Public Decisions | The Appeal Commission

Decision #23/01 - Type: Workers Compensation

Preamble

An Appeal Panel review was held on August 27, 1999, at the request of legal counsel, acting on behalf of the executrices of the estate. The Panel discussed this appeal on August 27, 1999, October 26, 1999, January 13, 2000, February 9, 2000 and January 12, 2001.

Issue

Whether the claim is acceptable; and

Whether a Medical Review Panel should be convened.

Decision

That the claim is not acceptable; and

That a Medical Review Panel was allowed and took place on September 12, 2000.

Background

In March 1977, the claimant submitted an application for compensation benefits in relation to a chest condition which he related to his employment activities as miner.

In a report dated June 7, 1977, a Silicosis Board/Panel of Chest Specialists documented that the claimant worked steadily as an underground miner since 1958 and had smoked a package of cigarettes a day for 35 years. After reviewing chest x-rays and the results of pulmonary function studies, the Silicosis Board/Panel of Chest Specialists were of the opinion that the claimant had some form of pulmonary fibrosis that was not typical of pneumoconiosis or silicosis. It was suggested that the claimant should be investigated further to determine the etiology.

The next file documentation consisted of a letter from the claimant dated February 18, 1997. The claimant advised that he had undergone a variety of medical tests to determine the cause of his ongoing respiratory problems as test results indicted he had lung damage. The claimant stated that he felt his health problems were a result of his employment as an underground miner for 25 years.

In view of the claimant’s letter, the adjudicator handling the case requested and received additional medical information from the family physician dated June 12, 1997, and from a Respiratory Medicine and Sleep Disorders specialist dated April 18, 1997. Further medical information was also requested and received from a thoracic and general surgeon dated August 21, 1997 and from a pathologist dated October 2, 1997. The file documentation was then reviewed and commented on by a WCB internal medicine consultant on October 28, 1997. In his opinion, the diagnosis was invasive squamous cell carcinoma of the right upper lobe and silicotic nodule as seen in the surgical specimen.

On November 13, 1997, the Occupational Disease Unit at the WCB wrote to the claimant indicating the following:

that the silicotic nodule was consistent with employment exposure as a hard rock miner. The silicosis condition was therefore employment related and was the responsibility of the WCB, however it was not considered severe enough to warrant an impairment award;

the carcinoma of the lung was not considered to be employment related, however further investigations would be arranged before making a final decision.

Subsequent medical information was received dated February 3, 1998, stating there were two or three small nodules noted in a specimen which may be considered to be silicotic nodules, however they were few and thus might also be old granulomas. On February 5, 1998, the WCB’s internal medicine specialist reviewed the report and was of the opinion that:

the nodules were not diagnostic of silicosis;

the report from the family physician dated December 23, 1997, expressed doubts regarding the diagnosis of silicosis. The consultant thought that the carcinoma was primarily due to the claimant’s heavy smoking;

even though the claimant worked in mines, there was no evidence that he had silicosis. This was also the opinion of the Silicosis Board in July 1977.

On March 17, 1998, the WCB’s Occupational Disease Unit confirmed to the claimant that no responsibility could be accepted for the carcinoma of the lung and the diagnosis of silicosis had not been confirmed.

Further reports were obtained from the family physician dated July 16, 1998 and a chest x-ray report dated May 1, 1998. On August 21, 1998, the case was again reviewed by the WCB’s internal medicine consultant. On September 9, 1998, the WCB’s Occupational Disease Unit confirmed that no responsibility could be accepted for either a silicosis condition or the reported carcinoma of the lung.

On October 19, 1998, a solicitor for the claimant appealed the decision dated September 9, 1998, indicating that a difference of opinion existed between the claimant’s treating specialist dated August 21, 1997, and the WCB internal medicine consultant’s opinion dated August 21, 1998. The solicitor therefore requested a Medical Review Panel under Section 67(4) of The Workers Compensation Act (the Act).

