WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1052/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1052/12 BEFORE: R. Nairn : Vice-Chair V. Phillips : Member Representative of Employers D. Broadbent : Member Representative of Workers HEARING: May 13, 2015 at Oshawa Oral DATE OF DECISION: August 21, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1862 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decisions dated November 18, 2009 and July 29, 2011 APPEARANCES: For the worker: For the employer: Interpreter: D. R., the worker's daughter Closed 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. 1052/12 REASONS (i) Introduction [1] The worker, born in 1938, started with the accident employer in As noted in Memo #3, the worker contacted the WSIB (the Board ) in 2005 asking that she be granted entitlement to benefits for idiopathic pulmonary fibrosis, chronic obstructive pulmonary disease ( COPD ) and emphysema which she claimed were related to various exposures in the course of her employment from 1955 to [2] A Board Adjudicator contacted the worker and in Memo #4 of June 3, 2005, the Adjudicator noted: I contacted [the worker] and obtained more details regarding her job duties and exposures. In reviewing the letter from the employer dated April 13, 2005 the majority of her work history was working in fractional motors ( ). She advised that in this job she was winding, insulating and connecting wires onto motors. These motors were for washing machines and dryers. She also did other jobs not all connecting and winding. She worked with all ¼ horsepower motors. This job was performed in building 9. The wires were coated with a white product, she was not sure what this was. She advised to get to building 9 the employees would have to walk through building 7 (armature) where there was asbestos used. She would walk through numerous times a day when on break and lunch as this was the way to get to and from building 9. October 1978 to November 1995 she worked in the low voltage control; where she built switches. She was not sure what the products were for this. [3] As noted in Memo #5 of June 3, 2005, the Board Adjudicator decided that it would be appropriate to refer the worker's claim to an occupational hygienist to conduct a workplace exposure assessment. [4] In a report dated January 23, 2007, the occupational hygienist, D. Chung indicated in part: Abstract: The purpose of this report is to summarize the worker's potential occupational exposures to respirable dust and asbestos. As noted in Table 1, the worker was primarily an Assembler of stators and small electrical switches during her work history with [the employer]. The firm manufactured a variety of products including motors and generators. The worker began her employment with the employer in 1955 and was located in buildings #9 and #16. The worker was born in 1938 and is relating her chronic obstructive pulmonary disease to work related exposures. The worker retired in As noted in Table 2, the analysis of the worker's employment history indicates that the worker was potentially exposed to elevated levels of asbestos (0.3 years) and low levels of respirable particulates (3 years). 1. SUMMARY OF EMPLOYMENT & EXPOSURE HISTORIES The worker was primarily an Assembler during her 28-year tenure at [the employer]. During this period the worker was away from work for a total of about 12 years. As noted in Table 1, the worker noted that prior to 1955 the worker did not work in an industrial environment and exposures to dust and asbestos was unlikely.

3 Page: 2 Decision No. 1052/12 Table 1: Summary of worker's employment history Year: Employer Yr.: Job Title (building #): Tasks Potential Exposures Prior to 55: Various Retail clerk: customer service No defined exposures 55 85: [employer] After 1985: retired Assembler (#) winding of stators; occasional rotation of other production jobs, such as solder of electrical leads 78 85: Assembler (#16): manual assembly of electrical switches. Asbestos Metal fumes 2. PROCESS AND JOB DESCRIPTIONS 2.1 A review of the worker's employment suggests that her tenure with [the employer] is most relevant to the medical condition being claimed. As a result, this employer will be the focus of the remainder of this report. The work process primarily involved the manufacture of large electric motors and generators. During the worker's tenure she was primarily located in Buildings #9: Fractional Motors and #16: Switchgear. While in these buildings the worker spent the majority of her time winding stators or assembling electrical switches. The worker noted that she routinely travelled through the Armature and Structural Steel to get to her work station in buildings #9 and # EXPOSURE SUMMARY As noted in Table 1, while working for [the employer] the worker was potentially exposed to a number of workplace substances. Based on WSIB adjudicative advice documents the analysis of the worker's employment history will focus on respirable dust and asbestos. A