WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1004/12I

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1004/12I BEFORE: J. Noble: Vice-Chair HEARING: May 17, 2012 at Sudbury Oral DATE OF DECISION: May 28, 2012 NEUTRAL CITATION: 2012 ONWSIAT 1159 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated April 8, 2008 APPEARANCES: For the worker: For the employer: Interpreter: Mr. J. Mrochek, Union representative Ms. M. Schmidt, Employer representative 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. 1004/12I REASONS (i) Issues [1] The issue to be decided in this appeal is whether the worker should have initial entitlement for multiple myeloma as related to working as an underground miner with the accident employer. (ii) Background [2] The worker was born in December of 1945, and he commenced employment with the employer in August of 1971, as an underground miner. [3] The worker was diagnosed with multiple myeloma in The worker was unable to return to work, and was granted accident and sickness benefits through the employer s insurance carrier. [4] The worker claimed to the WSIB that the multiple myeloma was related to employment exposures including exposures to diesel exhaust, hydraulic oil, carbon monoxide and blasting agents. [5] The Board denied the worker s claim for entitlement for multiple myeloma in a decision dated August 21, The Adjudicator s decision dated August 21, 2007 concluded that the scientific evidence did not support an association between the employment exposures and the multiple myeloma, and initial entitlement was denied. The decision dated August 21, 2007 stated: This claim has been registered with the Occupational Disease and Survivor Benefits Program of the WSIB on your behalf for multiple myeloma which you are attributing to exposures in your workplace. The exposures are: blasting agents, asbestos from slusher machines, shot, cement dust, hydraulic oil, exhaust fumes, dust, carbon monoxide and welding fumes. Employment: According to information on file you have been employed since August 18, 1971 in various positions for [the accident employer]. [The accident employer] has provided your employment and exposure information for your claim. Medical: Medical reports on file indicate you were diagnosed with stage 2 multiple myeloma on June 16, Policy: There is no specific policy for multiple myeloma. Your claim is being adjudicated on a case by case basis. Exposure Assessment: An exposure assessment was done by our Occupational Hygienist who reviewed your employment and possible exposures. Monitoring data was received and reviewed with regards to blasting fumes, oil mists, diesel and diesel fumes, metal working fluid & transmission fluids, asbestos, and silica.

3 Page: 2 Decision No. 1004/12I Environmental and Occupational Causes of Cancer: I reviewed the environmental and occupational causes of cancer and note that black men have the highest rate of myeloma. Occupational risks of solvents and ionizing radiation have been linked to increased risk. According to cancer research the risk factors for myeloma are: age and gender, race, radiation exposure, family history, occupational exposure (some studies suggest higher risk in certain petroleum related industries), obesity and other plasma cell disease. Based on information on file you meet some of these risk factors noting you are male, 60 years of age when diagnosed, are of African descent and are considered borderline obese (noting medical report on file indicates you are 190 lbs, 5 9, BMI 28.1). Medical Opinion: Your claim was referred to our Occupational Medical Consultant for a medical opinion. He reviewed medical documents relating to internal medicine and the Multiple Myeloma Research Foundation who states: although a tremendous amount of work has gone into the search for the cause of multiple myeloma, to date no cause for this disease has been identified. The National Cancer Institute also states: no one knows the exact cause of multiple myeloma. The National Institute for Occupational Safety and Health pocket guide to chemical hazards do not state that benzene or diesel fumes are associated with the development of multiple myeloma. Conclusion: Based on the information on file there is no scientific or medical documentation to support your work component/exposures made a significant contribution to the development of your disease. Therefore your disease is not due to the nature of your employment and there is no entitlement under the WSIA. [6] The worker appealed this decision to the Board Appeals Resolution Officer (ARO). [7] The ARO decision under appeal dated April 8, 2008 considered the worker s appeal for initial entitlement for the multiple myeloma. The worker s appeal was denied. The ARO decision dated April 8, 2008 stated: Medical research has yet not identified a cause for multiple myeloma. Some research suggests that certain risk factors increase an individual s chance of getting multiple myeloma. A risk factor is anything that increases a person s chance of getting a disease such as cancer. Different cancers have different risk factors. As it relates to multiple myeloma, a person s family background (nearly 4 times that of the general population) appears to affect the risk of developing the condition; children and brothers and sisters of persons who have this disease have a slightly increased risk. Framers and petroleum workers exposed to certain chemicals also seem to have a higherthan-average chance of getting multiple myeloma. In addition people exposed to large amounts of radiation have an increased risk for this disease. Research has shown, age is the most significant multiple myeloma risk factor. Only 1% of cases are diagnosed in people younger than 40. Two-thirds of people diagnosed with this cancer are over 65 years old. Men are 50% more likely to develop multiple myeloma than women. Race is also shown to increase the risk, specifically the disease is twice as common among black Americans as white Americans and the reason for this is yet not know. Lastly, a study by the American Cancer Society has found that being over weight or obese increases a person s risk of developing myeloma.

