NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: [X] Form of Appeal: Oral hearing held at Halifax, NS on February 9, 2010 WCB Claim No.: [X] Date of Decision: February 25, 2010 Decision: The appeal of the June 30, 2009 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner Brent Levy.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: On August 19, 2008, the Board received an accident report concerning the development of pre-cancerous lesions. The accident report stated that such lesions were first observed in 2003 and were attributed to the Worker s occupational exposure to sunlight. The Board s May 1, 2009 decision concluded that the Worker had not suffered a compensable injury. The Board concluded that there was insufficient evidence attributing the Worker s lesions to his employment. A Hearing Officer Decision dated June 30, 2009 upheld the Board s decision. The Worker appealed to the Tribunal and he is represented. On September 2, 2009, the Tribunal received a submission from the Worker s representative enclosing a medical-legal report from the Worker s dermatologist. The Worker s appeal proceeded by oral hearing. The Employer participated and was represented by counsel. ISSUE AND OUTCOME: Did the Worker suffer a personal injury by accident arising out of and in the course of his employment? Yes. It is just as likely as not that the Worker s actinic keratosis was caused to a material extent by his occupational exposure to sunlight. ANALYSIS: The Board s and the Tribunal s files have been reviewed, and the testimony from the oral hearing has been considered. The testimony and documentary evidence most relevant to my reasoning and conclusions shall be set out in this decision. The Workers Compensation Act, S.N.S , c.10, as amended [the Act ] applies to this appeal. Section 186 of the Act requires that this appeal be decided in accordance with the real merits and justice of the case. The Worker is also entitled to the benefit of the doubt on any issue involving compensation pursuant to section 187 of the Act. Where there is doubt on an issue, and the disputed This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.

3 3 possibilities are evenly balanced, the issue must be resolved in the Worker s favour. Section 10 of the Act sets out the criteria workers must satisfy in order to have injuries recognized as being compensable. Subsection 10(1) states that compensation is payable to workers who suffer personal injuries by accident arising out of and in the course of their employment. Subsection 10(4) establishes a presumption in favour of workers. If an accident arises out of employment, it is presumed to have occurred in the course of employment. Likewise, if an accident occurs in the course of employment, it is presumed that it arose out of the employment. Such presumptions apply unless evidence to the contrary is presented. As of September 17, 2009, the Board implemented Policy which pertains to the compensability of injuries. This policy describes the phrases arising out of and in the course of employment. The meaning of these phrases was considered by the Nova Scotia Court of Appeal in Puddicombe v. Nova Scotia (Workers Compensation Board), 2005 NSCA 62 [ Puddicombe ] wherein the court cited with approval the following passage from Gellately v. Newfoundland (Workers Compensation Appeal Tribunal) (1995), 126 th D.L.R. (4 ) 530: The words in the course of employment refer to the time, place, and circumstances under which the accident takes place. The words arising out of employment refer to the origin of the cause of the injury. There must be some causal connection between the conditions under which the employee worked and the injury which he received... In Puddicombe, the court noted that application of the arising out of and in the course of employment test is a fact-driven exercise which should consider the broad policies and purposes of the workers compensation system. Courts have also previously held that causation does not need to be determined with scientific certainty and that it is appropriate to use common sense to infer causation: Snell v. Farrell [1990] 2 S.C.R. 311 and Athey v. Leonati [1996], 3 S.C.R Whether a particular inference is reasonable is a question of fact that depends on the circumstances of each particular case: Workers Compensation Board (N.S.) v. Johnstone, et al., 1999 NSCA 164. A worker must show that the totality of the evidence supports that there is a reasonable inference of causation that is at least evenly balanced with any other possible inference: Canada Post Corporation v. Nova Scotia (Workers Compensation Appeals Tribunal), 224 N.S.R. (2d) 276 (C.A.).

