Decision #20/99 - Type: Workers Compensation

Preamble

On December 8, 1998, an Appeal Panel hearing was held at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on December 8, 1998.

Issue

Whether the claimant is entitled to benefits under the Act, for the effects of respiratory problems and/or bronchial asthma.

Decision

That the claimant is not entitled to benefits under the Act, for the effects of respiratory problems and/or bronchial asthma.

Background

On August 23, 1996, the claimant submitted an application for compensation benefits regarding a chest condition which he related to his employment activities at a feed mill. The claimant subsequently provided the following responses to a Workers Compensation Board (WCB) questionnaire dated September 3, 1996:

· that he had been employed with the accident employer for 37 years;

· for the first 7 years with the company he worked with alfalfa and then worked in the warehouse as a shipper/receiver until his retirement;

· the claimant stated that he was exposed to dust from the mill as well as gasoline fumes from the forklift. In 1981 or thereabouts, the forklift was changed to propane but his breathing was still a problem;

· in 1970 the claimant indicated that he noticed symptoms such as being short of breath or unable to breathe properly.

· since retirement, the claimant indicated that his symptoms are still bad. When it gets cold he has difficulties breathing.

· the claimant indicated that he previously smoked and that he quit 25 years ago.

· the claimant indicated that he had allergy testing in October 1996 and that he does not have many colds. He has had no prior chest problems until the breathing problem.

· no one in his family every suffered from asthma, hay fever or allergies and he has no pets at home.

In a letter, dated September 18, 1996, the employer indicated that the claimant had been employed as a warehouse shipper/receiver and that his duties included driving a forklift, shipping products to customers, loading their vehicles, receiving goods and some stock inventory. Possible irritants may have been minor amounts of dust on the warehouse floor. The claimant could have been exposed to a minor amount of dust on a daily basis only when in the warehouse picking up product. The claimant would have spent at lot of his time in the shipping office and outside on the loading docks. The production manager indicated that he recalled the claimant’s having a problem with coughing and a slight wheeze, but nothing was ever mentioned it as being an asthma condition.

Medical information consisted of a report from a respiratory specialist dated September 19, 1996. The specialist indicated that the claimant had been diagnosed with asthma in 1976 and that he took over the treatment of the claimant in 1987. When last seen on August 26, 1996, the claimant expressed concerns that his asthma was somehow related to his work. The specialist noted that the claimant retired in 1991 at the age of 66 and commented that there was not much evidence since the claimant’s retirement that his asthma was under any better control than it was during work. The specialist concluded that the claimant’s work conditions exacerbated his symptoms of asthma. He was not sure there was any evidence, as yet, that it caused the claimant’s asthma.

On November 4, 1996, another specialist reported that the claimant had undergone testing to aeroallergens and that he elicited moderately strong reactions to mold spores, very minimal to grain dust but none of significance to mites, pollens of trees, grasses, weeds or animal danders. The allergy to mold spores was very common. The specialist further stated that the claimant’s reaction to grain dust was not outstanding. A 1996 chest x-ray proved to be normal. The specialist concluded, “I cannot say how he was or what he was allergic to 20 years ago and there is no way of proving whether his breathing problems are in any way related to his having worked at [accident employer] for 30 + odd years.”

In a memo to Primary Adjudication dated December 12, 1996, a WCB internal medicine consultant, after reviewing the file, noted that the claimant’s respiratory symptoms started in 1976, 23 years after he started work. The diagnosis was airway disease but the cause was not clear. The consultant thought the basic problem may be chronic obstructive lung disease produced by cigarette smoking and exacerbated by exposure to dust. The consultant indicated that the exposure to dust might have temporarily aggravated the claimant’s symptoms, but the failure of improvement over the period he had been away from work would indicate the etiology of his problem was not work related.

On March 3, 1997, the respiratory specialist reported that the claimant underwent allergy skin testing and that the claimant demonstrated weak reactions to grain dust which suggested that the grain dust played a role in exacerbating an already present asthma but only to the extent that it was a nonspecific irritant. “Given his present level of asthma with mild airways obstruction reversible to normal, I would not think that we can implicate the grain dust in his present level of symptoms.”

