WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 171/08

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 171/08 BEFORE: M.F. Keil : Vice-Chair M. Christie: Member Representative of Employers M. Ferrari: Member Representative of Workers HEARING: January 15, 2008 at London Oral Post-hearing activity completed on January 28, 2009 DATE OF DECISION: March 30, 2009 NEUTRAL CITATION: 2009 ONWSIAT 826 DECISION(S) UNDER APPEAL: WSIB ARO decision dated September 22, 2005 APPEARANCES: For the worker: For the employer: Interpreter: P. LaPorte, Office of the Worker Advisor J. Illingworth, Lawyer 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. 171/08 REASONS (i) Issue [1] The estate appeals the decision of the Appeals Resolution Officer (ARO) concluding the worker had not died of mesothelioma and the diagnosis of mesothelioma had not been confirmed. (ii) Background [2] There is little dispute over the background facts in this case. The worker was born in 1919 and was employed from 1946 to 1983 as a carpenter. It is agreed he would have had workplace exposures to asbestos over the years. The amount of exposure could not be quantified. [3] Notes from dermatologist Dr. A. Jose, indicate the worker was seen from 1996 to 2000 for facial keratos. A malignant melanoma was found in May of 1998 and basal cell carcinoma was confirmed in August of Surgeries removed the cancerous cells. [4] The worker was seen back at the London Regional Cancer Centre in June of The worker was losing weight and said to have a recent chest x-ray that was abnormal. The physician concluded that he had no reason to believe that melanoma metastases was at the bottom of the worker's problem. [5] Thoracic surgeon Dr. V. Balachandra saw the worker on July 4, 2000 and reported: Chest x-rays show blunting of Rt CP angle. I aspirated 300 ml of fluid and sent it for the usual studies. It looked like an exudate. One may have to consider possibility of metastatic melanoma or pleural mesothelioma from asbestos exposure. I have asked for CT scan, brain and bone scans [6] Tests showed mild to moderate right pleural effusion. In another report, it indicated the specimen consisted of blood with insufficient epithelial or mesothelial cells for assessment. No biopsy was done. [7] Neurologist Dr. J. Muhunthan saw the worker on July 31, 2000 as he had a generalized seizure five days prior. The neurologist commented that the family had not noticed any change in the worker's personality and his memory was good. He was independent in activities of daily living and was still driving. On examination the worker was thin but otherwise appeared well. The neurologist recommended some tests and the worker was advised not to drive his vehicle. [8] The worker was admitted to hospital on October 9, 2000 owing to a recent fall. Dr. Hutchinson suspected there was metastatic melanoma on the basis of the history of the head and neck tumor. The worker died on October 13 th and the physician s final diagnoses included pneumonia, concussion, pulmonary edema, melanoma, probably metastatic not confirmed and cerebral atrophy. No autopsy was performed. [9] In late 2001 the widow developed mesothelioma which her treating oncologist related to asbestos exposure that the worker had brought home. The daughter stated that a biopsy had

