Workplace Health, Safety & Compensation Review Division

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1 Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No(s): , Decision Number: Lloyd Piercey Review Commissioner The Review Proceedings 1. The hearing of the review application was held at Glynmill Inn in Corner Brook, NL on October 22, The worker participated in the hearing via teleconference. He was represented by Mel Strong with the Government Members Office, who also participated via teleconference. 2. The Commission was represented by Rebecca Phillipps, LL.B., who participated via teleconference. 3. The employer did not participate in the hearing process. Introduction 4. On September 17, 2012, the work submitted a Form 6-S, Workers Report Occupational Disease, indicating that he had been diagnosed with asbestosis and it was due to his exposure to asbestos, while employed with a mining firm from 1966 to On November 27, 2012, the Pensions Adjudicator advised the worker that the Commission s Medical Consultant had reviewed his file and it was noted that the evidence supported that the worker s diagnosis was Chronic Obstructive Pulmonary Disease (COPD). It was concluded that this was not related to exposure to asbestos. 6. The worker, on December 19, 2012, appealed the decision to deny his claim. On February 1, 2013, the Internal Review Specialist rendered a decision that upheld the November 27, 2012 decision by the Pensions Adjudicator. Issue 7. The worker is requesting that I find the Commission erred in determining that his lung problems are not related to exposure to asbestos in the workplace. The worker submits that 1

2 his lung disease and his respiratory problems are directly related to his exposure, in the workplace, to asbestos from , while employed with a mining company. Outcome 8. In my review of the file, and in analyzing the medical evidence, I find it confirms that the worker has been diagnosed with COPD. The medical documentation does not support, as per Section 90(3.1) of the Act and Policy EN-14: Asbestos Related Claims, that the worker suffers from asbestosis. Consequently, the worker does not meet the criteria set forth in the Act and policy, relative to an asbestosis claim. 9. I further find, however, that a Section 60 analysis has been conducted in relation to whether the worker s condition of COPD, arose out of or in the course of the worker s employment. Legislation and Policy 10. The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which states, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to work services and benefits; an employer's assessment; the assignment of an employer to a particular class or group; an employer's merit or demerit rating; and the obligations of an employer and a worker under Part VI. (2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law. 2

3 Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. Application to a review commissioner 28(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1). (4) A review commissioner to which a matter has been referred for review shall (a) (b) notify the person seeking the review and the commission of the time and place set for the review; and review the decision of the commission and determine whether it was in accordance with this Act, the regulations and policy. (4.1)Where a review commissioner determines that the decision of the commission was in accordance with this Act, the regulations and policy, he or she shall confirm the decision of the commission. (4.2)Where a review commissioner determines that the decision of the commission was not in accordance with this Act, the regulations and policy, he or she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) (b) make a decision which is in accordance with this Act, regulations and policy; or where it is appropriate to have a new decision from the commission, refer the matter to the commission for a new decision with or without direction on an appropriate remedy Also relevant and considered in this case are Sections 2(1), 19(1), 60(1), 90(1)(a)(b) and 90(3.1) of the Act, along with Policy EN-14: Asbestos Related Claims and Policy EN-20: Weighing Evidence 3

4 Relevant Submissions and Positions 12. Mr. Strong references a referral letter from the worker s family physician to a Respiratory Specialist, dated July 17, 2012, asking that the worker be examined for his lung problems, particularly COPD. 13. Mr. Strong references a letter from a specialist at the Respirology Clinic at the Health Sciences Centre, to the family physician, dated September 12, Mr. Strong notes that the specialist wrote that the worker believed the burning and needles he felt in his trachea and upper airways is likely because of asbestos Mr. Strong points out that, in this report, it is stated the worker had COPD which clinically appears more advanced and disabling for him 14. Mr. Strong notes that the worker was employed as a Miner from , and during that period was exposed to asbestos in the workplace. 15. Mr. Strong references a report from the Commission s Medical Consultant, noting that the Medical Consultant appeared to be uncertain with the worker s diagnosis and its link to asbestos exposure. He references that the Medical Consultant wrote that: I am unable, with the currently available medical information, to relate [the worker s] respiratory problems to asbestos exposure but rather to his significant smoking history. 16. Mr. Strong references a letter dated October 5, 2011, from the family physician, at which time he noted the worker s medical history and the medications he was taking. 17. Mr. Strong references a letter from the worker to the Commission, dated January 17, 2012, at which time he advises of his respiratory problems, his work history and the costs of his medications. 18. Mr. Strong references a letter from the worker s family physician to the Commission, dated February 25, It is noted that the physician wrote: Given the fact that he has a poor response to routine COPD medications, it is very possible that a lot of his problems are due to the asbestos exposure while working at this mine 19. Mr. Strong submits that the worker s exposure to asbestos in the workplace for many years is the major contributor to his lung problems. He references Section 60 of the Act and states that, on the balance of probabilities, the evidence favored the worker. 20. The worker spoke briefly, noting that his family physician supported his claim that his years working in the mine, and exposure to asbestos, caused his lung problems. 21. Ms. Phillipps states that the Commission has acknowledged that the worker was exposed to asbestos, but submits that there is no objective medical evidence to confirm that he has asbestosis. 4

