1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1894/06 BEFORE: R. Nairn : Vice-Chair HEARING: September 25, 2006 at Windsor Oral DATE OF DECISION: October 16, 2006 NEUTRAL CITATION: 2006 ONWSIAT 2285 DECISION(S) UNDER APPEAL: WSIB ARO decision dated June 29, 2005 and decision of the Acting Director Appeals Branch dated May 26, APPEARANCES: For the worker s estate: For the employer: Interpreter: Mr. J. West, a Consultant BM, the worker s spouse Mr. Jim Purchase, a Consultant 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. 1894/06 REASONS (i) Introduction  The worker, born in 1931, worked as a pipe fitter with the accident employer from approximately October 1967 until his retirement on March 31,  On approximately May 30, 1997, the worker was diagnosed with laryngeal cancer. In a report dated June 27, 1997, Dr. K. Schneider, a radiation oncologist, indicated that the worker, then 66 years of age, had a moderately well differentiated invasive squamous cell carcinoma of the right vocal cord.  The worker passed away on March 22, The post-mortem examination of March 24, 2004, confirmed, among other things, diffuse malignant mesothelioma of left pleura, involving left lower lung lobe, diaphragm and subcarinal/left hilar lymph nodes.  Subsequently, the worker s estate requested that the WSIB (the Board ) recognize the worker s laryngeal cancer and mesothelioma as being causally related to asbestos exposure in the course of his employment. The Board established separate claims to deal with each of the conditions.  Reviewing the file material, the Claims Adjudicator accepted, in Memo #1, that the worker would have had significant exposure to asbestos during his period of employment particularly in the earlier years. In particular, it was accepted that as a pipe fitter in his earlier years of employment with [the employer] he would have had exposure to asbestos fibres during the process of removing asbestos wrapping from pipes during repair and maintenance. The Claims Adjudicator also accepted that the worker would have had ten years occupational exposure to asbestos dust. In the course of considering the requests of the worker s estate, the Claims Adjudicator requested a medical opinion. In Memo #3 dated June 14, 2004, Dr. I. Taraschuk of the Board indicated: Given Dr. Schneider s consultation report the gentleman had a squamous cell carcinoma of the right vocal cord. On the basis of that report would set the accident date to May 30, Asbestos contributed to its development. The gentleman underwent radiotherapy. He had a permanent impairment for this. Would set the MMR date to November 27, 1997 (on the basis of Dr. Schneider s report of that date). Given a report by Dr. Blass dated 1/29/2004 the gentleman developed an esophageal stricture on December 1, 2003 as a result of radiotherapy for the laryngeal cancer. Given a handwritten note whose signature I cannot make out, the gentleman developed breathing problems on January 23, These were investigated and a plural biopsy was taken. As noted ( ) a second opinion was sought from Dr. Kwan in the Department of Pathology, London Laboratory Services Group and both pathologists favoured a diagnosis of atypical meothelial hyper plasia. I m not certain if we should be attributing this condition to asbestos and therefore am referring the file to Dr. Muir to comment.  In Memo #4 dated July 2, 2004, Dr. Muir of the Board noted: The patient died on March 22, At post-mortem examination there was a malignant tumour involving the left lung. This was consistent with a mesothelioma.
3 Page: 2 Decision No. 1894/06 Summary Mesothelioma due to asbestos exposure.  As noted in Memo #5 dated July 6, 2004, as a result of the opinion provided by Dr. Muir, the Claims Adjudicator granted entitlement to benefits for mesothelioma.  Subsequently, the Claims Adjudicator has to assign an accident date to the worker s mesothelioma claim and requested another medical opinion. In Memo #15 dated February 24, 2006, Dr. Taraschuk advised: If I understand your request correctly, you want to set an accident date for the gentleman s mesothelioma. This is a very large file, that is not sorted in chronological order and has a lot of handwritten material some of which is not readable. It would appear to me that the gentleman s problems began on November 14, 2003 with difficulty swallowing as noted in Dr. Schneider s November 28, 2003 report. Unfortunately the investigation of this problem led to the diagnosis of mesothelioma and the gentleman s death on March 22, Would set date of accident to November 14, 2003 unless there are medicals which describe a problem from an earlier date. If there are such reports on file, please refer the file back citing author and date.  In light of the comments from Dr. Taraschuk, the Claims Adjudicator advised Mr. West, in a decision dated February 27, 2006, that the accident date (which had originally been January 24, 2004) was being changed to November 14, The Board also granted full loss of earnings ( LOE ) benefits from the date of accident and a 100% Non-Economic Loss ( NEL ) award for mesothelioma.  