summary of these exposures is presented in Table 2. The analysis was based on available information collected from the worker, employer, Ministry of Labour and the literature. Table 2: Summary of workplace exposures Agents of interest Job title: period of work Exposure Pattern A Exposure Duration B Exposure Category C Asbestos Assembler: Rare 0.3 years Elevated Respirable dust Assembler: Routine 3 years Low A Pattern of Exposure: The exposure pattern is defined as: routine if the task was conducted on a daily basis or if the worker spent more than 50% of the work shift potentially exposed to the agent; occasional if the task occurred on a weekly or monthly basis or if the worker spent 50-25% of the work shift potentially exposed, and rare if the task was not planned or scheduled or if the worker was potentially exposed for less than 25% of the shift. B Duration of Exposure: the duration of exposure is estimated by subtracting any time away from the exposure environment. C Exposure Category: For respirable dust a high ranking is defined as exposure levels exceed 2 mg / m 3 respirable dust (threshold). An elevated rank is defined as levels between % of the threshold. A moderate rank is between 10-50% and a low category is defined as levels below 10% of the respirable dust threshold. For asbestos a

4 Page: 3 Decision No. 1052/12 high rank is defined as airborne level above the 2000 TLV-TWA; elevated as % of the TLV; moderate as 25-75%; and low as less than 25% of the asbestos TLV. 3.1 Asbestos: Information to suggest that the worker handled asbestos materials during her tenure as Assembler in the Fractional Motors or Switchgear building was not available. The worker's most likely exposure to asbestos probably occurred during the 1955 to 1976 period. During this period the worker noted that she routinely travelled through the Armature building (#7). Information from the employer indicated that asbestos materials, such as tape and sheets, were used in this building until about As a result, it is likely that the worker was indirectly exposed to some level of asbestos from 1962 to about Based on information from the worker it was estimated that she travelled through building #7 daily; with each return trip occupying about 10 minutes. This is equivalent to about 2% of the worker's total time, i.e. 0.3 years. Employer information from the Health Study indicates that asbestos levels in building # 7 were moderate to elevated especially near asbestos handling areas. In the absence of other information was assumed that the worker was similarly exposed during her travel through this building. 3.2 Respirable Dust: The worker noted that the majority of her jobs did not involve the generation of dust. However, the worker's most likely exposure to respirable airborne particulates probably occurred during the 1955 to 1976 period. During this period the worker noted that she occasionally rotated throughout the various production jobs in the Fractional Motors department. A total of about 3 years was spent soldering electrical leads onto stators. Information describing the soldering operation was not available. It was assumed that the worker used a lead-tin solder. A 1992 NIOSH study examined the fumes generated by soldering. The study noted that the majority of tin and lead levels were below the minimum detection limits; the highest concentrations of tin and lead were 5ug /m 3 and 1ug /m 3 respectively. These levels suggest that the worker was probably exposed to low levels of soldering fumes during her tenure in the soldering area of Fractional Motors. In addition the worker noted that she walked through the rear of the Structural Steel building during the 1978 to 1985 period. This area was likely used a receiving or storage area [and most likely the worker passing through the area] was not exposed to dust or metal fume. ( ) [5] After reviewing the information provided by the hygienist, a Board Adjudicator, in a memo dated February 22, 2007, requested a medical opinion and indicated: Discussion: In reviewing the medical evidence on file, it is reasonable to assume that the diagnosis of COPD has been confirmed, however, I am having difficulty confirming that [the worker] has an asbestos related lung disease. Your medical guidance is appreciated on confirming/clarifying the diagnoses of COPD and whether an asbestos related lung disease is evident. Claims will determine whether the work contributed to the development of the diseases once the diagnoses have been confirmed/clarified. [6] The Adjudicator s request was eventually referred to Dr. C. Muir, the Board s Chest Consultant, who noted the following in Memo #24 of May 1, 2007: This patient presented with mild persistent cough and dyspnea on effort. The chest x-rays of 1987 and 1991 were reported as normal. Starting in 1999 and in later years the films were reported as showing minimal lower zone fibrotic changes and this was confirmed on the CT scans. The most recent x-ray report is dated 11December 2004.

