WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 412/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 412/11 BEFORE: S. Martel : Vice-Chair M. P. Trudeau : Member Representative of Employers A. Grande : Member Representative of Workers HEARING: March 1, 2011 at Toronto Oral DATE OF DECISION: April 26, 2011 NEUTRAL CITATION: 2011 ONWSIAT 955 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated March 11, 2010 APPEARANCES: For the worker: For the employer: Interpreter: C. Oliverio, Paralegal Did not participate 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. 412/11 REASONS (i) Introduction [1] The worker has an accepted claim for asbestosis as related to his work as a millwright with a cement company from 1971 to The currently accepted date of accident for this occupational disease is September 8, In this appeal, the worker seeks to have the accident date changed to 1985 or, alternatively, to He also seeks entitlement for psychotraumatic disability as related to asbestosis and seeks wage loss benefits from the time that he stopped working in 1992 to the date that he turned 65 years old. [2] The worker testified and Ms. Oliverio made submissions. We also considered seven documents entered as exhibits. (ii) Background [3] The worker was born in India in 1936 and immigrated to Canada in All of his work history in Canada was as a maintenance mechanic and millwright. The worker worked for a plant that made staplers and fasteners in 1969 and He then worked for a cement company from April 1971 to 1978 where he claims that he was exposed to asbestos through his repair work on conveyors, kilns, precipitators and basins. From August 1978 to 1992, he worked for an aluminium company. He stopped working in 1992 due to psychiatric problems. [4] In 2005, the worker was referred to Dr. Vanek, a respirologist, in respect of an abnormal chest x-ray. Dr. Vanek suspected that the worker had some degree of asbestos-related pleural disease and parenchymal disease and therefore referred the worker for pulmonary function tests and a high resolution CT scan. The pulmonary function tests of September 8, 2005 showed a moderate degree of restriction. The CT scan of the same date confirmed findings of asbestosrelated disease. [5] The Board accepted the claim for pleural thickening of diffuse type and early asbestosis with an accident date of September 8, 2005, the date of the pulmonary function tests and CT scan. In April 2008, the worker was granted a 35% non-economic loss (NEL) award based on the 2005 CT scan and pulmonary function tests. [6] The worker submits that chest x-rays as early as 1985 showed evidence of asbestosis although not diagnosed as such at the time. He therefore submits that 1985 should be the accident date. Alternatively, he submits that a June 27, 2000 chest x-ray indicating exposure to asbestos should be [ruled out] could also be the date of accident in his claim. [7] The worker further submits that his psychiatric problems are related to asbestosis and that his asbestosis and psychiatric problems are the reason why he had to stop working in The worker therefore seeks entitlement for psychotraumatic disability as well as wage loss benefits from 1992 onwards.

3 Page: 2 Decision No. 412/11 (iii) Date of accident (a) Board policy [8] In accordance with section 126 of the Workplace Safety and Insurance Act, the Board forwarded to the Tribunal the policy in effect at the time of the currently accepted accident date: Operational Policy Manual (OPM) Document No dated October 12, 2004 and entitled Determining the Date of Injury. With respect to disablement or occupational disease the policy states: For a disablement or an occupational disease, the date of injury is the date the worker suffers the impairment (i.e., the date on which the worker experiences the disabling physical or functional abnormality or loss). [emphasis added]. [9] The current version of OPM Document dated February 18, 2009 is more detailed in respect of the date of injury in an occupational disease claim. It states the following: In an occupational disease claim, when a worker s illness or disease is a result of a specific chance event, the date of injury is the actual date of the incident. An example would be where a worker develops a lung condition after inhalation of toxic fumes from a chemical fire. However, most occupational disease claims do not result from a single event occurring at a specific time. As work-related diseases generally result from the cumulative effect of occupational exposure spanning many months or years, the date of injury is not based on when the exposure to the causal agent(s) occurred, but rather on when the illness or disease first becomes apparent. An example of this type of occupational disease claim is where a worker develops lung cancer after many years of exposure to asbestos dust at work. In these cases, the decision-maker determines the date of injury based on either the date initial medical attention is sought for symptoms consistent with the diagnosis, or if medical continuity of compatible symptoms is unclear, the date a medical specialist conducts a full clinical assessment and determines the diagnosis. (b) Conclusion [10] Ms. Oliverio relies on chest x-rays in 1985 starting with a chest x-ray report dated January 23, 1985, which reported: There is some blunting of the left costo-phrenic angle due to pleural thickening as well as some fibrosis in the lingula. The rest of the chest is clear. [11] There are other chest x-ray reports in the claim file. A chest x-ray report dated September 1, 1985 indicated evidence of bilateral basal subsegmental atelectasis with elevation of both hemi diaphragms...