The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on August 28, 2001, at the request of the claimant. The Panel discussed this appeal on August 28, 2001.

Issue

Whether or not the established date of accident is correct.

Decision

That the deemed date of the accident should be November 1, 1993.

Background

On March 23, 1994, the claimant filed an application for compensation benefits due to a respiratory condition which he related to his employment exposure to asbestos.

Medical information from the attending physician dated April 21, 1994 noted that the claimant was referred to him by the family physician on November 1, 1993. In part, the letter stated,

"The patient had had some increasing anterior chest pain with the onset approximately in August and then in November he had noticed some cough and shortness of breath when lying on his side. A chest x-ray in November revealed a large right pleural effusion.

He underwent a chest tube insertion and a bronchoscopy in early November. The effusion was not diagnostic for malignancy and the bronchoscopy also was negative for malignancy.

He was followed by Dr. [name] and myself through December and January 1994. The chest x-ray did not return to normal and there was persistent right pleural effusion. He underwent a CT scan which confirmed pleural effusion as well as extensive pleural thickening and mediastinal lymphadenopathy. On March 1st, 1994 he underwent a bronchoscopy, cervical mediastinoscopy and right thoracotomy and pleural biopsy. The bronchoscopy and mediastinoscopy were normal. The right thoracotomy revealed extensive pleural disease and the pathologic diagnosis was mesothelioma.

There is no doubt that his present lethal condition of mesothelioma is directly related to his exposure to asbestos. There is virtually no cases of mesothelioma that is not related to asbestos exposure and the patient gives a very good history for remote exposure to the carcinogen approximately 25 years ago."

In an October 5, 1994 report from an internal medicine and cardiologist, he stated,

"Mr. [the claimant] was first hospitalized in November 1993 because of a right sided pleural effusion. On November 1, 1993, he came to my office complaining of a cough on lying flat and also at that time was coughing up a lot of green phlegm and was feverish. A chest xray was done which led to the admission to the [name] Hospital. He was seen in consultation by Dr. [name] who inserted a chest tube and subsequently did some biopsies which led to the diagnosis of mesothelioma."

In November 1994, a Workers Compensation Board (WCB) adjudicator asked a WCB internal medicine consultant to review the pathology reports on file. It was the family's position that the claimant had been investigated for chest problems since June of 1991. The internal medicine consultant was asked to provide his opinion with respect to the following queries,

Q: "In your opinion, on balance of probabilities, can we establish how long ago the disease (mesothelioma) process began?"

A: "Diagnosis of mesothelioma was made on the basis of pleural biopsy. Although the pleural effusion was present in November of 1993 examination of the pleural fluid did not establish the diagnosis of mesothelioma. CT of the chest dated January 28, 1994 showed the extensive pleural thickening which was the basis of thoracotomy in March 1994. Thus the diagnosis was established in March 1994. How long it has been there cannot be stated with any certainty and would be speculative."

Q: "Is it suffice to say that claimant has been suffering the symptoms of this disease process as far back as June 1991?"

A: "See above. There are no specific symptoms that would suggest presence of mesothelioma."

Subsequent file documentation showed that the WCB accepted the claim for mesothelioma and the accident date was established as March 1994. In April 1995, a WCB adjudicator met with the claimant's family to discuss a number of concerns they had with the claim, one of which was the accident date established by the WCB.

Following consultation with the WCB's internal medicine consultant in June 1995, a supervisor from the WCB's Occupational Disease Unit determined on August 29, 1995, that no change would be made to the WCB's decision with respect to the date of accident. On June 6, 1996, a solicitor appealed this decision to Review Office.

On November 15, 1996, Review Office confirmed that the established date of accident was correct, basing its decision on Section 1(12) of the Workers Compensation Act (the Act). Review Office noted that when the claimant completed his application for compensation along with a WCB questionnaire he indicated that he first began to notice symptoms in November of 1993. It was also noted that the claimant's condition was diagnosed in March of 1994 following receipt of test results. Review Office was satisfied from the evidence that the claimant did have an impairment from the condition diagnosed as mesothelioma and that this impairment would be from the date the condition was diagnosed in March of 1994. In May 2001, the claimant's daughter appealed the decision and an oral hearing was convened.

Reasons

This is the case of a worker who contracted mesothelioma after years of exposure to asbestos in his workplace. This form of lung cancer is extremely aggressive, once contracted, and the worker died thirteen months after first seeing a doctor about his symptoms.

This illness was accepted as an occupational disease by the WCB and benefits were paid to him and, subsequently to his widow.

