The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker filed a claim with the Workers Compensation Board ("WCB") for a lung condition that he related to his employment activities as a machinist. The claim for compensation was denied by primary adjudication on April 23, 2009. On September 18, 2009, the decision to deny the claim was overturned by Review Office as it was felt that the worker's lung condition was due to his employment. The employer disagreed with the decision and an appeal was filed with the Appeal Commission. An appeal panel hearing was held on June 2, 2010 and November 8, 2010 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In September 2008, the worker filed a claim with the WCB for a condition in both lungs that he related to work activities that he performed during his career as a machinist:

“I was welding, cutting steel, heating steel, in confined spaces with no proper ventilation or proper breathing apparatus for 15 – 20 years…I have moderate emphysema, but it is getting worse. Have had breathing tests done at HSC. Taking 2 different puffers. . . . Am Non Smoker”.

The employer’s accident report dated September 24, 2008 indicated that the worker was diagnosed with black lung disease which he alleged was related to the welding jobs he performed at work. In a letter to the WCB dated October 1, 2008, a claims coordinator with the accident employer indicated that black lung disease was a “chronic occupational lung disease contracted by the prolonged breathing of coal mine dust”. The employer stated that the worker had neither worked with coal, nor been exposed to coal dust and suggested that the worker’s condition was not work related. The worker had sought medical attention over the previous 8 years for a personal respiratory condition.

Primary adjudication spoke with the worker on October 16, 2008 to gather additional information relating to his respiratory difficulties. The worker stated that he had suffered from a chronic cough and shortness of breath for about 8 to 10 years and that he had been diagnosed with moderate emphysema, “otherwise known as black lung”. The worker indicated that he was exposed to smoke while fixing diesels which resulted in a shortness of breath. His symptoms were alleviated by relocating to an area with clean air. He wore a cloth mask, but only when grinding. He had started smoking rolled cigarettes when he was 25 years old, and had smoked off and on, quitting on one occasion for 7 years before starting smoking again. He was never a heavy smoker and advised that he had stopped smoking 12 to 13 years ago.

On November 13, 2008, the adjudicator spoke with a co-worker identified by the worker as someone who was aware of his exposure to smoke and fumes in the workplace. He stated that the worker was the primary welder/burner and did the majority of the welding in enclosed confined areas. In the earlier years, the worker did not wear respiratory equipment and would have been exposed to all kinds of fumes, dust and smoke. When they were provided with respiratory equipment, it did not fit properly. It was only in the past 10 years that the welders received proper respiratory equipment. He recalled that the worker worked in the nose of an engine where there was no air intake, and that he worked with a face shield but no mask. He would have breathed in “all kinds of smoke fumes”. There was also exposure to dust from silica sand which was used in the shop. He referred to a negative pressure fan system that took the exhaust out of the building and which, when running, would take the worker’s breath away.

On February 13, 2009, the employer submitted Material Safety Data Sheets for the chemicals the worker had reported being exposed to. His supervisor commented on the worker’s level of exposure, noting that ether was “used on occasion, usually in winter”. Arc-air rods were used for cutting metal material “in the mid 1990’s for a few months”, and were removed on account of the excessive smoke caused when in use. They were recently reintroduced into the shop with a better smoke extractor, but the worker had not used the implement since that time. Electrical components were cleaned in the early 90’s with “Kert”, and the worker may have used it to clean his tools. Stainless steel welding rods were used to weld stainless steel, however the worker’s “exposure would be limited” as very little stainless steel welding was done, only once per month. Nirod cast iron rods were used to weld cast once per week.

Primary adjudication obtained medical information from the treating physicians concerning the worker’s past and present respiratory status. A respiratory disease specialist noted in a report dated February 24, 2009 that there was a discrepancy in the worker’s reported smoking history. Most recently he had reported a 15 pack year history, while a separate history recorded a 25 pack year history, with the patient having quit 7 years previously. He noted:

“ . . . he would appear to have fairly severe airflow obstruction. This is likely at least in part related to his smoking history. In addition however he does have a history of prolonged exposure to diesel fumes as well as welding fumes. The severity of his chronic obstructive lung disease does seem to be somewhat out of proportion to his smoking history although there is clearly a genetic variation among the population on how they respond to cigarette smoke. . . My own opinion is that the patient has chronic obstructive lung disease to a significant extent related to his smoking history, but there is a contribution from exposure to particulate matter and fumes through his occupation.”

