Decision #170/11 - Type: Workers Compensation
Preamble
The worker is appealing a decision made by the Workers Compensation Board ("WCB") which determined that his chest difficulties diagnosed as Chronic Obstructive Lung Disease were unrelated to his employment as a painter. A hearing was held on June 9, 2011, to consider the matter.
Issue
Whether or not the claim is acceptable.
Decision
That the claim is not acceptable.
Background
On November 16, 2009, the worker filed a claim with the WCB for a chest condition which he related to his employment as a painter since the 1960s which exposed him to strip paint varnish, apoxy block sealers, aluminum, and dust from taping and sanding.
On November 19, 2009, a WCB adjudicator spoke with the worker to gather additional information. The worker related his chest condition to paints and varnishes that he used over the years as a painter. The worker confirmed that all painting was done with a sprayer. He worked with latex paint, oil based paint, aluminum paint and block paint. The worker advised the adjudicator that there was no ventilation in the buildings where he painted. When asked about smoking habits the worker stated he used to smoke, he smoked 20 cigarettes a day but he quit smoking around January 2009.
Primary adjudication sought additional information from several of the worker's past employers and also obtained medical information from his treating physicians. File records indicate that the worker's chest condition was diagnosed as Chronic Obstructive Pulmonary Disease ("COPD").
A WCB internal medicine consultant reviewed the file on March 15, 2010 and stated:
…the claimant had no history of chest problems prior to April 14, 2009 when he slipped and injured left side. He was smoking 3 cigarettes per day. Spirometry was planned but he was admitted to [name] Hospital on May 15, 2009 with myocardial infarction. The reports from the [name] Hospital are from different admissions. He was treated for chest infection in Jan 2010 and Nov 2009. There are 4 x-ray reports from [name] Hospital and the radiologist mentions COPD and residual inflammatory infiltrate on left side….The diagnosis needs further confirmation by pulmonary function testing. The major risk factor for developing COPD is cigarette smoking. The other factors are alpha 1 antitrypsin deficiency and cystic fibrosis (genetically acquired diseases), exposure to smoke from burning biomass fuel in third world countries and bronchiectasis.
In a decision dated March 16, 2010, the worker's spouse was advised that the WCB was unable to accept responsibility for her husband's chest difficulties commencing in November 2009. The letter stated:
…Following a complete review of all the information on file, Rehabilitation and Compensation Services have not been able to confirm your husband's employment. As a result, we have been unable to gather any information about the products your husband would have used while performing his employment activities. The only risk factor we have been able to identify with certainty is cigarette smoking. We have therefore concluded that your husband's history of cigarette smoking is more likely the dominant cause of his COPD. As such, the claim has been disallowed.
The case was considered by Review Office on June 3, 2010 based on an appeal submission from the worker's wife. Review Office indicated in its decision that it confirmed the worker's employment as a painter. Review Office also concluded that there was insufficient evidence on file to support that the worker's employment as a painter was the dominant cause of his diagnosed condition of COPD and it confirmed that the claim for compensation was not acceptable. On July 21, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on June 9, 2011.
Following the hearing, the appeal panel requested additional medical information from two treating physicians. The information received by the panel was forwarded to the worker for comment. On October 27, 2011 and November 4, 2011, the panel met to discuss the case and render its final decision.
Reasons
Chairperson Choy and Commissioner Finkel:
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.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)
Subsection 1(1) of the Act provides:
"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.
Subsection 4(4) of the Act deals with cause of an occupational disease and provides:
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.
Worker's Position
The worker appeared at the hearing accompanied by his wife and son. The position put forward on behalf of the worker was that he disagreed with the WCB's decision that the predominant cause of his illness was smoking. The worker was a painter for 37 years working for 22 different companies in Winnipeg. He used a spray painter to paint. In the course of his employment, he was exposed to essentially every type of paint in the market and worked in new buildings which had poor ventilation. While the latex used today is very good, the paint used in the 1960's contained chemicals and metals such as lead and mercury. Ceiling stipple had asbestos. The worker had to patch and sand walls, with only a thin mask to protect him from the sanding dust. In the early years, he did not use a mask at all. With all of that exposure, it was submitted that the worker's lungs were probably affected by the harmful substances. At least some part of his lung disease had to be related to his 37 years of work as a painter.
