The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 19, 2005, at the worker's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In February 2001, the worker submitted a claim to the Workers Compensation Board (WCB) for shortness of breath and sore lungs that he related to the repetitive inhalation of chemicals during the course of his employment activities as a detailer/car jockey.

On June 12, 2001, a WCB internal medicine consultant made the following comments after reviewing all the file information which consisted of reports submitted by the family physician and a respiratory medicine and bronchoscopy specialist: "… Although Mr. [the worker] had many symptoms, his physical examination was entirely negative and extensive pulmonary function tests including histamine, challenge test and exercise test failed to reveal any reversible airway disease or bronchial hyper-reactivity. Thus, they were unable to support the diagnosis of bronchial asthma. However, it is possible he may have developed some form of upper respiratory infection resulting in cough."

On June 15, 2001, the WCB advised the worker that his case had been reviewed by a WCB medical advisor who was of the opinion that the medical evidence did not support the diagnosis of bronchial asthma. As the WCB was unable to establish a relationship between his condition and an accident as defined under subsections 4(1) and 1(1) of The Workers Compensation Act (the Act), the WCB was unable to accept responsibility for his claim.

Subsequent to the above decision, the WCB received additional medical information which included numerous laboratory investigation results, a report by an occupational health physician dated September 21, 2001 and a report by a respiratory medicine and bronchoscopy specialist dated November 8, 2001.

Following review of the above information, the WCB's internal medicine consultant stated on January 17, 2002, that the worker had recently developed some respiratory symptoms which were thought to be due to occupational asthma. He commented that pulmonary function studies dated May 22, 2001 failed to show irreversible airway disease. The histamine challenge test which was to demonstrate the presence or absence of bronchial hyper-reactivity was also negative. The worker's diffusion capacity was reduced according to the respiratory medicine and bronchoscopy specialist. A CT scan did not show any interstitial disease thus the reason for minor decrease in diffusion remained unknown and may be artificial. The WCB's internal medicine consultant summarized that there was still no evidence to support the diagnosis of occupational asthma.

In a letter to the WCB dated January 15, 2002, an occupational health physician noted that he had seen the worker for a follow-up visit. Based on his examination findings, the worker was assessed with asbestos related pleural fibrosis (related to occupational asbestos exposure while working in Ontario), bronchitis, alopecia and weight loss.

On January 22, 2002, the WCB's internal medicine consultant reviewed the new file information. He noted that the worker's chest CT showed small areas of pleural plaques which could be related to working with brake linings in Ontario in the 1970's. He commented that it would appear that most of his symptoms are unrelated to exposures at work.

Based on the above opinion, the WCB informed the worker on January 25, 2002 that there was insufficient medical evidence to support a relationship between his condition and a chemical exposure at work.

On January 28, 2002, a second respiratory specialist stated, in part, "The pleural plaques on his CT suggest he may have had some asbestos exposure. Having said this, I don't see much evidence that he has clinically significant lung disease based on previous investigations. I am a bit perplexed by this given his prominent symptoms of shortness of breath, cough and even hemoptysis."

A report was also received from a physician who had been treating the worker since February 15, 2002. The physician noted that the worker was suffering from pulmonary fibrosis secondary to his exposure to asbestos at work, low back pain, weight loss, sleep problems, anxiety, alopecia areata, lack of vocal function and chest pain.

In April 2004, the worker submitted another Worker's Report of Injury report to the WCB, outlining his position that chemical inhalation caused his hair loss.

On June 9, 2004, a WCB adjudicator advised the worker that she had reviewed the report from his treating dermatologist and that the dermatologist did not provide any information to support that his hair loss was the result of his exposure to chemicals or fumes in the workplace.

On September 15, 2004, the case was considered by Review Office based on appeal submissions by the worker and his wife. Review Office confirmed that the claim for compensation was not acceptable. Review Office stated it was unable to find medical support that the vast majority of the worker's physical ailments had a relationship to a work environment. Review Office also felt that the worker's pleural plaques were related to the worker's Ontario exposure and therefore it was not a compensable condition with the Manitoba WCB. Review Office did not feel any loss of earning capacity can be attributed to the pleural plaques. On October 29, 2004, the worker disagreed with Review Office's decision and an oral hearing was arranged.