4 Page: 3 Decision No. 1004/12I In this case, though the report dated January 11, 2007 from the Occupational Health Clinic concluded a relationship between the claimed condition and the work place exposures was established, I note the scientific evidence speaking to the issues is not conclusive. In this respect the file is absent medical evidence from the attending physician establishing a causal link between the claimed condition and the work environment. The Board s Medical Consultant in memorandum nine on offering an opinion as to causation cited several medical studies undertaken by various institutes, with a consensus being that a cause of multiple myeloma despite research remains unknown. The Medical Consultant went on to state that benzene or diesel fumes are not associated with the development of multiple myeloma In the face of medical uncertainty, I must weigh the evidence before me and come to a conclusion from all of the facts of the case, both medical and non medical, with respect to whether the workplace exposures played a causative role in the development of [the worker s] multiple myeloma. In this case I find the standard of proof has not been satisfied. [The worker] based on the available literature addressing cause suggests he was at an increased risk in view of race, age and weight, thus I find the benefit of doubt does not apply. [8] The worker appeals this decision to the Tribunal. (iii) Medical evidence [9] In a report dated March 5, 2007, Dr. N. Kerin, family medicine, Occupational Health Clinics for Ontario Workers, stated that the worker s multiple myeloma was likely related to workplace exposures, and stated that the worker had a 35 year work history as an underground miner with the accident employer. Dr. Kerin stated: Exposures in this type of heavy equipment operation and mine operation include repetitive diesel fume exposure, diesel fuel to clean machinery and grease from hands. He also used other solvents in preparation of heavy equipment for repairs. He had daily exposure to blasting chemical fumes immediately after blasting. Blasting took place on a daily basis. Please note that explosives including AMEX explosives were actually a mixture of fertilizer and diesel oil. [The worker] also had exposure to hydraulic oil and asbestos fibre dust. In [the worker s] case there is strong scientific evidence supporting the notion that this type of occupation carries with it significant increased risk factor for developing multiple myeloma. The agents included in the development of multiple myeloma are benzene, diesel fumes, and diesel fuel. Also, repeated exposure to mineral oils and blasting chemical fumes. Based on the history and scientific literature support, it is reasonable to contend therefore based on the balance of probability that it is more likely than not [the worker s] multiple myeloma malignancy was materially contributed to work caused by his prolonged exposure to the above identified carcinogenic agents. Please note, that [the worker] was an absolute non-smoker. [10] In a report to the file dated August 17, 2007, Dr. I. Taraschuk, Board Medical Consultant, stated that clinical research indicated that in most cases, the cause of multiple myeloma was unknown; that in most cases there are no known risk factors; and that benzene and diesel fumes were not associated with the development of multiple myeloma.

