm, butsaid that there was not enough fixed coronary stenosis to cause angina. He advisedconsidering fibromyalgia as an alternate diagnosis.

This started a long line of investigations to determine the cause of the Worker’s symptoms. Dr. Leddin determined that the Worker’s symptoms were not likely due to esophagealspasm. The Worker went on to have pulmonary testing in September 2003, which wasnormal. The Worker was given an asthma test in October 2003, which demonstrated somemild airways hyper-responsiveness. Symptoms described at the time were ofbreathlessness and a cough.

Chart notes in February 2004 document the presence of an ongoing cough of two monthsduration. In March, 2004, the Worker complained of having recurrent bouts of laryngitis,lasting two weeks at a time, as well as hoarseness. The Worker was investigated by Dr.Walling, an ENT specialist, but he determined that her vocal cords were normal. TheWorker developed pneumonia in the month before she was terminated.

After the Worker’s termination, the Worker’s symptoms of chest pain and tightnesscontinued. She also reported having blackouts, brain fog, headaches and jaw pain. Shealso developed debilitating pain and numbness in her forearms, facial numbness, skineruptions, and skin pigmentation changes.

The Worker saw several more specialists over the next number of years, but none reallyadded anything to the discussion about the cause of the Worker’s symptoms. That is, untilthe Worker saw Dr. Roy Fox in September 2005.

There continued to be ongoing evidence of stress during this period from May 2003 untilthe Worker saw Dr. Fox. Once the urgent investigations failed to reveal the cause of theWorker’s chest pain and tightness, including cardiac, gastro-intestinal, and respiratory, yetthe Worker’s symptoms continued, anxiety and stress became more commonly cited in theevidence. In November 2003, Dr. MacNeill questioned whether anxiety was the issue, andprescribed Paxil. The next note, in December 2003, found the Worker feeling better, withonly residual chest tightness at time of increased stress. Dr. MacNeill diagnosed anxietyand panic, and doubled the Paxil dosage. In January 2004, the medication, Ativan wasadded to the Paxil, to assist with sleep. In the three notes dated July 5, July 6, and July16, 2004, straddling the time before and after the Worker’s suspension and termination,there is evidence of the Worker experiencing increasing levels of stress due to work. Thesymptoms reached the point where the Worker wanted a psychological or psychiatricreferral. In addition to the Worker’s stress at work becoming more acute, her symptomsof chest tightness and anxiety also increased.

In none of the medical evidence on file prior to the Worker being terminated in July 2004,

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are there any complaints of occupational exposures.

This evolution of symptoms, when compared to the timing of the exposures, does not lendto a cause and effect conclusion. The Worker’s symptoms were almost completely stress-based, as they increased over time from 2002 to 2004. Stress was cited as the factor invirtually all of the chart notes, and occupational exposures cited as an issue in none. Inaddition, Dr. MacNeill’s identification of anxiety as a potential cause, after the mainspecialist consultations failed to reveal a cause, is significant. I also find significant the factthat medication aimed at addressing anxiety symptoms helped to reduce the Worker’ssymptoms of chest pain and tightness, suggesting that stress was the cause of thosesymptoms.

The first time workplace exposure issues were raised as relevant to the Worker’ssymptoms was in Dr. Michael’s March 23, 2005 report. He did not comment on thataspect, except to note that the Worker had a significant history of exposure in the workenvironment. He was ordering a high resolution CT scan of the chest to see if there hadbeen any dust retention. He ordered the bronchoscopy and asthma test at the same time. The Worker was unable to do the asthma test, but the CT scan showed no sign ofabnormality, and the bronchoscopy was “essentially normal.”

Dr. Fox has been the primary proponent of workplace exposures being the source of theWorker’s complaints. I address his reports next.

Dr. Fox’s Evidence

In his September 29, 2005 report, Dr. Fox recounted the Worker’s history of working in ametal building with no fresh air intake, except from that provided by opening doors andwindows. The Worker’s desk was located beneath a vent which produced re-circulated air. The Worker had described working in an area adjacent to a print shop, as well as avocational area which had employees cutting cardboard and creating dust, as well asgalvanizing and other equipment, which produced contaminants into the air. The Workerdescribed feeling ill in this environment, and of having significant headaches by the endof the day requiring her to use Advil.