On November 5, 1998, the supervisor from the Occupational Disease Unit wrote to the solicitor indicating that a MRP would not be convened as the claimant’s attending physicians did not provide evidence to support their opinions that the claimant’s employment caused his squamous cell carcinoma. The supervisor indicated, however, that once supporting documentation was received, further consideration would be given to the request for a MRP.

In the interim, additional information was obtained from the claimant’s family physician dated September 24, 1998 and November 4, 1998. On December 9, 1998, the WCB’s internal medicine consultant was asked to review the additional medical reports which supported the claimant’s contention that his lung cancer was partially related to his employment exposure as a hard rock miner. It was also pointed out to the consultant that “in adjudicating this claim, it pre-dates current WCB act re: dominant cause. If it can be determined the employment exposure has played a role in the development of the condition and the claim may be accepted”.

In a memo dated January 5, 1999, the WCB’s internal medicine consultant indicated in part that the accepted cause of carcinoma of the lung was smoking, exposure to radiation, such as radon gas, which may be part of the environment in underground mining and exposure to other radioactive materials, such as uranium mining. Exposure to asbestos can be a cause of carcinoma, especially in a smoker. In this situation, we have a history of working in the mines but we do not have details of exposure to any of the radioactive material as mentioned. Therefore, the only established risk factor was cigarette smoking.

During a telephone conversation on January 18, 1999, the solicitor was advised that a letter would be going out to the employer inquiring whether or not the claimant was exposed to radon gas. The WCB, however, was still of the opinion that it could not be confirmed that the claimant’s employment played a role in the development of his carcinoma.

On January 26, 1999, the solicitor appealed the decision made on November 5, 1998, to the Review Office. The solicitor contended that the claimant’s lung condition was at least partially due to his occupation and that if the WCB was not convinced by the weight of evidence that it was incumbent upon the WCB to convene a MRP to resolve the issue. On February 19, 1999, Review Office determined the following:

That a hazard of the claimant’s employment in the mining industry, and particularly exposure to silica dust, did not (more likely than not) contribute significantly to the cause of his lung condition....know as interstitial fibrosis; and

That current information did not establish that the claimant’s employment or his exposure to silica dust, more likely than not resulted in increased risks for the development of lung cancer;

That evidence reasonably shows that the more probable cause of the claimant’s lung cancer was cigarette smoking; and

That compensation benefits were not payable under the provisions of the Act, for the effects of either the claimant’s interstitial fibrosis or his lung cancer; and

That it was not incumbent on the board to seek the opinion of a medical panel in this case, under Section 67(4) of the Act.

Review Office stated that the available information strongly suggested that the claimant had been exposed to silica dust in the course of his employment as an underground miner but did not substantiate work related exposures to asbestosis, radiation, or radioactive materials. Documentation also showed that the claimant had a lengthy history of cigarette smoking.

Review Office was of the opinion that the weight of evidence continued to support a conclusion that the fibrosis condition was not caused by an accident arising out of and in the course of his employment and that differences of medical opinion in this respect were largely based on the claimant’s employment history rather than on a full statement of facts and reasons supporting a medical conclusion. Medical reports also revealed that the claimant’s most significant lung condition had been diagnosed as squamous cell carcinoma and that the most likely cause of his condition was related to cigarette smoking. In summary, it was concluded that the claimant did not qualify for benefits under the provisions of the Act for the effects of his lung condition (e.g. fibrosis or lung cancer) or that the opinion of a medical panel should be requested.

On March 4, 1999, the solicitor appealed Review Office’s decision to the Appeal Commission and a non-oral file review was held on August 27, 1999. Following the non-oral review, the Appeal Panel requested additional information from the employer and a copy of the autopsy report from legal counsel. On September 23, 1999, all parties were provided with a copy of the information that was received by the Panel and were asked to provide comment.

The Panel met again to discuss the case on October 26, 1999, and requested a copy of the hospital admission and discharge summary dated January 29, 1999. Once the report was obtained, the case was forwarded to the WCB’s Healthcare Services Branch for a further opinion. On December 20, 1999, all parties were provided with the discharge summary report, and the response from the WCB’s internal medicine consultant dated December 14, 1999, and were asked to provide comment.

