The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This appeal deals with the decision made by the Workers Compensation Board ("WCB") which determined that the worker suffered from asthma prior to his workplace incident on October 26, 1983. The worker disagreed with this finding based on documentation he submitted to the WCB from his family physician and various medical facilities. A hearing was held on March 18, 2013 to consider the matter.

Issue

Whether or not the worker had a pre-existing asthma condition prior to his October 26, 1983 workplace incident.

Decision

That the worker did not have a pre-existing asthma condition prior to his October 26, 1983 workplace incident.

Background

The worker filed a claim with the WCB for a severe allergic reaction to red cedar dust that occurred at work on October 26, 1983.

On December 6, 1983, the worker completed a Worker's Claim for Industrial Chest Conditions form and stated:

"I have had asthma since I was four, but had no reason to believe I was allergic to wood. My asthma was never very serious, I used an inhaler only when I needed it, maybe one (sic) or twice a month."

The worker described his symptoms as follows with respect to the incident of October 26, 1983:

"Shortness of breath until not able to breathe at all. Passed out - went to hospital where I was admitted for a week. They found red cedar dust in my lungs."

A report from a respiratory consultant dated November 26, 1983, indicated that the worker had a history of asthma dating back to childhood. It had not been a serious problem until during his present employment when he came in contact with red cedar dust. The diagnosis was red cedar asthma.

On December 9, 1983, the respiratory specialist noted that he saw the worker at a hospital facility on October 28, 1983. The worker had been a mild asthmatic as a child but by early adolescence his asthma had remitted and was no longer regarded as a problem. This situation changed about 4 months ago when he went to work in a lumber yard where he was exposed to various wood dusts. The respiratory specialist stated: "The patient gives a classical story for red cedar asthma."

On December 29, 1983, a WCB medical advisor specializing in internal medicine made the following comments:

"In summary then, I agree with [treating respiratory specialist's] opinion that [the worker] shows the classic response to red cedar wood. However he has inherited (genetic) asthma and exposure to red cedar precipitated the present asthmatic attack. This is not an occupationally induced asthma. He should avoid working in this situation at all costs."

On January 6, 1984, the WCB accepted that the worker had inherited genetic asthma as a child and that his exposure to cedar dust in his work environment aggravated his long standing asthmatic condition. The WCB was unable to accept responsibility for the worker's asthma condition which he had had since childhood.

The file was then referred to the WCB's vocational rehabilitation branch to assist the worker in finding suitable employment. On February 9, 1984, the worker advised the WCB that he was not interested in finding a minimum wage job and that he was returning to school on a full-time basis. Based on this information, the worker's file was closed within the WCB's rehabilitation branch.

In a report to an insurance company dated May 24, 1988, the family physician stated:

A very brief summary of my records indicates that this gentleman has had asthma for approximately four years. He has known allergies to cats, dogs, dust, nuts and wool. He is currently on Ventolin inhaler p.r.n., Theo-Dur 300 mg. b.i.d. p.r.n. and on occasion has used Beclovent inhaler when his symptomology is particularly bad, especially in the spring time. Other than this moderately severe asthma which is well controlled, the patient is healthy.

In 1995, the worker advised the WCB that his asthma condition had drastically worsened and he requested additional WCB benefits in the form of wage loss benefits, job re-training and a permanent partial disability ("PPD") award. The worker also submitted that he was unable to find medical proof that he had asthma prior to the 1983 workplace accident.

On March 27, 1995, the WCB wrote the family physician seeking further information related to the worker's lung condition pre and post October 1983.

In a response dated June 26, 1995, the family physician reported that from review of his clinical notes, although the worker has had a history of asthma since childhood, there had not been any serious attacks until August of 1983. On August 9, 1983, the worker reported that he had noticed increased dyspnea since working at a lumber mill. He was given medication for treatment and when last seen on August 15, 1983, the worker reported relief from his asthma. He advised that on October 26, 1983, the worker went to a hospital and was diagnosed with status asthmaticus. He was subsequently transferred to another hospital and was admitted to the intensive care unit where he was seen by a respiratory specialist. The family physician opined that while the worker was suffering from a mild stable form of asthma since about age four years, he developed a much worse form of this disease since exposure to wood dust while employed at a lumber mill in 1983 and that he should be entitled to compensation as a result of it.

On July 13, 1995, the WCB wrote letters to four hospital facilities requesting all medical documentation pertaining to the worker's lung condition.

