WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

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1 2002 ONWSIAT 2116 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1236/02I [1] This appeal was heard in Kitchener on September 19, 2002, by a Tribunal Panel consisting of: R. Nairn : Vice-Chair, W.D. Jago : Member representative of employers, P.B. Hodgkiss : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer K. Wuori, dated July 7, That decision concluded that the worker was not entitled to benefits for asbestosis which he claimed was related to asbestos exposure in the course of his employment. [3] The worker appeared and was represented by Ms. G. Breda, a consultant. The employer was represented by Mr. R. Ouellette. THE RECORD [4] The Panel considered the material included in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1). In addition, we considered: Exhibit #2: Addendum No. 1 dated January 4, 2002; Exhibit #3: Addendum No. 2 dated March 5, 2002; Exhibit #4: Addendum No. 3 dated August 29, 2002; Exhibit #5: A letter dated March 13, 2002, from the Office of the Vice-Chair Registrar. [5] The Panel also heard oral evidence from the worker, as well as PS and LG. THE ISSUES [6] The issue to be determined in this case is whether the worker has initial entitlement to benefits for asbestosis, which, he claims, can be causally related to workplace exposure. THE REASONS (i) Background [7] The following background information is, generally speaking, not contested and we have relied on it in reaching our decision: The worker was employed as a foreman/electrician with the employer from 1966 to 1992.

2 Page: 2 Decision No. 1236/02I The worker laid off on May 21, 1992, because of breathing problems. He attempted a return to work in October 1992 but was only able to continue for 3 days. The worker claimed that his breathing problems were caused by his employment and he filed a claim with the WSIB (the Board ). The matter was referred to Dr. G. Debow, one of the Board s Occupational Medicine Consultants, for an opinion. In Memo No. 8 dated January 21, 1993, Dr. Debow advised: Pertinent Findings: 1. This worker was exposed to asbestos for a period of two years and Claims is accepting asbestos exposure. 2. His pulmonary function tests and chest x-ray and CT scan are consistent with a diagnosis of asbestosis. OPINION Based on information on file at the present time it is likely that the worker has a diagnosis of asbestosis. This is based upon: 1. The accepted exposure to asbestos although a short period of time. 2. His pulmonary function tests and x-ray and CT scan are consistent with a diagnosis of asbestosis. In light of Dr. Debow s opinion, the Board allowed the worker s claim for asbestosis. On October 29, 1993, the worker was assessed by Dr. W. Morgan (Chest Diseases) for the purposes of a Non-Economic Loss ( NEL ) award. In his report, Dr. Morgan indicated in part: Summary In conclusion, there is little doubt [the worker] has interstitial fibrosis, but there are many reasons to doubt the diagnosis of asbestosis. A history of 1 ½ years exposure to asbestos, even with no protection, is not sufficient to induce asbestosis.. Turning now to his exposure to kao wool, this consists, as far as I can gather, of ceramic fibers impregnated with kaolin. The latter is an aluminium silicate which has heat resistant properties. It can cause kaloinosis, but the latter is only seen in subjects who have been heavily exposed for a long time to large concentrations of kaolin It may well be true that heating the kao wool to 2000 [degrees Celsius] might be sufficient to change some of the ceramic fibers into cristobalite. It this were the case then [the worker] may have been at risk of developing classical silicosis, since cristobalite is one of the crystalline forms of silica. His x-ray however, does not suggest this at all. There is no evidence that kao wool and in particular, the ceramic fibres, are in any way fibrogenic and the same applies to fibreglass. In short, I would have thought that [the worker s] diagnosis is more likely to be chronic interstitial fibrosis or what is more commonly known as fibrosing alveolitis or the usual type of interstitial pneumonia. There is no certain way of confirming this without doing a lung biopsy but his could be done transbronchially if several specimens were to be obtained. Moreover, the CAT scan is more suggestive of fibrosing alveolitis than it is asbestosis.