The treating physicians’ reports were reviewed by the WCB’s internal medicine consultant in January and March 2009. The WCB consultant indicated on March 17, 2009 that the diagnosis was chronic obstructive pulmonary disease (“COPD”) and that there were three possible causes for the worker’s respiratory difficulties:

“In addition to smoking, exposure to welding fumes contributed to his problem. The welding electrodes has chromium, nickel and aluminum which can cause asthma like symptoms. The spirometry shows partially reversible air flow limitation suggesting contribution of asthma. Thus the air way disease is due to smoking and exposure to the metals. There is production of noxious gas such as oxides of nitrogen which could cause air way disease. Lastly there is possibility of exposure to silica resulting in silicosis. Products for cleaning contain respiratory irritants resulting in cough or temporary aggravation of symptoms. In summary exposure at the work place has contributed to his respiratory problems.”

In a report dated April 3, 2009 an occupational environmental specialist reported a smoking history of one half pack per day between the ages of 18 to 24 and again from 36 to 50. He made the following assessment:

“[The worker] has severe airways obstruction and symptoms consistent with chronic bronchitis. As you know, the major cause of this condition is cigarette smoking, but [the worker’s] smoking history is relatively mild. He also has extensive occupational exposure to dust, fumes and smoke. Occupational exposures have been associated with an increased likelihood of developing a COPD. In fact, about 15% of COPD cases are thought to be work related. Workers who both smoke and are exposed to occupational vapors, dusts, fumes and gases have also been shown by Trupin et al to have over twice the likelihood of physician diagnosed chronic bronchitis and emphysema compared to people who smoked and did not have these exposures. [The worker’s] airways obstruction is due to a combination of his smoking habit and his occupational exposure. His occupational exposures have significantly worsened the extent of the disease that he has.”

On April 23, 2009, the worker was advised in writing that his claim for compensation was denied on the basis that his smoking history played a significant role in the development of his respiratory condition, and that the dominant cause of that condition arose from non-work related factors.

The worker subsequently provided the WCB with additional information from two specialists as well as a health and safety co-chairperson in his workplace. This included a report from the respiratory disease specialist dated June 23, 2009 in which he stated that:

“It is also my opinion that based on his smoking history, which by the patient’s own report is only approximately 11 pack years, the severity of his airflow obstruction is greater than one would expect. Based on this, it is my opinion that his work environment, where he was exposed to a number of known respiratory irritants that have been linked to obstructive lung disease, likely contributed to his chronic obstructive lung disease.”

On July 16, 2009, the worker was advised that the new information did not alter the WCB’s opinion that his respiratory difficulties were related to non-work related factors.

On July 22, 2009, the worker appealed the decision denying his claim to Review Office. The worker stated that his working conditions played a larger part in the development of his respiratory condition than did his smoking history.

In a submission to Review Office dated September 8, 2009, an advocate for the employer expressed support for the adjudicator’s decision. While acknowledging that the worker may have been exposed to welding fumes, the employer argued the exposure was not the dominant cause of the worker’s COPD.

On September 18, 2009, Review Office overturned primary adjudication’s decision and allowed the claim. Review Office found on a balance of probabilities, that the dominant cause of the worker’s COPD condition was due to his employment. In arriving at that conclusion Review Office relied upon the worker’s 23 year employment history and the opinion expressed by the WCB internal medicine consultant on September 17, 2009:

“(The worker’s) work history is documented by (occupational and environmental medicine specialist). In the course of his work he has been exposed to many materials with ingredients as listed in the MSDS. The hazardous material include corrosives such as sodium hydroxide; ingredients harmful to the respiratory system such as Resin, Silica, Iron, Chromium, Aluminum, Nickel, Oxide of Nitrogen Ozone and diesel fuel. The ingredients are present in abrasives, welding rods and wires and in the environment.

(The worker) has history of cigarette smoking listed as 25 pack year in reports from the Respiratory Laboratory starting in 2003 but (the respiratory specialist) estimated 11 pack years.

The file includes reports of pulmonary function tests going back to year 2003. The major abnormality is moderate to severe air way disease. The other significant features are reduction of gas transfer, expiratory reserve volume, total lung capacity and hypoxemia at rest. Another salient feature is the response of air-flow limitation to bronchodilator. Except on one occasion in 2008, the FEV1 did not increase significantly. The changes in the pulmonary function tests are indicative of both obstructive and restrictive type of pulmonary disease.