5 Page: 4 Decision No. 1052/12 There are no pleural abnormalities on any other films. The most likely diagnosis is mild fibrosing alveolitis (usual interstitial pneumonia). Much research has been focused on fibrosing alveolitis (idiopathic pulmonary fibrosis IPF) in recent years concerning the cause, the diagnosis, the treatment and because of interest in the cellular mechanisms of lung fibrosis. ( ) In summary, there has been no evidence of an occupational cause of this disorder. An alternative diagnosis is minimal asbestosis. It is not possible to distinguish between mild asbestosis and mild fibrosing alveolitis. The adjudicative decision must be based on the evidence of any significant asbestos exposure. There are a number of PFTs in the file. The diffusing capacity (corrected for alveolar volume) is mildly reduced on 01/07/03 to 77% and 73% on 2004/12/1 7. Previous reports were not corrected for alveolar volume. The FEV 1 and FVC have varied from 79% and 77% on 06/02/00 to 79% and 81% on 2004/1 2/17. I agree with Dr. Vlasschaert that there is no evidence of COPD. The lowered FVC could be the result of minimal asbestosis or fibrosing alveolitis. If asbestosis is considered to be the diagnosis then the impairment is about 15%. SUMMARY: Either mild fibrosing alveolitis (not of occupational origin) or mild asbestosis, if there is convincing evidence of asbestos exposure. No COPD. [7] After reviewing the information on file, a Board Adjudicator issued a decision dated June 5, 2007 in which he concluded: ( ) HYGIENE ASSESSMENT/EXPOSURE REVIEW: Our Occupational Hygienist reviewed your various positions and provided an assessment of the exposures which is summarized below: Asbestos: It was estimated that you were most likely exposed to asbestos during the period of 1955 to It was then that you noted you routinely travelled through the Armature building (#7). Information from the employer indicated that asbestos materials, such as tape and sheets, were used in this building until about As a result, it is likely that you were indirectly exposed to some level of asbestos from 1962 to about Based on the information you provided, it was estimated that you travelled through building #7 daily; with each return trip occupying about 10 minutes. This is equivalent to about 2% of your total time, i.e. 0.3 years. Employer information from the Health Study indicates that asbestos levels in building #7 were moderate to elevated especially near asbestos handling areas. In the absence of other Information it was assumed that you were similarly exposed during your travel through this building. Respirable Dust: You noted that the majority of your jobs did not involve the generation of dust. However, your most likely exposure to respirable airborne particulates probably occurred during the 1955 to 1976 period. During this period, you noted that you occasionally rotated throughout the various production jobs in the Fractional Motors Department. A total of about 3 years was spent soldering electrical leads onto stators. Information describing the soldering operation was not available. It was assumed that you used a lead-tin solder. A 1992 NIOSH study examined the fumes generated by soldering. The study' noted that the

6 Page: 5 Decision No. 1052/12 majority of tin and lead levels were below the minimum detection limits; the highest concentrations of tin and lead were 5 ug/m3 and 1 ug/m3 respectively. These levels suggest that you were probably exposed to low levels of soldering fumes during your tenure in the soldering area of Fractional Motors. From 1978 to 1985 you noted you would walk through the receiving/storage area at the rear of the structural steel building where it was presumed that the potential for exposure to dust and metal fumes were unlikely. In summary, it was estimated that your exposure to low levels of respirable dust would be considered routine for the period of 1955 to 1976 when you worked as an Assembler. This has been averaged to be 3 years of your employer years at [the employer]. FACTORS TO CONSIDER: 45-pack year smoking history, quit 7 years ago ( ) DECISION: In reviewing all the evidence on file, I have come to the following conclusion: COPD not confirmed Asbestos exposure not sufficient to conclude a diagnosis of mild asbestosis [The worker], even though I have accepted that you were exposed to respirable dust; the medical evidence does not confirm a diagnosis of COPD. I have also accepted that you were exposed to asbestos, however, the exposure was not sufficient to conclude a diagnosis of mild asbestosis, and for this I have denied entitlement in your claim. [8] The worker did not agree with the conclusions of the Claims Adjudicator and submitted further information regarding her workplace exposure. This information was provided to the Board Occupational Hygienist who reviewed it and noted the following in a follow-up memo dated June 30, 2008: ( ) A review of the June 16, 2007 worker's submission noted several issues relating to work place expos u r s and medical evidence. Based on the available WSI B medical information this memo will focus on issues relating to the worker's potential exposure to asbestos. 1. ISSUES: The worker's submission noted the following issues: 1.1 The close proximity and prevailing breeze resulted in the migration of air borne asbestos from Armature into the Fractional Motors Department. 1.2 As a Machine Winder, the worker handled spools of wire from the Wire and Cable Department that were contaminated with asbestos. 1.3 The winding area was close to the die caster and varnish dip ovens. Both these processes used asbestos blankets and gloves. 1.4 Building insulation, including heating pipes, in Fractional Motors contained asbestos. 1.5 Some of the connecting leads used in the connecting job were braided with an asbestos covering. 1.6 The worker walked through Armature on a daily basis and was exposed to asbestos being used in this building.