3 Page: 3 Decision No. 1236/02I Following receipt of Dr. Morgan s report, the matter was reviewed by Dr. C. Woolf of the Board. In Memo No. 37, dated March 15, 1994, Dr. Woolf advised: Comments The whole case revolves around Dr. Morgan s opinion that there was insufficient asbestos exposure to cause asbestosis. Dr. Morgan s opinion must be taken seriously as he is an acknowledged expert in this field and has a wide experience personally as well as having reviewed extensively the literature on the subject. Opinion It is suggested that Dr. Morgan s opinion be accepted, that the most likely diagnosis is fibrosing alveolitis and not asbestosis.dr. Morgan also considers the possible effect of exposure to kao wool as possibly causing silicosis but he comes to the conclusion that this is very unlikely and does not correspond with the situation in this claimant. He concludes that the kao wool would not be considered as causing the claimant s respiratory problems. Dr. Woolf added, in Memo No. 48, that: The letter from Dr. Tom Wood (7 June 1994) describes the clinical and pulmonary function findings,which are similar to previously, and could be explained by either alveolitis or asbestosis. The final statement by Dr. Wood Although his exposure to asbestos specifically may not be enough to warrant compensation, it is my impression that other exposures have brought him to his present level where he is extremely short of breath. Dr. Wood brings no evidence to support this conclusion. As already stated, it is very unlikely that the other possibly noxious exposure to kao wool would be contributing to the worker s respiratory problem. The letter by Dr. Wood, although in support of the claim, brings no new information to support Dr. Wood s opinion. It seems reasonable to continue to accept Dr. Morgan s opinion, that the claimant has a respiratory condition which is not of occupational origin. The worker s entitlement to benefits (which included a 100% Future Economic Loss award) was subsequently revoked. The worker objected to the Board s decisions and the matter was eventually considered by an Appeals Resolution Officer. In a decision dated July 7, 2000, the Appeals Resolution Officer denied the worker s appeal and in doing so, noted the following: -the balance of evidence supports asbestos exposure for 18 months, between 1972 and 1974, -the NEL evaluator performed a detailed assessment, -in June 1994, Dr. Wood accepted asbestos exposure might not be enough to warrant compensation, but his other exposures brought him to his present level, and there was no evidence provided of the other exposures involved, and as well, the entitlement that is being requested is asbestosis. -in providing his opinion, Dr. Gilman appeared to have implied additional asbestos exposure, and such exposure has not been shown, -Dr. Gilman agreed there were differential diagnoses but diagnosed asbestosis on the basis of his sense of asbestos exposure at levels higher than I have accepted, -the reports of Dr. Gilman and Dr. Morgan are directly contradictory, but much other medical reporting does not support asbestosis,

4 Page: 4 Decision No. 1236/02I (ii) medical reports outlined a variety of pulmonary diagnoses, including pulmonary disease, with kao wool as the cause, -I am not persuaded by the suggestion of the worker s representative the medical report of Dr. Gilman led to the settlement of the lawsuit, as the settlement was arrived at on a collective basis, -I was persuaded by the suggestions from the Board s Legal Branch regarding the selection process for inclusion in the class-action lawsuit, -the worker representative placed much emphasis on the fact the Board took money from the lawsuit settlement, but in the context of benefits paid to the worker in error, I agree it was appropriate for the Board to recover the overpayment through the proceeds, and then provide the surplus to the worker, and -I agree the evidence in this case must be considered on the basis of the facts of this case, and the policies and legislation, and it is inappropriate to infe r entitlement simply by virtue of the class action law suit settlement. Medical evidence [8] The medical evidence on file includes the following: In a report dated June 7, 1994, Dr. T. Wood (respirology) noted: [The worker] tells me that his pension has been cut off. I feel that his circumstances suggest his work at [the employer] is responsible for this disease, and that his pension should not be denied. He has been exposed to a number of factors over the years. One of these is asbestosis and although his exposure to asbestos specifically may not be enough to warrant compensation, it is my impression that the other exposures have brought him to his present level where he is extremely short of breath. In a report dated December 19, 1994, Dr. M. Gilman (internal/pulmonary medicine) advised: Conclusion The available medical data which I reviewed is consistent with an asbestos-related lung disorder. The presence of a severe restrictive ventilatory defect in association with a decrease in the diffusing capacity, basilar crackles, an increase in interstitial infiltrates, and a chest CT scan confirmation of honeycomb interstitial changes provides strong support for a clinical diagnosis of asbestosis. The fact that [the worker] was an electrician and had approximately two years of exposure to asbestos dust in the early 1970 s further strengthens this diagnosis. Although the actual documentation for the duration of asbestos exposure is on the low side, it is likely that a more detailed exposure history would demonstrate significant bystander exposure to asbestos dust, thereby making the diagnosis of asbestosis more secure. Idiopathic interstitial fibrosis and the other interstitial pneumonitides must also be considered in the differential diagnosis, however, an asbestos-related disorder remains the primary consideration given his occupational history. In the absence of an open lung biopsy and an asbestos fiber burden analysis, a clinical diagnosis of asbestosis is, with reasonable medical certainty, the most likely at this time. (iii) Relevant law and policy [9] In accordance with section 126 of the Workplace Safety and Insurance Act, 1997, ( WSIA ) the Board has identified the following policies as applicable to the issues on appeal: Policy Package #1 Policy Package #30 Revision #4 Initial Entitlement Revision #4 Benefit of Doubt