The Worker told Dr. Fox that she was having health problems, and then had to take on thework of another individual. During this time in 2003, the Worker described having chestpressure while exercising, as well as shortness of breath. Dr. Fox described this as “thebeginning of her present illness.”

Dr. Fox described the Worker’s course, being investigated and cleared for a cardiac causeto her symptoms, or her returning to work after two months, and return of shortness ofbreath, chest tightness and pain, and hoarseness almost immediately. She had regularand recurrent laryngitis from that point to the point in 2004 when the Worker was

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suspended, and then fired from her job.

At the time of his assessment, Dr. Fox indicated that the Worker had upper airwaycongestion with nasal and sinus congestion, which had improved since she had stoppedwork. Her sense of smell was normal, but she noted reactions to environmental triggerssuch as perfumes, cigarette smoke, and fabric softener. The Worker still had chestpressure and shortness of breath, as well as numbness and discomfort in her left arm. She had swelling in hands and feet. Dr. Fox cited symptoms of autonomic dysfunctionsuch as the Worker’s being chilled inside with white fingers even though the environmentwas not cold. The Worker had some muscle weakness, but no significant muscle painexcept in her left arm. The Worker was easily fatigued.

On testing, Dr. Fox said the Worker’s peak flow was reduced, and inspiration caused adesire to cough. He thought she had “obvious irritative airways.” Dr. Fox also describedthe Worker having what he called an “irritant vocal cord dysfunction.” He thought sheappeared to be chemically sensitive. He wanted further testing, but on the basis of theWorker’s history and examination, he said,

At the present time I conclude that she was exposed to significantenvironmental stress at work from contamination from the activities that tookplace within that environment and the air quality was undoubtedly poor. Ithink this is related to her reactive upper airways and people who arechemically sensitive in this way also experience labile hypertension and it isconceivable , although I have no way of confirming this, that arterial spasmcan occur with this. I note however that she does have a family history ofheart disease.

Dr. Fox’s conclusion at the time was that the Worker’s symptoms were due to workplaceexposures. Some of the information he relied on was incorrect, including the fact thatgalvanizing was not done on site, the Worker did not routinely spend an eight-hour day,five day week in this environment, nor did she perform any of the contract orprinting/copying work. The medical evidence on file does not show such a pattern ofsymptoms. The recurrent laryngitis does not show up as a complaint until February 2004,rather than being present from the time of her return to work in August 2003.

Dr. Fox prepared several more reports. In a February 16, 2006 report to a lawyer helpingthe Worker with long-term disability claim, Dr. Fox diagnosed fibromyalgia, said that shefulfilled the consensus criteria for Multiple Chemical Sensitivity, and indicated that theWorker also had “many of the features of Chronic Fatigue Syndrome.”

In December 2007, the [then] Workers’ Adviser requested a medical-legal report from Dr.Fox addressing the Worker’s condition, the relationship of her fibromyalgia to her work,whether laser printer emissions would have affected her health, the treatment provided,

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her prognosis, and any other comments. Before that report was prepared, the Worker sentDr. Fox information about the printers in the workplace, whether they were being operatedproperly, as well as MSDS information about the toner used. What followed were a number of versions of the same report. The first report is datedFebruary 12, 2008, followed by subsequent reports on February 15, 2008 and February27, 2008, each containing some changed language from the version before. I infer thatthere was some discussion back and forth with Dr. Fox on the contents of his report, whichprecipitated the changes made in the subsequent reports.

Further changes were made to the report requested directly by the Worker’s spouse [andthen representative]. Following the February 27, 2008 report to the Worker’s Adviser, theWorker’s spouse wrote Dr. Fox, asking him to modify his report to include sections dealingwith the make-up of Electrobraid, as well as the effects of exposure to styrene. Dr. Foxprepared a new report on May 22, 2008, including the information requested. In a laterreport to the Worker’s spouse on October 1, 2008, Dr. Fox again modified his report toclarify or correct the physical make-up of the Electrobraid material.

