WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 21/08I

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 21/08I BEFORE: J. Noble: Vice-Chair HEARING: January 2, 2008 at Toronto Written DATE OF DECISION: January 10, 2008 NEUTRAL CITATION: 2008 ONWSIAT 91 DECISION(S) UNDER APPEAL: WSIB ARO decision dated May 31, 2005 APPEARANCES: For the worker: For the employer: Interpreter: Mr. R. Seguin, Office of the Worker Adviser Not participating None 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. 21/08I REASONS (i) Issues [1] The issues to be decided in this appeal are whether the worker should have initial entitlement for chronic obstructive pulmonary disease (COPD), sarcoidosis and silicosis, which conditions the worker claims are related to occupational exposure. (ii) Background [2] The worker, who was born on August 10, 1950, was diagnosed with sarcoidosis in 1996, and was subsequently diagnosed with Chronic Obstructive Pulmonary Disease (COPD). There was no medical diagnosis of silicosis. [3] The worker claimed that his exposure to dust while working in mines, in saw mills and in chicken farming caused the COPD and the sarcoidosis. [4] The ARO decision under appeal dated May 31, 2005 concluded that the worker did not have entitlement for silicosis on the grounds that there was no medical diagnosis of silicosis. [5] The ARO decision dated May 31, 2005 also concluded that the worker did not have entitlement for COPD on the grounds that the worker had 15 years of exposure to respirable dust in the workplace, which was not considered sufficient given a stated 25 year respirable dust exposure requirement of the Board s COPD policy; and also on the grounds that the worker s smoking history likely was a significant factor in the development of COPD. [6] The ARO decision under appeal dated May 31, 2005 also concluded that the worker did not have entitlement for sarcoidosis on the grounds that medical literature and the medical evidence did not confirm an occupational cause of sarcoidosis. [7] The worker appeals the ARO decision dated May 31, (iii) Preliminary Matter [8] The worker s representative submitted that the appeal should proceed as a written appeal, without an oral hearing given the worker s health. The worker s family physician, Dr. P. Spencer, submitted a report dated May 17, 2007 to the Tribunal, in which Dr. Spencer stated that the worker was in poor health overall and had a feeding tube inserted due to a swallowing disorder, and was limited in his ability to travel away from home because of the equipment required for tube feedings. Dr. Spencer stated that it would be better if the worker s appeal could take place by way of written submission than for the worker to attend a hearing. [9] I have reviewed the information on file concerning the worker s request to proceed with the appeal by way of written submission. In the circumstances of this case, and given Dr. Spencer s report dated May 17, 2007 that stated that the worker was limited in his ability to travel away from home because of the equipment required for tube feedings, I find that it is acceptable to proceed with the appeal as a written appeal.

3 Page: 2 Decision No. 21/08I (iv) Medical Evidence [10] In a report dated September 2, 1993 addressed to the WSIB, Dr. P. Spencer, family physician, reviewed the worker s medical treatment history. Dr. Spencer stated that the worker had a normal chest x-ray in October [11] In a report dated May 6, 1994, Dr. M.A. Nussbaum, ear nose and throat specialist, stated that the worker had been hoarse for a number of months, and this became worse when he quit smoking in December [12] In a report dated July 8, 1996, Dr. S.E. Lundy, internal and respiratory medicine, stated that he saw the worker. Dr. Lundy stated that the worker was a previous heavy smoker of 2 to 3 packs per day from age 11, who quit smoking 3 years ago. Dr. Lundy stated that the worker s chest x-ray was suggestive of bilateral hilar adenopathy, and the commonest disease producing this x-ray appearance would be sarcoidosis. [13] In a report dated April 22, 1997, Dr. B.S. Jackson, otolaryngology, stated that the worker s problems were chronic respiratory. Dr. Jackson stated that the worker had major exposure with sarcoidosis from previous mining and this had resulted in mucosal abnormalities causing hoarseness and trouble swallowing. [14] In a joint report dated May 5, 1998, Dr. P.G. Cox, internal medicine and respirology, and Dr. L. Jayaram, clinical fellow, stated that they had seen the worker on that day. The joint report stated: Impression: The cause of [the worker s] increasing shortness of breath is likely multifactorial from smoking related airflow obstruction and possibly from his sarcoidosis. [The worker] is concerned that his lungs may have been damaged from his work in the mines and if a case is proved for this would like to claim Workers Compensation. In the first instance we feel that we need to organize a range of tests to try to elucidate the cause of his breathlessness. [15] In a report dated July 6, 1998, Dr. T. Haines, occupational medicine, stated that the worker was concerned with the potential work relatedness of his sarcoidosis. Dr. Haines stated: He has somewhat variable wheezing and dyspnea. He is an ex-smoker for about the past eight years. He previously smoked up to 3 packs per day. Occupational history includes two years of working on a chicken farm with significant exposure to dust and irritants, as well as about two years of saw mill work with wood dust exposure. He had six or seven years of employment in gold mines, with significant dust exposure, including aluminium dust exposure considered to be prophylactic for silicosis. [16] Dr. Haines stated that he would report further upon receipt of medical reports from Dr. Cox.

