WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1154/14

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1154/14 BEFORE: B. Kalvin : Vice-Chair HEARING: May 22, 2014, at Toronto Written DATE OF DECISION: June 16, 2014 NEUTRAL CITATION: 2014 ONWSIAT 1306 DECISION UNDER APPEAL: WSIB ARO decision dated March 1, 2013 APPEARANCES: For the worker: For the employer: Interpreter: B. Allen, Union Representative IP N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1154/14 REASONS [1] These are the reasons for decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by a worker s estate from a decision of the Workplace Safety and Insurance Board (the Board ) that denied the worker s claim for entitlement to benefits for chronic obstructive pulmonary disease ( COPD ). (i) Background [2] The background to this appeal is as follows. The worker was born in She died on November 1, 2012 at the age of 73. From 1956 to 1993 she worked in various assembly operations for an employer which manufactures automobiles and fridges. In January 2012, she initiated a claim for workers compensation benefits. The worker claimed entitlement to benefits for COPD on the basis that exposure to various airborne substances during her employment contributed to her disease. [3] In response to the worker s claim, the Board assigned an Occupational Hygienist to conduct an investigation of the worker s exposure to respirable dusts, asbestos, soldering fumes and aerosols from metal working fluids. Following completion of the Occupational Hygienist s report, a Board Adjudicator denied the worker s claim. [4] The worker objected to the Adjudicator s decision and her objection was referred to an Appeals Resolution Officer ( ARO ) in the Board s internal Appeals Branch. In a decision dated March 1, 2013, the ARO denied the worker s objection. The ARO noted that the worker had a very significant smoking history starting at the age of 16. Further, the ARO noted that the Board had guidelines setting out the minimum occupational exposures to respirable dust that must be met before entitlement to benefits for COPD will be granted. The ARO was of the view that the exposures described in the Occupational Hygienist s report were not sufficient to establish entitlement to benefits for COPD in this case. The ARO stated: The WSIB recognizes that there is a potential link between some occupational exposures to respirable dust and the development of COPD. However, the Workplace Safety and Insurance Board (WSIB) expects that there needs to be approximately 25 years of respirable dust exposure in order to make an association between the workplace and the development of COPD. One of the major guidelines when determining entitlement to COPD is based upon scientific advice from our policy branch. This advice has to do with the duration and intensity of respirable dust exposure. The guidelines suggest a cumulative exposure threshold in the range of 40 to 50 (mg/m³) years which would result from average respirable dust exposure of 2 mg/m³ occurring over a 20 to 25 year period. The medical information clearly documents a very significant smoking history starting at the age of 16. Although the file review and the worker s subsequent information appears to have minimized the smoking history to half a pack per day, the medical records document the worker as a smoker of a pack per day or more for a significant number of years. The worker indicated that he [sic] only stopped smoking in In accepting the medical history, this would appear to indicate a smoking history of 40 pack years. The occupational hygienist s review of the file record considered all of the worker s potential exposures to respirable dust and secondary exposure to asbestos, soldering fumes and aerosols from metal working fluids. The cumulative respirable dust dose is estimated to be approximately 20 to 29 mg/m³ years.

3 Page: 2 Decision No. 1154/14 Having regard for the opinion of the occupational hygienist and the subsequent review done of the file record by the occupational hygienist when questioned by the worker s representative, the criteria for consideration of entitlement to COPD is not accepted as having been met in this claim. Entitlement for COPD is denied. [5] The worker s estate now appeals the ARO s decision to this Tribunal. (ii) Issue [6] The only issue to be decided on this appeal is whether or not the worker s estate is entitled to benefits for the worker s COPD. (iii) Analysis [7] Having considered the evidence and submissions, I find that the worker s estate is entitled to benefits for the worker s COPD. My reasons for this conclusion are as follows. [8] The Board has assessed the worker s claim in terms of whether the worker s occupational exposures were sufficient to satisfy the minimum requirements for COPD entitlement set out in policy guidelines referred to by the ARO. The ARO was of the view that since the exposure did not meet those minimum requirements the worker is not entitled to benefits for COPD. The ARO appears to identify the worker s significant history of cigarette smoking as the primary cause of the worker s disease. However, what was not considered, and certainly not analyzed in any detail, is what effect the worker s occupational exposures would have had on a worker who smoked. In other words, while the occupational exposure identified in the Occupational Hygienist s report might not have been sufficient to establish a causal link between those exposures and COPD in a person of ordinary respiratory health, the worker was not a person of ordinary respiratory health. The medical evidence shows that in addition to a longstanding history of cigarette smoking, the worker also appears to have had a genetic predisposition to bronchial illness. Accordingly, a question arises as to whether the occupational exposures were sufficient to have contributed to the onset of COPD in the case of a worker who smoked, and who had longstanding respiratory problems. In my view, what was not examined in detail by the Board is the question of what was the combined causal effect of the worker s occupational exposures and her cigarette smoking with respect to the onset of COPD? With respect, the Board appears to have analyzed each potential causal factor separately and concluded that the cigarette smoking was significant, but the workplace exposures were not. The combined effect of the exposures and the cigarette smoking was not assessed. As is discussed further below, the medical evidence reveals that the kind of workplace exposures that the worker had are more likely to cause COPD if the person smokes: there is an additive effect. [9] In assessing the worker s claim for entitlement to benefits for COPD, it is important to bear in mind that a worker does not have to demonstrate that the workplace exposures were the primary cause of her disease. It is sufficient that the evidence reveals that the workplace exposures were a factor that significantly contributed to the onset of disease. Accordingly, the issue on which this claim turns is whether it is more likely than not that the workplace exposures significantly contributed to the onset of COPD. [10] The airborne exposure that the worker had during the course of her career with the employer are described in the Occupational Hygienist s report as follows: Employment exposure history is as follows: (9 years) Radio Assembly