4 4 Evidence The Worker testified that he spent a significant amount of time outdoors as a youth. The Worker also testified that he worked for the Employer for approximately 22 years as a bus driver. During his first five years of employment, approximately 50% of his shifts were night shifts. Thereafter, the Worker worked day shifts which typically ran from 6:00 a.m. to 6:00 p.m. The Worker testified that he sat approximately a foot away from the transit bus s side window. Such window was approximately two to two and a half feet in height and approximately 18 inches wide. The Worker stated that he almost always kept the window open a bit regardless of the season. The Worker agreed with the Employer s counsel s assertion that he would not have been in direct sunlight for much of the day. The Worker testified that the pre-cancerous lesions always developed on the left side of his face and temple, and some lesions also developed on his head. The Worker did not recall when he was first advised that such lesions might be attributable to his occupational exposure to sunlight. The Worker s dermatologist, Dr. Gallant, testified that he has been practising dermatology for approximately 25 years. Dr. Gallant first began treating the Worker on December 21, 1999 concerning actinic keratosis and a similar problem affecting his lips. Dr. Gallant stated that he would have discussed sun protection with the Worker in 1999 because this is his usual recommendation. Dr. Gallant noted that the Worker has actinic keratosis and seborrheic keratosis. Dr. Gallant testified that actinic keratosis is directly related to sun exposure while seborrheic keratosis is not necessarily related to sun exposure. Seborrheic keratosis may be more prevalent in areas of sun exposure, but sun exposure does not necessarily cause the development of seborrheic keratosis. Dr. Gallant testified that the Worker has an increased risk of developing actinic keratoses because of his Type I skin complexion. Dr. Gallant stated that actinic keratosis is very common, although there is not a prevalence of bus drivers or truck drivers suffering from such lesions in his practice. Dr. Gallant testified that he treated the Worker s left side 13 times but only treated the right side once. Dr. Gallant stated that it was uncommon to have such a lopsided distribution of actinic keratosis. Dr. Gallant stated that an individual s base for sun damage is established in childhood. Dr. Gallant cited The Canadian Dermatology Association s statement that 80% of an individual s sun exposure occurs prior to 18 years of age. Dr. Gallant noted, however, that

5 5 occupational factors are relevant. Dr. Gallant stated that there is an approximate 80/20 balance between childhood and adult sun exposure. Dr. Gallant was unwilling to agree with the Employer s counsel s proposition that the development of actinic keratosis, and its asymmetrical distribution in the Worker s case, was due to chance. Dr. Gallant stated that it is uncommon to have one side so lopsidedly affected. Dr. Gallant stated that it was within the realm of possibility that the Worker s occupational exposure contributed to the development of actinic keratosis. Dr. Gallant stated that while occupational exposure to sunlight is a possible cause of actinic keratosis, it is difficult to quantify this risk factor in the context of an individual s lifetime sun exposure. Dr. Gallant testified that actinic keratosis lesions may not appear until 10 to 20 years subsequent to the sun exposure. Dr. Gallant addressed the preliminary study appended to his August 27, 2009 medical-legal report concerning truck drivers. Dr. Gallant stated that the study was a preliminary one which would not be determinative of the issue before the Tribunal. Dr. Gallant noted some additional studies, some of which were cited in the footnotes to the preliminary study, which suggest that drivers have an increased risk of developing actinic keratoses on the side nearest the side window glass. Worker s Submissions The Worker s representative submitted that the Worker is not required to prove that his occupational sun exposure was the sole cause of his actinic keratosis. It was submitted that the Worker is only required to prove that the sun exposure was more than a de minimis cause. The Worker s representative also submitted that Dr. Gallant had adequately opined on the causal relationship between the actinic keratosis and occupational sun exposure. Employer s Submissions The Employer s counsel submitted that there was no concrete evidence that the Worker s occupation caused the actinic keratosis. It was submitted that Dr. Gallant was unable to state when or where the Worker was exposed to the sunlight which lead to the development of actinic keratosis. It was submitted that there is nothing more than a possibility that the Worker s occupational sun exposure may have lead to the development of actinic keratosis. The Employer s counsel also submitted that there is no evidence that the Worker is impaired as required by section 12 of the Act. The Employer s counsel also suggested that had the Worker heeded Dr. Gallant s recommendation in 1999 concerning the avoidance of sun exposure, he would not have had further occupational sun exposure.

