The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by 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 4(4) of the Act 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.

Subsection 1(1) of the Act provides the following definitions:

"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;

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;

The issue before the panel is whether or not the worker’s claim for primary dilated cardiomyopathy is acceptable. In order for the worker’s appeal to be successful within the framework of the Act as noted above, the panel must find on a balance of probabilities that the worker’s diagnosed primary dilated cardiomyopathy arose out of and in the course of his employment, or alternatively that the worker's medical condition is an occupational disease that is peculiar to the worker's trade or employment.

The Worker's Position:

The worker was self-represented at the hearing and was accompanied by his wife. Two union representatives were also in attendance, as observers. At the outset of the hearing, the worker indicated that while this claim had generally been considering two different chemicals as the source of his difficulties, being ECI 726 (a coolant) and CAL 8417 (a lubricant), it was now his position that only one chemical, CAL 8417, had caused his difficulties. ECI 726 was irrelevant.

The worker described the specific chemical makeup of the CAL 8417 formulation that was being used at the time he left on sick leave. The MSDS indicated that 28% of the product was propylene glycol which has carbon monoxide listed as a component of decomposition. He advised that he was unsuccessful in his attempts to gain information on what comprised the remaining 72% of the product, and felt that it was not disclosed as it was a manufacturer's secret or a patent. He felt that looking only at the propylene glycol was too limited. He noted that: "The MSDS sheet states it should not be exposed to heat, sparks, and flames. On the second page, it relates to storing." His position was that this product was not intended to be used with excessive heat.

He stated that CAL 8417 was used as a lubricant on a spinning machine which was used first to form metal shapes over a die by pressure, and then to cut off excess metal material from the edges of the piece once the forming was completed. Both the forming pressure and especially the cutting operation heated up the metal and caused fumes and smoke which he then inhaled at the workplace. The machine worked on a vertical axis, and the shavings fell onto the table. The worker confirmed that the shavings did not fall into coolant.

The worker himself did not work on the machine. The machine was operated by another worker, who had a fan near him that he would set up to blow the smoke and fumes away from the machine where he was working. The worker himself was a metal worker who worked nearby in the same room. His job was varied and he would move around the production floor in his area, as he would pick up supplies from various locations as required by his work orders, and would do some of his work on a table nearby.

In response to questions from the panel, the worker advised that the spinning machine was used approximately two to three days a week. The forming of the metal part would take about 15 minutes. The CAL 8417 lubricant was applied to the metal plate only for the forming operation. It was viscous and was applied by a brush. It was not reapplied for the cutting operation which followed. The cutting operation would take 3-5 minutes, depending on the thickness of the part. It was during this operation that smoke would be billowing from the shavings that were coming off the cutting knives. The worker stated that the lubricant still on the machined part during the cutting operation was the residue that had flowed down by gravity from the top of the formed part.

The worker first had coughing symptoms in January/February 2005 at night which would recur. After some time, he correlated his coughing to work shifts when he was exposed to the smoke. By June 2005, the worker started to cough up blood. Later, he and his co-workers constructed an exhaust fan for the spinning machine which drew the smoke out of the workplace.

The Employer's Position:

The employer was represented by legal counsel and an HR generalist. They relied on a written submission sent to the panel and the worker prior to the hearing, as well as an oral presentation. Their position was that the worker's diagnosis was primary dilated cardiomyopathy. As to potential work-relatedness, legal counsel noted that the worker's cardiologist originally suspected a work-related exposure, but once he was provided with additional information regarding the actual chemical exposures at the workplace, he clarified that he did not have enough data to either confirm or rule out the causative role of the lubricants that the worker had been exposed to.

The employer noted that the lubricant under discussion in this appeal was brushed onto the area where the blade and metal plate intersected. Over 90% of the lubricant was wasted because of this method of application. Only a small quantity of the lubricant was actually heated, and only when the metal came into actual contact with the operating saw blade.

The employer noted that the MSDS for CAL 8417 states that Respiratory Protective Equipment was "not normally necessary," and that regarding Route of Entry, Effect of Acute Exposure, Inhalation, the MSDS only notes "possibility of slight irritation."

Counsel submitted that there was no evidence that the CAL-8417 decomposed into carbon monoxide, or that the work environment contained elevated levels of carbon monoxide either from the spinning machine or any other source at work, nor was there evidence that exposure to carbon monoxide at work caused or was a dominant cause of the worker's diagnosed medical condition. She noted that environmental testing done in 2005 did not confirm the presence of carbon monoxide or other toxic chemicals or irritants in the air.

Analysis

The issue before the panel is whether or not the worker’s claim for primary dilated cardiomyopathy is acceptable. In order for the worker's appeal to be successful, the panel must find on a balance of probabilities that this medical condition arose out of and in the course of his employment, or was a occupational disease that was peculiar to his employment or to his trade or occupation.

After carefully reviewing the evidence on file and the evidence submitted at the hearing, we do not find that work related exposures caused, aggravated or enhanced the worker's cardiomyopathy condition. There was neither an acute exposure at the workplace nor an occupational disease leading to the development of the worker's medical condition. Accordingly, we would deny the worker's appeal. We place significant weight on the following findings in support of our decision:

· Early in the worker's claim, there was uncertainty as to the worker's actual diagnosis, as he originally presented with night time coughing symptoms. There had been early consideration of a possible lung condition that later evolved into a diagnosis of a primary dilated cardiomyopathy. The panel accepts this as the medical condition under consideration, based on a February 1, 2006 report by the worker's cardiologist which indicates that the worker's condition improved after the worker was treated with medication prescribed for that specific condition.