[t]here is now also suggestion of early consolidation in the right middle lobe [t]he differential diagnosis remains that of embolic disease or early pneumonia. A ventilation profusion lung scan of September 11, 1985 noted no abnormalities. Another chest x-ray of September 25, 1985 noted blunting of left costophrenic angle but that linear density in the left lower lobe has improved compared with previous examination. An October 1985 chest x-ray report showed no significant change in subsegmental atelectasis in the left base and pleural thickening. The remainder of the lungs was clear. [12] A January 12, 1987 x-ray report showed some pleural thickening at the left base and fibrosis in the lingual. There was now a linear density in the right middle lobe which was not

4 Page: 3 Decision No. 412/11 present on the previous examination and represents either an area of atelectasis or fibrosis. A January 22, 1987 x-ray showed no changes from the previous examination. [13] The worker was referred to Dr. Balsys, a specialist in pulmonary and internal medicine, who saw the worker on December 13, His report indicates that the worker was reasonably well except for an episode of pneumonia in 1985, followed by severe depression. He was on antidepressant medication when seen and felt completely well and is totally asymptomatic. Dr. Balsys reported that the worker had no cough, no shortness of breath, no sputum production, no weight loss, malaise, fever, chills, rigors, allergies, etc. Dr. Balsys indicated that he could not find any positive symptom referable to his cardio respiratory system whatsoever. Dr. Balsys also noted that the worker smoked a pack a day. Dr. Balsys reviewed the x-rays and indicated that he thought that the worker had some fibrosis due to old pneumonia. He thought it was worth following up and would reassess him in three months. It is unclear if the worker was reassessed by Dr. Balsys since the claim file does not contain any further reports from Dr. Balsys. In any event, as of Dr. Balsys examination of December 13, 1989, there was no evidence of any respiratory symptoms. [14] There is also no documentary evidence of the worker suffering from respiratory symptoms in the years after The worker was seen on a regular basis by Dr. Johnson, a psychiatrist, who treated him from November 1985 until at least The claim file includes many reports by Dr. Johnson as well as his clinical notes. There is no reference in any of these reports and notes of the worker experiencing any respiratory symptoms. [15] In 1997, an October 22, 1997 x-ray report showed a little fibrosis over the left costophrenic angle but the chest was otherwise clear. A June 27, 2000 test x-ray contains the first reference to possible asbestos exposure. That chest x-ray report notes post-inflammatory parenchymal scarring and pleural thickening and calcification. The report indicates that exposure to asbestos should be ruled out. There does not appear to have been any follow-up from this chest x-ray. [16] With respect to the submission that the worker would not have been referred for chest x-rays it he was not experiencing symptoms, we note that his physicians were under the impression that he was a long-time heavy smoker and that that could have been a reason for the chest x-ray referrals. In any event, Dr. Balsys report is quite conclusive in stating that he could not find any positive symptom referable to the worker s cardio respiratory system whatsoever. [17] The worker was only referred to Dr. Vanek, a respirologist, in Dr. Vanek s report of June 13, 2005 indicates that he reviewed the chest x-rays and suspected that the worker had some degree of both asbestos-related pleural disease and parenchymal disease. Dr. Vanek further indicated that fortunately it was not causing symptoms at this time. He referred the worker for full pulmonary function tests and a high resolution CT scan. These were done on September 8, The CT scan confirmed asbestos related disease and the pulmonary function tests showed a moderate degree of restriction. Dr. Vanek reviewed these tests on October 17, 2005 and indicated that the pulmonary function tests suggesting a moderate degree of restriction with a tendency towards increased flow rates and airway conductants were consistent with interstitial lung disease. Furthermore, the high resolution CT scan documented a calcified left pleural plaque, consistent