7 Page: 6 Decision No. 1052/12 2. RESPONSES: The following section will address those aspects of the submission that specifically pertain to the worker's occupational exposures as noted in Section It is possible asbestos fibres from the Armature building migrated to surrounding work areas. However, the large size and proximity of the process buildings suggests a high level of dilution for contaminants migrating from nearby buildings into Fractional Motors. As a result, the level of fugitive airborne asbestos entering into Fractional Motors from Armature is expected to be low. 2.2 Asbestos was used at the Wire and Cable building until about It is possible that non-asbestos wires manufactured in this building could have been contaminated with asbestos. The large size of this building and proximity to nonasbestos areas suggests the level of contamination due to settled asbestos fibres was probably low. Transportation of any contaminated wires from the site of manufacture to Factional Motors likely resulted in a reduction of loose surface fibres due to vibration and air turbulence. Based on these assumptions it was estimated Winders in Faction Motors were likely exposed to low levels of asbestos from the handling of asbestos-contaminated wires. 2.3 The employer's 2003 Health Study noted the use of asbestos gloves in building #9. As suggested by the worker's submission it is plausible the use of asbestos gloves occurred at the die caster. The available information suggests the worker was not involved in the operation of the die caster. As a result, she was indirectly exposed to asbestos fibres from this source and her exposures were likely to be low. 2.4 It was assumed asbestos containing building insulation was used throughout the ( ) worksite at least until about As a result, it was likely the worker was exposed to asbestos in a manner similar to ambient levels found in buildings using asbestos insulation. The Royal Commission Report on Asbestos noted that ambient asbestos fibre levels in such work environments ranged from 0.0 to f /cc. 1 These levels suggest the worker was likely exposed to low levels of asbestos fibres from building insulation during her tenure at the ( ) worksite. 2.5 None of the available information during the assessment identified the use of asbestos containing input materials in the Fractional Motors Building. If it is accepted that asbestos braided connectors were handled then it is likely the worker's exposure to asbestos might have been higher than estimated in then 2007 occupational hygiene assessment. 2.6 The issue of the worker's indirect asbestos exposure from travelling throughout the Armature building was addressed in the 2007 occupational hygiene assessment report. 3. SUMMARY: A review of the worker's submission suggests she was potentially exposed to asbestos from a variety of sources, including migration of fibres from Armature, handling contaminated wires from Wire and Cable, indirect exposures from the use of asbestos gloves, ambient fibres from building insulation and handling asbestosbraided leads. Indirect exposure to asbestos while walking through Armature was addressed in the 2007 occupational hygiene report. All of the potential sources noted above pose possible routes of exposure to asbestos. Therefore, it is possible the worker might have been exposed to asbestos fibres for the majority of her [employer] tenure. However, the airborne concentrations from these sources is expected to be low, likely well below the occupational exposure limit for asbestos. [9] As noted in Memo #33 of September 12, 2008, after reviewing the comments from the Board occupational hygienist, the Adjudicator confirmed the decision to deny entitlement for this worker's claim for COPD and asbestosis. The Adjudicator noted that while it is possible

8 Page: 7 Decision No. 1052/12 the worker might have been exposed to asbestos fibres for the majority of her [employment years] the airborne concentration from these sources is expected to be low, likely well below the occupational exposure limit for asbestos. [10] The worker did not agree with the Board s denial of entitlement for asbestosis, COPD and emphysema and these issues were eventually referred to an Appeals Resolution Officer ( ARO ). In a decision dated November 18, 2009, the ARO denied the worker's appeal and concluded: Having carefully considered the file evidence, I find the worker's exposure duration to friable asbestos was rare, as indicated in the Occupational Hygiene Assessment Report, limited to 0.3 years. As a result, I find the most accurate diagnoses are UIP, and emphysema. I find COPD has not been confirmed, as noted by Dr. Vlasschaert and the WSIB Chest Consultant. However, even if this diagnosis were confirmed, given the worker's extensive 45 pack year smoking history, the medical information supports it would not be related to her occupational exposures, similar to the emphysema. The file evidence must establish on the balance of probabilities that [the worker s] employment made a significant contribution to the development her disease. Based upon the evidence presented, I conclude it does not support the worker's tenure at [the employer] significantly contributed to her UIP. In