Decision #27/07 - Type: Workers Compensation
Preamble
A hearing was held on October 4, 2006 at the worker’s request. The appeal panel discussed the case on October 4, 2006 and January 11, 2007.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is acceptable.
Decision: Unanimous
Background
On April 25, 2005, the worker filed a claim with the Workers Compensation Board (WCB) for breathing problems related to exposure to fumes in the workplace. The worker was employed as a truck driver and he described the accident as “inhalation due to hauling whey to pig barns from a cheese factory.” The date of accident was recorded as March 15, 2005. The worker indicated that he reported the injury to his employer on the same day and sought treatment from a doctor on March 16, 2005.
The Employer’s Report of Injury dated May 4, 2005 indicated that it had not received a report from the worker of an accident or any work related problem on March 15, 2005. The employer indicated that a co-worker informed them that the worker was sick and thought it may be due to a bad cold or pneumonia. The worker was given some time off and continued working until April 1, 2005, when he stopped working claiming breathing problems and lack of energy. The employer stated its concerns regarding the worker’s claim that his exposure to whey was the cause of his respiratory condition, noting that whey was a byproduct of making cheese and that it was edible and contained no toxic substance. The employer advised that they had many people doing the same job since 1994 and no one had claimed that exposure to whey made them sick.
The worker was referred to a physician at an occupational health centre for assessment. The worker was assessed on April 22, 2005. According to the physician’s report dated May 6, 2005, the worker reported developing respiratory problems in mid March, most noticeably when visiting one particular barn. The worker reported developing shortness of breath when in the whey facility. Over the next couple of days the worker reported wheezing and coughing. He went to the emergency room on a number of occasions and he was treated with bronchodilators, which were not effective. The worker reported persistent symptoms until one week ago when he started to feel better. At the time of assessment the worker reported shortness of breath on walking up stairs, but that his condition has continued to improve. The worker denied coughing or wheezing at the time of assessment. He reported that he was smoking a pack of cigarettes per day. The worker had no history of asthma or bronchitis and no allergies. The physician reviewed the lung function tests performed by the hospital on April 4, 2005 showing FEV at 70% of predicted value and FVC at 60% of predicted value. The physician repeated the lung function tests on April 22, 2005 and noted that the worker’s lung function had improved and the test results were normal. The physician suggested that the worker may have developed bronchitis related to his exposures at work and suggested that working in the barns using respiratory protection may be appropriate.
A Doctor’s First Report following an examination of the worker on May 10, 2005 diagnosed the worker’s condition as “bronchitis – chemical” noting the worker’s complaints of shortness of breath and the worker’s description of the accident as “fume exposure”.
On June 29, 2005, the worker was contacted by the WCB adjudicator to discuss the claim. The worker advised that his breathing problems started approximately 6 to 8 months ago when he noticed shortness of breath following exposure to the fumes from the whey tanks. The worker indicated that he had not had any previous breathing problems. His symptoms gradually increased to the point that he felt burning in his nose and lungs and could not breathe. The worker noted that even though he had been off work, he still experienced difficulties. He said at first it was only the fumes from the tanks but now any strong smells such as perfume or gas fumes cause him difficulties. The worker indicated that he had been doing this job for a couple of years. He explained that the whey tanks were not sealed and they produced a strong smell. The tanks were located inside barns and were not in the open. He said the employer and his co-driver were aware of his difficulties. The worker advised that he had smoked a half pack of cigarettes per day since he was 14 or 15 years old and that he quit smoking in March 2005.
On August 18, 2005 the WCB adjudicator contacted the employer to obtain additional information. The employer outlined the activities involved with hauling whey. It was explained that the worker was required to enter the barn and hook up a hose from the tanker to the tank in the barn and turn the pump on. According to the employer, the worker would be in the building for a short period of time to hook up the hose and could wait outside while the whey was pumped out of the tanker, which generally takes about 20 minutes to empty. The employer advised that whey will ferment if it is old, however, the holes in the tank are up near a catwalk in the barns and there would be no reason for the worker to be up there. The employer reiterated that the worker never made any complaints.
The employer also advised that Workplace, Safety and Health had performed air quality studies on two occasions and results were within normal limits.
The WCB adjudicator spoke with the worker’s co-worker. The co-worker confirmed that the worker mentioned his breathing difficulties on more than one occasion. He said the worker was not sure what caused his breathing difficulties but later related it to the whey. The co-worker advised that the barns have very strong smells that would take your breath away. The co-worker also explained that they would wait inside the barn while the whey was being pumped out to ensure the tanks would not overflow.