This appeal is brought by his widow, who is seeking to have the deemed date of the accident changed from March 1, 1994 to June 9, 1991. The significance of these dates is that, if the date were changed to 1991, compensation would be determined by the pre-1992 version of The Workers Compensation Act.

The section of the Act relevant to this situation is section 1(12), which reads:

Deemed date of accident re occupational disease

1(12) Where an impairment or loss of earnings of a worker is caused by an occupational disease, the day on which the impairment or loss of earnings began, as determined by the board, is deemed to be the day of the accident.

For the appeal to succeed, the Panel must determine that the deceased worker had evidence of an impairment or loss of earning capacity by June 9, 1991. We were not able to make that determination.

In coming to our conclusion, the Panel conducted a thorough review of the file, in particular the medical evidence, and also conducted an oral hearing. Present at the hearing were the widow and daughter of the worker. The daughter made a presentation and presented some medical evidence not on file.

In her presentation, the worker's daughter asked us to consider a number of elements in the worker's medical history which would indicate that he was suffering from mesothelioma somewhat earlier than March 1994. She noted, in particular:

• 1990 - her father reported to his doctor that he was having difficulty breathing and that, at night, he suffered from very hot feet and legs.
• 1991 - while returning from a job in Africa, her father became ill on the plane. During a stopover in Amsterdam, he saw a doctor, who treated him for gastrointestinal problems. This doctor was also of the view that her father was suffering from either stomach or pancreatic cancer.
• 1992 - her father became ill with a lung infection, for which he was prescribed penicillin. The infection cleared up with the medication.
• 1993 - August - he saw his doctor complaining of anterior chest pain. Tests proved negative.
• 1993 - November - he saw his doctor complaining of shortness of breath and a cough. An x-ray, taken on November 1, showed considerable pleural effusion.

From the medical file, we note that pleural fluid was removed from his right lung the next day. A test for malignancy was negative. A subsequent x-ray, on November 16, showed that the pleural effusion was much smaller. A CT scan, conducted on January 28, 1994, found "extensive pleural thickening" and that "a mesothelioma is suspected" A biopsy was recommended. The biopsy, done on March 1, 1994, found "diffuse malignant mesothelioma."

As this was the first formal confirmation of a diagnosis of the disease, this was the date deemed by the WCB adjudicator as the day of the accident. This decision was upheld by the Review Office.

To support her position that the deemed date should be June 9, 1991, the worker's daughter presented a copy of a hand-written letter from a doctor in The Netherlands, who saw her father in an Amsterdam hotel. Writing four years after seeing the worker, the doctor recalled that his "differential diagnosis was: 1) stomach cancer with growth on other places; and 2) pancreatic cancer with spreading."

We note that there are no subsequent medical reports, from the worker's Canadian doctors which indicate that this diagnosis was pursued further. His family doctor reported that an "S & D and gallbladder series [done at that time] were all within normal limits." Nor, is there any indication that the worker did, indeed suffer from either of these types of cancer. Furthermore, there is no medical continuity of symptoms from this diagnosis in June 1991 to the diagnosis of mesothelioma some 2 years later.

As further evidence, the claimant's daughter noted a letter from the treating specialist who expressed the opinion that "the fact he had extensive mesothelioma on CT scanning in January 1994 would suggest that his disease had been present for more than two years."

In the same letter, this doctor also wrote that "the mean survival is approximately 11 months", further noting that this patient had "survived approximately thirteen months from his date of clinical presentation to his family doctor." He also stated that he had no proof of specific complaints during 1991 or 1992.

In coming to our conclusion that - on a balance of probabilities - the worker was not suffering an impairment or loss of earning capacity from mesothelioma prior to November 1993, we relied on the following:

• the worker had a chest x-ray in November 1990 which showed no abnormalities;
• between that date and November 1993, there is no reporting of symptoms which might have led his doctors to investigate for a lung cancer; and
• the fact that the time period from first reporting his symptoms to his death fit the norms for this disease.

We are of the opinion that the preponderance of evidence would support a conclusion that mesothelioma was present in November 1993, when the worker saw his doctor. While we note that tests, at the time, showed no evidence of malignancy, the claimant did demonstrate a continuity of symptoms from that time which led to the CT scan, three months later, which drew strong suspicions of mesothelioma and a biopsy, a month after which resulted in a conclusive diagnosis. The evidence would strongly suggest that the disease was, at least, beginning to take hold in his system when the symptoms first emerged, in November 1993, and would be the appropriate date under which an impairment can be established under section 1(12) of the Act.

Therefore, we conclude that the deemed date of the accident should be November 1, 1993.

Accordingly, the appeal is allowed as set out above.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of September, 2001