5 Page: 4 Decision No. 412/11 with previous asbestos exposure as well as some sort of diffuse basal parenchymal disease. Dr. Vanek believed that the worker had asbestos related parenchymal and pleural disease. [18] Dr. Hinnawi, the worker s family physician since early 2000, wrote to the Board on December 19, 2005 indicating that during the years of the worker s attendance at his office, he did not have any major respiratory problems but that he could always hear abnormal crackles in the lung. Dr. Hinnawi indicated that chest x-rays in 2000 and 2005 supported asbestosis, pulmonary function tests supported interstitial disease and the CT scan supported fibrosis. Dr. Hinnawi further indicated that when he looked back at the chest x-ray reports they were all abnormal but never properly diagnosed. Dr. Hinnawi indicated that the worker was stable now but could deteriorate later. Dr. Hinnawi also prepared a report to the worker s current representative dated January 20, 2010 in which he indicated that a routine chest x-ray done in 2000 hinted at asbestosis but that he did not take action as the worker was not feeling ill. In 2005, the worker started having a persistent cough that took longer than usual to heal and which did not respond to conventional therapy. He referred him to Dr. Vanek who confirmed that the worker s problems were secondary to asbestosis. Dr. Hinnawi then indicated that he reviewed the worker s old records and found that he was ill with recurrent pneumonia since early 1985 and had frequent chest x-rays which were misdiagnosed with lung fibrosis. [19] We have ultimately placed limited weight on Dr. Hinnawi s report of January 20, 2010, written in response to a detailed request letter by the worker s representative, because the request letter and resulting report are premised on facts which are inconsistent with our findings. For example, the representative s request letter to Dr. Hinnawi states that the worker discontinued work because of respiratory illness and pneumonia and that it was quite reasonable to deduce that the fatigue and respiratory distress experienced by [the worker] in 1985 and which caused him to retire in 1992 was a direct causal derivative of his asbestos related exposure during his period of employment between As explained later in this decision, the Panel has found that the reason why the worker stopped working in 1992 was due to his non compensable psychiatric problems rather than any respiratory distress. There is no medical evidence of respiratory distress in The representative s letter to Dr. Hinnawi also indicates that the worker had informed them than an x-ray study of his chest conducted in 1985 reveals demonstrative proof of pleural plaques/asbestosis, albeit his former physician was not able to identify the ailment as such. While that may have been the worker s view, the x-ray reports at that time did not in fact refer to the possibility of asbestosis. The request letter further states that if what [the worker] has communicated holds true, you are able to recognize that he possessed symptomatology congruent with pleural plaque/asbestos as early as 1985 and therefore, could be of paramount importance to the presentation of our appeal. In our view, the representative is suggesting the desired answer to the worker s physician rather than asking for the physician s objective opinion. Our view of the totality of the evidence is that there was no symptomatology congruent with pleural plaques and asbestosis until [20] In any event, while it is possible that the chest x-rays as early as 1985 showed some fibrosis, which could have been misdiagnosed, the overall medical reporting does not attribute any symptoms of asbestosis to these findings. The worker did not have persistent and ongoing symptoms of a disabling nature until 2005 when due to a persistent cough he was referred to Dr. Vanek. Even when first seen by Dr. Vanek in June 2005, Dr. Vanek reported that the worker s asbestos related disease was fortunately not causing symptoms at this time. It was only on the

6 Page: 5 Decision No. 412/11 basis of pulmonary function tests of September 8, 2005 that symptoms attributable to the worker s occupational disease were confirmed. The CT chest x-ray further confirmed Dr. Vanek s suspected view of asbestos related disease. [21] The policy in effect in 2005 states that the date of accident is when there is evidence of disabling physical or functional abnormality or loss. The current version of the policy states that the date of injury is based on either the date medical attention is sought of symptoms consistent with the diagnosis or, if medical continuity of compatible symptoms is unclear, it is the date a medical specialist conducts a full clinical assessment and determines the diagnosis. While the current version of the policy is not the applicable one in terms of section 126 of the WSIA, it remains informative. In this case, there is no evidence of disabling symptoms that can be attributable to asbestosis until There is also no continuity of symptoms that can be attributable to asbestosis until [22] We recognize that there is some degree of arbitrariness inherent in establishing the date of accident in occupational disease claims since it is usually impossible to tell exactly when the disease process started and when any experienced symptoms can be attributed to the disease process. In our view, the date chosen by the Board, September 8, 2005, is an appropriate date of accident in the circumstances of this case because there was then evidence of disabling symptoms attributable to asbestosis as confirmed in the pulmonary function tests. It was also the date that a full clinical assessment and investigations were conducted to determine the diagnosis. (iv) Psychotraumatic disability entitlement [23] In his testimony, the worker admitted that he was never told that he had asbestosis until