4 Page: 3 Decision No. 1154/14 Routine regular exposure to soldering fumes, secondary exposure to asbestos form brake assembly operations located nearby (9 years) Radio Assembly Routine regular daily exposure to soldering fumes (9 years) Push Rod Dept. Exposure Assessment: Routine regular exposure to organic (chlorinated) solvent degreasing vapours (11 years) Piston Line Routine regular exposure to water-based metal working fluid mists, particulate While employed at the component plant, she was likely exposed to particulate fumes from soldering processes. She was also possibly exposed to fugitive emissions from asbestos brake manufacturing next door. The employer has stated that her work area was remotely located from the brake operations. There is no data available from the employer on the soldering fume levels or fugitive asbestos dust levels at the plant The worker stated that she as [sic] involved in soldering radio parts. She said that she was exposed to the smoke and fumes from the soldering. There is no exposure data on file or in the MESU on soldering fume levels in electronic plants Based on the available data, it is suggested that from 1956, the worker was regularly involved in soldering which could have resulted in total particulate exposures as high as 1 mg/m3 The worker s total combined respirable dust estimate is mg/m3 (years). [Emphasis in the original] [11] The worker s medical history reveals longstanding bronchial problems as well as cigarette smoking. In a report dated April 23, 2012, Dr. R. C. Rose, a surgeon, stated that the worker gave a history of having had bronchiectasis in 1950, followed by a left upper lobe resection. Dr. Rose noted that the worker was diagnosed with severe COPD in In a report dated January 5, 2012, Dr. J. Bertley, an internist and respirologist, diagnosed the worker with severe COPD. Dr. Bertley noted that the worker s relevant medical history included smoking, industrial exposure and childhood bronchial illness. Dr. Bertley stated: She also has a very significant smoking history. She admits to smoking a pack or so per day for at least 30 years, quit smoking 12 years ago. In addition she had industrial exposure, worked at [the employer] for 37 years and in 1960, in Toronto she had a left lower lobectomy for bronchiectasis because she had severe childhood bronchiectasis. [12] Included in the Case Record is a Tribunal Discussion Paper 1 entitled Chronic Obstructive Pulmonary Disease (COPD). The paper is written by Dr. D. Ahmad, a respirologist and 1 The Tribunal s medical discussion papers deal with medical topics which frequently arise in appeals. They are written by independent experts who are recognized in their fields of specialization. The papers are not peerreviewed publications, but rather, are intended to provide parties and representatives with a broad, general overview of medical topics. A discussion paper is included in the case materials for an appeal when it appears that the paper may provide some relevant background to an issue in dispute. Medical discussion papers are also available on the