Analysis
The issue before the panel is whether the worker’s claim is acceptable. In order for the worker’s appeal to be successful, the panel must find that the dominant cause of his medical condition was his employment. The majority is not able to make that finding.
What is the worker's diagnosis?
Following the oral hearing of this appeal, the panel requested further medical information regarding the worker's medical condition. We wanted to determine whether there had been any further investigations into the diagnosis for the worker's breathing difficulties. In the WCB internal medicine consultant's memo of March 15, 2010, he indicated that the diagnosis of COPD needed further confirmation by pulmonary function testing. The majority notes that the worker had been scheduled for spirometry in the Spring of 2009, but then he suffered a myocardial infarction so that testing was cancelled.
In response to our inquiries, by letter dated September 12, 2011, a physician who was in charge of the worker's care from August 26, 2009 to January 15, 2010 advised that: "As [worker's] diagnosis of chronic obstructive pulmonary disease was made prior to his admission for rehabilitation, no further investigations or attempts to define other differential diagnoses were undertaken." It would also appear from other health care records that COPD was the working diagnosis accepted by the worker's treatment providers and no further investigations or attempts to identify a different diagnosis have been pursued. X-ray imaging reports identify hyperinflation of lungs which is said to be in keeping with COPD.
In the circumstances, the majority accepts on a balance of probabilities that the worker's diagnosis is COPD.
Dominant Cause of COPD
The next question to be answered is "what caused the worker's COPD?"
The medical evidence on file indicates that the major risk factor for developing COPD is cigarette smoking. Other factors identified are alpha 1 antitrypsin deficiency and cystic fibrosis (genetically acquired diseases), exposure to smoke from burning biomass fuel in third world countries and bronchiasctasis.
At the hearing, lead, mercury, crystalline silica, titanium, aluminum, silicone and iron were identified as the types of exposures the worker encountered during his 37 year employment as a painter. The majority notes that none of these are listed as major risk factors associated with the development of COPD.
The evidence at the hearing regarding the worker's history of smoking was that he started smoking at age 23 and continued to smoke until he was 71 years old. He therefore smoked for 48 years. On average, he would smoke a little bit more than half a pack per day. Since the 1970's, he only smoked light or ultra light cigarettes. In his last three years of smoking, he gradually tapered down to about three cigarettes per day.
After considering the evidence as a whole, the majority finds that the worker's employment was not the dominant cause of his COPD. In view of the worker's history of cigarette usage, we find that smoking was the dominant cause. The worker did not identify any workplace exposures which, in our opinion, would displace smoking as the dominant cause. It was submitted on behalf of the worker that while the workplace exposures may not have been the sole cause for the worker's COPD, they had to be a contributing factor. The majority acknowledges that the workplace exposures may have had detrimental effects on the worker over the years, but the test which must be met to find that the claim is acceptable is that the exposures were the dominant cause of his COPD. Unfortunately, we are unable to make that finding.
If the worker's lung disease had been a condition which has been scientifically linked to his specific exposures (for example, silicosis as a result of exposure to silica dust), we may have been able to entertain the worker's claim. The evidence does not, however, support any such association.
For the foregoing reasons, the majority finds that the worker's claim for COPD is not acceptable. The worker's appeal is dismissed.
Panel Members
L. Choy, Presiding Officer
A. Finkel, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 14th day of December, 2011
Commissioner's Dissent
Commissioner Walker's Dissent:
The issue in front of the panel is one of claim acceptance for a lung condition and its relation to the workers occupation. I find that the claim would be acceptable based on the workplace products the worker was exposed to during his career as a painter for the reasons that follow.
