WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2002 ONWSIAT 1912 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1054/02I [1] This appeal was heard in Ottawa on August 15, 2002, by a Tribunal Panel consisting of : R. Nairn : Vice-Chair, J. Seguin : Member representative of employers, D.B. Beattie : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer G. McCaffrey, dated March 2, That decision denied the worker entitlement for a respiratory condition (asthma, Chronic Obstructive Pulmonary Disease ("COPD") and/or reactive airways disease) as well as colon and prostate cancer claimed to be related to exposure to asbestos, cold tar pitch volatile ( CTPV ) and/or perlite. [3] The worker appeared and represented himself. He was assisted by his spouse. The employer, while advised of the appeal, decided not to participate. 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 February 11, 2002; Exhibit #3: Addendum No. 2 dated February 11, 2002; Exhibit #4: A letter dated February 22, 2002, from the Office of the Vice-Chair Registrar; Exhibit #5: A written summary prepared by the worker. [5] The Panel also heard oral evidence and submissions from the worker. THE ISSUES [6] The issues to be determined in this case are whether the worker has entitlement to benefits for a respiratory condition, colon cancer and/or prostrate cancer, all of which he claims can be causally related to exposure to asbestos, CTPV and perlite in the course of his employment. THE REASONS (i) Background [7] The following background information is, generally speaking, not contested and we have relied on it in reaching our decision:

2 Page: 2 Decision No. 1054/02I The worker began with the accident employer in According to the Appeals Resolution Officer, the plant at which the worker was employed formed "fibrous conduit pipe from a slurry of paper fibre, pulp, diatomaceous earth, and asbestos. The pipe was then cut to length and coated with cold tar pitch". In September 1972 the worker was promoted to foreman. In a memo dated February 4, 1997, the Senior Claims Adjudicator, after a conversation with the worker, provided the following summary of the process used to manufacture the pipes: [The worker] has indicated that the pipe was used.for underground wiring, for weeping tile and sewer pipes. The raw materials included asbestos, recycled newspaper, pulp, celite and coal tar. Asbestos was received by boxcar in 100 pound bags. Approximately 700 bags per car. He is not sure of the correct amount but he thinks this is close. The bags were unloaded by lift truck. Broken bags were picked up by hand. The lift truck circulated dust while unloading. The principals in charge of unloading were Beater Helpers, Pitch Unloaders and Labourers who were available. Asbestos was one of the ingredients of the pipe. On a large conveyor belt the bags of newsprint and asbestos were carried to a smaller conveyor belt which fed materials into a pulper. A beater operator set up the small conveyor belt and put the stuff into the pulper. Bags of asbestos were cut open when first put on the large conveyor belt, this created a lot of dust and the material was transferred from the large belt to the small belt and then into the pulper. Up to 200 pounds of asbestos per hour during an eight hour period over a 24 hour day, five days a week were used. During the peak season at the top of production the plant operated seven days a week and used up to 10 to 12 batches, 200 lbs. per batch. From the pulper the ingredients went into what is called a forming machine. In peak season, up to six forming machines were operated per shift. The pipes were eight feet long. The pipes were then put into a dryer which held approximately 1, 750 pipes. Pipes came out and were trimmed by saw down to slightly less than eight feet. In this area there was a lot of dust created although there was a dust collection system. The dust collection system did not function really well. There was asbestos dust in the air and on the floor. The pipes that were not up to standard had to be trimmed down to seven foot, six foot and five foot lengths. This created more dust. The trimming was done on a large circular saw. After the pipes were trimmed, they were put into a large kettle, approximately 220 pieces per kettle. They were picked up by a large crane and put in hot/cold tar. This job was handled by the treating operator and the treating helper. [The worker] felt that the asbestos exposure probably stopped at this area once the pipes were impregnated with the coal tar pitch. [The worker] included a list of jobs that were involved in handling the materials before saturation. These jobs included pitch unloader, beater helper, beater operator, forming operator eight foot, forming operator five foot, eight foot oven operator, light sawyer, leading forming operator, bend former, oven operator, fitting maker white, straightener five foot working area, maintenance main AB class, treating helper, treating operator and relief man and labour white. The rest of the jobs involved coal tar products. [The worker] notes that coal tar also causes cancer. [The worker] adds the supervisors were also involved in working in these areas. The plant stopped producing the conduit pipe in 1976, however continued to make perlite board roof insulation. The former pipe plant re-opened in 1978 and made fire resistant ceiling panels. The entire plant closed in In August 1977, the worker developed asthma with emphysema. His respiratory symptoms resulted in his losing time from work off and on until he was forced to stop work entirely near the end of 1980.