· As to the potential causes of this condition, the panel notes that the worker presented a number of articles. An e-medicine article notes that viral acute myocarditis is by far the most common cause and provides a long list of potential viral sources. The article also notes that this condition can arise from a number of bacterial causes, again listed, and refers to toxic myocarditis as well, including reactions to a number of common medicines and to environmental agents. The article lists three environmental toxins that have been implicated, including lead, arsenic, and carbon monoxide.

· The panel then turned its attention to the worker's potential exposure to carbon monoxide, and finds that the worker had an extremely limited exposure to the CAL 8417 lubricant. The evidence at the hearing was that the metal cutting on the spinning machine involved approximately 10 cuts per day at 3-5 minutes each, or a total of 30-50 minutes a day. The spinning machine itself was only used 2-3 days per week. There were two operations done in sequence. First, a metal plate was formed onto a die, with the machine slowly spinning on a vertical axis. This operation took about 15 minutes to do. For the pressing operation, a lubricant (CAL 8417) was brushed on to the metal plate, and was mostly dragged off by the pressure applied during that operation. The cutting or trimming operation immediately followed the pressing operation. At the beginning of the cutting or trimming operation, there was only an oily residue left on each metal piece.

· In the panel's view, the limited residue would not have accounted for the amount of smoke that the worker asserts came from the metal shavings from the cutting operation. The panel finds that any residue of CAL 8417 lubricant remaining on the machined part at the beginning of the cutting operation would have been minute and would have burned off quickly once the cutting operation started. As a consequence, any carbon monoxide coming from that CAL 8417 residue would similarly have been minute and would have been dispersed broadly into a large production area, leaving an extremely low concentration in the air. There were also significant time gaps between the cutting operations (of at least 15 minutes) and a limited number of operations done each day (10), that would have allowed for even further dispersal of any carbon monoxide that might have been released. The panel further notes that an environmental air assessment performed in the workplace in 2005 did not find measureable carbon monoxide levels. The panel also notes that the issues of workplace exposures and carbon monoxide levels in the workplace were addressed specifically by a WCB medical advisor on March 7, 2011, who indicated that from his review of the file he could not establish that excess levels of carbon monoxide were present in the workplace or if the worker had been exposed to excess levels of carbon monoxide in the workplace.

· The panel also notes that the worker was not permanently stationed right next to the spinning machine. Rather, he moved freely around the nearby production area, filling work orders, which would have again limited his inhaled exposure to the smoke.

· The panel notes that the issue of the toxicity of propylene glycol present in CAL 8417 has been specifically addressed on this claim by a number of medical professionals, and are generally not supportive of propylene glycol and its potential derivative, carbon monoxide, as being the cause of the worker's cardiomyopathy. The panel accepts the following general findings:

• The worker's cardiologist, in a report dated February 1, 2006, states that "[the worker] has severely impaired left ventricular systolic function with signs and symptoms of congestive heart failure which improved considerably since he was started treatment with diuretic and then ACE-Inhibitor. It is unclear what is the etiology of his cardiomyopathy and one can speculate that it may be ischemic, idiopathic, toxin-induced or even an late presentation of anthracycline cardiomyopathy." He later comments on April 11, 2006 that is was very difficult to establish an exact relationship between the conditions of his workplace and his cardiac condition.
• The worker was seen by an occupational health physician in April 2006. His May 9, 2006 report confirms the diagnosis of dilated cardiomyopathy and adds a diagnosis of irritant bronchitis. He did review the MSDS for both the coolant and CAL 8417, and concludes that "I cannot related your dilated cardiomyopathy to your occupational exposures. It is most likely that your exposures to the smoke at work led to an irritant bronchitis which because of your underlying disease made you more symptomatic. This could explain the increase in your symptoms following exposures."
• A WCB internal medicine consultant provided a report to the worker's claim file, dated June 29, 2006. He confirmed that the worker's diagnosis was dilated cardiomyopathy with heart failure. He noted that he did an extensive literature review on the condition and had reviewed the MSDS on ECI 726 and CAL 8417 and that neither listed cardiomyopathy as a complication, and that the cause of the cardiomyopathy had not yet been identified. He noted that the exposure to smoke might cause temporary irritation and cough.
• The panel does note that a second cardiologist, in a report dated June 29, 2010, provides some limited support for a causal relationship between the worker's disease and exposure to toxic chemicals in the workplace. His support is based on the temporal relationship of the onset of his symptoms and damage to his heart and his exposure to agents present in his work environment, and to the dramatic improvement of his symptoms following the cessation of his exposure. The panel places less weight on this opinion than those cited above, as the relationship proposed by the cardiologist is only temporal in nature and not tied to any specifically identified exposures. The panel notes that the worker's symptoms did not improve immediately after removal from the workplace but, rather, once the worker was given appropriate medication for the treatment. As well, the cardiologist candidly acknowledges the limits of his position regarding causation, stating that "Idiopathic myocarditis/cardiomyopathy is a condition that is not uncommon and has multiple possible causes and quite a few of them are never identified. Although I could not find any documented cases of acute or sub-acute myocardial damage with propylene glycol or CAL-8417, the possibility of other substances, including as you mentioned, carbon monoxide as well as possible metal particles or other locally produced compounds with possible toxic effect cannot be completely excluded."