5 Page: 4 Decision No. 1004/12I (iv) Other information in the Case Record [11] In an Employment History Summary, the employer outlined the worker s employment history, and the occupations that the worker performed, during the period from 1971 to [12] Dr. H. Kabir, Board Occupational Hygienist, completed an Exposure Assessment Review dated July 13, 2007 regarding the worker s claim, to provide a retrospective exposures assessment in relation to the worker s exposures as an underground nickel miner from 1971 to In his report dated July 13, 2007, Dr. Kabir stated that the scientific literature concerning diesel exhaust indicated that the level of benzene in diesel exhaust was negligible and the respirable dust with PAHs level was not high. Dr. Kabir also stated that that the level of benzene in metal working fluid or transmission fluids was expected to be near zero. (v) Submissions [13] The worker s representative submits that the focus in the worker s appeal is that the workplace exposures to diesel emissions which contain benzene, and oil mists which also contain benzene, made a significant contribution to the development of the worker s multiple myeloma. The worker s representative submits that the second hand cigarette smoke from workplace exposures in the lunch room from 1971 to the late 1990s may also have made a significant contribution to the development of the worker s multiple myeloma. The worker s representative submits that the worker should have initial entitlement for multiple myeloma on this basis. [14] The employer s representative submits that the small quantities of benzene to which the worker may have been exposed in the workplace were not likely medically causally linked to the development of the multiple myeloma. The employer s representative submits that the worker has non-occupational risk factors which are most likely the cause of the development of the disease, including gender, age, race and weight. The employer s representative submits that initial entitlement for multiple myeloma should not be granted. (vi) Post-hearing activity [15] The Vice-Chair has determined that certain questions should be posed to a Tribunal appointed Medical Assessor, concerning the cause of the worker s multiple myeloma. For that purpose the Vice-Chair provides the following factual findings upon which the Medical Assessor is to rely. (a) Findings of fact 1. Work history [16] The worker testified that he began working for the accident employer, a mining operation, in 1971, and he worked as an underground miner for 35 years until his diagnosis of multiple myeloma in [17] The worker states that from 1971 until 1990 he worked performing essential mining jobs with a crew, such as drilling, blasting and tramming, and he was qualified to perform many jobs. The worker states that he and his crew would drill an area and blast it down, and then make the area safe and secure by bolting the back and the walls and screening it; then the scoop could come in. The worker states that the area was like a tunnel.

6 Page: 5 Decision No. 1004/12I [18] The worker testifies that he had the qualifications to be a crew leader and sometimes he was the leader but not always. The worker states that at times he filled in operating the diesel powered tram locomotive, which was like a train for transporting material back and forth underground, and he did this on average 10 days a year. [19] The worker testifies that when he was involved in drilling this was done by operating the jack leg for drilling horizontal holes, and the stoper was used to drill holes that would be bolted to hold the screening. The worker states that there was a lubricator attached to the jack leg and to the stopper. The worker states that it was a requirement that he fill the lubricator for these drilling machines with oil and he would keep checking it to see if more oil was needed. The worker states that if these machines ran empty of oil they would not work efficiently. The worker states that while the machine was operating the oil mist was expelled into the atmosphere underground in the mine. [20] The worker states that although there was ventilation in the mine, the air was never odour-less although it was breathable. The worker testifies that you could see the exhaust from the diesel equipment underground. The worker states that there was always dust in the air underground. [21] The worker states that from 1990 to 2007 he worked as a trackless miner and he worked with heavy equipment. The worker states that he operated a lot of heavy diesel equipment and he performed the jobs of a scoop operator; jumbo operator; operating the scissor truck which was used in the function of securing the area through bolting; and operating the loading truck, which was a truck that loaded holes with blasting powder and at the end of the shift as the miners were leaving they would blast it. The worker states that all this equipment was diesel equipment, except the jumbo which was gradually switched over to electric machinery. The worker states that although the jumbo equipment was switched to electric over the years, the actual mechanism that moved the jumbo from place to place in the mine was still a diesel powered engine. The worker testifies that all the heavy equipment was mobile due to diesel powered engines, and the actual function of all the equipment except for the jumbo was also powered by diesel. [22] The worker states that the scoop operator did not work in a cab; rather the machine was open and while the exhaust was not pointed at the face of the operator, the scoop was running all day long and the worker could smell the exhaust everywhere. The worker states that the diesel exhaust was a bit worse when you were operating it, but it was everywhere in the environment and there could be 3 or 4 scoops operating and emitting exhaust on one level in the mine at any one time. [23] The worker states that mining was an enjoyable career for him, especially when he was learning and getting new qualifications which he did often. The worker states that everything was done to make it safe to work and breathe in the mine, but you cannot make a mine dust free or fume free. [24] The worker states that approximately once a week there was also the requirement to power wash heavy equipment before it went for maintenance with the mechanics. The worker testifies that to do this the equipment was taken to a wash area, and he would wash it with a pressurized gun like those in car washes, using barrels of some kind of soap that gave some workers a rash.