Non responsive air-way disease points to smoking as the cause but reduced total lung capacity and gas transfer is not consistent with this inference. Therefore one has to consider role of exposure to noxious gases, Chromium Aluminum, Nickel etc. Restrictive type of change in the pulmonary function test may be due to body weight as suggested by low expiratory reserve volume or exposure to various fumes and gases and particulate matter causing some degree of fibrosis.

A CT and X-ray of the chest done in the year 2009 show scars in middle lobe and lingular lobe of the lungs.

In summary I agree with the opinion expressed by Drs. (respiratory specialist and occupational and environmental medicine specialist) that cigarette smoking alone does not explain (the worker’s) respiratory problem. The restrictive pattern, in my opinion can only be explained by etiology other than smoking. Weight loss of 13 kg between 2003 and 2008 improved the expiratory reserve volume but did not change the airway obstruction indicating factors other than weight causing the restrictive pattern. The other factor causing the restrictive pattern, in my opinion is exposure at work.

However the individual contribution of smoking and work exposure cannot be determined by any certainty. Thus I can not determine which one of the factors is more dominant.”

On October 22, 2009, the employer’s advocate appealed Review Office’s decision to the Appeal Commission and an oral hearing was held on June 2, 2010. At the outset of the June 2, 2010 hearing the worker and his advocate sought to introduce a report dated February 1, 2010 commissioned by the employer. It specifically addressed the issue of the ventilation systems in a portion of the diesel shop and contained recommendations for proposed upgrading. Notwithstanding the report was not submitted within 5 days as required by the rules, the panel admitted the report. The parties were advised that the employer would be provided with the opportunity to respond to the report and submit further evidence on the issue of air quality should it wish to do so. The hearing proceeded on June 2, 2010 and was adjourned to November 8, 2010 to hear submissions on the issue of air quality as well as final arguments.

Prior to the November 8, 2010 reconvened hearing, the appeal panel asked the employer to provide them with specific information. The information requested by the panel on June 22, 2010 was received from the employer and was considered by the panel.

The parties appeared on November 8, 2010 and addressed the issue of air quality. Evidence was presented at that time from the employer’s production manager.

On November 9, 2010, the appeal panel requested further information from the employer in the form of a job description pertaining to the position of a "machinist". This information was later received and forwarded to the interested parties for comment. On January 12, 2011 the panel met to render its final decision on the issue under appeal.

Reasons

Chairperson Dangerfield and Commissioner Devlin:

The issue before the panel is whether the worker’s claim is acceptable. For the appeal to succeed the panel must find that the worker was not injured by a workplace accident. We were able to reach that conclusion.

Legislation and Policy

Subsection 4(1) of The Workers Compensation Act (“the Act”) provides that compensation is payable where “personal injury by accident arising out of and in the course of employment is caused to a worker”. For the claim to be acceptable as an accident, it must satisfy the requirements of subsection 1(1) which defines accident as follows:

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured;

The occupational disease referred to in subsection 1(1) of the Act is itself defined as:

“occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions

a) peculiar to or characteristic of a particular trade or occupation; or

b) peculiar to the particular employment;

but does not include

c) an ordinary disease of life; and

d) stress, other than an acute reaction to a traumatic event.

Subsection 4(4) of the Act deals with the issue of causation of an occupational disease and provides:

Cause of occupational disease

4(4) Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease. (emphasis added)

Board Policy 44.20 addresses the adjudication of claims involving occupational disease. Under the Policy, a disease will be described as “characteristic of a particular trade, work process, or occupation” if there is a preponderance of scientific evidence to support the conclusion that the nature of the work processes have significantly increased the likelihood of causing a particular disease in the workers who work in that trade or occupation. A disease will be described as being “peculiar to the particular employment” if:

1. there are factors identifiable in that workplace that are known to cause the disease, or

2. there is scientific evidence acceptable to the WCB that the particular workplace is the cause of a significantly increased risk of the disease even though the cause has not been identified; or

3. a factor can be identified at the workplace as being the proximate cause of the disease.

The Policy provides further that if the combined effect of the employment causes exceed the combined effect of non-employment causes, then the work will be deemed to be the dominant cause of the disease.

The Evidence

Job Duties

The worker was employed as a machinist, working as a diesel mechanic for the employer since 1986. His primary responsibility as outlined in his job description was to perform mechanical repairs on locomotives. This required that in addition to his other duties that he “perform(s) non-structural welding, (i.e. Tacking)”. The employer submitted evidence prior to the hearing on June 2, 2010 that most of the welding in the workplace was done by a railcar mechanic.