3 Page: 3 Decision No. 1054/02I The worker filed a claim with the WSIB (the "Board") claiming that his respiratory condition was related to exposure at work. When asked for an opinion, Dr. A. Chovil of the Board replied in Memo No. 6 dated February 20, 1979: This gentleman suffers from reactive airways disease and is sensitive to dogs, cats, horses, ragweed and some other substances at home. He has been getting increasing trouble and thinks that the dust at work precipitates attacks sometimes. He is exposed to Perlite. This is a nonreactive volcanic sand. His illness is making him emotionally disturbed also. It is understandable that exposure to dust or smoke of any kind might increase the symptoms of his reactive airways disease as does emotional disturbance. This does not, however, constitute an occupational cause of the disease. The claim should be rejected. In light of Dr. Chovil's opinion, the worker's claim was denied. The worker appealed the decision but, as noted in Memo No. 8 dated June 29, 1979, subsequently advised the Board that he "wished to withdraw his appeal. No reason was given". In June 1991, the worker had a polypectomy, which confirmed the presence of adenocarcinoma. As a result, he had a re-section of the descending colon on June 19, 1991, then had no further recurrence of the disease. In February 1993, while in Florida, the worker had a lesion removed from his left lower eyelid. A biopsy confirmed keratocanthomatous squamous cell cancer. No further skin cancer has been confirmed. In September 1994 the worker had a prostatectomy for an enlarged and obstructing gland, after a two-year history of prostatism. Again, pathology revealed cancer. However, it was well differentiated with no sign of metastasis, and there has been no report of a recurrence. In 1996, the worker filed another claim with the Board claiming that his colon, skin and prostate cancer were related to his exposure at the pipe plant. The question of the worker's entitlement to benefits was referred to Dr. R. Thakur of the Board who, in Memo No. 8 dated March 12, 1998, indicated: OPINION Based of on the present information on file, it is considered that, although there was the potential for exposure to asbestos fibers in the workplace, the clinical findings do not suggest the effects of any significant exposure, viz, asbestosis. In fact, other than the reporting of some pleural thickening, there is no evidence of pleural plaques with or without calcification. The diagnosis of asthma, which has been present since childhood, is not related to any workplace exposures. The prostatic CA, diagnosed in 1994, is not associated with either exposure to asbestos fibers, or coal tar pitch volatiles. The adenocarcinoma of the colon, is also unrelated to asbestos exposure, established in this case. The worker had other significant risk factors, for the development of this carcinoma, ie long-standing diverticular disease, with polyps. The finding of a keratocanthomatous squamous cell carcinoma of the left lower eyelid, is considered associated with exposure to coal tar pitch volatiles, if indeed this exposure is established, as it is well-known that there is a causal association, between the development of keratoacanthomas and coal tar pitch volatiles.