On January 13, 2000 and February 9, 2000, the Panel met further to discuss the case. Prior to rendering a final decision, the Panel determined that a difference of medical opinion existed and that a Medical Review Panel (MRP) was warranted. The case was then forwarded to a medical advisor to make the necessary arrangements for a MRP and to obtain medical information from doctor(s) in British Columbia.

On December 12 and 14, 2000, all parties were provided with a copy of the MRP’s findings and opinion dated October 27, 2000 along with medical reports that were placed on file subsequent to the panel’s determination to convene a MRP. On January 12, 2001, the Panel met to render its final decision on the case.

Reasons

The issues in this appeal are whether or not a Medical Review Panel (MRP) should be convened and whether or not the claim is acceptable.

The subsections of the relevant The Workers Compensation Act (the Act) in this appeal are subsections 2(1) and section 54.1 (67(4) of the current Act). Subsection 2(1) states in part:

Definitions.
2(1) In this Act,

"accident" means, subject to subsection (10), a chance event occasioned by a physical or natural cause; but also includes
1. a wilful and intentional act that is not the act of the workman; and
2. any
  1. event arising out of, and in the course of, employment; or
  2. thing that is done and the doing of which arises out of, and in the course of, employment; and
3. conditions in a place where an industrial process, trade or occupation is carried on, that occasion a disease;
and as a result of which a workman is disabled.
"industrial disease" means any disease that is peculiar to, or characteristic of, an industrial process, trade or occupation to which Part I applies;

Issue 1: Whether or not a Medical Review Panel (MRP) should be convened.

Subsection 54.1(4) indicates that the board shall seek the opinion of a medical review panel when " the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the workman." In its decision of February 19, 1999 the Review Office denied the convening of a Medical Review Panel.

In this appeal, claimant's counsel has contended that a difference of medical opinion existed with respect to the claimant's medical condition affecting entitlement to benefits between the WCB medical advisors and attending or consulting physicians seen by the claimant on various occasions.

In a letter dated October 19, 1998, in submitting an appeal of an adjudicator's decision dated September 9, 1998, claimant's counsel contended that a difference of medical opinion existed between the claimant's treating specialist dated August 21, 1997 and that of the WCB internal medicine consultant dated August 21, 1998.

In a further letter, dated January 26, 1999, from claimant's counsel to the WCB, claimant's counsel summarized the opinions of five of the claimant's attending physicians/consulting specialists who, counsel contended, gave opinions which were contrary to that given by the WCB medical advisor. We note the following from the letter:

" If you are not convinced by weight of evidence we believe it incumbent on the board to convene a Medical Review Panel to resolve this rather complex issue."

Following this issue being appealed to the Appeal Commission and the receipt of further medical information, we referred the file for further review by the WCB medical advisor which took place on December 14, 1999. We note in a subsequent letter, dated January 11, 2000, from claimant's counsel to the Appeal Commission, counsel gave his opinion that the report of the WCB medical advisor was supportive of the claimant's claim. We note, however, from that letter that claimant's counsel stated in part:

" If there is any question in this regard we would maintain our request for the convening of a Medical Review Panel."

We agreed with arguments raised by counsel that there were various opinions on file from the claimant's treating physicians and consulting specialists which appeared to provide contradictory medical opinions to those provided by the WCB medical advisor which could affect the claim. We also concurred with claimant's counsel that the file revealed complex issues with respect to the claimant's medical condition which remained unresolved. Therefore the claimant's appeal on this issue was allowed and the case was referred to a Medical Review Panel (MRP) which took place on September 12, 2000.

Issue 2: Whether or not the claim is acceptable.

In this appeal the claimant's estate contends that the claimant's lung conditions and therefore the claimant's ultimate death from these conditions were due to his occupational exposure to inhaled dust from mining during the claimant's working life. This claim was first made in 1977 but was denied following a review by a silicosis panel. From the evidence it appears that the claimant continued to work until his retirement in or about 1985.

