Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | December 2018 | News Worker gets benefits after resignation due to airborne contaminants Worker was told by supervisor to resign rather than seek benefits or accommodation BY JEFFREY R. SMITH AN ONTARIO worker who quit her job after experiencing respi- ratory symptoms in an industrial workplace has won her appeal for workers' compensation ben- efits for the period after she re- signed while her symptoms were still affecting her. The worker, now 58 years old, was hired as an office clerk for an Ontario plastics manu- facturing company on Dec. 27, 2012. She worked on a part- time basis, putting in between 21 and 25 hours per week. The office was located in the same building as the manufacturing plant and she often had to go into the fiberglass manufactur- ing room, which she thought wasn't ventilated well. The company used epoxy resin and styrene in its plastics manufacturing process and the worker later testified that the office work environment, which was adjacent to the production facility, was "dusty and foggy with a strong glue-like smell." About two weeks after she had started working for the com- pany, the worker began expe- riencing respiratory symptoms such as a sore throat, coughing, headaches, dizziness, itching, and difficulty breathing. She talked to her supervisor about it and he told her the symptoms were probably due to the resins, dust and and fumes in the adja- cent shop. An investigator from the On- tario Ministry of Labour visited the company's premises on Jan. 10, 2013, and found that flam- mable liquids such as epoxy vinyl and acetone were sitting in open containers in the shop. The investigator issued an order to train employees properly on storage and use of the flammable liquids and to install an eye-wash fountain in the plant. A second visit resulted in a recommen- dation to reduce exposure to styrene and provide respirators for workers exposed to airborne contaminants. The worker visited her fam- ily doctor on Feb. 14, 2013, and two weeks later she saw an aller- gist. On March 11, she suffered an asthma-type attack that re- quired medical attention. It was determined she had irritation in her upper and lower respiratory tract. Worker felt she had no option but to quit Two days after the asthma at- tack, the worker told her super- visor that she could no longer work in the company's work environment, as the epoxy resin and styrene were causing her respiratory issues. The supervi- sor advised her that she should probably resign from her posi- tion and the worker agreed. She sent a resignation by mail the same day, indicating that the health effects of her exposure to chemicals at the workplace was the reason for her having to quit her job. Two weeks after the worker's resignation, on March 31, the Ministry of Labour investigated the company's workplace and issued an order requiring a new system of ventilation to avoid a hazardous concentration of "gas, vapour, dust or fume." After a follow-up visit in May 2013, the ministry determined the com- pany was in compliance with the orders. The worker continued to re- ceive ongoing treatment for her respiratory symptoms. The worker applied for work- ers' compensation benefits and the Ontario Workplace Safety and Insurance Board (WSIB) granted her health care ben- efits for the period she suffered from respiratory symptoms. The WSIB determined that "it is more than likely than not that the workplace factors signifi- cantly contributed to" the work- er's illness. However, the WSIB denied the worker entitlement to loss- of-earnings benefits because she wasn't medically authorized to be off work. The worker ap- pealed this decision, but an ap- peals resolution officer found that since the worker resigned from her position, she removed herself from her employment and technically was no longer employed. As a result, there were no earnings for her to have lost as of March 12, 2013, said the appeals resolution officer in denying her appeal. The worker appealed to the tribunal, pointing to investiga- tion reports from the Ministry of Labour and clinical reports that indicated the worker had to remain off work to protect herself from further exposure to the chemicals and to receive treatment for her exposure. She also noted that an occupational hygienist that visited the compa- ny's workplace in May 2013 had reported that resins and gelcoats used in that workplace were con- sidered "a possible trigger and causative agent of occupational asthma." However, a survey by the hygienist in June determined that worker exposures were "well within occupational expo- sure limits." The tribunal found that the investigation and subsequent orders from the Ministry of La- bour investigator indicated that during the period of the worker's employment, the company's workplace was not adequately ventilated, resulting in airborne contaminants related to the use of epoxy resin and styrene in the company's manufacturing pro- cess. The tribunal also found that the medical evidence from the worker's doctor and allergist in- dicated she had respiratory tract issues shortly after she started work at the company, and there was no doubt the workers suf- fered from an asthma-type at- tack shortly before she resigned. She also reported her symptoms to her supervisor, and it was the supervisor who suggested she resign, instead of recommend- ing she apply for workers' com- pensation benefits. After the supervisor's recom- mendation, the worker felt she had no other alternative but to resign from her position, es- pecially when follow-up medi- cal examinations indicated her symptoms would go away if she avoided exposure to the chemi- cals, said the tribunal. The tribunal determined that the worker's absence from work was from the need to reduce her work-related exposure and re- lated symptoms. Both her family doctor and the specialist recom- mended that she needed to be off work to avoid the fumes and return her health to normal. The employer didn't try to accom- modate her at all and made her feel like she had no alternative to resign. The worker acted rea- sonably and followed her medi- cal advice, said the tribunal. The tribunal allowed the worker's appeal and ruled she was entitled to full loss-of-earn- ings benefits from the date of her resignation until her respiratory symptoms went away in August 2013. For more information see: • Decision No. 2245/18, 2018 CarswellOnt 14848 (Ont. Workplace Safety & Appeals Trib.). e Ministry of Labour investigated the workplace and issued an order requiring a new system of ventilation to avoid a hazardous concentration of dust and fumes

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