3 Page: 2 Decision No. 171/08 not been done on her father because he was so ill at the time. She asked if it were likely, given her mother s diagnosis, if that was what her father had. [10] A claim was initiated for the worker. Thoracic surgeon Dr. Balachandra provided a report to the Board dated December 26, He stated that in July of 2000 the neurologist who saw the worker did not find any metastatic disease in the worker's head. Dr. Balachandra had suggested a biopsy (because the fluid sample was not sufficient) but the family declined aggressive treatment owing to the fragility of the worker. The surgeon commented it was his clinical impression that the worker may have had pleural mesothelioma. [11] In June of 2002 Board Occupational Medical Consultant Dr. C. Smith gave his opinion that, while the worker may have had asbestos exposure, it was not apparent that the cause of death from metastatic melanoma could be attributed to his employment. [12] At the request of the Office of the Worker Advisor, Dr. A. Reinhartz, from Occupational Health Clinics for Ontario Workers Inc. (OHCOW), reviewed the medical documentation. It was his opinion that mesothelioma had to be considered the most likely cause of the right pleural effusion. The physician also noted there was no evidence the worker had widespread metastatic melanoma. [13] Dr. Smith asked Board Respirology Consultant Dr. D. Muir to review the worker's file. In his memorandum of February 17, 2005, Dr. Muir suggested that if the worker's seizure disorder was related to malignant disease, the most obvious cause was the recurrence of the malignant melanoma. He added the worker was at risk of developing a mesothelioma because of the previous occupational history and the CT scan which showed bilateral pleural plaques with calcification. Dr. Muir went on to note that a mesothelioma was characteristically locally invasive and would be most unlikely to be responsible for a seizure disorder. He concluded that overall the evidence made mesothelioma unlikely and the most likely cause of the seizure disorder, which was the underlying cause of the final illness, was a recurrence of the malignant melanoma even though a CT scan of the skull did not show any focal brain lesion. (iii) Testimony [14] The worker's daughter testified that the worker had one seizure only the summer of The falls later on were because her father was becoming progressively more frail and weak, as he kept losing weight. The daughter explained that in his weakened condition, the worker would, on occasion, just lose his balance and fall. The one time he had a seizure was in July of 2000 and her mother brought him to the hospital for that incident. [15] She also advised that Dr. Balachandra had aspirated fluid in the father s lungs. He said they would need a biopsy to be sure but her father was so weak at that point no one wanted to put him through the process. The daughter said they had started to question the reason for her father s death after her mother was diagnosed with mesothelioma.

4 Page: 3 Decision No. 171/08 (iv) Relevant law and policy [16] The relevant section of the current Act sates in part as follows: 15(1) This section applies if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged. (2) The worker is entitled to benefits under the insurance plan as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.. (4) If, before the date of the impairment, the worker was employed in a process set out in Schedule 4 and if he or she contracts the disease specified in the Schedule, the disease shall be deemed to have occurred due to the nature of the worker s employment. [17] Board Operational Policy Document No states the following: Policy Mesothelioma of the pleura or peritoneum is 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. If the worker was employed in Ontario in a mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos fibres at or before the date of being diagnosed with mesothelioma, mesothelioma is conclusively deemed to be due to the nature of the employment. Entitlement Claims for mesothelioma are allowed if it is established that the worker has a histopathologically confirmed diagnosis of primary malignant neoplasm of the mesothelium of the pleura or peritoneum, and has worked in any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos fibres. Application date Mesothelioma was entered into Schedule 4 on May 28, An irrebuttable presumption that the mesothelioma is due to the nature of the employment applies to all claims with diagnosis dates on or after May 28, (v) Post-hearing [18] At the end of the hearing, the Panel discussed with the parties the advisability for obtaining a medical assessor s opinion. The Panel acknowledged there were several gaps in the medical reporting that can not be filled in at this date. There was no biopsy and there was no autopsy. Nonetheless, we were of the opinion that careful medical review of the available information by a medical assessor and answers to our questions would place the Panel in a better situation to assess this case. [19] The Panel made some findings of fact, which we expected the assessor to be bound by when providing an opinion. We found as fact that the worker had exposure to asbestos during his working life. We found the widow did have mesothelioma and accepted that her oncologist

