Worker contracted eye infection when cleaning out training tower; claimed bad faith by employer when he tried to refuse the task
A New Brunswick firefighter who was exposed to a serious infection while on the job has lost his appeal for a lawsuit seeking liability for damages against his employer separate from his workers’ compensation entitlement.
Douglas Coffin was a firefighter with the City of Fredericton, N.B. fire department. In the spring of 2010, the fire department decided to start using a training tower at one of the fire stations which had not been used over the winter.
An inspection of the training tower revealed it to be infested with pigeons, rats, owls and weasels after months of disuse. It was considered to be “in an unsanitary condition,” so several firefighters — including Coffin — were assigned to clean the tower before it could be used as a training facility.
Coffin and the other firefighters cleaned out the tower by drilling holes in it and then flushing it out with water from fire hoses. The water and debris washed out through the tower’s doors and the holes. Following the cleaning, the tower was put to use in training exercises.
More than one year later, on June 6, 2011, Coffin was part of a training exercise at a different location that involved extinguishing a fire in a vehicle. Soon after the exercise, Coffin began experiencing problems seeing out of his left eye. The condition worsened and Coffin went to see several ophthalmologists.
Exposed to infection during cleaning assignment
After several examinations, Coffin was diagnosed with histoplasmosis, an infectious disease of the eye. There was no treatment that could halt the loss of vision in Coffin’s left eye or prevent it from happening in his right eye as well if it spread.
Coffin filed a Report of Accident or Occupational Disease with the New Brunswick Workplace Health, Safety and Compensation Commission (WHSC) that indicated his vision problems were the result of the vehicle fire training exercise in June 2011. However, his claim for benefits was denied on the basis that the medical evidence didn’t link his eye condition with his employment. Coffin appealed and the appeals tribunal approved his claim for benefits on March 12, 2014, after he provided medical reports that suggested the source of the eye infection may have been in pigeon droppings that were in the training tower Coffin helped clean in 2010.
In February 2015, Coffin sued the city, the fire department safety committee, and various employees of the city for aggravated damages and loss of future earnings, claiming he had wanted to refuse the cleaning work because it wasn’t part of his job duties, but he had relented and did the work. The city applied to the WHSC to determine if his legal action was prohibited because compensation for his condition was covered by the province’s workers’ compensation regime.
The WHSC found that Coffin’s action couldn’t proceed because Coffin and the individuals involved were in the course of their employment when Coffin contracted the infection and were bound by the New Brunswick Workers’ Compensation Act, which prohibited legal action for such matters. The appeals tribunal agreed with the decision and dismissed Coffin’s appeal, which Coffin then brought to the New Brunswick Court of Appeal. Coffin claimed that bad faith on the part of the employer — he claimed his job was threatened if he didn’t carry out the cleaning work and the fire chief was aware of the danger posed by the unsanitary conditions — wasn’t covered by workers’ compensation legislation and he had tried to refuse the unsafe work.
Bad-faith conduct included in workers’ compensation
The Court of Appeal noted that B.C.’s Workers’ Compensation Act specifically prohibited legal action outside of its umbrella for any accidents that occurred in the course of employment and bad faith conduct was included in the definition of “accident,” which included “wilful and intentional acts.”
“The significance of the inclusion of ‘wilful and intentional’ acts cannot be disregarded or explained away,” the Court of Appeal said. “Had the legislative assembly intended to limit the application of the immunity from suit provisions to acts of good faith, it could easily have done so.”
The court also found the fire chief believed the tower was safe to clean and there was no evidence to the contrary, so there was no bad faith on the chief’s part, even if it could have been a basis for a legal action outside of the workers’ compensation regime.
As for Coffin’s claim that he wanted to refuse what he believed to be unsafe work, the Court of Appeal found he lacked credibility. The court accepted that Coffin expressed concern over cleaning the tower, but he didn’t refuse to do the work. He may have done the work under protest, but that didn’t mean he couldn’t have exercised “his free will.” Even if Coffin felt his job would be threatened if he didn’t carry out the task assigned to him, the province’s Occupational Health and Safety Act provided him with protection from reprisals and a clear right to refuse the work. The evidence showed that neither Coffin nor the other firefighters assigned to clean the training tower felt the risk was significant enough to elevate their concerns and both the WHSC and the appeals tribunal had found this, said the Court of Appeal.
“New Brunswick has seen fit to provide protection to an employee who, on reasonable grounds, refuses to do any work they believe ‘is likely to endanger his health or safety,’” the court said. “Mr. Coffin may well have been concerned, complained, and protested, but the facts clearly establish he did not refuse to carry out the task assigned.”
Coffin’s appeal for damages for his eye condition and loss of future earnings was dismissed.
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