addition, I find her emphysema is unrelated to her occupational exposures under the claim. [11] Subsequently, the Board established a new claim to deal with the worker's entitlement for lung cancer which she claimed could be related to her employment exposure. [12] In Memo #22 of August 10, 2010, a Board Adjudicator indicated in part: ( ) Medical: 30 Jun 2009 percutaneous left lung biopsy. In the hospital report of 07 Aug 2009 Dr. Sengar notes a diagnosis of biopsy.proven squamous cell carcinoma of the left upper lobe. Family history: The worker s family history includes a sister who had uterine cancer, another sister with lung cancer and a brother who had melanoma. Entitlement criteria: The policy provides that entitlement can be granted if: there is a clear and adequate history of at least 10 years occupational exposure to asbestos, and there is a minimum interval of 10 years between first exposure to asbestos and the appearance of lung cancer. For pre-1975 exposures, as little as 2 years is adequate, depending on the intensity. Recommendation: The evidence must show that the occupational exposures made a significant contribution to the development of lung cancer. In that regard I have considered the worker's employment and potential occupational exposures history. diagnosis of lung cancer. the worker worked at [the employer] for 30 years from 1955 to exposure to asbestos would have been rare, with the duration of 0.3 years.

9 Page: 8 Decision No. 1052/12 exposure to respirable airborne particulates at low levels for the period 1955 to potentially exposed to low levels of soldering fumes during her tenure in the soldering area of fractional motors. the date of accident in this claim will be set based on the date of the 30 Jun 2009 percutaneous left lung biopsy. 40- pack to 45 - pack year smoking history. In considering the evidence on the claim, I conclude that [the worker s] occupational exposures at [the employer] were not a significant contributing factor in the development her lung cancer. Therefore, I am unable to allow this claim. [13] As noted in Memo #28 of February 3, 2011, the Board Adjudicator agreed to reconsider the initial denial of entitlement for lung cancer however, after reviewing the information on file the Adjudicator advised that I am unable to change my decision of 10 Aug 2010 which denied entitlement to lung cancer in this case. [14] The worker disagreed with the conclusions of the Adjudicator and the matter was referred to another ARO. In a decision dated July 29, 2011, the ARO denied the worker s appeal and concluded: I acknowledge the worker representative's submissions but I rely on the report from the WSIB occupational hygienist who is an expert in the field and conducted a comprehensive review of the available evidence to arrive at the conclusion. To that end, I find there is not a clear and adequate history of at least ten years occupational exposures to asbestos. For that reason, I find the worker's occupational asbestos exposure was not a significant factor in the development of her lung cancer. The worker's representative identified a number of other occupational exposures which she felt significantly contributed to the development of the worker's lung cancer. These substances include: Aluminum smoke; Hydraulic and machine oils; PAH from creosol soaked floors; Lead/tin solder; Silica; Lead; MOCA; Benzene; Cadmium; Chrome, nickel, silver; Arsenic; Nickel (23 per cent); Isocyanate (MDI); Trichloroethylene. The worker also attached a number of excerpts from various Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions where entitlement was granted. In making this decision, I did not place any weight on the excerpts from these WSIAT decisions as WSIB Operational Policy and legislation dictate that each claim is adjudicated on the basis of its own individual merit and circumstances and is not bound by precedent. The worker attached a written submission to her 60 Day Decision Option Form outlining the reasons for her appeal as follows:

10 Page: 9 Decision No. 1052/12 The worker was employed in a very smoky environment caused by an aluminum die cast. This was not factored into the decision making process. The worker's work history was not taken into consideration. She gave an example of [another employer] otherwise known as LVC and the fact that documentation shows asbestos leads used by wireman which was her job while she was there. It did not take into consideration the environmental factors within the workplace. For example, she had the die cast behind her and the degreaser to the left of her. The WSIB occupational hygienist reported in a document titled, Occupational Hygiene Response Memorandum dated December 3, 2010, The available process information indicated the worker was potentially exposed to a number of airborne contaminants including asbestos and welding fumes. This report was intended to address the worker's claim of COPD since 2007 a claim of lung cancer has been submitted. [It was] suggested that the exposure assessment should have considered all direct and indirect exposures within the various process buildings that wore associated with the worker's entire employment history. Exposure assessment of all possible potential