5 Page: 4 Decision No. 171/08 told her this had resulted from exposures from her husband (such as washing his clothes). We found as fact that the worker had one documented seizure in July of 2000, and that resulted in his seeing the neurologist. [20] We requested that the assessor have access to the case documentation and this interim decision in order to answer the following questions: 1. What would the normal course (assuming there is one) of development be for a person with mesothelioma? 2. How would you expect that condition to manifest and what would the progression be? 3. How would you arrive at a firm diagnosis of mesothelioma? 4. Given the worker's history of melanoma how would you expect a recurrence or a metastasis of the melanoma to present? 5. How would you ordinarily verify such a diagnosis? 6. Since the CT scan did not show any focal brain lesion is it likely that the worker's melanoma was the cause? Please explain. 7. In this worker's case, given he had one documented seizure, what is the most likely explanation for that occurrence and do you think it contributed to his death? 8. What conditions would most likely account for the worker's sudden weight loss? For instance would mesothelioma or a recurrence of the melanoma or some other condition be most likely? 9. If you think it medically likely the worker had mesothelioma, would that condition have contributed to his death and, if so, to what degree? 10. What would you, on the basis of the evidence available, consider to be the likely cause of the worker's death? If you think it probable that more than one condition made a significant contribution to the worker's death, please explain. 11. If there is any other medical information you think would assist the Panel in arriving at a decision, could you please provide it? (vi) The assessor s opinion [21] Tribunal Medical Liaison Office obtained an opinion from respirologist Dr. D. Ahmad with the London Cardiac Institute. Dr. Ahmad provided detailed answers to the questions posed and we will only summarize his response. [22] Dr. Ahmad characterized mesothelioma as an aggressive and usually fatal neoplasm, one with a long latent period between exposure (usually to asbestos) and subsequent tumor development. The clinical presentation with persons who have mesothelioma is shortness of breath and chest pain. He noted that a combination of chest pain, shortness of breath and pleural effusion should raise suspicion of mesothelioma. [23] Dr. Ahmad noted the worker had reported to Dr. Balachandra with a history of weight loss, chilly feeling, fatigue and a dry cough, not with shortness of breath or chest pain.

6 Page: 5 Decision No. 171/08 [24] The assessor commented that the diagnosis of mesothelioma is generally made on history of exposure, radiology, histology and cytology of the specimen. A firm diagnosis usually depends upon the radiology and the biopsy of the lesion. [25] Returning to the specific case, Dr. Ahmad noted the worker developed lentigo maligna melanoma (MLM) in 1998, an insidious neoplasm with a dismal prognosis. He described LLM as a subtype of the most common melanoma affecting the head and neck. Malignant melanoma accounts for 75% of deaths associated with skin cancer. The worker in this case had the lesion for approximately 5 years before it was biopsied. The 5 year survival is 6% in persons who have metastatic spread, the mean survival being months. [26] When the worker was biopsied the specimen was reported to show LLM with a Clark s level of 4 and a Breslow s level of 3.5MM, an aggressive tumor. The worker was referred to the cancer clinic and in June of 1998 Dr. Lohman recommended further surgery. The preoperative chest x-ray showed pleural plaques that were small, indicating previous asbestos exposure. A repeat chest film in November 1998 did not show any active disease. Dr. Ahmad stated that patients with a diagnosis of melanoma are usually followed every 6 months with repeat chest x-rays, serum LDH levels, ultrasound of the abdomen and in some cases CT scans of the thorax and abdomen. [27] The assessor acknowledged it was possible that the worker had a small lesion that was not evident on the CT scan taken in August of 2000 (following his seizure and loss of memory). The assessor advised there were other causes for the seizure to be considered. In this respect, Dr. Ahmad noted the worker had low serum sodium as a result of Syndrome of Inappropriate Antidiuretic Hormone (SIADH) and this can cause change in medical status with confusion and convulsion. [28] Dr. Ahmad concluded that a review of the records suggested the worker had malignant melanoma that was responsible for his pleural effusions. There was very little evidence in the notes to suggest that he had malignant mesothelioma. He did have pleural plaques suggesting asbestos exposure. The assessor gave his opinion, based on the information before him, the worker did not have malignant mesothelioma and it was not responsible for his death. On the evidence, Dr. Ahmad concluded the worker's death was due to bilateral pneumonia, SIADH, noncardiogenic pulmonary oedema and melanoma metastatic. [29] The assessor summarized his findings as follows: This asbestos worker had radiologic evidence of small pleural plaques; his x-ray demonstrated that in The pleural plaques represent a benign asbestos related pleural disease. He did have LLM involving head and neck, for which he underwent two extensive surgeries. The pathology of the specimen did show extensive disease. He then developed bilateral pleural effusion. The CT scan did not demonstrate any evidence to suggest mesothelioma. He developed convulsion but no lesion could be demonstrated on the CT of his brain. He then developed pneumonia, SAIDH and non cardiogenic pulmonary oedema with a history of LLM, which caused his death.