4 Page: 4 Decision No. 1054/02I Having granted the worker entitlement for his skin cancer, the Board agreed to award him about one week of benefits representing the healing time from the excision from the left lower eyelid. The worker appealed the denial of benefits for his respiratory condition, colon and prostate cancer and these matters were eventually considered by an Appeals Resolution Officer. In a decision dated March 2, 2000, the Appeals Resolution Officer denied the worker's appeal. On the issue of the respiratory condition, the Appeals Resolution Officer noted: Entitlement in the claim was originally denied as an occupational organic cause could not be established. The decision is supported by the fact the worker s symptoms have continued despite his absence from the work environment since It is also of note the worker was diagnosed with emphysema, which is a smoking related disease. At the hearing he acknowledged smoking approximately one pack of cigarettes per day for an estimated 32 years. He stated he quit smoking in December 1977 due to respiratory symptoms. When reviewing the medical reports from the late 1970s, the obvious significant factor referred to by the worker's physicians was the emotional component. The worker did not provide any substantive new evidence, which would discount these opinions or establish causal relationships between his respiratory symptoms and his workplace exposures. Lastly, asthma/copd are not normally associated with exposures to asbestos or CTPV. As to the worker's prostate cancer, the Appeals Resolution Officer concluded: The worker of has also claimed entitlement to prostate cancer. He underwent surgery for that condition in September 1994 and there has been no indication of a recurrence. There is no indication in the scientific literature that exposure to either asbestos or CTPV increases the risk of prostate cancer. The worker provided no medical opinion, which attributed his prostate cancer to his occupational exposures. Prostate cancer is a fairly common condition among older males. Therefore, the evidence does not support a causal relationship between the worker s prostate cancer and his employment. On the matter of the worker s colon cancer, the Appeals Resolution Officer indicated:...risk factors for colon cancer include significant alcohol and tobacco use, a history of ulcers and diverticular disease and chronic polyps. As indicated previously, the worker has a smoking history of approximately 32 pack years. He also had a duodenal ulcer in 1980 and testified he continues to take medication for that condition. Although the worker testified he was unaware of the presence of diverticular disease, an April 24, 1996 report confirms that at the time of the worker's surgery in 1991 he was found to have "extensive diverticular disease of the sigmoid and descending colon". As indicated above he has had polyps removed on a number of occasions since 1991, confirming the presence of that condition....however, for gastrointestinal cancers to be caused by asbestos there must be a significant ongoing exposure. [The worker] does not have pleural plaques. While the Board policy does not require the presence of pleural plaques for entitlement to be granted, pleural plaques are a sensitive indicator of asbestos exposure. In other words it is doubtful one could have experienced the intensity and duration of exposure envisioned by the Board's policy regarding gastrointestinal cancers without developing pleural plaques. There is no indication in the scientific literature that exposure to CTPV causes colon cancer. Therefore, considering the circumstances of this case, it is clear while the worker had exposure to asbestos, the evidence does not support his contention that his colon cancer

5 Page: 5 Decision No. 1054/02I (ii) arose from asbestos exposure. The worker has a number of significant non-occupational risk factors for colon cancer and he was not employed in a job normally associated with gastrointestinal cancer arising from asbestos exposure... Medical evidence [8] The medical evidence on file includes the following: In the report dated December 6, 1977, Dr. R. Wigle (respirology) advised:...he states that he had asthma when he was a child up until the time he got married. He said that these attacks would usually occur during the fall of the year. The patient has never been tested for allergies, however, he states that some animals cause him to wheeze. He says he has a parrot at home and a dog which do not bother him he says. Since August wheezing has been brought on by strenuous exertion... There is a strong family history of reactive airway disease with his father, one brother, two nieces and an uncle having asthma....because of the strong family history of reactive airways disease this patient, we feel, is having an exacerbation of reactive airways disease which was during his childhood (sic). A March 7, 1978, chest x-ray revealed: No remarkable change can be seen in one days interval. Small bullae in the right apex are again noted. There are slight old pleural thickenings over both apices. The lungs are otherwise clear. The cardiac contour is normal. On November 17, 1978, Dr. B. Martin (respirology) indicated: It is evident that things are not going well for [the worker] and once again the greatest areas of difficulty are involving his place of employment. Inability to cope with interpersonal problems and expressing feelings in a normal fashion have led to significant depression and anxiety, leading most recently to a suicidal gesture. The situation is most unfortunate as agreed-upon by all of us concerned......because of the continuing problems at work, [the worker] is seriously considering the temporary partial disability leave of absence... On February 24, 1978, Dr. P. Munt (respirology) advised: This 47year old man referred to clinic for investigation of wheezing and dyspnea. He has a history of childhood asthma which is not a problem to him after the age of 22. Since August 1977 he has noticed wheezing and dyspnea on minimal exertion, as well as a dry cough....he smokes approximately 30 pack years and drinks about 1 case of beer per week. He has a dog and a bird at home. He noted no clear aggravating factors except dust and down, with horses and perhaps exercise. Course in Hospital It was felt that [the worker] had reactive airway disease and he probably needed a short course of steroids to bring his symptoms under control.

