The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 15, 2005, at the request of a worker advisor, acting on behalf of the worker's widow.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

The worker was diagnosed with bladder cancer in 1983 and he passed away on December 3, 1987. On August 20, 1999, the worker's widow filed a claim with the Workers Compensation Board (WCB) as she felt that her late husband's exposure to creosote in the workplace between the 50's and 80's may have caused his death.

During a telephone conversation on September 9, 1999, the widow advised a WCB adjudicator that her late husband was in the Air Force for approximately three years and that he smoked on a social basis while in the Air Force. Her husband worked with the accident employer in the 50's and otherwise was a self-employed farmer. She stated that he did not smoke after the 1940's, he was a non-drinker and ate healthy foods. She did not believe that her husband's cancer was caused by any lifestyle factors.

In a further conversation on December 14, 1999, the widow indicated that her husband's job duties entailed loading and unloading railway ties and that he did not use smokeless tobacco. He was a "mixed" farmer, mostly grain, and had some hogs and calves on a brief basis.

On November 15, 1999, a WCB internal medicine consultant was asked to review the file information which included a report from Workplace Safety & Health along with medical information that was submitted by the widow. The consultant was asked to comment on the cause of the worker's death and whether his exposure to creosote or other products were the dominant cause for the development of the cancer. The consultant's opinion to these queries are contained in a memo to file dated December 2, 1999.

On December 14, 1999, the WCB internal medicine consultant again reviewed the file at the request of primary adjudication. In a response dated January 12, 2000, the consultant stated, "The literature on bladder cancer is vast and my search did not implicate creosote as one of the carcinogens causing bladder cancers."

On January 19, 2000, the WCB denied responsibility for the claim as it could not establish that the dominant cause of the condition that resulted in the worker's death was his exposure to creosote in the workplace. The adjudicator stated,

"…The medical advisor reviewed the information that was provided and noted that while there was a suggestion that creosote could lead to the development of bladder cancer, this was not proven. He performed further research on bladder cancer and it's causes and was unable to find any information which demonstrated a relationship between bladder cancer and creosote."

In a further decision dated January 28, 2000, the WCB adjudicator indicated that an error had occurred in his adjudication of the claim. He indicated that the claim should not have been adjudicated under the provisions of the Manitoba Workers Compensation Act that was enacted on January 1, 1992. After considering the Act that had existed prior to January 1, 1992, he was still unable to establish a causal relationship between the worker's exposure to creosote in the workplace and the condition that resulted in his passing.

On October 6, 2000, Review Office considered the claim based on an appeal submission dated August 31, 2000 by the worker's widow. After reviewing all the medical evidence on the claim, Review Office was unable to take the position that medical science had established a link between creosote and bladder cancer. In July 2005, a worker advisor, acting on the widow's behalf, appealed Review Office's decision and a non-oral file review was arranged.

Reasons

After having thoroughly reviewed all of the scientific and medical evidence, we find on a balance of probabilities there is no relationship between the exposure to creosote and the development of bladder cancer. In coming to this conclusion, we attached considerable weight to the opinion provided by the WCB medical advisor in his memorandum of December 2, 1999.

"In my review of the literature regarding the carcinoma of the bladder, the following facts have become apparent. In the textbooks of pathology, the etiological agents described in the causation of bladder cancers are the following chemicals: Beta Naphthylamine, 4-Aminobiphenyl, 4-Nitrobiphenyl, and 4-diaminobiphenyl. These compounds are found in the industries using dyes and pigments such as textile printing, plastic, rubber, and cable industries. Other reasons for developing carcinoma of the bladder are infection with schistosoma haematobium, which is found mostly in third world countries. There is increased risk of developing transitional cell carcinoma in persons who develop nephropathy due to analgesic abuse. The creosote, which is a petroleum derivative, can cause skin cancers on exposure, but I have not come across any case where bladder cancers have been reported."

Inasmuch as there has been no accident as defined by the Act, we find that the claim is not acceptable. Accordingly, the appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of October, 2005