The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on February 13, 2006, at the request of a union representative, acting on behalf of the worker. The panel discussed this appeal on the same day.

Issue

Whether or not the claim for injuries sustained on May 30, 2003 is acceptable; and

Whether or not the claim for injuries sustained on November 23, 2000 is acceptable.

Decision

That the claim for injuries sustained on May 30, 2003 is not acceptable; and

That the claim for injuries sustained on November 23, 2000 is not acceptable.

Decision: Unanimous

Background

On May 13, 2002, the worker filed a claim with the Workers Compensation Board (WCB) for respiratory difficulties that he related to his work activities on November 23 and 24, 2000.

During a telephone conversation with a WCB adjudicator on May 21, 2002, the worker's spouse indicated that her husband was exposed to PCB (polychlorinated biphenyls) while disposing of electrical ballasts on November 23, and 24, 2000. She noted that this particular job was outside of her husband's normal work activities. She stated that her husband had to puncture holes in the ballasts which were being disposed. Her husband was told that there was no PCB in the ballasts but it was later confirmed that there was.

In order to adjudicate the claim, the WCB wrote to the worker's treating physicians to obtain the worker's medical history along with corresponding laboratory investigative reports. On August 21, 2002, a WCB internal medicine consultant reviewed the medical information and provided primary adjudication with his opinion regarding a diagnosis of the worker's respiratory condition and its possible relationship to the work place event of November 2000.

In a decision dated September 10, 2002, the worker was advised that his claim for compensation was not acceptable. The adjudicator outlined the opinion that was expressed by the WCB internal medicine consultant of August 21, 2002, i.e. that the worker was diagnosed with pneumonia in 1999 and again in 2000; and that the worker's questionable exposure to PCB in a short period of time would not likely cause the symptoms that he was having. Based on these findings, it was the adjudicator's decision that there was no cause and effect relationship between the worker's respiratory difficulties and his employment.

In April 2004, the worker filed a claim with the WCB for a work-related incident that took place on May 30, 2003. On this date, he was driving a vehicle with broken windows back to the shop when the dust behind him became airborne and he soon began to experience a burning feeling in his face, eyes, throat and hands. The worker made it to the shop and reported it to his employer. The next day he began spitting up blood and it carried on for a short week. He stated that he brought it up again with the employer after a CT scan revealed a lesion on his right lung.

During a telephone conversation with a WCB adjudicator on May 13, 2004, the worker reiterated that he told his employer what had happened but nothing was done. Afterwards, he began to spit up blood but this stopped after a few days. He did not seek any medical attention at that time. The worker indicated that he attended a physician in December 2003 and a CT scan revealed a lesion on his right lung. He then saw another physician for a biopsy and surgery was recommended to remove a portion of his lung. The worker outlined his view that a relationship existed between his exposure on May 30, 2003 and his current lung condition.

The worker's respiratory specialist, in a letter dated July 26, 2004, advised the WCB that the worker's diagnosis was uncertain. He stated that a CT scan of January 8, 2004 revealed a new density in the superior segment of the right lower lobe that had not been present in the past.

On April 16, 2004 a bronchoscopy and mediastinoscopy was performed. The pre-operative diagnoses were right lower lobe lung tumor, mediastinal adenopathy and previous history of prostate cancer. A cytology report of the right lower lobe dated April 19, 2004 was negative for malignant cells.

A WCB internal medicine consultant reviewed the file at the request of primary adjudication on October 21, 2004. The consultant was asked to comment on a diagnosis of the worker's lung condition and whether or not there was sufficient evidence to support that the dominant cause of the diagnosis was the worker's exposure to dust in May 2003. The consultant outlined his view that a diagnosis was not clear, but a lesion had been seen in the CT scan which led to various investigations. A repeat CT scan done on July 11, 2004 showed old lung scarring and that the changes were thought to be possibly due to pneumonia. He stated that the interval between the incident of May 30, 2003 and visit to the doctor on December 15, 2003 did not suggest any direct relationship.