4 Page: 3 Decision No. 21/08I [17] In a report dated September 2, 1998 Dr. Cox stated: His chest x-ray shows no evidence of arenchymal disease and his CT scan upon review similarly shows no evidence of interstitial disease. Consequently he has got no evidence at present of silicosis. Thus, although he may have had exposure to silica dust in the past there is at present no evidence that this has caused pulmonary disease. [18] In a report dated November 27, 1998, Dr. Spencer stated that the worker quit smoking in [19] In a report dated January 24, 1999, Dr. K. Stoltz, neurologist, stated that the worker was an ex-smoker having quit 5 years ago. [20] In a report dated February 10, 1999, Dr. Haines stated: I have reviewed the further medical documentation concerning [the worker s] sarcoidosis. It is evident that there is no radiological signs of silicosis. His clinical picture has been confirmed to be that of sarcoidosis. There is very little literature concerning the occupational factors in sarcoidosis, however, enclosed is one report on the subject. [21] In a report dated May 18, 2001, Dr. M. Jany, respirology and internal medicine, stated that he saw the worker on May 17, 2001 for an assessment of sarcoidosis. Dr. Jany stated that the worker was assessed by Dr. Cox in 1998 and his lung functions were described as being normal with the exception of a mild elevation of residual volume. Dr. Jany stated: Past History: is notable for surgery for a brain aneurysm in 1992, neck fusion in 1995, back surgery 1979 and several prior knee orthroscopies. He had an MI in 1989/90. He gets stable angina. He has an approximately 105 pack year history but quit smoking about 8 years ago. He had a small stroke in 1992 at the time of his aneurysm and had residual left sided weakness. He has hypertension but is not on therapy for it. Assessment and Plan: I am not certain what to make of all this. Clearly he does have biopsy proven sarcoidosis. Although he was concerned that some of this may have resulted from prior occupational exposures I really do not think that we can make a strong case for this. He clearly does not have silicosis. Aluminum exposure has been implicated as a possible etiologic agent for sarcoidosis however I do not believe this has been proven with any degree of certainty. At this point his chest x-ray does not appear to have shown much change since He does however have some more shortness of breath and his spirometry in the office at least is worse than prior. [22] In a report dated August 13, 2001, Dr. Jany stated that he saw the worker on August 10, 2001 with respect to his sarcoidosis with cough. Dr. Jany stated: Assessment and Plan: He is obviously difficult to sort out. He seems to have multiple slightly vague complaints. His mild airflow obstruction on spirometry can be accounted for by his previous smoking history. He does not have evidence of restriction nor of active intrapulmonary sarcoidosis. He therefore does not have hard criteria for treatment with systemic steroids. It is conceivable that his cough could be related to sarcoid. However it is also possible that it could be related to dysphagia.

5 Page: 4 Decision No. 21/08I [23] In a report dated October 7, 2002 the family physician Dr. Spencer stated: I am initiating a claim on [the worker] who suffers from Sarcoidosis. [The worker] believes that other former co-workers, with a previous history of employment in the mining industry have received some kind of settlement from WSIB regarding Sarcoidosis. He also inhaled Aluminum dust, which at that time was thought to be a preventative program and feels that there may be some connection between his current respiratory problems and his former employment. [The worker] is also suffering from some epigiotis dysfunction and has recurring mild aspiration which has resulted in Bronchitis and Sepsis on several occasions and is possibly related to the weakened condition of his lungs from the sarcoidosis. Would you please notify my office whether WSIB is accepting claims for Sarcoidosis in patients previously employed in the mining industry. [24] In a report dated July 28, 2003, Dr. M. Alexander, internal medicine and clinical immunology, stated that he had examined the worker and he stated: Apparently he has a long history of coughing for a variety of reasons. He has smoked three packs a day for 35 years and quit in His coughing really worsened in the last ten years, but particularly the last five years. Past History: He has complete knee repair, neck fusion, back surgery, arthroscopy and two brain aneurysms. Opinion: This patient has significant medical conditions associated with his cough. I feel that his cough is a result of his chronic obstructive airways disease, as well as his dismotility. The previous investigations, including the CT scan etc., did not show any evidence of active sarcoidosis. This patient has significant dysphagia which is currently being treated with dietary changes. In the past he has had aspiration pneumonia, which predisposed him to significant morbidity. (v) Other Information in the Case Record [25] In a report dated March 25, 2004, Mr. M. Lowther, Board Occupational Hygienist, stated that he had conducted a review of the worker s potential work-related hazardous substance exposures in relation to his claim for sarcoidosis and COPD. Mr. Lowther stated: Exposure Assessment: [The worker] may have had respirable dust exposure from his work in sawmills and as a miner. [The worker s] respirable dust exposure from his approx. two years of work in sawmills was probably no more than 2.7 mg/m3 years. Since [the worker] worked for approx months, or about 6 years, underground as a miner his total cumulative respirable rock dust exposure as a miner was approx. 2.4 mg/m3 years. [The worker] has related how he was required to inhale aluminium dust for about 10 minutes twice a day in the change rooms of the gold mines that he worked at. This practice was followed in Ontario gold mines from 1945 until The aluminium dust was known as McIntyre powder, and consisted of finely ground aluminium metal dust (15%) and aluminium oxide dust (85%). The McIntyre powder was respirable. A miner s estimated TWA exposure to the dust calculated over an 8-hour shift was 2 mg/m3. As a result, for his first approx. 5 years as a