On September 19, 1995, the WCB's internal medicine specialist reviewed the new information and stated:

"The claimant has had asthma since age 4, as mentioned in many histories on file. He is allergic to many foods - hazelnuts, cats and dogs. Since 1983 he has visited the emergency room of [hospital name] 18 times. As well, there is mention of going to [hospital] and two other intensive care unit admissions. The red cedar was assumed to be the cause of the 1983 episode but was never proven. He never had full P.F.T. [pulmonary function tests] or methacholine challenge test. I think the dust in the lumber yard was one of the precipitants of asthma, others being hazelnut, cat and perhaps non-compliance, respiratory infection.

I cannot agree with the statement the exposure to cedar in 1983 caused permanent exacerbation - there is no evidence on file to suggest this.

The 18 visits to the emergency room were for different triggers other than cedar."

In a decision dated October 20, 1995, the worker was advised that in the opinion of the WCB, the incident of October 26, 1983 resulted in a temporary aggravation of his pre-existing respiratory condition and the additional medical information did not support a permanent enhancement of his pre-existing condition. The WCB therefore could not provide him with further benefits or services.

On December 19, 1995, the Worker Advisor Office appealed the decision made on October 20, 1995. The worker advisor submitted a report from an occupational health physician dated December 4, 1995 with accompanying medical literature to support that the worker's asthma condition was made worse as a result of his exposure to red cedar dust and that the WCB should accept responsibility for wage loss, medical aid expenses and a PPD award.

In the report dated December 4, 1995, the occupational health physician referred to the worker's past medical history. He noted that the file documentation showed that the worker was diagnosed as suffering from asthma when he was four years old; that a parent and sibling suffered from asthma; and another parent had eczema; and that the worker had allergies to nuts, feathers, aspirin, cats and wool. The consultant stated:

"This kind of history suggests [the worker] has atopy, an inherited propensity to developing allergy to various substances in the environment. [The worker's] asthma had largely remitted according to documentation on file, prior to 1983. For many years he did not require treatment.

The Workers Compensation Board has taken the position that exposure to red cedar dust in the summer of 1983 aggravated a pre-existing asthma in an atopic individual - [the worker]. I do not agree with this. My opinion is that the red cedar exposure caused sensitization to this compound and persistent airways hyperreactivity, making them more responsive to irritants and allergens.

…

I would therefore conclude

1. Given the past medical history and the family history [the worker] is a known atopic.

2. He developed occupational asthma when he was heavily exposured [sic]to red cedar dust in the summer of 1983.

3. Despite removal from exposure he continues to suffer from repeated attacks of asthma much more severe than prior to exposure.

4. These attacks of asthma are triggered by known allergens because of hyperreactive airways as a result of exposure to red cedar dust."

On February 19, 1996, the WCB internal medicine consultant reviewed the information provided by the Worker Advisor Office and stated:

"It is therefore, my opinion that [the worker] suffers from atopic asthma, which was aggravated in 1983 by exposure to dust in the lumber yard. The dust contained cedar, as well as other dusts. As pointed out earlier, many of the exacerbations that he has suffered since 1983 was caused by known problems. The fact that he had remained symptom free during his teen years does not prove aggravation due to short period of exposure to dust, which may have contained cedar."

In a memorandum dated March 7, 1996, a WCB adjudicator noted that he considered the submission from the Worker Advisor Office and sought another opinion from the WCB internal medicine consultant. Based on current information, he was unable to alter the previous decision on file that the incident in 1983 resulted in a temporary aggravation only.

On February 13, 2011, the worker and his wife submitted that the decisions made to deny compensation were based on incorrect and inaccurate information contained within his medical history. The worker provided the WCB with medical documentation from the family physician, a letter from the Winnipeg Clinic and a letter from his parents dated February 14, 2011 to show that he was never "diagnosed" or had any "tests" performed related to an asthmatic condition prior to 1983. The worker's position was that the 1983 workplace incident resulted in a permanent condition of severe asthma.

In a report dated April 27, 1997, the family physician indicated that he first became the worker's physician on February 13, 1980 and he was seen on numerous occasions for various problems. The first mention of an asthmatic condition was on August 9, 1983. Prior to this, he was not on any anti-asthmatic medication and had no symptoms referable to any pulmonary disease. The physician stated:

"There is a notation on my chart of him having had "asthma" as a child, but there is no objective evidence to corroborate this diagnosis, and unfortunately many physicians tell parents that their children have asthma when in fact they suffer from a viral illness which causes wheezing…In summary, this man has an uncorroborated history of childhood asthma; I have been his personal physician since February 13, 1980; in the interval between the onset of my care of this gentlemen in February of 1980 and August of 1983, there were no instances of his complaints of symptoms of asthma nor any objective physical findings of asthma, despite numerous examinations by myself. It appears that his symptoms were triggered by exposure to Red Cedar during the summer of 1983."