On January 5, 2005, the worker was advised that the WCB was unable to accept his claim for a lung condition as there was insufficient medical evidence to support that a relationship existed between his lung lesions and the incident that occurred on May 30, 2003.

In January 2005, the worker disagreed with the decisions to deny his 2000 and 2003 claims. On March 2, 2005, the worker's appeal was listed with Review Office.

On May 5, 2005, Review Office concluded that there was insufficient evidence to establish any relationship between the worker's lung condition and the job duties that he performed in November 2000. In reaching this conclusion, Review Office made reference to the opinions expressed by the WCB's internal medicine consultant and by the worker's respiratory medicine and bronchoscopy specialist. It also based its decision on the fact that it was not confirmed that PCBs were present in the ballasts that the worker was working with in November 2000.

Review Office also determined that there was no relationship between the worker's lung condition and the work event of May 30, 2003. Review Office noted that the worker did not report the May 30, 2003 event as a work related condition to his employer until April 14, 2004. The worker did not attend a physician during the time he was "spitting up blood" and therefore a cause of those symptoms could not be established. Review Office made reference to the radiation oncologist's report of March 30, 2004 when he stated '…we do not have a pathologic diagnosis at this time' and the result of the CT scan of the chest dated July 2004 which stated '…This could be all due to recent pneumonia with some resolution of the consolidation in the right base.'

On October 17, 2005, the worker's union representative appealed Review Office's decisions of May 5, 2005 and an oral hearing was arranged.

Reasons

There are two issues before the panel. Both are appealed by the worker and pertain to the denial of two different claims. The first issue is whether the worker's claim for injuries sustained on May 30, 2003 is acceptable. This issue relates to an incident involving transporting a damaged vehicle and is referred to as the vehicle incident. The second issue is whether the worker's claim for injuries sustained on November 23, 2000 is acceptable. This issue relates to an incident involving disposal of electrical ballasts and is referred to as the ballast incident.

Evidence and Argument at Hearing

The worker attended the hearing with a union representative who made a submission on behalf of the worker. The worker answered questions posed by the panel.

The employer was represented by its compensation co-ordinator who made a presentation on behalf of the employer.

The worker's representative provided an overview of the worker's employment history commencing in 1944. Of relevance to these appeals is that the worker commenced working for the accident employer in 1983. The representative reviewed the various duties that the worker performed while employed by the accident employer. The representative also referred to the general working conditions at the worksite and the possible exposure to chemicals.

Issue One (Vehicle Incident)

With respect to issue one, the worker's representative advised that on May 30, 2003 the worker was sent to retrieve a bus from a compound. He advised that the windows on the vehicle had been broken after a mock assault on the vehicle, and that as the worker drove the vehicle, the air movement through open windows caused the dust and debris in the vehicle to become air borne. He stated that the worker suffered burning to his eyes, face, throat and hands and started to spit up blood. The worker's representative told the panel that the employer was fully aware of the worker's injuries and symptoms. The representative criticized the employer for not taking the worker to the hospital and for not determining the type of substances on the vehicle.

The employer's representative noted that the worker informed the employer about the May 2003 incident in March 2004. The representative also noted that the worker did not seek medical attention at the time of the incident and did not receive medical attention until December 15, 2003. The representative submitted there is no evidence that the worker has any injuries as a result of the vehicle incident and that there is no connection between any medical findings and the vehicle incident.

Issue Two (Ballast Incident)

The worker's representative advised that in November 2000 the worker was assigned the task of disposing of ballasts that had been removed from buses. His task was to take these ballasts, identify them, punch holes in them and put them in containers for disposal. The representative states that the worker was not provided with protective clothing. The worker used cloth gloves until they were soaked and then switched to rubber gloves.