5 Page: 5 Decision No. 1236/02I (iv) The worker s testimony [10] The worker, currently 61 years of age, advised that he worked with the accident employer from 1966 to From 1966 to 1972, he was employed as a groundman/lineman, working almost exclusively out-of-doors. In 1972, the worker (an electrician) was assigned to assist in the construction of a nuclear power facility. [11] For approximately 18 months between 1972 and 1974, the worker (and two co-workers) were responsible for installing fluorescent lighting in the ceiling of the facility s control room. According to the worker, the control room was about 80 x 60 and had ceilings about 12 high. In order to install this lighting, the worker was required to stand on a scaffold and drill thousands of holes (with an electric drill) into 2 square asbestos ceiling tiles that were attached to a T-bar ceiling grid. The worker performed these duties approximately 5 days a week, 8 hours a day (less lunch times and breaks) for 18 months. When he drilled these holes, his face would be about a foot away from the ceiling tiles. He did not wear any breathing protection. [12] When the installation of the lights was completed, after 18 months, the worker performed a variety of duties throughout the facility. He estimated that he would be required to work in the vicinity of the control room a couple of days a month over the years which followed. As an electrician, the worker was also responsible for assisting in a process designed to strengthen the welded joints in newly installed pipes. The worker would wrap kao wool over an electric heating cable which had been placed on the joint. This was not a job that he performed on a constant basis like the light installation. He would do it off and on whenever required. He suggested that the kao wool would dry up and break down occasionally, spreading fibres around. None of his physicians however, have suggested that exposure to kao wool might be responsible for his current problems. [13] From 1978 to 1985, the worker was a working-foreman and from 1985 to 1992 was a non-working foreman. [14] The worker first noticed breathing problems in the early 1980 s. His family doctor referred him to a specialist, Dr. Wood, who diagnosed him as suffering from asbestosis. His condition deteriorated to the point that he was forced to retire in approximately May He tried to return, working only half-days, but found his breathing problems made it difficult for him to walk around. [15] Shortly after his benefits were terminated by the Board, the worker was asked to participate in a class-action lawsuit being pursued in the United States, against the companies which had supplied the employer with the asbestos-laden materials. The Board paid his expenses to attend the proceedings. A settlement was eventually reached in the case, entitling the worker to a monetary award. According to the worker however, the Board kept the money to offset the sums which they had already paid out to him by way of benefits. [16] The worker advised that there has been little change in his condition over the years. It has remained relatively stable. His doctors have described it as "life-shortening but not life-threatening. He has been told that he is able to utilize only 49% of his lung capacity. He finds that if he exerts himself physically, it becomes harder for him to breathe. He spends 6