5 22. Ms. Phillipps notes that the worker had a previous claim with the Commission, but it was accepted for gastrointestinal cancer and not for asbestosis as the worker had stated in conversations with the Case Manager. She notes that this is confirmed in the Case Worksheet notes, dated October 3, 2012 and October 4, Ms. Phillipps states that the Case Worksheet note confirms that, dating back to 2009, the worker was diagnosed with COPD. She references the following documents: An x-ray taken on November 13, 2009 indicates changes in keeping with symptoms of COPD. A Discharge Summary, relative to surgery for a parastomal hernia on November 25, A referral letter dated October 5, 2011, from the family physician, noted that the worker had a history of smoking 80 packs of cigarettes annually. Ms. Phillipps notes that a chest x-ray, dated November 4, 2011, indicated that the worker had clear lungs. Chart Notes on the worker dated February 13, March 21, March 28, May 8, May 23 and June 27, 2012, all indicated that the worker has COPD, states Ms. Phillipps. An x-ray, taken on March 16, 2012, indicated that the findings may be consistent with COPD. 24. Ms. Phillipps notes that the worker, on July 17, 2012, was referred to a Respiratory Specialist at the Health Sciences Centre, St. John s. In that letter, Ms. Phillipps states, it is noted that the worker had an 80 pack per year smoking habit. However, the worker felt his lung problems were related to asbestos exposure and did not acknowledge the negative effect of cigarette smoking. 25. Ms. Phillipps notes that, on September 12, 2012, a Respirologist, after examining the worker, stated that he had mild to moderate COPD. At that time, a CT scan was ordered to reassure his patient who felt strongly that his asbestos exposure was causing health problems. 26. Ms. Phillipps references a CT scan that was completed on the worker on October 17, She notes that it showed no evidence of interstitial lung disease, no pulmonary nodules, or pleural plaques associated with asbestos exposure, or related diseases. 27. Ms. Phillipps references a report by the Commission s Medical Consultant, dated November 9, 2012, in which he states that, although asbestosis appeared in several documents as a diagnosis, the clinical picture did not fit with the presence of asbestosis, lung cancer or asbestos-related pleural diseases. Rather, the clinical picture was depicting the presence of COPD. Ms. Phillipps states that the Medical Consultant related the worker s respiratory problems to his smoking history. 5

6 28. Ms. Phillipps submits that the weight of evidence does not support that the worker has asbestos-related lung disease, or that his COPD is related to his prior work environment. The Commission further submits that the weight of evidence supports the diagnosis of COPD with non-compensable causes. Analysis 29. It is the worker s position that his respiratory problems are directly related to his exposure to asbestos during his employment as a Miner. 30. It is the position of the Commission that the worker has been consistently diagnosed with COPD, and the evidence does not link this medical issue to the worker s exposure to asbestos. The Commission contends that his respiratory issues are more likely caused by his history of smoking, as was noted by his family physician, and a Respiratory Specialist who examined the worker. 31. I note that Section 90 of the Act deals with a worker s entitlement to health issues related to industrial diseases. Section 90(3.1) of the Act specifically references asbestos and states, in part that Where a worker is suffering from the industrial disease known as asbestosis, the disease shall be conclusively considered to have been due to the nature of that employment. (Emphasis mine) 32. Policy EN-14: Asbestos Related Claims, states, in part: Pursuant to section 90(3.1) asbestosis is conclusively considered to have been contracted through employment where there is exposure to asbestos in that employment. (Emphasis mine) 33. I note that the Commission has acknowledged that the worker did experience exposure to asbestos in the workplace. In my review of the file, I find there was a level of exposure during the worker s years of working as a Miner. The Commission contends that this, however, did not cause the worker s respiratory problems and, in fact, the worker has not been diagnosed with asbestosis. 34. In my analysis of the medical evidence, and other relevant information, I find the following facts to be supported by the evidence: a) It has not been determined that the worker s suffers from asbestosis. b) The worker s diagnosis, relative to his respiratory problems, is that of COPD, and I cannot find any reports or documentation that challenges that diagnosis. 6

