Decision #30/10 - Type: Workers Compensation
Preamble
This appeal deals with a decision made by Review Office of the Workers Compensation Board (“WCB”) wherein it determined that the cause of the worker’s death was related to a non-compensable condition, rather than to his 1982 claim for occupational asthma and accordingly spousal benefits were not payable. The worker’s widow disagreed and an appeal was filed with the Appeal Commission. A file review was held on February 11, 2010 to consider the matter.Issue
Whether or not spousal benefits are payable.Decision
That spousal benefits are not payable.Decision: Unanimous
Background
The worker had an accepted claim with the WCB for occupational asthma that was determined to have been caused by his exposure to isocyanates found in autobody paint used at his workplace.
On May 29, 2006, the worker’s wife called to advise that her husband passed away on May 26, 2006.
A letter received from the family physician dated June 9, 2006 reported that the worker developed cholangiocarcinoma during the past year. “The question we are now asking is whether this was brought on or induced by the chemicals he was exposed to during the 25 years in the body shop industry….[the worker] died on May 25, 2006 from cancer of the bile ducts. It is reported in some literature that some toxic chemicals can be associated with the induction of these kinds of cancers. Therefore, I would ask that [the worker’s] file be re-opened and examined in regards to chemicals he was exposed to and whether this may be a direct cause of his death.”
On June 19, 2006, primary adjudication asked a WCB internal medicine consultant to provide an opinion as to whether the medications used by the worker to control his compensable asthmatic condition contributed to the development of cancer. In a response dated July 5, 2006, the consultant indicated that he reviewed the adverse reactions to the drugs used by the worker to control his asthma, i.e. inhaled steroids, Ventolin and oral Prednisone, and there was no relationship between the drugs and the cancer. The consultant further stated, “…I suspect the development of cholangiocarcinoma is related to the previous ulcerative colitis with complicating carcinoma of the colon…”.
A further letter was received from the family physician dated October 28, 2006. He noted that the worker worked in the body shop paint area for 25 years and was exposed to polyvinyl chloride and the isocyanates without safety equipment. He stated it was the widow’s position that the chemicals her husband was exposed to in the plant were the stimulus and played a part in the development of his cholangiocarcinoma.
On October 9, 2007, a WCB adjudicator noted in a memorandum that the widow called to find out whether she was entitled to any benefits based on the information provided by the family physician on October 28, 2006. The worker’s widow was later advised by the adjudicator that the medical report of October 28 was reviewed by a WCB medical advisor and it was determined that there was no causal relationship between the compensable injury and the worker’s cause of death. On June 11, 2009, the widow appealed the decision to Review Office.
On June 23, 2009, Review Office found that the medical evidence did not establish that the claim played a role in the worker’s death and that the widow was not eligible for any further benefits. Review Office indicated that the development of the cholangiocarcinoma would be related to the previous ulcerative colitis, with complicating carcinoma of the colon. It did not feel that the asthma brought on through exposure to isocyanates played a role in the worker’s cancer that led to his death. On July 15, 2009, the widow appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. As the deceased worker’s claim was established for occupational exposure dating back to 1982, any entitlement to benefits under this claim is assessed under the Act as it existed at that time (the “1982 Act”).
Under subsection 25.1(1) of the 1982 Act, where a deceased worker is survived by a spouse, benefits may be payable if the worker died “as a result of an accident”.
The question for the panel is whether the worker’s death on May 25, 2006 was “as a result of an accident.”
The applicant’s position:
The applicant is the surviving spouse of the worker. She notes that the WCB denied benefits based only on the opinion of the WCB internal medicine consultant and requests that further consideration be given to her claim for spousal benefits. She submitted that although her spouse’s 1982 claim was for asthma due to inhalation of isocyanates, he was also exposed to other solvent fumes and vapours, as well as lead in paints, and these exposures played a role in deteriorating his body. The negative effects from these exposures took years to develop, but ultimately did lead to the cancer which caused his death.
Analysis:
The issue before the panel is whether or not spousal benefits are payable. In order for the appeal to be successful, the panel must find that the worker’s death from cholangiocarcinoma on May 25, 2006 was a result of occupational exposure to paint vapours, for which the WCB approved a claim in November 1994. On a balance of probabilities, we are not able to make that finding.
The only medical opinion regarding the etiology of the form of cancer suffered by the worker was the July 5, 2006 memo by the internal medicine consultant to the WCB. The medical opinion addressed not only the relationship between the medications the worker was taking for occupational asthma and cancer, but also the risk factors for cholangiocarcinoma. The internal medicine consultant considered whether there was any epidemiological studies or research demonstrating an increased incidence of cholangiocarcinoma in auto workers, but was unable to find any reference or case report. He concluded that in the case of the worker, the development of cholangiocarcinoma was likely related to the previous ulcerative colitis with complicating carcinoma of the colon.
Although the applicant asserts that the worker’s 25 year history of occupational exposure to paint vapours damaged not only his lungs but also his liver, there is insufficient evidence to support this position. The panel notes that there is no specific exposure data which would warrant further investigation into possible linkages between exposure to paint vapours and cholangiocarcinoma. We also note that the medical information regarding the worker’s diagnosis of cholangiocarcinoma identified metastasization of the cancer from the bile duct to the liver. In the panel’s view, the fact that the primary site of the cancer was the bile duct, as opposed to an area of the body which would have had more direct exposure or contact with the paint vapours, makes it less probable that the workplace exposure contributed to the worker’s death.
Overall, the panel is of the opinion that the internal medicine consultant performed a thorough review of the literature regarding the risk factors for cholangiocarcinoma and we accept and adopt his assessment. The panel therefore finds that the worker’s death was not the result of an accident and spousal benefits are not payable to the applicant. The appeal is denied.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 9th day of April, 2010