In the February 12, 2008 report, Dr. Fox reviewed the Worker’s history, onset of illness andcourse of treatment. His diagnoses at that time were Fibromyalgia, MCS, and PTSD. Hesaid that the Worker worked eight hour days in a building with poor air quality. He said theair quality was affected by tasks done in that environment. He noted a print shop in closeproximity, which would have released volatile organic compounds (VOC’s), cardboardparticulate and odor, and fumes from cutting Electrobraid with hot knives. He understooda major ingredient of this product to be polyurethane, and was told that the processgenerated smoke to the point sometimes that windows and doors had to be opened, andpeople would cough from the smoke.

Dr. Fox acknowledged there being no way of measuring accurate levels of exposure, butthought it “safe to conclude that there was significant environmental stress over a longperiod of time.”

Dr. Fox addressed the PTSD, and said that “it is recognized that there is interactionbetween stress and environmental exposure making an individual more vulnerable to toxic effects of the materials that are inhaled.” He concluded that the Worker’s [then] currentstate of health was causally related to the workplace and her exposures and experiencesthere.

With respect to the Worker’s Adviser’s question about fibromyalgia, Dr. Fox said,

[f]ibromyalgia is not a diagnosis that is usually identified as being workrelated except perhaps as a result of an accident or repetitive strain in theworkplace. Direct linear cause and effect relationship would be difficult to

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establish. Clearly emissions from laser printers are not healthy. However,the nature of the medical literature would not allow one to make a direct linkwith the ill health other than in the manner which I have described asenvironmental stress.

In the February 15, 2008 report, Dr. Fox removed the line stating that the Worker workedfive days a week for approximately eight hours a day. I presume that was in response tofinding out that the Worker did not spend a full eight hour day at the workplace. Dr. Foxchanged the section about cognitive difficulties in paragraph four from the Worker not reallyhaving any difficulties, to recognizing the presence of symptoms showing a decline incognitive capacity. Those symptoms were of headaches, and tingling and numbness inher limbs. Dr. Fox expanded the section about the working conditions to add that theWorker worked beneath an air vent which provided re-circulated air. He also added thatwhatever activities were taking place in the building would have contaminated the air forall occupants to breathe. He added that there were emissions from four industrialphotocopiers. He said his understanding was that these photocopiers should have beendirect vented to the outdoors with no re-circulation. Dr. Fox added to the paragraph aboutthere being no way to measure the exposure that “there were many contaminants whichcontributed to the poor air quality, and in this complex mixture it is impossible to linkspecific pathological changes with specific contaminants.” Lastly, Dr. Fox removed hisdiscussion about fibromyalgia, and the difficulty establishing a cause and effect relationshipto work.

In the February 27, 2008 report, Dr. Fox modified the section addressing the make-up ofElectrobraid fencing, adding that it was made up of copper wire, polyester andpolypropylene. Dr. Fox noted that thermal decomposition of polypropylene includedformaldehyde and acrolein which he said were respiratory irritants. Dr. Fox removed thewords “to various contaminants” in the line noting that there was no way to measure theWorker’s exposure.

In response to a request by the Worker’s spouse to add information about styrene as wellas the specific composition of Electrobraid fencing, Dr. Fox prepared a May 22, 2008report, addressed to the Worker’s spouse. In that report, Dr. Fox expanded a sectiondealing the symptoms of an impaired autonomic nervous system. Dr. Fox noted findingmade by the respirologist about a reduced heart rate slope on exertion, and said that in hisexperience, patients with chronic fatigue syndrome or fibromyalgia or MCS demonstratethis type of abnormality. He said that the “challenge of exercise is not met due to impairedfunction of the autonomic nervous system and various symptoms, most notably fatigue,pain and impaired thermal regulation, develop.” Dr. Fox removed his reference to therebeing “industrial photocopiers” and generally re-worded the section detailing the sourcesof poor air quality. He also cited the information from the manufacturer about photocopieremissions of styrene, ozone and dust. Dr. Fox noted that it was “challenging to identifyindividual substances producing specific pathological changes...”, but said, “[h]owever, the