The worker had taken a welding course in June 1990 and he advised the panel that he did both stick and semi automatic welding. In his evidence the worker said that when boiler makers were laid off in 1989 or 1990 his job duties consisted of “mainly welding and a little bit of mechanical”, and he estimated a 50/50 split in his duties. He viewed himself as being the primary welder on the afternoon shift. Upon further questioning he indicated that after 4 or 5 years of that, his welding duties were reduced to 25 to 30 per cent of his day.

The employer’s production manager testified when the hearing resumed on November 8, 2010. He was a frontline manager from 1985 until approximately 1997, and had the responsibility of assigning work to employees. He would have supervised the worker between 1986 and 1991 and thereafter whenever he worked afternoon shifts. He testified that the workplace was a repair shop rather than a fabrication shop, and that most of the welding performed by mechanics was minor, non-structural welding. He used the worker for tack welding and for regular mechanical work. When he supervised him he was probably only welding 15 percent of the time. He estimated that even a person who was a full time welder would actually “weld” for less than two hours per shift. Someone such as the worker would spend less than an hour per day actually welding. This evidence was consistent with the employer’s written submission on September 2, 2010 that the worker did only “short bursts of welding” from time to time.

The worker said that sometimes he would be required to spend several hours inside the body of a locomotive, or in a nose compartment repairing, for example, electric flush toilets. The employer’s production manager testified that the only confined area in which the worker would be required to weld would be in the nose compartment of a locomotive, which was approximately 6 by 9 feet. He would be required to weld in such circumstances once or twice a week for 10 to 15 minutes at most. The workplace health and safety representative confirmed that “on a regular basis, probably not a lot” of work was done in cramped spaces.

Air Quality

The worker worked in the repair area of the diesel shop on the north side of the employer’s workplace. On occasion he also worked in the “old” diesel shop performing undercarriage repairs. Locomotives were not permitted to run in either of those areas, although on the south side of the workplace two tracks were used to run locomotives.

The worker said that he was exposed to asbestos on the older units and on the walls, to silica sand, cleaning solvents and to diesel smoke “every day” as diesels were “always running”. The worker had reported to the adjudicator on December 17, 2008 that when the wind blew from the south it would blow diesel fuel smoke into the building, resulting in heavy exhaust that he found difficult to breathe. The Co-Chair of the Safety & Health Committee confirmed in his evidence that on occasion, for example when there was a south wind, or a cold engine was started, diesel smoke would shoot to the other end of the building. In that event it would be necessary to evacuate the premises.

We heard evidence about the availability of protective equipment for workers generally, and for welders in particular. According to the Co-Chair of the Safety & Health Committee there were “smoke hogs” which were approximately the size of a vacuum cleaner, but did not extract welding fumes. There were full and half masks with canisters for extracting vapours and particulates. There were also large smoke extractors on wheels which did not fit in confined spaces, however, for example in the nose compartment or in the car body.

While protective equipment was available, historically its use was not enforced by the employer. According to the worker, in approximately 1992 some employees were fitted for the respirators, although the worker was not one of those individuals. Light cotton masks were available, however he chose not to wear them as they fogged up his helmet.

The employer’s production manager testified that locomotives are pushed or pulled into the repair shop area by a diesel or with a reacher, and are not allowed to run. There are smoke extractors, smoke eaters and a Nova vent system for ventilation in the lower areas of the building. There are large 48 inch portable fans available and approximately 40 ceiling fans in place. While initially the use of respirators was encouraged, ten years ago it became policy to wear them, significantly reducing the exposure of workers to smoke and fumes.

We also heard evidence that the “running tracks” on the south side of the building are contained behind curtains. The production manager testified that there is an extensive permanent negative pressure exhaust system with overhead exhaust fans and air makeup systems to push air into the shop and direct it down to exhaust the fumes from the shop. Eight doors located in that area of the shop, each of which is 11 feet wide by 16 feet high, are left open to bring in fresh air, weather permitting. It is in that area only that locomotives are allowed to run.