6 Page: 6 Decision No. 1054/02I On March 9, 1978, Dr. Munt indicated: It appeared that he was doing extremely well while in Florida. Shortly after his return he was exposed to considerable cigarette smoke and developed acute bronchospasm which was minimally responsive to Adrenaline... It would appear that there is some type of irritant or allergen in his home that causes most of his difficulty. I hope that part of this problem may be related to dog dander and in time this will resolve since his dog is no longer with him... In a report dated November 17, 1978, Dr. Munt indicated:...i believe it was made clear that [the worker] has a severe form of asthma and that exposure to dust as well as significant emotional stress results in worsening of his symptoms. Undue stress for this gentleman would also include working shift work.. In a report dated January 27, 1981, the worker's family physician, Dr. C. Billsman indicated in part: It is my opinion that [the worker] is now totally disabled. A short attempt to work at a job given to him by his employer on a part -time basis resulted in increased frequency of [the worker's] asthmatic attacks. It is true that exposure to environmental pollutants, cigarette smoke or any type of exertion will precipitate [the worker s] asthma. However also of extreme importance and probably one of the most important factors with regard to [the worker s] illness is the emotional pressure. When [the worker] is under emotional stress his asthma becomes much worse. Because all of these factors are rather difficult to avoid in any given job I feel it highly unlikely that [the worker] will be able to undertake remunerative employment and therefore classify him as totally disabled. On August 3, 1994, Dr. W. Walsh (urologist) advised: I saw [the worker] with the two-year history of symptoms of prostatism. There was no prior h istory of genitourinary problems. On examination, the prostate was enlarged and clinically benign. The PSA was normal. In a report dated January 16, 1995, Dr. Walsh indicated: Therefore, we have documented very well that the patient has a very focal localized prostatic carcinoma. In a report dated April 24, 1996, Dr. A. McLean (general surgery) noted (with respect to the worker s 1991 colon surgery):...on June 4th Dr. Sodan did a colonoscopic examination, there was extensive diverticular disease of the sigmoid and descending colon...he was taken to the operation room on June 19, 1991 and a segmental resection of the descending colon was carried out... (iii) Relevant law and policy [9] In accordance with section 126(2) of the Workplace Safety and Insurance Act, 1997, the Board has identified the following policies as applying to the subject matter of this appeal: Policy Package #1 Policy Package #20 Policy Package #30 Revision #4 "Initial Entitlement" Revision #4 "Entitlement for COLD (Chronic Obstructive Lung Disease) Revision #4 "Benefit of Doubt"

7 Page: 7 Decision No. 1054/02I Operational Policy Manual Document No "Gastrointestinal Cancer - Asbestos Exposure" (iv) The worker's testimony [10] In his testimony, the worker (born in 1930) confirmed the process used to manufacture the pipes in question. He description was very similar to that provided above by the Senior Claims Adjudicator. He advised that he began with the employer, as a labourer, in While he could not recall the specific dates, over the years which followed, he performed virtually all of the jobs involved in manufacturing the pipe (the white end ). He did not however, work in the saturation department (the black end ). According to the worker, the asbestos dust was the worst in the white end, particularly at the point where the pipes were cut to size with a circular saw. Working in the black end exposed one primarily to coal tar dust. The worker was promoted to the position of supervisor in 1972 which required him to move around not only in the pipe plant but in the employer s other plant which manufactured ceiling tile. According to the worker, the pipe plant was about 70 feet wide, feet high and about a city block long. He indicated that other than windows, there was no ventilation and no one wore any breathing apparatus. [11] In 1977, his respiratory problems increased to the point that he went on short-term disability for about 6 months. He returned to work for about one month before returning to short-term