The worker demonstrated the procedure he followed in punching holes in the ballasts. The worker stated that he started to feel ill while working with the ballasts and that on the weekend he had to be taken to the hospital. The worker advised that he believes the ballasts that he dealt with contained PCBs.

The employer's position is that there is no evidence that the worker was exposed to PCBs. The representative noted that the worker's supervisor provided a statement indicating that the worker was not exposed to PCBs. The representative also noted that the WCB medical consultant who reviewed the file concluded that the operating diagnosis was one of pneumonia and that this was unlikely to be related to a short term exposure to PCB's.

Analysis

Subsections 1(1) and 4(1) of The Workers Compensation Act (the Act) set out the circumstances under which claims for injuries can be accepted, and state that the worker must have suffered an accident that arose out of and in the course of his or her employment. Once such an accident has been established, the worker would then be entitled to the benefits provided under the Act.

In order for either of this worker's claims to be acceptable, the panel must find that the worker's condition is causally related to his employment. The panel carefully reviewed the evidence in the file and presented at the hearing and has concluded, on a balance of probabilities, that the worker's job duties did not cause the worker's lung condition.

Issue One (Vehicle Incident)

The first issue is whether the claim for injuries sustained on May 30, 2003 is acceptable. The panel is unable to find, on a balance of probabilities, a relationship between the vehicle incident and the worker's lung condition. The panel's reasons are as follows:

• the vehicle incident occurred on May 30, 2003 but the worker did not seek medical treatment for his symptoms at the time and did not obtain medical attention until December 15, 2003.
  
  
• the worker did not report the vehicle incident to the WCB until April 2004.
  
  
• the CT scan performed on July 11, 2004 noted the following impression:
  
  "The findings are now suggestive of old lung scarring. Although the interval followup is somewhat short, the largest area of consolidation in the right base is definitely smaller. This could be all due to recent pneumonia with some resolution of the consolidation in the right base. Further followup however is suggested in 6 months' time."

• a WCB consultant specializing in internal medicine, in a report dated October 21, 2004, commented:
  
  "Since we do not know the definite diagnosis as mentioned under #1, it would be hard to comment on the incidence (sic) of May 30, 2003. The interval between the incidence (sic) of May 30, 2003 and visit to [doctor] on December 15, 2003 does not suggest any direct relationship."

Issue Two (Ballast Incident)

The second issue is whether the claim for injuries sustained on November 23, 2000 is acceptable. The panel is unable to find, on a balance of probabilities, a relationship between the ballast incident and the worker's lung condition. The panel's reasons are as follows:

• the evidence does not establish that the worker was exposed to PCBs in the course of his employment in November 2000. The panel acknowledges there is contradictory evidence on this matter, however the Panel prefers the evidence of the worker's supervisor as to the absence of PCBs in the ballasts. In his position, he would be knowledgeable of the materials used in the workplace.
  
  
• even if there was exposure to PCB's, the available evidence does not establish a relationship between exposure to PCB's and the worker's lung condition. The worker was seen in December 1999 for fever and chest pain. An x-ray showed right lower lobe pneumonia. The worker was seen again three days before the ballast incident, on November 20, 2000, for follow-up of lower left lobe pneumonia. The July 11, 2004 CT scan, referred to above, indicated an impression of old lung scarring and recent pneumonia.
  
  
• the WCB consultant specializing in internal medicine advised the WCB, in a report dated August 23, 2002, that acute short term exposure to PCBs would lead to irritation of the eyes and skin. It may also result in nausea, sore throat, and chest tightness but there is no mention of pneumonia as a complication in the literature.

Conclusion

The panel concludes that the evidence does not establish a causal link between the two noted incidents and the worker's lung condition. The worker's representative referred to other possible exposures in the workplace and to the possibility of an occupational disease but did not adduce evidence in support of this theory. The panel acknowledges that the worker has a lung condition but is unable to attribute the condition to his work duties.

The appeal of both issues 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 23rd day of March, 2006