Diagnosis:
The evidence on file and at the hearing did not provide a confirmed diagnosis of the worker's lung condition. At one point chronic obstructive pulmonary disease (COPD) was considered but no history of the origin of this diagnosis was evident from the file, the medical reports or the treating physicians.
The case manager documented a discussion with the worker that his lungs were working at 20% and he could not provide a definite diagnosis. His family physician's letter on file January 27, 2010 noted that he had no prior respiratory history in his charts until April 14, 2009 when he slipped in the tub and hurt his left rib. He had complained of constant left rib pain and exertional shortness of breath walking ½ a block. An X-ray revealed no fracture, lungs were inflated and pulmonary fibrosis was evident. He stated, "I have not had the opportunity to review [the worker's] occupational history with the patient to provide an adequate opinion as to the occupational influence of his symptoms, although his extensive smoking history would definitely play some role."
On the worker's admission to the hospital's emergency department it was noted that over the previous few days he had been short of breath with reduced oxygen concentrations and was sent to hospital mainly because of chest problems. It was noted on the chart that his previous illnesses included: chronic obstructive pulmonary disease. There is no notation as to where the prior history of COPD originated.
The WCB internal medicine advisor had reviewed the file and noted;
…the FP (family practitioner) report dated January 27, 2010 states that the claimant had no history of chest problem prior to April 14, 2009 when he slipped and injured left side. He was smoking 3 cigarettes per day. Spirometry was planned but he was admitted to [hospital] on May 15, 2009 with myocardial infarction…There are 4 x-ray reports from [hospital] and the radiologist mentions COPD and residual inflammatory infiltrate on left side.
In response to the case manager the medical advisor stated, "The diagnosis needs further confirmation by pulmonary function testing."
There is no record of any pulmonary function testing on the claim file. At the hearing the family was specifically asked which physician had diagnosed the COPD condition and when. The evidence was:
· The worker did not have any history of major sickness, had never been hospitalized except for the loss of his index finger while working. The family contacted his previous two family physicians for past medical records and were told as he didn’t have a serious illness they did not keep those records.
· Neither the worker nor his wife were able to recall any of his past or current general practitioners diagnosing COPD. The first the family heard about a problem in his lung was after he fell at home in the tub. He had been sent for pulmonary testing but due to his heart attack he had not had the test.
· Regarding his breathing, the worker noted that he never felt anything at all until he was told he had damaged lungs while being examined after the fall at home. From the X-ray the doctor told him, "you know what…you have some scars."
In letters received in reply to the panel's inquiries after the hearing the following was noted:
- The respirologist stated: "I have no knowledge of history lung condition (sic) prior to his residency at [hospital]. To my knowledge he was never evaluated for his lung function while at [hospital]."
- The rehabilitation physician stated: "As [the worker's] diagnosis of chronic obstructive pulmonary disease was made prior to his admission for rehabilitation, no further investigations or attempts to define other differential diagnoses were undertaken."
Smoking:
The worker's recollection was he started smoking at the age of 23 for a period of 48 years before he quit. He smoked one half pack per day. In clarifying the file information about smoking a pack a day he noted, “Not quite, no. I sometimes - sometimes your nerves - you smoke a couple more but a whole pack? No.” In the last few years he had tapered his smoking to 2 cigarettes a day and recently stopped altogether.
Exposures:
The case manager documented a discussion in which the worker attributed his condition to all the paint, varnishes and finishes over the years. He confirmed he used latex paint, oil based paint, aluminum paint and block paint. When painting there was no ventilation and he wore a cotton mask.
The worker’s evidence at the hearing was that he worked for 22 painting companies and one sand blasting company since 1960 until 1989 when an injury prevented him from climbing ladders. He first painted with brush and rollers and after a number of years began to use spray equipment when working for companies who had industrial and commercial customers.