7 35. Relative to my determination, as noted in paragraph 32, I will reference several medical reports, examination results by specialists, and x-rays, that have led me to conclude that the evidence does not indicate that the worker suffers from asbestosis. 36. On November 13, 2009, an x-ray on the worker indicated The lung fields otherwise are clear and the pulmonary vascularity is within normal limits It is important to note, I find that this report also states The lung fields are somewhat hyperinflated in keeping with changes of COPD (Emphasis mine) 37. I have reviewed a referral letter from the worker s family physician, dated October 5, 2011, in which the following statement is made: This gentleman also has issues with COPD. He has a 80 pk./year smoking history and is a former asbestos miner. I find it is important to note that, at this point, the family physician, while acknowledging an awareness that the worker was exposed to asbestos, does not raise the issue of any presence of asbestosis in the worker but, rather, identifies COPD as the prevailing health issue The file information indicates that the same family physician, on September 5, 2012, in a letter to the Commission wrote As you know, this gentleman has chronic, severe COPD which has worsened over the past year (Emphasis mine) While the content of the letter indicates that the physician is of the opinion that the worker s condition is brought on by environmental factors he noted The patient also has an approximate 80-pack year history of smoking The family physician further stated that it was his opinion that the worker s employment in the mining environment and his smoking is a combination that can be detrimental to the lungs. However, he stated A full diagnosis of asbestosis has not been formerly given 39. On July 17, 2012, the file information indicates that the family physician wrote a letter of referral to a Respiratory Specialist, on behalf of the worker, asking that he examine the worker. I have reviewed the piece of correspondence and find an absence of any noted diagnosis of asbestosis. On the contrary, the presence of COPD related issues are indicated. The physician wrote Thank you for agreeing to see this 62-year old male with a history of poorly controlled and worsening COPD (Emphasis mine) The family physician went on to note that the worker had exposure to asbestos in the workplace and was an 80-pack per year smoker. However, there is no reference to the worker having asbestosis. The letter went on to state: I would appreciate your opinion with regards to optimization of control of his COPD. In addition, he has significant amount of denial about the etiology for his lung disease. He blames his current condition and as well as his early 1990 s diagnosis of rectal cancer on asbestos exposure, almost exclusively refusing to acknowledge the negative effect of his cigarette smoking 40. The file information indicates that the Respiratory Specialist examined the worker, in response to the referral letter from the family physician on July 17, 2012, and in correspondence dated September 12, 2012, he wrote, in part: As you are aware he is a 62 year old with history of smoking and poorly controlled COPD. In his assessment, the 7