The worker was assessed by a respiratory specialist on July 12, 2005. In a medical report dated August 5, 2005, the respirologist noted that the worker has occasional symptoms of shortness of breath and gasping sensation. The specialist noted that the worker was exposed to whey at work that bothered him and caused him to quit work. He also stated that the “exposure to truck fumes from pick-up trucks or ammonia bother him a fair bit”. The specialist concluded:
“[The worker] was exposed to ammonia at work. Acute exposure to a strong irritant like this can lead to reactive airways dysfunction. However, his symptoms have been gradually improving and his pulmonary function test is normal. It is possible that he has asthma, therefore, a methacholine challenge test has been arranged. Smoking cessation was also strongly encouraged.”
The respiratory specialist assessed the worker again on August 31, 2005. In a follow up report dated September 7, 2005, the respiratory specialist reported that the methacholine challenge test showed mild bronchial hyperreactivity. In referring to the worker’s condition, the specialist stated as follows:
“He underwent a methacholine challenge test which shows mild bronchial hyperreactivity… As you will recall, he developed respiratory symptoms following significant exposure to ammonia. Therefore, he likely suffered from reactive airways dysfunction syndrome or as it is commonly called RADS”
The specialist advised that the worker should not return to work in his previous environment and any exposure to ammonia or any such irritants would lead to an exacerbation of his symptoms.
The WCB’s internal medicine consultant reviewed the file and in a memorandum dated September 30, 2005 advised that certain moulds used in the manufacture of cheese are known to produce respiratory symptoms such as coughing and wheezing as well as nasal symptoms. He recommended that the WCB obtain copies of the methacholine challenge and pulmonary function tests and refer the worker for antibody testing.
The WCB’s internal medicine consultant reviewed the file again after receiving copies of the methacholine challenge and pulmonary function tests. In a memorandum dated December 5, 2005, the WCB consultant was of the opinion that the methacholine challenge test results were borderline and not diagnostic of broncho hyperresponsiveness and the response seen may be due to cigarette smoking or rhinitis. He also noted that the respiratory specialist had stated that the worker had significant exposure to ammonia. The consultant pointed out that there was no evidence of exposure to ammonia in the workplace. He concludes that a case for occupational related asthma or reactive airway dysfunction syndrome has not been made.
The adjudicator spoke with the worker on December 13, 2005. The worker advised that he was not sure whether he was exposed to ammonia at work.
On December 20, 2005, the claim for compensation was denied by the WCB adjudicator on the basis that the worker was unable to establish that his respiratory condition was work related.
The respiratory specialist sent a report to the WCB adjudicator dated December 23, 2005 in which he stated:
“[The worker] most likely suffered from reactive airways dysfunction. This is a condition where people develop new onset of bronchial hyperreactivity or asthma like symptoms following exposure to irritants at work. Furthermore, the possibility also remains that ongoing exposure to hay may have sensitized him and actually lead to the development of asthma. His symptoms have been rather minimal because he was away from work. However, he was advised to stop further exposure to hay as well as ammonia. Because in either case, whether he has asthma or reactive airways dysfunction, ongoing exposure to the offending substance would lead to worsening of respiratory symptoms. Smoking cessation was also recommended. He is not currently on any treatment because his symptoms have been rather stable away from work.”
In a further medical report from the respiratory specialist dated February 28, 2006, the specialist states:
“[The worker] likely suffered from reactive airways dysfunction from exposure to ammonia at work. His methacholine challenge test show mild bronchial hyperreactivity. His symptoms began when he was hauling whey at the cheese factory. Subsequently, whenever he comes in contact with whey his symptoms get worse again. Otherwise, he has been relatively stable.”
On April 4, 2006, a worker advisor appealed the adjudicator’s decision to deny the claim. The worker advisor submitted that the worker suffered from reactive airways dysfunction caused by exposure to fumes from the fermenting process, which prevented him from returning to work.
In a decision dated April 18, 2006, the Review Office upheld the decision that the claim for compensation was not acceptable. The Review Office noted that the Workplace Safety and Health report indicated that carbon dioxide and oxygen levels in the whey barns were within acceptable limits. It also noted that the respiratory specialist had concluded that the worker’s respiratory difficulties were related to exposure to ammonia, but there was no evidence that indicated the worker was exposed to ammonia at work. There was also no evidence showing that whey was considered an irritant that would cause respiratory difficulties. The Review Office concluded that the medical evidence did not support a causal relationship between the worker’s respiratory difficulties and an irritant that the worker may have been exposed to at work.