7 Page: 6 Decision No. 1004/12I [25] The worker states that after his diagnosis of multiple myeloma he received long term disability benefits through the employer s insurance plan until he turned 65 and retired. [26] I accept the worker s testimony regarding his work history and his working conditions. The worker was a candid and credible witness, and his testimony regarding his work history and his working conditions is in accordance with the information on file and was not contradicted by the employer. [27] I find that the worker worked as an underground miner for the employer from 1971 to 2006, and that there were exposures to diesel exhaust, and machine lubricating oils and/or oil mists. 2. Smoking history [28] The worker testified that he never smoked cigarettes, and no family members smoked at home when he was a child. [29] The worker testified that when he was married and before he and his wife had children, his wife smoked cigarettes for about one year; however she smoked outside and not inside the home. [30] The worker testified that while working for the accident employer, and until the late 1990s, his co-workers were permitted to smoke in the underground lunchroom. The worker states that at some point prior to the late 1990s the lunchroom was divided into smoking and non-smoking areas, but there were no physical barriers between the areas. The worker states that smoking was just accepted back then and he did not particularly notice it. [31] The worker testified that as of the late 1990s, smoking was no longer permitted inside the lunchroom or the mines. [32] I accept the worker s testimony in this regard. The worker was a credible and candid witness, and there is no evidence before me to contradict the worker s testimony. I find that the worker did not smoke cigarettes, and did not smoke at all. I find that there was limited exposure to second hand smoke, and most exposure in this regard was likely in the lunchroom at work during the period from 1971 until the late 1990s. 3. Weight [33] The worker testified that he is about 5 feet 9 inches tall. He testified that when he was a young man in the early 1970s he weighed 157 to 160 pounds and he was in good shape. The worker testified that he gradually gained weight, probably due to shift changes and bad eating habits. The worker states that by the year 2006 when he was diagnosed with multiple myeloma he weighed around 190 pounds. The worker states that at that time, in 2006, he had weighed 190 pounds for between 5 to 10 years. The worker states that he still felt strong, and continued to perform his heavy job as a miner underground. [34] I accept the worker s testimony regarding his weight. The worker was a credible and candid witness, and his testimony corresponds to the other evidence on file before me. I find that the worker weighed around 157 to 160 pounds in the early 1970s, and that he gradually gained weight over time. I find that the evidence indicates that by the year 2006 when the worker was diagnosed with multiple myeloma he weighed around 190 pounds, and at that time he had weighed 190 pounds for between 5 to 10 years.

8 Page: 7 Decision No. 1004/12I 4. Race [35] The worker testifies that he came to Canada from Antigua in 1968, and he is of Caribbean descent. [36] I accept the worker s testimony that he came from Antigua and is of Caribbean descent. My observations at the hearing confirm the information on file that the worker is a black man. 5. Age [37] The worker was born on December 25, The multiple myeloma diagnosis was made in The worker s representative acknowledges that the worker was 60 years of age at the time of the diagnosis. I agree with this statement, and I find that the worker was 60 years of age at the time of the diagnosis. 6. Family history [38] The worker testified that the only history of cancer in his family is in his sister, who was diagnosed with lung cancer, and died approximately 2 years ago. The worker states that his sister was a non-smoker. [39] I accept the worker s testimony regarding the family history of cancer. The worker was a credible and candid witness, and there is no evidence before me to contradict the worker s testimony. (b) Questions for the Medical Assessor [40] The Vice-Chair requests that the following questions be posed to the Medical Assessor. 1. To your knowledge, or in the literature, is there any indication that diesel fume exposure can cause multiple myeloma? Please explain. 2. Please comment on any relationship between the workplace exposures, as described by the Vice-Chair in her findings of fact, and the worker s multiple myeloma. a. Is there any elevation in risk related to the occupational exposures to that relate to other factors? b. If so, would this elevation in risk have caused or contributed to the development of the worker s multiple myeloma? c. Is this medically likely? Please explain. 3. What is the likelihood that the worker s non-occupational risk factors for multiple myeloma, if any, are the sole significant contributing factors for the disease? 4. Can you provide any other information which you feel would be helpful to the Vice-Chair and parties in this appeal?

9 Page: 8 Decision No. 1004/12I [41] Once the Tribunal has received the Medical Assessor s report, the report should be provided to the representatives and submissions should be invited from both representatives on the new information. Following the receipt of the Medical Assessor s report, and the representatives final submissions, the Vice-Chair will issue a final decision concerning this matter.

10 Page: 9 Decision No. 1004/12I DISPOSITION [42] The matter is adjourned pending the receipt of the Medical Assessor s report. I remain seized. Following the receipt of the Medical Assessor s, and the representatives final submissions, I will issue a final decision regarding the appeal. DATED: May 28, 2012 SIGNED: J. Noble

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