Air Quality Testing

Prior to the June 2, 2010 hearing the employer submitted a report with respect to the air quality in the workplace. It demonstrated acceptable levels of carbon dioxide, nitrous oxide and carbon monoxide. Airborne particulates were also reported to be at an acceptable level. In response to further inquiries from the panel following the hearing, the employer confirmed that the testing referred to in the report was performed in all areas of the shop on three consecutive days in April 2006. Additional air quality testing was done by the employer in 1998 and 2000, again confirming that all contaminants were well within limits recognized by governing bodies. In February 1998 a study of diesel exhaust emissions showed that none of the concentrations of the hazards exceeded the acceptable levels. Samples were taken over an entire workshift and the areas sampled were reported to be “clean and well ventilated”. An occupational hygiene survey of indoor air quality in the workplace was conducted in November 1998 to “determine if contaminants were present in the indoor air concentrations to produce adverse health effects or discomfort to the occupants”. Carbon dioxide levels were found to be below the recommended guideline. Carbon monoxide was below detection levels except in one area in which the worker did not work, and the levels were still below the recommended guidelines. The study concluded “the ventilation system appeared to be working properly”. An industrial hygiene survey was conducted in March 2000 to determine the airborne levels of diesel exhaust in the shop and in the main diesel shop (in which the worker was employed). The study concluded that “for employees in the [diesel shop area], there is no likelihood of overexposure to diesel exhaust contaminants elemental carbon, oxides of nitrogen and carbon monoxide”.

At the hearing on June 2, 2010 the worker’s advocate submitted a report dated February 1, 2000 which was a ventilation study commissioned by the employer at the request of the Workplace Health and Safety Committee. It addressed the issue of the ventilation systems in a portion of the diesel shop, and contained recommendations for proposed upgrading. On September 2, 2010 in response to inquiries from the panel the employer provided a written submission in respect of air quality, noting that the report of February 1, 2000 was an engineering services proposal in response to complaints of heat and humidity. It contained no test data with respect to either airflow or contaminants in the workplace. A subsequent report submitted by the employer dated September 7, 2007 questioned the value of increasing the amount of ventilation in the diesel shop.

In response to inquiries from the panel the employer advised that it was unlikely that testing had been done in the presence of welding smoke, but noted that little smoke is emitted from tack or spot welding in any event.

Smoking History

The evidence shows variable reporting of the worker’s smoking history. In his initial claim he referred to himself as a “non-smoker”. On October 16, 2008 he advised the adjudicator that he had respiratory problems for 8 to 10 years and that he had quit smoking 12 to 13 years before. In a note to Review Office on July 22, 2009 he referenced his “limited smoking”. In a handwritten note dated July 10, 2009 the worker indicated that he had smoked 16 to 17 cigarettes per day between the ages of 18 and 23. He then quit when his son was born in 1974, but began again in 1987 and smoked until 2000. He would smoke 5 to 6 cigarettes per day at work and approximately the same amount at home for a total of 12 to 13 cigarettes per day.

We note that in 2003 he reported to his treating physician a history of smoking off and on for 25 years, with “maybe 10 year total”.

In his evidence before the panel the worker said that he had smoked from ages 20 to 26, and quit when his child was born in 1974. He rolled his own cigarettes, and also bought some, smoking what he estimated to be 15 – 18 cigarettes per day. When he commenced work with the employer in 1986 he started smoking again and finally quit in 2000. He estimated that during that time frame he smoked 20 rolled cigarettes per day.

Analysis

The employer is appealing the acceptance of the worker’s claim. For the employer’s appeal to be successful, we must find on a balance of probabilities that the worker’s lung condition is not a personal injury by accident arising out of and in the course of employment, or in other words, is not causally related to his employment.

In addressing this issue, we must determine whether the worker’s lung condition is an occupational disease and whether his employment (workplace exposure) is the dominant cause of the lung condition. WCB Policy 44.20 provides that in determining the dominant cause, we must consider whether the combined effect of the employment causes exceeds the combined effect of the non-employment causes. Only where the employment causes exceed non-employment causes is the claim acceptable as an accident arising out of and in the course of employment.

There was no medical or scientific evidence before the panel to establish that the worker’s condition was “peculiar to or characteristic of a particular trade or occupation”. In the absence of any epidemiological studies demonstrating that machinists, and in particulars welders, are more likely to develop COPD than the general population, we are unable to find that the worker’s condition is characteristic of his trade.

We acknowledge, however, that certain lung conditions, including COPD, can be caused by occupational exposures and can therefore be an occupational disease under the Act. We find that there were some factors in the workplace that are known to cause COPD, as evidenced in the report of the WCB internal medical consultant on September 18, 2009, and the report of the occupational environmental specialist on April 3, 2009. We find therefore that the worker’s condition meets the definition under subsection 1(1) of occupational disease.