The Review Office’s decision was appealed by the worker and on October 4, 2006, a hearing was held at the Appeal Commission. The employer did not attend the hearing. Following the hearing, the appeal panel requested copies of hospital emergency reports and a further medical report from the respiratory specialist. This information was provided to the panel and the worker. On January 11, 2007, the panel met to render its final decision.Reasons
The issue before the panel was whether the worker’s claim is acceptable. For the appeal to be successful, the panel must find that the worker’s injury, namely his respiratory difficulties, was caused by an accident that arose out of and in the course of his employment. The panel finds that the worker’s injury arose out of and in the course of his employment and that the claim is acceptable.
Analysis:
At the hearing the worker provided a detailed explanation of his duties and the breathing difficulties he experienced. He explained that when he first started hauling whey, the smells were not as bad as they later became. He explained that the amount of whey that was hauled increased, additional barns were added to the delivery route and the smells at some of these barns were extremely noxious. He testified that he was required to spend most of the time in the barns while the tanks were being filled to ensure that the tanks did not overflow and he was often required to climb the catwalk close to the holes in the tank to ensure that the tanks were not overflowing.
The worker explained that approximately three to four months prior to mid March 2005, his condition became progressively worse. He explained that during the winter months the smells were intensified as the barns were kept closed and there was less air circulation. He described the tanks at some of the barns as being extremely dirty and covered with black mould-like substances. He described the severe reaction that he had on March 15, 2005 while delivering whey to one particular barn where the fumes were the most intense. He ran out of the barn gasping, fell to the ground and almost passed out. He had a bad headache, his lungs were burning, his throat was sore, and he had difficulty breathing. He called his co-worker to assist him with the other deliveries. He continued to have difficulty breathing and attended at the hospital emergency department later that evening.
The worker was questioned by the panel regarding exposure to “ammonia” at work. The worker explained that when he spoke to his doctors he described the smell and his reaction to it as “ammonia like” in the sense that the fumes were so strong they took his breath away. He did not know what substance was in the air that was causing his severe reaction.
The worker testified that it took approximately 8 months from the time he stopped working until his condition significantly improved and he continues to have sensitivity to perfumes, deodorants and diesel fumes. The worker testified that he has not returned to his pre-accident employment since April 1, 2005. He also testified that he is not precluded from driving trucks generally and he would be able to return to driving trucks.
Following the hearing, the panel found that there was insufficient evidence to conclude that the worker had been exposed to hay or ammonia at work. The panel asked the respiratory specialist to clarify his opinion in light of this finding; and to comment on the WCB consultant’s interpretation of the methacholine challenge tests, and the impact of the worker’s history of smoking on his respiratory symptoms.
The respiratory specialist provided a report to the panel dated October 20, 2006 responding to the questions raised by the panel. In the report, the specialist advised:
- The reference to hay as the cause of the reaction was a typographical error. The specialist was of the opinion that the worker was exposed to whey, which is a milk protein and that exposure to huge quantities of whey and the associated fumes and particles generated in processing this product can cause sensitization of airways leading to reactive airway disorder or asthma. It is apparent from the specialist’s report that his opinion regarding the cause of the worker’s condition was not based on exposure to ammonia;
- It is not common to have a positive methacholine challenge test associated with reactive airways dysfunction syndrome (RADS). A borderline positive test may be seen in RADS. Therefore, the specialist was of the opinion that the worker does not have asthma, but rather, that he suffered from reactive airways dysfunction while working in the plant and getting exposed to large quantities of milk protein as well as other chemicals.
- Since the worker has stopped working at the plant, he significantly improved and his respiratory symptoms have resolved. He continues to smoke now and therefore, the specialist does not think that smoking was the cause of his respiratory difficulties or that his smoking history contributed to any of the difficulties that the worker developed while working in the plant.
The respiratory specialist concluded his report by stating:
“As previously indicated, I am very strongly of the opinion that [the worker] suffered from reactive airways dysfunction syndrome secondary to his work and exposure at the plant. The only way to document this definitely would be to have him go back to work and measure his symptoms as well as pulmonary function tests before and after having worked for a number of days. Obviously this is not possible to be done and it would also be unethical to re-expose him to an injurious substance from which he already developed symptoms. Whey contains casein protein which is known to cause sensitization.”
In light of the explanation provided by the respiralogist to the issues raised by the WCB consultant, the panel finds that many of the earlier contradictory issues as to workplace exposures have been clarified. The panel places significant weight on the opinion of the respiratory specialist in reaching its decision in this case. The panel notes that the worker’s evidence regarding his exposure to whey and his severe reaction and the specialist’s report that the worker’s condition significantly improved and his respiratory symptoms resolved after the worker stopped working in the whey barns supports a conclusion that, on the balance of probabilities, the worker suffered an acute reaction to whey and the associated fumes and particles generated in processing this product.
Panel Members
M. Thow, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
M. Thow - Presiding Officer
Signed at Winnipeg this 2nd day of March, 2007