Reasons

We were asked to decide whether the worker's claim is acceptable. In addressing this issue, we have considered whether the worker's current symptoms are caused by his employment in Manitoba. Based on the evidence available today, we were not able to find a link between the symptoms and the worker's employment and determined that the claim is not acceptable. We note however, that should new and substantial medical or other evidence arise after the hearing, the worker can consider applying for a new hearing under the provisions of Section 60.91 of the Act.

Worker's Evidence and Argument at Hearing

The worker attended the hearing with his wife, daughter and son-in-law. His daughter acted as his representative. The worker and his family members answered questions posed by the Panel.

The worker's position is that his current medical conditions are the result of working 11 years for the employer and being exposed to and handling hazardous materials without proper protection. The worker believes that he inhaled many toxic chemicals and substances including asbestos. We were advised that the worker received no education on the handling and disposal of such materials and was not provided with protective gear when handling the materials. As well, we were advised that the worker was not able to read information about proper use and disposal as he is illiterate, having attained only a grade 4 standing.

It was noted that the primary diagnosis on this claim is pleural plaques on the worker's lungs caused by exposure to asbestos. The worker's representative disagreed with the WCB's position that this condition is due to exposure to asbestos when the worker was employed in Ontario in the 1970's. She submitted that the condition is due to the worker's exposure in Manitoba during his 11 years working for the employer. She advised that her research shows that asbestos disease can accelerate when there is constant exposure to large doses. She also expressed the opinion that the worker suffers from mesothelioma but that it has not been diagnosed because Canadian doctors are not familiar with this disease.

The worker, with the assistance of his family members, provided information on his current conditions, recent medical appointments and planned diagnostic tests.

Analysis

We acknowledge that the worker has many symptoms including back ache, respiratory difficulties, weight loss, hair loss, sleep problems, and gastro-intestinal problems. In deciding this appeal we have considered whether there is a causal link between the symptoms and the worker's employment in Manitoba. We have found, on a balance of probabilities, that there is no causal link and accordingly the worker's claim is not acceptable.

The worker's primary diagnosis is pleural plaques due to exposure to asbestos. The evidence establishes that the worker was exposed to asbestos in the 1970's while working in Ontario. The WCB determined that the worker's pleural plaques are due to his employment in Ontario. This determination is supported by the medical evidence on the file.

A physician at an occupational health centre made the following assessment regarding the worker's exposure to asbestos:

"Asbestos-related pleural fibrosis. The worker has had pleural plaques documented as a CT scan of his chest. Based on his history, this is most likely related to occupational asbestos exposure he sustained while working in Ontario. The remainder of his symptoms would not be related to this problem."

A WCB internal medicine consultant agreed that the pleural plaques could be related to the worker's exposure in Ontario. In a report dated January 22, 2002 he commented:

"Usually, the pleural plaques if related to asbestos exposure take 20-40 years to develop and it is quite possible that exposure in Ontario may have caused the presence of pleural plaques on the CT of the chest. In view of Mr. [the worker's] symptoms of cough, sputum production, hemoptysis, one would have to consider the possibility of tuberculosis or other pulmonary infection.

The pulmonary function tests done by [doctor's name] do not indicate any impairment of the lung function due to the presence of pleural plaques."

We accept the above medical opinions and find, on a balance of probabilities, that the worker's pleural plaques are due to his exposure in Ontario. We understand that the worker has been in contact with Workplace Safety and Insurance Board in Ontario and encourage him to pursue a claim through this entity.

With respect to the worker's hair loss, the most recent report from a dermatologist dated June 4, 2004 notes that "A number of etiological factors could be associated with alopecia areata, such as genetic, immunological, endocrine as well as psychological. Stress can represent an important precipitating factor."

We also note the opinion provided by the physician at an occupational health centre, in a report dated January 15, 2002 that "I cannot related (sic) this problem to [the worker's] work exposures."

As already noted, the worker has many other symptoms, including low back pain, weight loss, sleep problems, anxiety and chest pain. The evidence on file does not, on a balance of probabilities, support a relationship between the worker's employment in Manitoba and these symptoms.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 9th day of March, 2005