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list of injurious substances includes carbon monoxide, styrene, degradation products fromburning polypropylene and various types of dust and other particulates.” He also expandedhis conclusion to note that stress aggravated the effects of exposure. He said that theWorker’s present state of health was “causatively related to her exposure to irritating andinjurious substances in the workplace, and aggravated by the stress she experienced.“

In the October 1, 2008 report to the Worker’s spouse, Dr. Fox changed the language andsome content of the passage relating to the make-up of Electrobraid fencing. He said thatit is a “polyester fiber and resin and the major ingredient being polyethylene terephthalate.” He added that the MSDS for this indicated that thermal processing released “irritatingfumes and vapours” and that the decomposition products “include carbon monoxide,ethylene glycol and various aldehydes.” He also noted that the MSDS specified that“adequate mechanical ventilation” was essential to deal with the vapours produced, andthat individuals should wear protective equipment.” He said that the Worker told him thatno efforts were made to protect or ventilate other than what was noted before. In theparagraph dealing with the fact that one could not now measure the exposure thatoccurred, Dr. Fox added the additional emissions cited with the Electrobraid. He said, “...the list of injurious substances includes carbon monoxide, styrene, ethylene glycol, variousaldehydes, dusts and other particulates.”

The only other opinion on causation was rendered by Dr. Pooyania, Board doctor, in theearly stages of the claim. A great deal of additional evidence, both medical, medical-legal,and documentary has been provided since that opinion. There is now a much betterevidence base on which to make an informed decision than was before Dr. Pooyania atthe time. As such, I discount that opinion on the basis that it was given without the benefitof a lot of relevant information.

Counsel for the Employer takes issue with the fact and context of the changes made to Dr.Fox’s reports, arguing that they undermine the weight that can be given to his reports. Itis argued that the Worker provided Dr. Fox [and Dr. MacNeill] “inaccurate and self-interested information which affected their causative conclusions about the Worker’sconditions.” As a result, it is alleged that the doctors “relied on inaccurate information andwere unduly influenced” by the Worker’s former representative. Employer counsel saysthat the influence of the Worker’s former representative lead Dr. Fox to become anadvocate, and undermined any opinions he gave.

As part of the pre-hearing process, Counsel were able to ask Dr. Fox any questions abouthis reports in the form of questions or interrogatories. The Participants agreed that thiswas an adequate manner of addressing any issues with those reports, and all agreed thathaving Dr. Fox attend for purposes of cross-examination was unnecessary.

Arguments by Employer counsel to discredit Dr. Fox’s reports because he was not madeavailable for cross-examination hold little merit where the opportunity for cross-examining

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Dr. Fox on his reports was available, but foregone in favour of questions in writing. It doesnot sit well that the Employer should now try to discredit Dr. Fox simply because it isunhappy with the answers it obtained to the questions.

As to the weight I should give to Dr. Fox’s reports, I accept some of what the Employerrepresentative says. The initial opinion by Dr. Fox was premised on important informationthat proved later to be inaccurate. He thought the Worker worked an eight-hour day. Hethought galvanizing was going on in the building. The Employer says that Dr. Fox thoughtthe Worker was performing the work on Electrobraid, etc, but I do not agree. Dr. Fox’stheory on causation was premised on the Worker breathing contaminated air because ofwhat activities were going on in the workplace, without any fresh air exchange, and notbased on the fact she was actually performing the work.

The important aspect to note, however, was that when this information was corrected withDr. Fox, he did not alter his opinion on causation. It seems unreasonable in my view forDr. Fox to maintain his opinion, without saying more, despite being told that some of theinformation he relied on was not true. He may have gone on to hold the same opinion afterconsidering those changes, but from the reports, it is not even evident that he consideredthose changes as relevant to his opinion. In my view, that demonstrates a lack ofobjectivity, and illustrates a closed mind. Dr. Fox had decided at the outset that theWorker’s symptoms were due to occupational exposure, and nothing was going to alterthat opinion.