5 Page: 4 Decision No. 1154/14 Emeritus Professor of Medicine at the University of Western Ontario. Dr. Ahmad defines COPD as follows: COPD is defined as a disease state characterized by airflow obstruction that is not fully reversible. The airflow obstruction is progressive and is associated with an abnormal inflammatory response in the lungs to noxious particles and gases thus causing airflow obstruction. Chronic airflow obstruction (CAO), Chronic Obstructive Lung Disease (COLD) and chronic airflow limitation (CAL) are synonymous terms used to describe the same disease. [13] Dr. Ahmad notes that the risk factors for developing COPD are genetic and environmental. Dr. Ahmad identifies the following risk factors for COPD: genetic factors, tobacco smoking, occupational dust vapours and fumes, air pollution, childhood infections, socioeconomic factors. Dr. Ahmad states further: Tobacco Smoking: Tobacco smoke exposure is the most important risk factor for COPD worldwide. Smoking is believed to be the cause of 80-90% of all COPD (8). However, only 10-20% of smokers develop clinically significant COPD. Recent evidence suggests this figure is as high as 50% (9). These observations suggest that genetic factors also have a role in causation. Occupational dust vapors and fumes: Some occupational environments are likely to involve a risk of COPD. The risk is less than that of smoking and interactions between smoking and occupational exposure to various agents are relevant. Occupational exposures to various dusts, chemicals, vapors and fumes act additively to increase a (13) person s risk of developing COPD. The fraction of COPD attributable to work was estimated as 19.2% overall and 31.1% in never smokers (10). Specific occupational exposures that contribute to development of COPD have accumulated over the past two decades (11, 12). Thus, Dr. Ahmad indicates that the interaction between smoking and occupational exposure is relevant. Dr. Ahmad notes that while the most important risk factor for the onset of COPD is tobacco smoking, occupational exposures to dusts, chemicals, vapors and fumes act additively to increase the risk. Thus, a person who smokes will have an even greater risk of developing COPD when there is the added risk of occupational exposure. [14] The increasing importance of tobacco-smoking in combination with environmental exposures as a cause of COPD is discussed further by Dr. Ahmad as follows: Occupation and COPD Tobacco smoking is the primary cause; and increasing evidence indicates that occupational and environmental exposures influence the course of this disease. The importance of occupational exposures as a risk factor was observed by Fletcher and other epidemiologists in In 2002, the American Thoracic Society published a statement that attributes COPD to occupational exposure in 15-20% of cases. Thirty percent of this group were nonsmokers. Normally the rate of lung function declines with advancing age. After the age of 30 the FEV1 declines about 30ml a year in nonsmokers and about 40ml a year in smokers. The data suggests that risk of occupational exposures add an extra 7-8 ml/year (Fig. 3). Tribunal s website and in its Library. A Vice-Chair or Panel is not bound by any information or opinion expressed in a discussion paper, but may consider and rely on the general medical information provided by the paper.

6 Page: 5 Decision No. 1154/14 Dr. Ahmad goes on to identify exposure to vapors and fumes, and in particular, exposure to welding fumes, as a causal factor for COPD when combined with tobacco smoking. Dr. Ahmad states: Vapors fumes and dusts: Welding fumes can cause COPD when combined with smoking the effect is additive. In some welders who are non smokers COPD can arise from exposure to welding fumes only (16). [15] Thus, it seems clear from Dr. Ahmad s report that when a person smokes and is also exposed to vapours and fumes the risk of getting COPD is magnified. There is a combined and additive effect. Further, it is highly significant, in my view, that the kind of vapour exposure that Dr. Ahmad identifies as being a particular additive risk factor, when combined with smoking, is that which emanates from welding. The evidence in this case reveals that the worker had significant exposure to welding fumes. The Occupational Hygienist s report states that from 1956 to 1964, that is, for nine years, the worker had routine and regular exposure to soldering fumes. From 1965 to 1973, that is, for an additional nine years, the worker had routine regular daily exposure to soldering fumes. The worker also has exposure to other vapours, mists and particulates. [16] The Occupational Hygienist notes that there is no data available from the employer on the soldering fume levels. Based on another study, the Hygienist estimated the worker s soldering could have resulted in total particulate exposures as high as 1 mg/m3. While the ARO was of the view that this exposure was not sufficient to satisfy the entitlement criteria for COPD set out in the Board s guidelines, this exposure, as noted earlier, was not assessed in terms of the added risk that it posed when combined with the worker s history of smoking. Based on the evidence set out in Dr. Ahmad s report and the reports of the worker s treating physicians, I would regard the primary causes of the worker s COPD to be tobacco smoking and a genetic predisposition to bronchial disease as evidenced by the worker s childhood illness. However, based on the information contained in the Occupational Hygienist s report and the epidemiological evidence set out in Dr. Ahmad s report, in my assessment, the worker s occupational exposures, and in particular, her exposure to soldering fumes for 18 years, is also a factor of significance. In short, I find on a preponderance of the evidence that while the worker s occupational exposures were not the primary cause of her COPD, they were a factor that, in combination with her tobacco smoking, significantly contributed to the onset of her disease. The worker is therefore entitled to benefits for COPD. [17] Finally, I note that the worker has also claimed that exposure to asbestos contributed to the onset of her respiratory disease. In this regard, I agree with the ARO that exposure to asbestos was not a significant factor in this case. There is no diagnosis of asbestosis and the medical reports do not identify findings consistent with asbestos-related lung disease.

7 Page: 6 Decision No. 1154/14 DISPOSITION [18] The appeal is allowed. The worker s estate is entitled to benefits for the worker s COPD. The quantum and duration of benefits are to be determined by the Board, subject to the usual rights of appeal. DATED: June 16, 2014 SIGNED: B. Kalvin

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