workplace exposures would likely involve collection and analysis of extraneous information. Instead all WSIB exposure assessment reports judiciously focus on agents of interest that are derived after considering the worker's medical diagnosis and work and process emissions from important tasks. A review of the worker's employment information and medical diagnosis suggested that 2007 exposure assessment should focus on asbestos and respirable dust for the claim of COPD. The assessment of the Worker's asbestos exposures contained in the 2007 report and 2008 memorandum were applicable for her lung cancer claim." After considering all the evidence presented, I find the worker's occupational exposures did not significantly contribute to the development of her lung cancer. For reasons expressed above, she does not meet the criteria outlined in the WSIB Operational Policy for exposure to asbestos and the development of lung cancer. Additionally, with respect to the other exposure agents which were considered on the basis of their own merit, the evidence does not support these exposures are indicated in the development of lung cancer. (ii) Issue on appeal [15] The issues to be determined in this case are: (a) whether the worker ought to be granted entitlement to benefits for a respiratory condition (i.e. idiopathic pulmonary fibrosis, asbestosis, COPD or emphysema) which she claims can be causally related to her employment exposure and (b) whether the worker ought to be granted initial entitlement to benefits for lung cancer which she claims can be causally related to her occupational exposure. (iii) The worker's participation [16] The worker was provided notice of this hearing but due to the state of her health, was unable to attend. Her daughter, who had represented her in her dealings with the ARO, appeared in her place. As noted in documentation contained in Addendum No. 3, the worker's health had kept her from attending a previously scheduled Tribunal hearing in January [17] The Panel discussed the matter of the worker's attendance with her daughter. We indicated that if she desired, the matter could be adjourned until the worker's health improved sufficiently to allow her to attend. The worker's daughter advised however, that she wished to proceed with the hearing.

11 Page: 10 Decision No. 1052/12 (iv) Submissions of the worker's representative [18] The worker's daughter, who has worked with the accident employer on and off since 1974 provided submissions in support of her mother s appeal. She confirmed that her mother worked for the employer from 1955 to 1985 although she missed about 12 years during that time for various reasons including periodic layoffs and other health issues. [19] The worker's daughter confirmed that her mother spent most of her years with the accident employer in two areas fractional motors and switch gear. In the fractional department, where she spent most of her time, the worker would be winding cable around motors. She described this as the dirtiest area in the plant. [20] The essence of the worker's position, as advanced by her daughter, was that while she worked for the accident employer, she was exposed to a variety of materials which, when taken in combination, likely contributed to the development of her respiratory conditions and lung cancer. She submitted that there was everything in there including oil leaking from machines, lead, tin, asbestos, aluminum smoke and welding fumes. While she acknowledged the worker was not directly working with asbestos, she submitted the worker could have been exposed to asbestos fibers trapped in the spools of wire she used, contained in ceiling insulation, used in asbestos gloves/blankets or blowing into her work area from other areas of the plant. [21] It was the position of the worker's daughter that the Board had failed to consider the synergistic effect that exposure to all of these various elements would have had on her mother s health. She did not deny the evidence concerning her mother s smoking history but suggested the workplace exposures made a significant contribution to the respiratory diseases and lung cancer. (v) Analysis (a) Entitlement for respiratory conditions [22] It is now well settled in Tribunal case law that in dealing with matters of causation, the Tribunal employs a significant contributing factor test. In order to be entitled to benefits, the worker must establish that her workplace exposures made a significant contribution to the onset of her respiratory conditions. It is not necessary for the worker to establish that the workplace was the only contributing factor and entitlement may be granted in situations even when there are a number of significant contributing factors as long as the workplace also contributed significantly. [23] While the Panel is willing to accept, for the sake of argument, that the worker's workplace was a dirty and dusty factory environment, we find, on a balance of probabilities, that her workplace exposures did not make a significant contribution to the respiratory conditions with which she was subsequently diagnosed. In reaching that conclusion, we have taken particular note of the following: While we acknowledge the submissions of the worker's daughter with respect to the nature of the area where her mother was employed, we find the evidence falls short of establishing, on a balance of probabilities, that the worker had significant exposure to airborne contaminants such as asbestos. In reaching that conclusion we have taken particular note of the opinions provided by the Board s Occupational Hygienist in reports of January 23, 2007 and June 30, The