He described spraying porous cinder blocks with a filler, then rolled on a coat of paint. He mixed his own colours with paint pigments. He used ‘eggshell’ white to paint new condominiums and apartments. There were hundreds of colours used including beige, off white, browns, blues, greens and other soft tones. He did not recall using reds or yellows. He used semi gloss paint with some high gloss. For the first 12 years he used oil based paint for all ceilings, walls, bathrooms and kitchens and used latex paint since 1972. He also painted with a two part epoxy.
He worked alone while spray painting. He noted that he painted a multi level apartment building, all the apartments, hallways, texturing, everything from top to bottom. He did touch up patching and sanding in older homes, buildings and new construction to prepare surfaces prior to painting. He also applied texture stipple to ceilings.
When varnishing doors in new apartments, he would sand them, apply stain, sealer and two coats of varnish with light sanding between coats. All staining and varnishing was done by brush, this job would account for half the time to complete an apartment.
Sanding was by hand with a pole sander, a hand sander or sometimes an electric sander. He sanded apartments by hand or pole sander, especially the new doors. He sanded, applied primer, then sanded again and painted the finish coat. The doors were the last thing completed. He testified that he used lacquer thinner to thin his paints. He noted that he did not use turpentine very much as the vapors made him sick.
When painting outsides of older homes he prepared the surface by sanding or scraping the old paint. If there were too many layers of old paint he used a blowtorch and scraper to remove them, he did not have many of those heavier jobs. He also used paint stripper on occasion both outside and inside to remove old paint.
The worker’s son provided the panel with two internet sites for information regarding occupational illnesses, The US National Library of Medicine, National Institutes of Health, as well as American Thoracic Society’s webpage. He found references to crystalline silica that he felt his father had been exposed to while sanding. Also possible exposure to solvents; petroleum solvents; toluene; xylene; ketones; alcohols; glycol ethers; chlorinated hydrocarbons and benzene. He found that titanium dioxide, chromium, lead and iron compounds are used in paint pigments, as well as silica for preparing surfaces and metals. He noted the common use of asbestos as a filler in spackling and taping compounds.
Analysis:
I note COPD was the only diagnosis on the file and was made by a radiologist from x-ray findings but was never confirmed by spirometry or lung function testing. It is known that 80% of patients with COPD are smokers, but there is no data available to show what percentage of smokers have COPD. Information obtained on the internet sites provided by the worker's family noted industry specific studies showed diesel exhaust, dusts and fibers in construction contribute to COPD. There were findings of increased prevalence of COPD included in rubber, plastic and leather manufacturing, textile mill products, armed forces, food product manufacturing, repair services and gas stations, and agriculture along with construction.
I find that the paints and processes the worker used as a career painter exposed him to many common painting chemicals such as Toluene, Xylene, Epoxy Resins, Methyl Ethyl Ketone (MEK), Acetone, N Hexane and Benzene through the atomizing of the products while spraying in unventilated rooms. He was also exposed to alcohol based solvents in paint thinners through inhalation of the vapours. There is also evidence through the internet sites provided by the worker's family that these chemicals also have a synergistic health effect when used together, as is the situation in this case.
The worker was also exposed to silicates and cement dust while sand blasting exterior walls of cinder block buildings to allow application of block filler and paint. He was exposed to drywall dust, wood dust and paint product particulate while doing extensive hand sanding during painting. He had minimal respiratory protection with the use of a paper dust mask and had ceased his career as a painter in 1989 prior to more adequate respirators becoming available to workers.
Attempts were made by the WCB to confirm other product exposures through contact to the many prior employers. There were very limited replies on the file as most of those employers were no longer in business.
The medical information and reports on the file show the worker has a respiratory illness with the lack of a confirmed diagnosis. Based on the evidence of exposures provided by the worker at the hearing I find on a balance of probabilities that the test for dominant cause has been met and the worker's claim is acceptable and I would allow the worker's appeal.
P. Walker
Commissioner
Signed at Winnipeg, this 14th day of December, 2011.