8 Respiratory Specialist noted [The worker] has COPD which is obviously moderate to mild on pulmonary function test but clinically appears more advanced and disabling for him. While the Respiratory Specialist indicated that he would send the worker for a CT scan for the worker s own reassurance, he confirms the presence of the COPD, with no reference to the presence of asbestosis The CT scan that the Respiratory Specialist referenced in his September 12, 2012 report, was completed on the worker on October 17, That document states, in part: There is no convincing evidence of interstitial lung disease. Images of the upper abdomen appear unremarkable 42. The file information indicates that the Case Manager contacted the Commission s Medical Consultant on November 9, 2012, asking Please review the medical on file and provide your medical opinion if the worker has Asbestosis or if he has another condition which could be caused by exposure to Asbestos 43. The Case Worksheet note, dated November 9, 2012 confirms the following response from the Medical Consultant: I have reviewed all of this gentleman s medical reports currently on file. In fact, although asbestosis has appeared on several documents as a diagnosis, the clinical picture is entirely in keeping with chronic obstructive lung disease, with a small element of emphysema, associated with [the worker s] reported 80 pack year smoking history. The pulmonary function tests show obstructive, as opposed to restrictive, changes. Asbestosis would produce restrictive changes, whereas COPD would produce obstructive changes. The CT of chest shows no interstitial lung disease (asbestosis would show presence of this) and no pleural plaques (which would be found in asbestos-related pleural disease). I am unable, with the currently available medical information, to relate [the worker s] respiratory problems to asbestos exposure but rather to his significant smoking history. 44. As I have previously stated, I cannot find medical evidence in the file to support the worker s claim that he suffers from asbestosis, caused by his years of exposure in the workplace to asbestos. I find the medical evidence supports the presence of CPOD.. The opinion that he suffers from asbestosis that was caused by asbestos exposure, is an opinion put forth by the worker himself and not supported by the information in the file, nor the opinion of the family physician, the Respiratory Specialist, the Commission s Medical Consultant, nor is it indicated by the x-rays and CT scan performed on the worker. I find the file has continued to be addressed by medical personnel, due to the persistence of the worker and his adamant position that he suffers from asbestosis. I reference the following: On July 17, 2012, the family physician wrote: he has significant amount of denial about the etiology for his lung disease. He blames his current condition and as well as his early 8

9 1990 s diagnosis of rectal cancer on asbestos exposure, almost exclusively refusing to knowledge the negative effect of his cigarette smoking On September 12, 2012, the Respiratory Specialist, after examining the worker, wrote, in part: His main concern was asbestos in the lung and likely cancer growing. I have booked him for a CT scan because I felt there was no other way to reassure him. He was quite adamant that something is in there. If his suspicion persists, even after the CT scan of the chest and if he is feeling for a bronchoscopy, I believe for his peace of mind, we may have to do that The Case Worksheet note dated October 3, 2012, includes the following from the Case Manager, after talking with the worker: The worker also advised he was diagnosed with Asbestosis years ago and that is why his claim (576717) was accepted for gastrointestinal cancer. I advised worker that based upon the current medical on this claim the only diagnosis that has been confirmed is COPD and as per the Commission s Asbestos Policy, COPD is not acceptable 45. I note that the family physician wrote in a letter to the Commission on February 25, 2013 on behalf of the worker, stating: [The worker] worked at the local asbestos mine in for a number of years, at which time he was exposed to high levels of asbestos fibers during his work time. He did smoke at some point in his lifetime, during the time that he worked at the mine. As you are probably aware, this combination places him at a very high risk of lung damage from the asbestos fibers. Given the fact that he has a poor response to routine COPD medications, it is very possible that a lot of his problems are due to the asbestos exposure while working at this mine While the family physician noted that it is very possible that the worker s problems were due to exposure to asbestos in the workplace, I note that the Commission has not engaged in a Section 60 analysis to determine whether the worker s COPD arose out of and occurred in the course of his employment. In my review of the file, I find that the adjudication process applied by the Commission is incomplete since the worker s claim was largely dismissed on the basis that the worker has not been diagnosed with asbestosis and therefore, did not meet the requirements of 90(3.1) or Policy EN-14 for entitlement to compensation. However, the question then becomes whether the worker s COPD arose out of and occurred in the course of his employment and Section 60 of the Act applies. The 9

10 Commission failed to provide a decision as to whether the worker s COPD was related to his exposure to asbestos on the balance of probabilities or in accordance with section 60. Decision 46. In my review of the file, and in analyzing the medical evidence, I find it confirms that the worker has been diagnosed with COPD. The medical documentation does not support, as per Section 90(3.1) of the Act and Policy EN-14: Asbestos Related Claims, that the worker suffers from asbestosis. Consequently, the worker does not meet the criteria set forth in the Act and policy, relative to an asbestosis claim. 47. I further find however, that a Section 60 analysis has not been conducted in relation to whether the worker s condition of COPD arises out and in the course of his employment. The matter is referred back to the Commission for adjudication on whether the worker s COPD is related to his employment, in accordance with the Act, regulations and policy. Referred Back to WHSCC Lloyd Piercey Review Commissioner December 9, 2013 Date 10