With respect to the issue of laryngeal cancer, the worker s estate submitted that the worker ought to have been granted temporary compensation benefits after November A medical opinion was requested and in Memo #12 dated September 16, 2004, Dr. Taraschuk advised: The problem here is that the gentleman has three disorders: laryngeal cancer, esophageal stricture and mesothelioma. This is an extremely large file with various duplicates plus handwritten records which are not fully readable. In Memo 3 on the basis of Dr. Schneider s report the accident date for vocal cord cancer was set to May 30, In that same memo I suggested an MMR date of November 27, 1997 on the basis of Dr. Schneider s report of that date. To elaborate further that report reads in part since completing his radiation treatment he has had resolution of his sore throat no evidence of recurrence. The gentleman continued to be followed. The February 27, 1998 report reads in part he is feeling well no clinical evidence of recurrence. The May 29, 1998 report reads in part: [the worker] was seen in routine follow-up. No suspicious symptoms to suggest recurrence. Voice quality is good no clinical evidence of recurrence. The August 28, 1998 report has the same conclusion of no recurrence. December 4, 1998 report states voice quality good. April 16, 1999 report states no clinical evidence of recurrence. July 16, 1999 report conveys the same information. The February 23, 2000 report reads: I have done my best to reassure him that he appears to be clear return appointment in six months. The October 18, 2000 report does not indicate a problem. The October 17, 2001 report does not indicate a problem. The January 4, 2000 report by Dr. Schneider indicates the gentleman developed bronchitis. The April 17, 2002 report by Dr. Sanborn states the gentleman was asymptomatic. Therefore, the MMR date of November 27, 1997 stands
4 Page: 3 Decision No. 1894/06 unless you can cite specific reports that the gentleman had problems with laryngeal cancer after that date. Given the esophagogram dated December 4, 2003 and Dr. Coughlin s February 7, 2004 report you may wish to consider him totally disabled from the December 4, 2003 date until his death. After the December 4, 2003 date you may wish to conclude that he was totally disabled due to mesothelioma. Hope this is of some use.  The worker s estate objected to the Board s refusal to grant temporary total disability benefits from November 27, 1997 to March 22, 2004, and the matter was eventually considered by an Appeals Resolution Officer ( ARO ). In a decision dated June 29, 2005, the ARO denied the estate s appeal concluding there is insufficient documentation available on file to support the contention that he had not reached maximum medical rehabilitation by November 27, All of the medical reporting subsequent to that date suggests that he was not having any difficulties with his laryngeal cancer.  Subsequently, the worker s representative requested that the ARO provide clarification as to whether or not the decision contained a determination of entitlement to loss of earnings benefits relative to [the worker s] mesothelioma. In a reconsideration decision dated December 16, 2005, the ARO indicated that while the worker would be granted entitlement to loss of earnings benefits under the mesothelioma claim from the date of accident until his death on March 22, 2004, there was no additional entitlement to loss of earnings benefits before  The worker s estate also objected to the selection of November 14, 2003, as the accident date in the mesothelioma claim. In a decision dated March 29, 2006, the Acting Director of the Board s Appeals Branch confirmed that the Claims Adjudicator s selection of a November 14, 2003, accident date would be considered a final decision of the Board for appeals purposes. (ii) Issues on appeal  The issues to be determined in this case are: (i) What is the accident date in the worker s mesothelioma claim? (ii) Is the worker entitled to further temporary compensation benefits between November 27, 1997, and November 14, 2003, under either the laryngeal cancer or mesothelioma claims? (iii) Analysis (a) Date of accident  In reaching the decision to select November 14, 2003, as the accident date for the worker s mesothelioma claim, the Claims Adjudicator appears to have relied on the opinion provided by Dr. Taraschuk in Memo #15. At that time, Dr. Taraschuk, while acknowledging that this is a very large file, that is not sorted in chronological order and has a lot of handwritten material some of which is not readable recommended the November 14, 2003 accident date unless there are medicals which describe problems from an earlier date.  After reviewing the material before me and considering the submissions provided, I am satisfied that there is documentation which suggests the worker was experiencing problems other
5 Page: 4 Decision No. 1894/06 than his laryngeal cancer and which were likely related to mesothelioma, prior to November 14, In reaching that conclusion I have taken particular note of the following: An x-ray of the worker s chest, taken on September 3, 1995, revealed hyper inflation of the lungs indicative of obstructive airways disease. Pleural based opacities in the outer third thorax, more prominent on the left side indicative of pleural thickening. Linear calcifications noted along the diaphragmatic services, left greater than right. Feature indicative of asbestos related disease. CT recommended to exclude pleural masses, i.e. mesothelioma. A CT scan of the thorax performed on October 17, 1995, revealed multiple calcified benign pleural plaques consistent with asbestos related pleural plaques. An x-ray of the chest taken on January 28, 2002, was interpreted to reveal advanced calcified plural disease compatible with asbestos exposure. No previous available for correlation. Correlation with previous films or follow-up advised to ensure no change in the patient s extensive plural disease. An x-ray of the chest performed on September 11, 2002, was interpreted by Dr. P. Tadros (radiologist) to reveal: There is moderate pleural calcification present in both lungs with fibrocalcific disease in the apices. There is calcification of the diaphragm. Does this patient have an industrial exposure? Opinion Changes consistent with industrial exposure. Has there been an exposure to asbestosis? An x-ray of the chest performed on December 20, 2003, was interpreted by Dr. F. Denath (radiologist) to reveal: ( ) there are pleural based opacities bilaterally indicating pleural plaque