6 6 Findings Dr. Gallant s July 7, 2004 report stated that the Worker had excess past sun exposure, but no further details were provided concerning such prior sun exposure. Dr. Gallant stated that the Worker had five areas of extensive actinic damage scattered over his forehead, the bridge of his nose, and his cheeks. Dr. Gallant referred to the Worker having had similar problems previously. Dr. Gallant s August 5, 2008 report also noted the Worker s prior sun exposure, but again such sun exposure was not described. Dr. Gallant stated that the Worker had premalignant actinic keratoses scattered over his left forehead, temple and left cheek. Dr. Gallant s August 27, 2009 medical-legal report stated, and he testified, that the Worker was first examined in 1999 for actinic keratosis due to chronic sun exposure. Dr. Gallant stated that the Worker had been treated for lesions on the left side of his face approximately 13 times but only once on the right cheek. Dr. Gallant noted that research suggests that multiple factors contribute to the development of actinic keratosis. Dr. Gallant stated that it is impossible to retrospectively determine how much sun exposure the Worker received at work and how important such exposure is in comparison to his childhood and recreational exposures. The Worker testified that he has not used tanning beds, does not lie in the sun, and does not regularly take vacations in the southern hemisphere. No testimony was adduced concerning the Worker s ongoing sun exposure either due to recreational activities or his personal use of motor vehicles. A Board Medical Advisor opined in an undated medical opinion that, in his view, the minimum required would be statements from a dermatologist to the effect that the Worker received the damaging sun exposure from his employment. The applicable test for causation does not require scientific certainty, but the evidence in support of a particular position must be more than a mere possibility. While lifetime sun exposure is largely defined by the activities of youth, Dr. Gallant clearly testified that an individual s subsequent behaviour and occupational factors do matter. Dr. Gallant testified that the Worker s occupational exposure to sunlight was a risk factor which would contribute to the development of actinic keratosis, the magnitude of which he was unable to quantify. Dr. Gallant, however, also testified that it was uncommon to have one side of a patient so lopsidedly affected. The Employer pointed to the fact that approximately five of the Worker s 22 years of employment involved night shifts at least 50% of the time. The Employer also suggested that had the Worker complied with Dr. Gallant s recommendation in 1999, he would not

7 7 have suffered additional sun exposure. Dr. Gallant stated that actinic keratosis develops over approximately 10 to 20 years. Given the latency period for the development of actinic keratosis, there is insufficient evidence to conclude that the development of actinic keratosis in 2008 and 2009 leads to the conclusion that the Worker did not comply with Dr. Gallant s recommendation in 1999 concerning sun exposure. This point was not put to Dr. Gallant. Given the Worker s strikingly asymmetric distribution of actinic keratosis, and given Dr. Gallant s testimony that his occupational exposure to sunlight was a risk factor, I find it as likely as not that the Worker s occupational exposure to sunlight made a material contribution to the development of his actinic keratosis. As a result, I find that the Worker has suffered a personal injury by accident arising out of and in the course of his employment. The Employer s counsel submitted that the Worker did not satisfy the requirements set out in section 12 of the Act concerning compensation for an occupational disease. It is not necessary for me to make a finding concerning such point. This decision pertains to whether an injury occurred rather than to the Worker s benefit entitlement. The question of the Worker s benefit entitlement is referred to the Board for consideration in light of this decision. CONCLUSION: The Worker s appeal is allowed. There is sufficient evidence to conclude that it is just as likely as not that the Worker suffered a compensable injury. The Worker s benefit entitlement shall be considered by the Board in light of this decision. th DATED AT HALIFAX, NOVA SCOTIA, THIS 25 day of February, Brent Levy Appeal Commissioner