12 Page: 11 Decision No. 1052/12 latter report, in particular, addressed the specific concerns raised by the worker and her daughter. Even acknowledging that the worker may have had indirect exposure to asbestos fibers from a variety of locations throughout the plant, it was the Occupational Hygienist s conclusion that the airborne concentrations from these sources is expected to be low, likely well below the occupational exposure limit for asbestos. The Occupational Hygienist also acknowledged that the worker could have been exposed to a variety of dusts and fumes coming from other areas in the course of her employment but concluded these exposures were not significant. The evidence does establish, and the worker's representative did not dispute, that the worker has a significant smoking history of pack years. In a report dated October 27, 1999, Dr. J. Vlasschaert (respiratory medicine) indicated in part: Thank you: for asking me to see [the worker] who's a very pleasant 6I-year-old woman. Thank you also for the documentation. [The worker] unfortunately, is a smoker of a pack a day and has been smoking for more than 40 years. She used to work for [the employer] but as far as she knows she had no significant occupational exposures. There was no asbestos exposure in any event. ( ) Discussion and Recommendation [The worker] has a number of issues that need to be addressed. Unfortunately, she has evidence of interstitial lung disease, which is in a UIP pattern. This can be associated with collagen vascular disease. ( ) Obviously, she needs to stop smoking. In a report dated December 10, 1999, Dr. Vlasschaert indicated that the investigations show that she has pulmonary function changes consistent with idiopathic pulmonary fibrosis. The worker underwent a CT scan on August 2, 2000, the results of which were interpreted to reveal mild interstitial lung disease has been stable since June/99 there is UIP, which is usually idiopathic, but can be seen with collagen vascular disease, chronic drug reaction and asbestosis. In a report dated March 9, 2001, Dr. Vlasschaert noted: Impression From a respiratory standpoint, [the worker] seems to be remaining stable. She has mild obstructive lung disease from cigarette smoking with superimposed mild idiopathic pulmonary fibrosis. ( ) In his report of February 11, 2002, Dr. Vlasschaert indicated: Impression From a respiratory standpoint [the worker] has a number of issues including: 1 Lung Disease-probably idiopathic pulmonary fibrosis 2 GERD 3 Multiple Pulmonary Nodules - probably benign granulomata

13 Page: 12 Decision No. 1052/12 4 Hemoptysis - no etiology found 5 COPD from cigarette smoking 6 Right Middle Lobe Bronchiectasis -mild on CT scan In a report dated September 30, 2005, Dr. Vlasschaert concluded: In summary [the worker] has mild obstructive lung disease and emphysema confirmed on CT scan secondary to cigarette smoking. She had multiple tiny nodules, which were almost certainly granulomata and had not changed over a long interval of time. She also had interstitial lung disease, and now considering information we have regarding [the employer] may have had an asbestos exposure. Though she does not have evidence of pleural disease, this does not exclude the diagnosis of asbestosis though makes it less likely. In addition asbestos can be associated with airways disease as noted above this is most likely related to cigarette smoking. The medical reporting was referred to Dr. D. Muir the Board Chest Consultant and in Memo #24 Dr. Muir concluded that the worker did not have COPD. He submitted that the worker most likely had either fibrosing alveolitis/idiopathic pulmonary fibrosis or mild asbestosis if there was convincing evidence of asbestos exposure. As Dr. Muir noted, a review of the medical literature indicated that there was no evidence of an occupational cause of fibrosing alveolitis and as indicated in this decision, this Panel (and the Board) have concluded that the worker did not have any significant asbestos exposure. The case materials included a Tribunal Discussion Paper entitled Chronic Obstructive Pulmonary Disease authored by Dr. D. Ahmad which indicates that tobacco smoking is the primary cause ( ) occupational environments are risk factors for COPD. However, this risk is less than that of smoking. [24] The Panel does not dispute that the worker has been diagnosed with respiratory ailments. The issue which we must determine however, is whether her workplace exposure contributed significantly to the onset of those conditions. We have found that the worker did not have significant exposure to airborne contaminants, including asbestos. Taking particular note of the worker's significant smoking history and the reporting provided by her treating specialist, Dr. Vlasschaert, we find that even if the worker's