The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on May 11, 2005, at the worker's request. The Panel discussed this appeal on May 11, 2005 and again on July 11, 2005.

Issue

Whether or not the claim is acceptable.

Decision

That the claim for an occupationally induced respiratory condition is acceptable.

Decision: Unanimous

Background

On April 18, 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a lung condition and memory loss that he related to his work activities as a painter from October 2001 to April 2004.

A Doctor's First Report showed that the worker was examined on April 6, 2004 for soreness in both elbows and complaints of shortness of breath at work. The worker also complained of being tired all the time. The diagnosis rendered was "SOB (shortness of breath) 2º exposure of fumes".

In a report dated May 28, 2004, an occupational health specialist provided a brief history of the worker's employment history over the years along with a medical history, physical examination and laboratory evaluation results. The specialist indicated that the worker's "description of his work place suggested that exposures to a variety of irritants and dusts may have been higher than appropriate. Chronic cough, has been associated with such exposures. So his history would be consistent with a diagnosis of industrial bronchitis. Fortunately his lung function is normal. Should his cough persist I would recommend getting a methacholine challenge to rule out a diagnosis of asthma. Although solvent exposures can be associated with memory problems, the remainder of Mr. [the worker's] history makes it unlikely that occupational exposures are the cause of this problem."

A Bronchochallenge Report Protocol: PC20 Methacholine is on file dated July 14, 2004.

A Doctor's First Report indicated that the worker was examined on March 22, 2004 for "painful forearms, worse when painting, wheezy after exposure to paint fumes." The diagnosis rendered was questionable tennis elbow.

A progress report dated April 27, 2004 outlined subjective findings of shortness of breath, coughing at night and in dusty environment, memory loss and fleeting chest pains. Objective findings were blood pressure 110/70, chest clear, neurological examination grossly normal. Clinically, the physician indicated that he could not find much wrong with the worker.

A progress report dated August 12, 2004 outlined subjective complaints of shortness of breath in spring - asthma. "However never had attack before he started working in the welding shop." -- "unknown whether the work in the welding shop triggered the asthma or not."

The file contains information from the worker outlining his work and medical histories, job duties with the accident employer along with diagrams of the job site and Material Safety Data Sheets.

In an undated letter to the WCB (received on April 5, 2004), the employer stated they were not aware of any accident like this. From December 8, 2003 through to April 2004, the worker worked outside in the fresh air. The employer noted that Workplace Safety & Health had inspected their plants on numerous occasions and that they reported good air quality. When the worker was painting he was supplied with a full-face, fresh air mask for painting and mixing paint.

On October 14, 2004, Rehabilitation and Compensation Services denied the claim for compensation as it could not establish that the cause of the worker's condition was related to paint or welding fumes at work. In January 2005, the worker appealed this decision to Review Office.

On February 4, 2005, Review Office confirmed that the claim for compensation was not acceptable. In reaching its decision, Review Office considered the medical information on file from the treating physicians along with the reports from Workplace Safety & Health. Review Office felt there was insufficient evidence to support that the dominant cause of the worker's condition was work related. On March 17, 2005, the worker appealed this decision to the Appeal Commission.

Following an oral hearing held on May 11, 2005, the Appeal Panel decided to obtain a medical opinion from the occupational health specialist who had previously assessed the worker on May 20, 2004. Specifically, the physician was asked to review portions of the hearing transcript along with the bronchochallenge and pulmonary function reports that he had not seen previously. The physician was asked to provide his opinion as to whether or not the worker's asthmatic condition was related to his employment exposure/work history. The physician's response dated June 17, 2005 was distributed to the interested parties for comment. On July 11, 2005, the Panel met further to discuss the case and to render its final decision.

Reasons

As noted previously, the issue before the Panel was whether the worker's claim is acceptable. For the appeal to be allowed, the Panel must find a relationship between the worker's medical condition and his employment. The Panel did find a relationship between the worker's medical condition and his employment.

Evidence and Argument at the Hearing

The worker attended the hearing and made a presentation. He also answered questions posed by the Panel.

The worker provided a detailed description of working conditions at the plant. In support of his presentation he referred to photographs and diagrams which are on the claim file. He advised that there were problems with the ventilation at the plant and described attempts to repair the problems. He disputed that the plant complied with Workplace Safety & Health requirements. He indicated that he was exposed to paint and welding fumes while he worked at the plant.

With respect to his medical condition, he contends that he has developed asthma from his exposure to chemicals at the plant. He advised his physician that he never smoked. He denied having a prior breathing problem. He explained that a reference in a medical report to having a cough while working at another plant was intended to be an acknowledgement that he had had a cough due to the flu not bronchitis or asthma.

As to his current health, he advised that he is no longer employed at the plant, is working in a cleaner environment and that his breathing has improved since he stopped working at the plant. He also advised that his most recent breathing attack was on a muggy day approximately two weeks prior to the hearing.

Analysis

In cases where it is contended that a respiratory problem has been caused by employment exposures, the Panel must be satisfied that the dominant cause for the development of the condition is related to employment exposures, pursuant to subsection 4(4) of the Act.

In assessing this claim, the Panel accepts the worker's evidence and finds that the worker was continually subjected to paint and welding fumes while employed at the employer's manufacturing plant.

With respect to his medical condition the Panel finds on a balance of probabilities that the worker's employment led to the development of a respiratory condition and that the worker's claim is acceptable. The Panel finds that the dominant cause of the worker's occupational disease is related to his employment.

In arriving at this decision the Panel relies upon the opinion of the occupational health specialist set out in his report of June 17, 2005. We specifically note the specialist's comments that "irritant exposures have been associated with asthma. There is no specific test to identify irritant induced asthma. Symptoms can decline but may not entirely disappear after the end of exposure. [the worker's] history of decreasing symptoms after leaving exposure would be consistent with this etiology." The specialist comments further "…I feel that [the worker's] work led to his development of an obstructive respiratory disorder consistent with asthma."

The Panel finds on a balance of probabilities that the evidence does not support a finding that the worker suffers memory loss due to his employment. In reaching this conclusion we rely upon the May 28, 2004 report of the occupational health specialist which concludes that "Although solvent exposures can be associated with memory problems, the remainder of [the worker's] history makes it unlikely that occupational exposures are the cause of this problem."

The worker's appeal is accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

A. Finkel, Commissioner - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of August, 2005