In a further memo to primary adjudication, dated March 21, 1997, the WCB internal medicine consultant stated that he was unable to confirm the diagnosis of asthma and as stated in his December 12, 1996, memo the diagnosis was airway disease. The consultant further indicated, “If a person has chronic obstructive lung disease related to smoking, then any dusty condition or infection or environmental condition could aggravate the situation.”

On May 14, 1997, the WCB’s internal medicine consultant reviewed pulmonary function tests that were conducted in October 1996. Based on his evaluation of the test results, he stated the study was consistent with a diagnosis of reversible airway disease, meaning bronchial asthma. He further noted that the claimant’s reaction to grain dust was very minimal, but moderately strong to mold spores. It was therefore possible that the claimant might have been reacting to some mold present in the grain dust, however, the claimant retired in 1991 and has not been exposed to grain dust since. The study done in 1996 demonstrated only mild airway disease. The explanation for this may be that since the claimant was no longer being exposed to grain dust his disease had improved or he may be allergic to molds still present in the environment.

In a decision letter to the claimant, dated May 28, 1997, Claims Services determined that the claim was not acceptable based on Section 4(1), 1(1) and 4(4) of the Workers Compensation Act (the Act). In the opinion of Claims Services, on a balance of probabilities, the dominant cause of the claimant’s disease/condition could not be attributed to the worker’s employment.

On December 8, 1997, the claimant wrote to the WCB indicating that when he worked as a forklift operator he was exposed to gasoline fumes from 1960 to 1981 and that he was exposed to propane fumes from 1981 until his retirement. The claimant felt these factors had contributed to his condition.

Subsequently, the WCB’s internal medicine consultant arranged for the claimant to undergo pulmonary function studies, lab tests, chest x-rays and an examination on April 3, 1998. Following the examination and after review of all the above test results, the consultant prepared an “Addendum to Examination Notes Dated April 3, 1998” and concluded that the claimant was entitled to an impairment rating of 18.8% .

On June 8, 1998, Claims Services informed the claimant that its earlier decision to deny the claim was being rescinded and that his claim was now considered acceptable by the WCB. The claimant was advised that in the opinion of the WCB internal medicine consultant the correct diagnosis was severe bronchial hyper-reactivity related to his past exposure to dusts and fumes within the workplace. On July 28, 1998, the employer appealed this decision to the Review Office.

The Review Office determined on September 4, 1998, that the claimant was not entitled to benefits under the Act for the effects of his respiratory problems and/or bronchial asthma. In the opinion of Review Office, the claimant’s respiratory problem was confirmed as bronchial asthma, but there was no probable causal connection between the asthma condition and any hazards of his employment. The Review Office further noted:

· that the claimant’s predominant employment as a warehouse worker was unlikely to involve exposure to grain dust at or near the same level as persons who actually processed grain or grain products;

· the disease of asthma was not shown to be, on a balance of probability, peculiar to or characteristic of the claimant’s trade or occupation;

· the medical evidence did not generally establish a causal link between the claimant’s employment and his asthmatic condition especially noting that the claimant’s sensitivity to grain dust was described as very minimal and that medical literature had not established a causal connection between asthma and exhaust fumes.

On September 24, 1998, the claimant’s treating respiratory specialist requested the Review Office to reconsider its earlier decision and remarked in part, “As to whether or not his work caused his asthma I think that it was a pre-existing condition. As to whether or not his work caused any worsening of his condition, I think we have to come to the conclusion that that was the case.”

In a letter, dated October 19, 1998, the Review Office confirmed that the claimant did not qualify for benefits under the Act for the effects of his bronchial asthma. The Review Office did not believe there was evidence to show that the claimant suffered a work-related injury which combined with his pre-existing or underlying asthma condition to cause a disablement. The Review Office acknowledged that dust in the work environment may have, from time to time, resulted in the asthma condition becoming symptomatic, but did not consider there was evidence to show that the pre-existing asthma condition had been made significantly worse by reason of these episodes.