Following his retirement, in 1997 the claimant had a routine x-ray for an unrelated condition that led to further investigation of the claimant's lung conditions. In February 1997, the claimant wrote to WCB asking for his claim to be re-established. Following the claimant's death the claim vested in the estate and the estate contends that the claimant's occupation contributed to the claimant's lung disease/conditions.

We have reviewed all the evidence on file and received during the review process and find that the evidence supports a finding, on a balance of probabilities, that the claim is not acceptable.

In reaching this conclusion we noted the following evidence:

Firstly, we note from the evidence that the only type of exposure that has been documented on this file was 5% free silica, with no exposure to asbestos, iron or radioactive materials.

In 1977 a panel of chest specialists, who constituted the Silicosis Board, concluded that the claimant had some form of pulmonary fibrosis with unknown etiology, as the specific findings were not typical of pneumoconiosis or silicosis. We find this position to be supported by other expert opinion contained on the claimant's file. We further note that the MRP panelists including the consultant pathologist also concluded that there was no evidence of silicosis.

We note that the MRP was comprised of the Chair and two specialists in respiratory medicine and that expert consulting assistance was obtained, medical documentation from a radiologist as well as a pathologist, who examined the claimant's x-ray reports, cytology and surgical pathology reports, the autopsy report as well as the claimant's autopsy slides prior to rendering his opinion.

We note from his report to the MRP that the consulting pathologist indicated:

. From history (smoking) and identification of usual interstitial pneumonitis this man has two strong risk factors for the development of bronchogenic carcinomas."

We also note from the MRP report and the hospital evidence on file that the claimant's admitting diagnosis shortly before his death was "an infectious exacerbation of chronic pulmonary fibrosis, probably complicated by cor pulmonale".

With respect to the claimant's initial diagnosis and the etiology of the condition in 1977 we accept the evidence of the MRP panelists and note from their report:

The etiology of the claimant's lung condition in 1977, was stated by a Panel of Chest Specialists as being unknown. It was not considered to be typical of silicosis.

Despite all of the investigation that has been done, the cause of Mr. [the claimant's] Nodular Pulmonary Fibrosis remains unknown.

With respect to the claimant's condition in 1997 we note that the panelists articulated these as:

(i) The diagnoses of the claimant's lung conditions in 1997 were:

1. Severe pulmonary (interstitial) fibrosis (X-ray of January 10, 1997;)

2. Mass consistent with bronchogenic carcinoma. (CT scan February 6, 1997.)

3. Invasive squamous cell carcinoma. Right lung (biopsy March 24, 1997.)

The MRP panelists also indicated that:

(ii) 1. The cause of the interstitial fibrosis of the lung is not known.

2. Carcinoma of the lung is known to result from smoking and to be related to pulmonary fibrosis. (emphases added)

The panelists can find no evidence that either the lung carcinoma or the pulmonary fibrosis were work related.

(iii) The panelists agree that the pulmonary fibrosis noted in 1977, and in 1997 were probably the same disease. The pulmonary fibrosis had progressed to an end state.

We further note that the panel concluded that the cause of death was bronchopneumonia and that both the carcinoma of the lung and the pulmonary fibrosis had contributed to the cause of death. We also note the final observation of the panel that the pulmonary fibrosis was of unknown etiology but is considered to be a factor in the etiology of lung cancer.

According to the legislation and policy applicable at the time of this claim, with respect to the adjudication of the acceptability of industrial/ occupational disease claims, the test was whether or not the workplace was a contributing causal factor to the disease. Disability had to be established and any entitlement to benefits would be subject to a proportionality test, i.e. percentage causal contribution of the workplace exposure to the disability.

In our view with respect to this claim we find that the evidence, on a balance of probabilities, does not support a contribution or causal link to the workplace with respect to any of the claimant's outlined lung conditions and therefore find, on a balance of probabilities, that the claimant did not have a compensable industrial disease as a result of exposure in the workplace. We therefore find that this claim is not acceptable and the claimant's appeal on this issue is denied.

Panel Members

D.A. Vivian, Presiding Officer
A.Finkel, Commissioner

Recording Secretary, B. Miller

D.A. Vivian - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of February, 2001

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