In addition, it does not lend confidence to an opinion when one sees a doctor adopt,virtually verbatim, language changes suggested by a layperson, that put the Worker’s casein a better light, and this being done in the context of a contentious workers compensationclaim.

Given the inaccuracies in the initial information Dr. Fox relied on to draw his conclusion oncausation, I do not accept Dr. Fox’s opinion on the cause of the Worker’s complaints. Inrespect of his subsequent reports, his failure to address the changes to the foundations of his initial opinion, while maintaining that same view, give those opinions little credibility. I do not accept Dr. Fox’s opinions on the cause of the Worker’s symptoms. (3) Prior Health Problems

The Worker had some pre-existing health issues. The Worker had various gastro-intestinalproblems. The main complaint was gastric reflux, with nausea, abdominal bloating anddiscomfort and related symptoms. She was also diagnosed with gastritis and a hiatalhernia at different points. The Worker took the medication, Prevacid for these problems.

She had a long history of recurrent sebaceous cysts.

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She also had some evidence of hypertension and high blood pressure.

(4) Symptoms on Removal

There is some dispute over whether the Worker’s symptoms got better, stayed the same,or got worse after she left work.

The Worker acknowledged on cross-examination that her symptoms continued after sheleft work, and that they continued at home. In addition, she said that she has developedother environmental triggers such as perfumes, cigarette smoke, off-gassing plastics,Bounce fabric softener and scented body wash.

The Worker says that her symptoms have improved with treatment by Dr. Fox. On directexamination, the Worker said that she can no longer drive because of her arm pain, andthat if she exerts herself such as with hanging out the clothes, it may take her two days torecover. She moved to the country, where the air is cleaner, while her spouse remainedin the Halifax area. She is unable to do household maintenance, and leaves that to herspouse when he visits on weekends. She takes oxygen to help her symptoms. TheWorker describes a picture of a severely disrupted life, with little ability to participate in anyactivity.

It is difficult to see the improvement in symptoms, except perhaps, in response to theWorker’s complete change in lifestyle so as to eliminate environmental triggers. Given theexposures, and the lack of evidence to support any long-term effects, it is difficult to explainher continuing symptoms on the basis of the exposures.

Stress

The Worker’s Adviser acknowledges that there is evidence of stress in the claim file. Hesays, however, that in the Worker’s case, the presence of stress contributed to theWorker’s exposure injury, and resulting disablement.

I agree with the Worker’s Adviser that stress may contribute to a workplace injury. Theinjury will only be compensable if workplace factors other than the stress are a cause ofthe injury. If the injury is entirely due to stress, however, and that stress is not an acutereaction to a traumatic event, no compensation is payable.

In the present case, there was potential for exposure to smoke from the Electrobraidcontract, dust from the personal pan pizza contract, ozone, dust and styrene from thephotocopiers and printers. At the time of those exposures, however, there is inadequateevidence of symptoms which can be attributed to those sources. As indicated earlier, theMSDS information supported the fact that exposure could have lead to upper respiratorytract irritation. There were no symptoms of that type at the time of the exposures. On the

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contrary, there were many references to work-related stress, and of physical andphysiological symptoms that derived from that stress.

I find the most likely cause of the Worker’s symptoms was work stress. I empathize withthe Worker’s plight. She is quite disabled as a consequence of these problems. Her lifehas radically changed. As her stress did not develop as an acute reaction to a traumaticevent, however, her stress and stress-related symptoms are non-compensable.

The Worker has not suffered a personal injury by accident that arose out of and in thecourse of her employment, pursuant to s. 10(1) of the Act.

The Worker’s claim is denied.

CONCLUSION:

The Worker’s claim is denied. There is insufficient evidence to show that the Worker hassuffered a personal injury by accident which arose out of and in the course of heremployment. It is more likely than not that the Worker’s symptoms are stress-related, andthus, non-compensable.

DATED AT HALIFAX, NOVA SCOTIA, THIS 30 DAY OF OCTOBER, 2009.TH

____________________________ David Pearson

Appeal Commissioner