Having considered the record as a whole, we find, on a balance of probabilities, that the worker’s employment was not the dominant cause of the disease. The overwhelming weight of the evidence is that the etiology of the worker’s condition is multi-factorial, or in other words, was caused by both workplace and non-workplace exposures. In arriving at this conclusion we have relied on the following findings of fact:

· The worker reported asbestos exposure, while working for another employer as a mechanic between 1968 and 1972, prior to that while wrapping asbestos around pipes working as a plumber’s helper, and again between 1978 and 1984 when he was employed as a welder;

· The worker has a history of obesity, and when he lost weight between 2003 and 2008 his expiratory air volumes were increased;

· The worker has a history of smoking that was variably reported as being between 11 and 25 pack years. While we find that the worker may have underreported his smoking history as his claim progressed, even given the minimum reported levels, it was significant enough that all of the physicians referred to it as a contributing factor of his COPD;

· The worker’s condition was aggravated by conditions in the environment including cold weather, humidity, cigarette smoke, cold temperatures and dust as noted by the worker's treating physician in his chart notes of October 28, 2008;

· While the worker was undoubtedly exposed to diesel fumes and other contaminants in the course of his work the evidence did not support a finding that the exposure was so significant as to constitute the dominant cause of the worker’s COPD. In arriving at this conclusion, we have considered that:

o The worker was assigned work in the repair shop where work was performed on locomotives. No locomotives were allowed to run in that area.

o While the worker performed duties as a welder from time to time, he was neither welding on a continuous basis nor was he welding in confined spaces on a regular basis. His exposure to welding fumes was not as prolonged or extensive as was reported to his physicians.

o The air quality testing done in the workplace by the employer demonstrated that over the course of time the workplace had an effective ventilation system and that there was no overexposure to diesel exhaust contaminants. The workplace environment was tested in 1998, 2000 and 2006 and consistently demonstrated levels of contaminants that were well below acceptable levels.

o The workplace environment was in itself a clean one. Evidence was submitted by the employer including photographs of the workplace which reflected a clean work site, indeed so much so that a machine vending consumables is highly visible in the work area.

We have also placed considerable weight on the medical opinions of the treating physicians and the WCB internal medicine consultant, in particular:

· The report of the respiratory disease specialist dated February 24, 2009 in which he stated that, “My own opinion is that the patient has chronic obstructive lung disease to a significant extent related to his smoking history, but there is a contribution from exposure to particulate matter and fumes through his occupation.”

· The opinion of the occupational environmental specialist rendered on April 3, 2009 that the worker’s airways obstruction was “due to a combination of his smoking habit and his occupational exposure. His occupational exposures have significantly worsened the extent of the disease that he has.”

· The opinion of the WCB internal medical consultant on March 11, 2009 that “In summary exposure at the workplace has contributed to his respiratory problems.”

· The opinion rendered on September 17, 2009 by the WCB internal medicine consultant in which he stated that “. . . the individual contribution of smoking and work exposure cannot be determined by any certainty. Thus I can not determine which one of the factors is more dominant.”

· The report dated June 23, 2009 from the respiratory disease specialist in which he stated that “it is my opinion that his work environment, where he was exposed to a number of known respiratory irritants that have been linked to obstructive lung disease, likely contributed to his chronic obstructive lung disease.”

While his employment no doubt played a role in the worker’s ongoing struggles with COPD, there is insufficient evidence that it was the dominant cause of his condition. As we are unable to conclude that the worker’s condition meets the definition of accident under section 4 (1) of the Act, the claim is not acceptable.

In an alternative argument the worker’s advocate requested that the panel consider whether the worker’s employment caused an ongoing aggravation and likely enhancement of a pre-existing condition and therefore uphold the claim on that basis. There is no evidence that the worker had a pre-existing condition when he commenced working with his employer in 1986 that was then aggravated by the workplace environment. Indeed by his own evidence his symptoms only began as early as 2000. We are therefore unable to find that the worker’s employment caused an aggravation of a pre-existing condition.

The employer’s appeal is therefore allowed.

Panel Members

K. Dangerfield, Presiding Officer
C. Devlin, Commissioner

Recording Secretary, B. Kosc

K. Dangerfield - Presiding Officer

Signed at Winnipeg this 25th day of February, 2011

Commissioner's Dissent

P. Walker

Commissioner

Signed at Winnipeg, this 25^th day of February, 2011.