advised of such by Dr. Vanek in Nevertheless, he testified that what was going on inside him, of which he had no knowledge, was likely the reason why he was unwell from 1985 to 1992 and why he was referred to a psychiatrist. The worker testified that during these years he experienced suicidal thoughts, fatigue, irritability, weight loss and thoughts that were running wild. His then family physician referred him to Dr. Johnson, a psychiatrist. [24] An insurance company also referred him to another psychiatrist, Dr. Ballon, for an independent psychiatric assessment on December 2, Dr. Ballon reported that the worker last worked on September 10, 1985 when he discontinued work because of pneumonia. He recovered from the infection and returned to work on October 28, 1985 for less than one day when he cracked up. To Dr. Ballon, the worker indicated that he had been having symptoms of depression for the past two years. He blamed this primarily due to extreme pressure at work and because of a move to another area of the city two years ago. It now took him a minimum of one hour each way for his drive to work. As can be noted from this report, while the worker initially stopped work because of pneumonia, he fully recovered from such and then returned to work when he cracked up. At the time that he saw Dr. Ballon, the worker did not attribute his symptoms of depression of two years duration to recent pneumonia but rather, to pressure at work and to a move to a new area of the city. In his testimony, the worker clarified that it was his workplace rather than he who moved to another area of the city, thereby significantly increasing his commute to work because he lived and worked on opposite sides of the city. Dr. Ballon s report does not include any further references to ongoing respiratory issues other than the one reference to pneumonia of which he recovered.

7 Page: 6 Decision No. 412/11 [25] The worker was treated by Dr. Johnson, a psychiatrist, from late 1985 until at least His report of June 8, 1986 indicates that the worker s symptomatology started some three years ago. Dr. Johnson diagnosed major depression which had rendered the worker incapable of functioning in any job. The worker was off work for psychiatric related illness from 1985 to He then returned to work on a gradual basis to light duties but his situation deteriorated again in 1992 and he stopped working in late Dr. Johnson s report of December 8, 1992 indicates that the worker had worsened. He reported having had an altercation with one of his co-workers as a result of experiencing irritability. The worker kept indicating that he could not cope with his job anymore. He had some suicidal thoughts. Dr. Johnson indicated that the worker had a history of chronic depression which was present since at least He had been hospitalized and received electric shock treatment and a variety of different kinds of medication but the illness had become chronic. Dr. Johnson did not feel that the worker could cope any further with his work. The file also includes Dr. Johnson s notes of his many visits with the worker from 1992 to 2002 and there do not appear to be any significant issues relating to respiratory illness or symptoms. Dr. Johnson never relates the worker s depression to respiratory issues. [26] More recently the worker was referred to another psychiatrist, Dr. Cooper, in early Dr. Cooper s report of January 27, 2011 is of limited relevance to the issues on appeal since Dr. Cooper did not assess the worker when his psychological symptoms first began in the 1980 s. He is also under the mistaken belief that the worker s asbestosis was first diagnosed in 1985 rather than 2005 and that the Board has not recognized that the worker has asbestosis. The Board has in fact recognized and accepted entitlement for asbestosis; the Board has simply disagreed with the worker regarding the accident date for this condition. [27] The worker submits that his psychiatric problems in the 1980s and 1990 s were likely related to what was going on inside of him, which he did not then know was asbestosis. We cannot, however, relate the worker s psychiatric problems, which were first diagnosed in 1985, to a then yet undiagnosed condition that was not producing any ongoing or persistent symptoms. The worker s psychiatric problems in the 1980 s and 1990 s were never attributed to any physical problem, either of a respiratory nature or otherwise. In our view, there is no medical evidence that supports the submission that the worker s psychotraumatic disability was related to asbestosis. (v) Wage loss benefits [28] As noted previously in this decision, we found that the worker did not suffer any disabling or ongoing symptoms that can be related to asbestosis until Furthermore, the medical reporting, discussed in the above section relating to psychotraumatic disability entitlement, clearly states that the reason why the worker had to stop working in 1992 was related to his chronic psychiatric problems. We have found the psychiatric problems to be non-compensable. As a result, there is no basis on which to allow any wage loss benefits. This aspect of the worker s appeal is therefore also denied.

8 Page: 7 Decision No. 412/11 DISPOSITION [29] The worker s appeal is denied. DATED: April 26, 2011 SIGNED: S. Martel, M.P. Trudeau, A. Grande