Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. photo:contributed

Kootnekoff: Peter, Peter Pumpkin Carver

There once was a man who worked for a city. Let’s call him Peter.

Peter’s job involved operating an excavator to move dirt around the employer’s yard to make topsoil.

The soil arrived at the yard from different areas of the city, including material dredged from ditches, sometimes called “ditch slop.” Then it was composted, compressed into topsoil, and sent out again for other uses.

A week before Halloween, Peter developed flu-like symptoms. He became increasingly unwell.

He was diagnosed with Legionnaire’s disease, a form of atypical pneumonia caused by Legionella bacteria. He was in an induced coma for 10 days. After more than three weeks, he was discharged from hospital.

A claim was filed with the Workers’ Compensation Board, operating as WorkSafeBC (WCB).

The claim was accepted.

Initially, the employer did not object to WCB’s acceptance of the claim but later, through counsel, it appealed to the Workers’ Compensation Appeal Tribunal (WCAT).

RELATED: Kootnekoff: Drug Impaired Driving in Canada: Who ‘Ya Gonna Call?

The issue was whether Peter’s Legionnaire’s disease was an occupational disease that arose due to the nature of his employment.

If it was, he was covered. If it was not, he would receive no compensation.

A physician at the hospital advised that Peter had most likely contracted his disease at work, given that this type of bacteria is associated with soil and composts.

Peter did not wear protective equipment at work.

He normally worked in machines with enclosed air-conditioned cabs. He washed the equipment with a firehose, and cleaned the filters with compressed air, generally alone at the end of his shift. It was not known whether he used any respiratory protection when cleaning.

His was an isolated case.

The WCAT found that his work involved hand-to-soil contact and exposure to aerosolized water while washing the machines.

Neither party provided any soil samples or filter tests to establish the presence or absence of the problematic bacteria.

Instead, the employer sought to argue that Peter’s condition arose not from his employment, but rather from bacteria contracted from the pumpkins he had carved at home.

Peter’s family had a tradition every Halloween of carving approximately 100 pumpkins for an annual Halloween display at their home.

In the proceeding, almost every detail of the pumpkin carving process was dissected. The nursery where the pumpkins were purchased. The manner in which Peter’s wife brought them home. A subsequent photograph from the nursery that showed pumpkins with dirt stains. The cutting board he used. The wife’s Facebook posts. Virtually no stone was left unturned.

RELATED: Kootnekoff: Sexual Harassment at Work

Thankfully for him, Peter wore latex gloves when carving pumpkins. Simply to keep his hands from turning orange and making for easier clean-up. Not because of a fear of bacteria.

In the end, the WCAT found that it was “as likely as not” that Peter’s Legionnaires’ disease was an occupational disease due to the nature of his employment. It denied the employer’s appeal.

Can we glean any “morals” from this story?

Well, one may be that the employer had the onus.

WCB cases involve a unique standard of proof: the “as likely as not” standard. Under the Workers’ Compensation Act (B.C.), if the evidence supporting different findings on an issue is evenly weighted, the WCB must resolve that issue in a manner that favours the worker.

So, employers, if you wish to challenge WCB claims, be aware of this standard. If the worker’s claims are “as likely as not”, the worker will normally prevail. Have your ducks in a row as early as possible.

At the same time, employees should not be smug. WCB matters can be complex, due in no small part to medical issues, legal issues, and a vast array of ever changing policies and guidelines.

In the meantime, we should all be mindful and safe, both at work and in our personal activities, whether they be pumpkin related or not.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or info@inspirelaw.ca . Check out our website, www.inspirelaw.ca.

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