6 Page: 6 Decision No. 1236/02I months of every year in Florida in an attempt to escape the cold weather which he finds particularly bothersome for his breathing. Financially, he survives on his retirement savings and Canada Pension Plan disability benefits which have been granted for an asbestos-related condition. [17] The worker also confirmed that he smoked a package of cigarettes every day for about 24 years. He added however, that he had reduced his smoking to perhaps a pack a week by the time he eventually quit around (v) The testimony of PS [18] PS worked with the employer from 1964 until He was employed as an electrician at the nuclear facility at the same time as the worker. Between 1972 and 1974, he was a sub-foreman on a crew working on the floor directly above the worker. He confirmed that the worker was required to drill thousands of holes in the control room ceiling which consisted of asbestos ceiling panels. He estimated that it took the worker a minimum of 18 months to a maximum of 24 months to complete the job. He did not recall exactly when the worker first began to experience breathing problems, but guessed it was in the late 1980 s. [19] Subsequently, PS took on the role of Safety Officer and as such, became aware that there was asbestos located throughout the facility. A decision was eventually made to leave the asbestos materials where they were rather than risk increased exposure by attempting to remove them. (vi) The testimony of LG [20] LG started with the employer, in the nuclear facility, in 1976 and continues to work there. Not having been with the employer from 1972 to 1974, he was not aware of exactly what type of work the worker was performing at that time. He was aware however, that there was lot of asbestos in the facility and that there had been work stoppages and other related problems in the 1980 s and 1990 s. He was not aware of the worker having had any breathing problems. (vii) Conclusions [21] After hearing the parties evidence, the Panel took a brief recess to discuss how it wished to proceed. After considering the matter, the Panel advised the parties that we felt this was an appropriate case (given the divergence of medical opinion) for us to seek the assistance of a Tribunal Assessor. We also advised the parties that after a report had been received from the Assessor, the matter would be reconvened to hear final submissions. [22] As a result, we would request that the Tribunal s Medical Liaison Office make arrangements to have the case materials (and a copy of this decision) provided to an Assessor in respiratory medicine and that he or she be asked to answer the following questions: 1. In your medical opinion, does this worker have interstitial lung disease? 2. If so, please comment on the likelihood that this is related to exposure to asbestos, as accepted by the Panel (see findings of fact below). 3. If not asbestos, is there a more probable cause? If so, what?

7 Page: 7 Decision No. 1236/02I 4. Would further diagnostic testing help to clarify the diagnosis? Is any such testing medically warranted or required? 5. Please explain the reasons for each opinion in as much detail as possible. [23] We will leave it to the discretion of the Assessor as to whether he or she feels it is necessary to examine the worker, in addition to reviewing the file materials. [24] In an effort to assist the Assessor, we are prepared to make the following findings of fact upon which he or she may rely in providing an opinion: The worker had no exposure to asbestos prior to For approximately 18 months between 1972 and 1974, the worker was required to drill holes into asbestos ceiling tiles to assist in the installation of lighting in a control room. The control room s dimensions were approximately 80 x60 x12. The ceiling tiles were 2 x2 and about 3/8 thick. The worker performed these drilling duties about 7 hours a day, 5 days a week, for 18 months. We accept the evidence provided to the Appeals Resolution Officer that it would take approximately 15 seconds to drill through the tiles, which would cause dust to fall on the worker. He ate his lunch in the control room. When drilling, the worker was standing on scaffolding which brought his head to within 1 foot of the ceiling. The worker did not wear any breathing protection. When the worker completed his 18 months of light installation, he would return to the vicinity of the control room, 2 or 3 days a month. The worker smoked a package of cigarettes every day for 24 years, likely decreasing somewhat immediately before he quit in [25] As noted earlier, when a report is received from the Assessor, it will be circulated to the parties and the Panel. The matter will then be reconvened, on an expedited basis, in order that we might hear final submissions. THE DECISION [26] The appeal is adjourned to await the report of a Tribunal Assessor. DATED: October 7, 2002 SIGNED: R. Nairn, W.D. Jago, P.B. Hodgkiss

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