and thickening. There are linear calcific densities along the diaphragmatic silhouettes bilaterally. Changes are most likely related to previous asbestos exposure. Impression Evidence of collapse/consolidation in the left lower lobe with a small left pleural effusion. There is evidence of previous asbestos exposure with diaphragmatic pleural calcification and pleural plaque. A chest x-ray performed on January 28, 2004, revealed a significant increase in the left effusion with obscuration of the left mid and lower lung. Dr. W. Ramsewak concluded that with the findings of previous (asbestos) exposure and a left effusion, a left mesothelioma is a possibility. A CT scan of the thorax performed on January 30, 2004, was interpreted by Dr. R. Smith (radiologist) to reveal a very large left pleural effusion and there is underlying collapse and consolidation of the left lung. There are extensive bilateral pleural plaques with prominent calcification. As outlined by Mr. West in his submissions, the file materials contain a number of prescriptions provided by the worker s family physician, Dr. M. Blass, for various types of
6 Page: 5 Decision No. 1894/06 pain medication. These medications, including Ativan and Oxycocet, were prescribed from at least August  It is worth noting that the employer supports the position of the worker s estate that the accident date for the mesothelioma claim ought to be changed. In his submissions, Mr. Purchase agreed that there was evidence suggesting that the worker had been experiencing problems with his lungs as early as September He agreed with Mr. West that the x-ray evidence showed there were advancing lung problems over the years for which the worker had been provided medication. Mr. Purchase suggested that since the worker s laryngeal cancer and mesothelioma were both related to the same exposure, it was logical to make their accident dates the same i.e. May 30,  After considering all of the information before me, I find myself in agreement with the representatives that the balance of evidence on file suggests that the worker was experiencing problems with his lungs for some time prior to November While the Board granted entitlement for mesothelioma after the worker s post-mortem examination, the possibility of such a diagnosis was recognized as early as the September 3, 1995, chest x-ray where Dr. Denath suggested that the findings were indicative of asbestos related disease and recommended further study to exclude the possibility of mesothelioma. As evidenced by the subsequent radiological studies, I am satisfied that Dr. Denath was correct and by 1995, the worker had the beginnings of mesothelioma, a condition which continued to progress and deteriorate over the years which followed.  In the autopsy report of March 24, 2004, the pathologist, Dr. M. Brennan, noted that the worker had a malignant neoplasm consistent with mesothelioma diffusely involved left pleura, regions of left lower lung lobe and diaphragm. As noted earlier, the radiological evidence, beginning in 1995, was consistent in identifying pleural thickening and calcification, particularly on the left side.  Operational Policy Manual Document No entitled determining the date of injury provides that in cases of occupational disease, the date of injury is the date the worker suffers the impairment (i.e. the date on which the worker experiences the disability physical or functional abnormality or loss). Given the evidence before me, I am satisfied it is reasonable to conclude that the date the worker first suffered this impairment was on or about September 3, (b) Ongoing entitlement  Having concluded that the accident date for the worker s mesothelioma claim ought to be adjusted to September 3, 1995, I must now deal with the issue of the worker s entitlement to temporary compensation benefits between November 27, 1997 and November 14,  After considering the information before me (including the medical evidence referred to above) and noting the employer s decision to take no position on this issue, I am satisfied that the balance of evidence suggests that the worker remained partially disabled with a progressively deteriorating mesothelioma condition between 1997 and Information on file suggests that between 1997 and 2003, the worker continued to visit the Windsor Regional Cancer Center for testing and had frequent visits to his family physician, Dr. Blass, who prescribed medication.
7 Page: 6 Decision No. 1894/06  While the worker s spouse did not provide testimony at this hearing, the ARO decision of June 29, 2005 noted the following: [The worker s spouse] observed that her late husband continued to have difficulties with swallowing food/liquids after completion of radiation treatment in November She recalled he appeared often fatigued/tired. He took naps in the afternoon. He had difficulties in performing any activities outside of the home. She noted that he tried to push himself. He had been an active person previously. She felt that in her opinion, from what she observed from 1997 to his death, his condition deteriorated. This is, he was losing weight, his fatigue level increased etc.  After considering the evidence, I am satisfied that between November 1997 and November 2003, the worker was partially disabled because of his compensable mesothelioma and because of his ongoing medical treatment can be said to have been involved in a medical program thereby entitling him to full benefits for temporary partial disability.
8 Page: 7 Decision No. 1894/06 DISPOSITION  The appeal by the worker s estate is granted.  The accident date for the worker s mesothelioma claim is changed to September 3,  The worker is granted full benefits for temporary partial disability between November 27, 1997 and November 14, 2003, under his mesothelioma claim. DATED: October 16, 2006 SIGNED: R. Nairn