disability. He was placed on long-term disability in about 1980 and has not worked since. He explained his initial failure to appeal the denial of benefits for his respiratory condition by indicating that his insurance company benefits, at about 90% of his wages, were more attractive than the 75% offered by the Board. The worker admitted suffering from a variety of allergies since childhood but suggested that they never stopped him from doing his job. [12] The worker confirmed that even after leaving the plant, he has continued to experience respiratory problems. He still has trouble breathing and recently, has developed problems swallowing. It is difficult for him to walk any distance. He confirmed smoking a pack of cigarettes a day for about 30 years up until he quit in 1978 or He found that his respiratory problems improved somewhat after he got rid of his dog and parrot. The worker also advised that his breathing was affected by the stress involved in a dispute he had with a supervisor. He felt his condition improved when he got away from that supervisor. [13] The worker, who indicated that 12 former co-workers have died of cancer, advised that he currently receives a pension from the employer in the amount of approximately $26 a month. The insurance benefits he had been receiving were reduced dramatically when he turned 65 and he would like his compensation benefits to make up the difference. (v) The worker s submissions [14] The worker read from a hand-written statement which has been reviewed and marked as Exhibit #5. In that document he indicated in part: One is there any question the years I worked for [the employer] 1951 until Two is there any question on raw materials used at the plant during my employment. Three are these raw materials cancer causing agents.

8 Page: 8 Decision No. 1054/02I (vi) Four was [I] employed as a labourer until 1972 then promoted to a supervisor until 1979 and then went on long term disability until the age of 65. Did employee have CDOPD and reactive airways disease which was covered by insurance 90% of my wages. PS All Workman Compensation was offering was 75%. Now my good man which one would you take. Did this employee have colon cancer, prostate cancer. Did this employee have skin cancer and was very poorly compensated for by WSB. Does asbestos cause cancer. Does coal tar cause cancer. Does perlite cause chronic obstructive pulmonary disease. Does fumes from hot coaltar cause respiratory disease. (sic) Conclusions [15] After reviewing the evidence on file and considering the worker s testimony, the Panel is of the opinion that additional medical information would be of assistance in the adjudication of this appeal. With that in mind, we would direct the Medical Liaison Office to refer the case materials to the appropriate Tribunal Assessor(s) with a view to answering the following questions: 1. a) What is the current diagnosis of the worker s respiratory problems? b) How likely is it that the above-mentioned condition is causally related to his workplace exposure to asbestos/ctpv/perlite? c) What are the other potential causes for his respiratory condition? 2. a) What is the likelihood that the worker s prostate cancer is causally related to his workplace exposure to asbestos/ctpv/perlite? b) What are the other potential causes of this condition? 3. a) What is the likelihood that the worker s colon cancer is causally related to his workplace exposure to asbestos/ctpv/perlite? b) What are the other potential causes of this condition? [16] In rendering his or her opinion, the Assessor(s) may rely on the memo of the Senior Claims Adjudicator as an accurate description of the process involved in the manufacturing of the pipes. If necessary, the Assessor may examine the worker. If the Medical Liaison Office believes that modifications to our questions would assist the Assessor(s), they may raise that matter with us, through the Tribunal Counsel Office. [17] When the Assessor s report is received, it will be shared with the worker who will be provided with an opportunity to make further written submissions upon it. Those submissions and the report will then be forwarded to the Panel for our consideration.

9 Page: 9 Decision No. 1054/02I THE DECISION [18] The hearing is adjourned to await the report of a Tribunal Assessor. DATED: September 6, 2002 SIGNED: R. Nairn, J. Seguin, D.B. Beattie