workplace exposure contributed to the onset of her respiratory problems, that contribution was not significant. The primary cause of her respiratory problems was, in our view, her smoking and its contribution was sufficiently significant to render insignificant, the contribution of the workplace exposure. We also find that the evidence for and against the worker's claim is not approximately equal in weight and therefore she is not entitled to the statutory benefit of doubt. (b) Entitlement for lung cancer [25] As was the case with the worker's respiratory conditions, she claims that her lung cancer can be causally related to a variety of exposures including that of asbestos. [26] Pursuant to section 126 of the Workplace Safety and Insurance Act, 1997 (the WSIA ), the Tribunal is required to apply applicable Board policy. In this case, the Board has notified the Tribunal that one of the policies that applies in this appeal is Operational Policy Manual ( OPM ) Document No entitled Lung Cancer Asbestos Exposure. This policy provides in part:

14 Page: 13 Decision No. 1052/12 Policy Lung cancer in asbestos workers is accepted as an occupational disease under sections 2(1) and 15 of the Workplace Safety and Insurance Act as peculiar to and characteristic of a process, trade or occupation involving exposure to asbestos. Guidelines Entitlement criteria Based on medical studies, lung cancer claims are favourably considered when the following circumstances apply there is a clear and adequate history of at least 10 years occupational exposure to asbestos, and there is a minimum interval of 10 years between first exposure to asbestos and the appearance of lung cancer. Claims which do not meet these guidelines will be individually judged on their own merit, having regard to the intensity of exposure and other factors peculiar to the individual case. ( ) [27] The worker was diagnosed with lung cancer in 2009 and left her employment in As such, she satisfies the policy criteria of having a minimum 10 year interval between the first alleged exposure to asbestos and the appearance of lung cancer. The policy also requires however, that there be a clear and adequate history of at least 10 years of occupational exposure to asbestos. As noted earlier in this decision, the Panel has not accepted that the worker had a significant asbestos exposure in the course of her employment. The policy also provides however, that claims which do not meet the guidelines will be individually judged on their own merit, having regard to the intensity of exposure and other factors peculiar to the individual case. [28] It is the worker's position, as explained by her representative, that her lung cancer was, more likely than not, the result of exposure to a variety of materials in the course of her employment. As indicated earlier in this decision, in dealing with matters of causation, the Tribunal employs a significant contributing factor test. After considering all of the evidence before us, the Panel finds, on a balance of probabilities, that the worker's employment exposure did not contribute significantly to the onset of her lung cancer. In reaching that conclusion, we have taken particular note of the following: The case materials include a Tribunal Discussion Paper entitled Evidence for Smoking Causing Lung Cancer authored by Dr. N. Jones. In the Discussion Paper, Dr. Jones indicates that subsequent events have shown that tobacco smoking accounts for 30% of all cancers and over 80% of lung cancer. The evidence meets all the epidemiological criteria for causation. Dr. Jones also noted that thus, the risks of even mild smoking outweigh the known risks of working in a hazardous environment, even if this contains asbestos fibers. The Discussion Paper also notes that a family history of cancer is statistically associated with elevated risk. The evidence before us establishes that the worker had smoked a pack of cigarettes a day for at least 40 years and there is evidence of a family history of cancer including a sister with uterine cancer, another sister

15 Page: 14 Decision No. 1052/12 with lung cancer, a brother with melanoma and a mother who died of bowel cancer. While the medical reporting on file confirms the diagnosis of lung cancer, we were not referred to medical evidence of any substance supporting the worker's theory that her cancer was related to the varied nature of her exposures in the course of her employment. That relationship is, at best, a possibility. In order to be granted entitlement to benefits, it must be established that a relationship is more probable than not. [29] As was the case with the worker's respiratory condition, even if the Panel accepts, for the sake of argument, that her varied workplace exposure contributed to the onset of her lung cancer, we find that the contribution was not significant. Our review of the evidence satisfies us that the factors which contributed significantly were her significant smoking history and family history. The contribution of these factors rendered insignificant, any contribution by her workplace.

16 Page: 15 Decision No. 1052/12 DISPOSITION [30] The worker's appeal is denied. DATED: August 21, 2015 SIGNED: R. Nairn, V. Phillips, D. Broadbent