On October 15, 1998, the claimant appealed the Review Office’s decision and an oral hearing was held on December 8, 1998.

Reasons

Chairperson MacNeil and Commissioner Finkel

The worker appeals the decision of the Review Office wherein his claim for benefits for the effects of his respiratory problems and/or bronchial asthma, which he attributed to his employment, was denied. Specifically, the claimant is seeking a permanent partial impairment award and the cost of medications.

The claimant first began working for the employer in 1953. For the first seven years, the claimant testified that he was mostly involved with the grinding of grains, primarily alfalfa. He next transferred to the warehouse as a shipper/receiver and worked there until his retirement in 1991. The foremost duties of a shipper/receiver consisted of the storing and removal of product in the warehouse through the use and operation of a gasoline and/or propane powered forklift. According to the evidence, the forklift operator would enter the opened door warehouse, pick up a pallet of product, come back outside onto the loading docks and place the product in a transport vehicle. There is no conclusive evidence to suggest that the shipper/receiver was exposed to excessive levels of grain dust and forklift fumes during the course of performing these duties.

In 1976, the claimant was diagnosed with asthma and has been receiving ongoing care ever since. He related this condition to his exposure to the dust at work. The claimant testified that during the work day he would have to use his inhaler. “And the inhaler last me sometimes for hours, sometimes less, depends what I did. And sometimes happens so badly, so I have to use it again the inhaler.” He said that his co-workers were aware of his asthmatic condition but, he never informed his employer because he was afraid of losing his job.

The claimant filed a worker’s report of injury or occupational disease with the WCB on August 23rd, 1996. In response to a WCB questionnaire, asking, “What irritants were you exposed to?”, the claimant responded by stating: “Their (sic) was dust all over in the mill from grinding. Also driving forklift that operated (sic) by gasoline, and breathed those fume (sic). The dust was in the air all day long. In 1981, or thereabouts, the forklift was changed to propane, but the breathing was still a problem.”

The treating respirologist provided a medical history of the claimant’s condition to the WCB in a letter, dated September 19th, 1996. According to this physician, since being diagnosed with asthma in 1976, there had been little if any deterioration over the years. “I would say that there is not much evidence that since his retirement his asthma is under any better control than it was during his work. To help assess whether or not he might have some allergy to grain dusts or other feed grains an appointment has been made with Dr.[name]...for allergy skin testing. I feel that his work conditions have exacerbated his symptoms of asthma. I am not sure that there is any evidence as yet that it has caused the asthma.” (emphasis ours)

On November 4th, 1996, the physician who conducted the allergy testing provided the WCB with the following report:

"Testing to aerollergens elicited moderately strong reactions to mold spores, very minimal to grain dust but none of significance to mites, pollens of tress, grasses, weeds or animal danders. The allergy to mold spores is very common. Whether the sensitivity to molds was the trigger for his initial breathing problems is not known. His reaction to grain dust is not outstanding. A chest x-ray taken in October of 1996 was normal. My impression is that he has asthma currently under control on Pulmicort and Ventolin as needed. I cannot say how he was or what he was allergic to 20 years ago and there is not way of proving whether his breathing problems are in any way related to his having worked at [name of employer] for 30+ odd years." (emphasis ours)

After the claimant had undergone the allergy skin testing, the treating respirologist sent a follow-up letter on March 3rd, 1997, to the WCB adjudicator. The physician stated in part: “He has weak reactions to grain dust which suggests that the grain dust played a role in exacerbating already present asthma but only to the extent that it was a nonspecific irritant. Given his present level of asthma with mild airway obstruction reversible to normal, I would not think that we can implicate the grain dust in his present level of symptoms.”

A WCB medical advisor reviewed pulmonary function test results together with other materials received from the treating respirologist on May 14th, 1997. The medical advisor arrived at certain conclusions which he reported to the adjudicator in charge of the file.