6 Page: 5 Decision No. 21/08I gold miner, [the worker s] cumulative McIntyre powder (respirable dust) exposure would have been about 10 mg/m3 years. Total respirable dust exposure: [the worker s] estimated combined respirable dust exposure from working in sawmills and working in gold mines was approx mg/m3 years. Conclusion: [The worker s] estimated, cumulative, work-related, respirable dust exposure from his jobs in the sawmills and the gold mines was 15.1 mg/m3 years. [The worker] may have had about 4 ½ months of moderate chlorine gas exposure at [a previous employer] with a few, brief, high exposures. None of the other jobs that he has reported working at were likely to have contributed noteworthy respirable dust or irritant gas, or other hazardous substance exposures. (vi) Submissions [26] The worker s representative submits that the worker is in complete agreement about the exposure as reflected in the March 25, 2004 report of Mr. M. Lowther, Board Occupational Hygienist. [27] The worker s representative submits that the worker does not agree with the conclusions of the Appeals Resolution Officer with respect to the amount of worker s smoking. The worker s representative submits that the worker states that he tried smoking when he was 12 years old, but stopped when he was 13 years old, and started smoking again when he was 14 years old. The worker s representative submits that the worker recalls that he smoked 10 cigarettes a day for a long time and then progressed to smoking about a pack a day, and he does not understand why the doctors stated that he smoked more than that as he never did. The worker s representative submits that the worker recalls that he quit smoking in December The worker s representative submits that therefore it is fair to say that the worker at the most smoked for approximately 25 years, one pack a day. [28] The worker s representative submits that the history of exposure described in the hygienist report dated March 25, 2004 made a significant contribution to the worker s conditions of COPD and sarcoidosis. The worker s representative submits that the worker s smoking may have been a significant factor, but so is the history of exposure in the workplace. (vii) Post Hearing Activity [29] I have determined that certain information should be obtained from the Board, prior to a final determination being made in this case, and/or prior to any questions being posed to a Tribunal Medical Assessor, concerning the worker and the conditions of COPD and sarcoidosis. 1. The ARO decision under appeal dated May 31, 2005 and the prior Claims Adjudicator decision dated April 26, 2004, refer to a stated 25 year respirable dust exposure requirement of the Board s COPD policy. This policy is not included in the Case Record materials pertaining to this appeal. Please request that the Board provide a copy of this policy or requirement, and any other policies relevant to this appeal that have not been provided to the Tribunal.

7 Page: 6 Decision No. 21/08I 2. I understand that the Board s Medical and Occupational Disease Policy Branch has compiled a document titled The Adjudicator Support Material Binder Series, Binder I: Chronic Obstructive Pulmonary Disease (COPD), dated April This document is not included in the Case Record materials pertaining to this appeal. Please request that the Board provide a copy of this document, and any updates pertaining to this document that have been issued by the Board since April [30] Following the receipt of this information by the Tribunal, the information should be provided to the worker s representative and the worker s representative should be invited to make submissions with respect to the new information.

8 Page: 7 Decision No. 21/08I DISPOSITION [31] The appeal is adjourned pending the receipt of information from the Board. I remain seized of the appeal. Following the receipt of the information from the Board, the worker s representative should be provided with the information from the Board, and should be invited to make submissions with respect to the new information. DATED: January 10, SIGNED: J. Noble.