7 Page: 6 Decision No. 171/08 (vii) Submissions [30] Mr. LaPorte submitted that the medical report of the worker's death listed 6 conditions, none asbestos related. There was no biopsy or autopsy conducted in order to confirm mesothelioma. Subsequently the widow was diagnosed with asbestos related mesothelioma and, upon her death, a claim was submitted for the worker in Mr. LaPorte submitted that, while the widow was not a worker under the Act, her disease was likely related to her husband bringing home asbestos fibres in his clothing and on his person. Mr. LaPorte pointed out that it well documented that a family member can be diagnosed with mesothelioma from handling and washing clothing that contained asbestos residue. He did acknowledge, however, that not all workers exposed to asbestos go on to have mesothelioma. [31] Mr. LaPorte acknowledged that Dr. Ahmad did not think the worker had mesothelioma. The worker's representative suggested there was some evidence that the worker did have mesothelioma, relying on Dr. Balachandra s statement that the possibility of pleural mesothelioma should be considered. Mr. LaPorte argued that the LLM would not be responsible for the worker's weight loss and neurologist Dr. Muhunthan suggested the worker be investigated for mesothelioma. Finally, Dr. Reinhartz stated that mesothelioma should be considered given the right pleural effusion. [32] In summary, Mr. LaPorte submitted that, on the benefit of the doubt, the Panel should conclude the worker had mesothelioma and this was implicated in his death. [33] Mr. Illingworth relied on the findings of the medical assessor. He also pointed out that, while the widow was diagnosed with mesothelioma, this did not go to establishing that the worker had mesothelioma. The employer's representative argued that the benefit of the doubt did not apply because the evidence was not approximately equal in weight. (viii) The Panel's findings [34] The Panel accepts the worker had asbestos exposure. The Panel accepts the worker's spouse likely contracted mesothelioma from handling her husband s clothing. The Panel acknowledges that it might seem counter-intuitive to have a situation where the lesser exposed person, the wife, went on to develop mesothelioma, whereas the person with the direct exposure, the worker, did not. We understand why the Estate would believe that the worker would have had mesothelioma as well. Finally, we acknowledge that the lack of a biopsy or an autopsy makes certainty impossible in this case. [35] What the Panel does find is that it not probable or likely that the worker did have mesothelioma. We find Dr. Ahmad s report thorough, detailed and clear as to the reasoning. Dr. Ahmad found the worker had evidence of asbestos exposure but no evidence pointing to his having mesothelioma. [36] The Panel finds persuasive the fact that the worker did not have any of the typical symptoms of mesothelioma shortness of breath and chest pain. Dr. Ahmad was definite that persons with mesothelioma develop intractable chest pain as the disease develops. There is no record of this and the Panel finds that such severe symptoms would have been reported.

8 Page: 7 Decision No. 171/08 [37] We also accept Dr. Ahmad s careful description of LLM and its likely prognosis. [38] In the final analysis, the Panel finds persuasive Dr. Ahmad s unequivocal opinion that the worker did not have mesothelioma and that, therefore, his death did not result from it. We find the respirologist provided careful reasons for coming to this conclusion. [39] The reports from Dr. Balachandra suggest only that there was a possibility the worker had mesothelioma. Dr. Reinhartz gave his opinion that mesothelioma was the most likely cause of the right pleural effusion. Dr. Ahmad, a specialist in the field, indicated that while the worker had pleural plaques (indicative of asbestos exposure), there was no mention of pleural thickening, pleural studding or masses, and no hilar enlargement, the changes one sees on the CT scan of thorax in patients with mesothelioma. Dr. Ahmad concluded that the worker's LLM was responsible for the worker's pleural effusions. We do not dismiss Dr. Reinhartz s opinion but we noted that Dr. Ahmad has 40 years experience as a respirologist working in the area of chest disease. We accordingly give greater weight to his opinion. We also find his report to be the most detailed and he had the opportunity to review the opinions offered by the other physicians. [40] The Panel finds, on the preponderance of the evidence, that the worker did not have mesothelioma. Accordingly, the appeal cannot succeed.

9 Page: 8 Decision No. 171/08 DISPOSITION [41] The appeal is denied. DATED: March 30, SIGNED: M.F. Keil, M. Christie, M. Ferrari.

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