"The above study would be consistent with a diagnosis of reversible airway disease, meaning bronchial asthma. However, according to Dr. [the allergist], the reaction to grain dust was very minimal but moderately strong to mold spores. It is therefore possible that the claimant might have been reacting to some mold present in the grain dust. However, it should be pointed out that he retired in 1991 and has not been exposed to the grain dust since. The study done by Dr. [the respirologist] was undertaken in 1996 and it showed only mild airway disease. The explanation may be that since he is not being exposed to grain dust his disease has improved or he may be allergic to molds still present in the environment."

The adjudicator subsequently rejected the worker’s claim. However, the claimant then came forward with additional information that he wanted the WCB to consider. He highlighted certain facts which he had previously omitted: “1. From approximately 1960-1981 I was exposed to gasoline fumes while driving a fork-lift. From approximately 1981 to retirement I was exposed to propane fumes while driving a fork-lift. 2. While loading or receiving goods, trucks and semi-trailers kept their engines running, approximately 30 years exposure to fumes. 3. Stocking of feed etc. / organization of warehouse (done on a continuous basis after manufacturing) was done with a fork-lift.”

The medical advisor, at the request of the adjudicator, again reviewed the file in light of this new information. He provided a reply in a memo prepared on January 7th, 1998. Certain portions of this memo, we consider to be of significance.

"Bronchial asthma could be atopic, meaning related to IGE antibodies. This would have a positive family history and symptoms starting in early life, even in childhood. The non-atopic variety includes the occupations asthma, which is seen when a person is exposed to various allergens and irritants in the work environment. This would include grain dust, insects, proteins, isocynates, etc. The non-atopic occupationally induced asthma also show positive methacholine test. The exhaust fumes from the diesel forklift would aggravate a pre-existing asthma conditions. Diesel fumes are of complex chemical compositions but mostly contains oxides of nitrogen, sulphur and carbon. These are not mentioned as a cause of non-atopic bronchial asthma. They certainly can aggravate a pre-existing asthma, atopic or non-atopic." (emphasis ours)

The worker’s claim was eventually accepted by primary adjudication on the basis that the WCB medical advisor, who had reviewed the file, was now of the opinion that the correct diagnosis of the claimant’s condition was severe bronchial hyper-reactivity related to his past exposure to dusts and fumes within the workplace. The employer appealed this decision to the Review Office. The Review Office accepted the appeal and found that the medical evidence did not establish “a causal link between the claimant’s employment and his asthma condition.”

The claimant’s respirologist wrote a letter to the Review Office, dated September 24th, 1998, requesting reconsideration of its decision. Although the Review Office

ultimately dismissed the request, the physician made several noteworthy comments that bear repeating.

“...it is clear that he has bronchial asthma with bronchial hyper-activity and evidence of skin test hypersensitivity.  As to whether or not his work caused his asthma I think that it was a pre- existing condition.  As to whether or not his work caused any worsening of his condition, I think we have to come to the conclusion that that was the case.

The pulmonary function studies performed at the Health Sciences Centre do demonstrate a positive methacholine challenge test and the pulmonary function data shows an increase in total lung capacity and residual volume indicating hyperinflation and gas trapping.  His flow rates are reduced and do improve to within the normal range after bronchodilator therapy.

Although there appears to be little in the way of permanent disability apart from the gas trapping and hyperinflation I think one would have to conclude from his dust exposure that there was some worsening of his condition symptomatically due to the dust exposure.” (emphasis ours)

Following a 23 year period of allegedly being exposed to excessive amounts of grain dust and combustible fuel fumes, the claimant was only first diagnosed with bronchial asthma in 1976. Since retiring in 1991, the claimant’s asthmatic condition has basically remained unchanged. The fact there has been no improvement indicates to us that the etiology of the claimant’s condition is likely not work related.

The preponderance of evidence clearly confirms that the claimant’s asthmatic condition did not occur as a result of his potential exposure to grain dust and/or fumes while performing his work duties for the employer. We find that the claimant’s asthmatic condition was, on a balance of probabilities, a pre-existing condition and therefore not an accident as defined by the Workers Compensation Act. Accordingly, the claim is not acceptable and the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 26th day of January, 1999

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