In a letter dated February 9, 2011, a medical clinic stated: "Patient has not received treatment at our facility as indicated in your request (pt. not seen by Dr. [allergy specialist] at [clinic's name])."

In a note to file dated March 2, 2011, a WCB medical advisor indicated that based on the available medical information on file, a pre-existing asthmatic condition had been reported by previous healthcare providers, including references to pre-existing allergies to cats, dogs, feathers and peanuts.

In a further letter dated March 9, 2011, the medical clinic stated that the worker "has not received treatment at our facility as indicated in your request (the clinic) chart starts in the 1990s, nothing from 1970-80)."

On March 27, 2011, the worker was advised that no change would be made to the previous decision to disallow his claim based on the comments made by the WCB medical advisor dated March 2, 2011. The adjudicator concluded that the incident of October 26, 1983 resulted in a temporary aggravation of the worker's pre-existing respiratory condition and that the medical information did not support a permanent enhancement of his pre-existing condition.

On June 13, 2011, a worker advisor submitted to Review Office that the worker did not have asthma prior to 1983 and that the worker developed a severe asthmatic condition as a result of the October 26, 1983 incident. The worker advisor indicated that there was no medical history of hospitalization for respiratory difficulties prior to October 26, 1983. This was supported by the hospital reports on file and the family physician's comments that the worker did not suffer from severe asthma prior to October 26, 1983. The statement provided by the worker's parents also supported that the worker did not have asthma prior to 1983.

On September 7, 2011, Review Office determined that the worker's pre-existing asthma condition was not permanently enhanced by his exposure to wood dust. Review Office referred to the following medical evidence on file to support that the worker suffered from allergic reactions and asthmatic symptoms, and was hospitalized prior to 1983:

• a September 18, 1981 pre anesthesia examination (prior to having his wisdom teeth removed) notes that the worker had asthma and he used Choledyl and Bricanyl as required. His list of allergies includes Aspirin.
• a May 12, 1986 Emergency - Out Patient Record from a hospital indicated that the worker was being treated for an allergic reaction to hazelnut. The stated history of the patient on the report stated "previous reaction to hazelnut at age 12, in hospital 1 week".
• in a July 7, 1995 conversation with a WCB adjudicator, the worker stated that when he was 4 years old his mother had him see a doctor because he was wheezing. That his mother was asthmatic and wanted him checked out. The worker admitted to known allergies to cats and hazelnut. He recalled being diagnosed as an asthmatic and was seen by a female allergist doctor at a medical clinic.

Review Office also referred to reports from the respiratory specialist dated November 26 and December 9, 1983, the report from the family physician dated June 26, 1995 and the report from the occupational health physician dated December 4, 1995. It stated that the opinions outlined in these reports were not accompanied by a descriptive history or medical test results. In comparison, the WCB medical advisor's comments of February 19, 1996 compared the worker's progress of his asthma condition to the progress generally expected in asthmatics. Review Office felt that the medical advisor's conclusions were more persuasive.

Review Office felt that the worker's allergic reactions over the years had followed a typical course for an individual with asthma. Review Office noted that the worker's family had a history of asthma and that the worker was taken to the hospital to determine which allergens to avoid. Irritant avoidance plus the use of medication resulted in a relatively uneventful childhood except for a one week hospitalization from a reaction to hazelnut. This explained how his asthma was able to be well controlled. In 1983, he entered the workforce and wood dust became another irritant that was added to the already known list of allergens. After 1983, the worker's avoidance of allergens was not as diligent as it had been prior to 1983. This conclusion was based on 20 confirmed visits to hospital emergency rooms. The admissions were for reactions to hazelnut either in chocolate or cookies, cats and one because of smoke inhalation. His admissions also included incidents where the emergency report form reads "ran out of Ventolin puffer…"

Review Office was convinced that the worker had atopic asthma which was temporarily aggravated by exposure to wood dust in 1983 and there was no information to conclude that the worker's reaction to wood dust was more severe than it would have been to his other known irritants.

Review Office stated that prior to the incident on October 26, 1983, the worker had known asthma that was temporarily aggravated when he was exposed to irritants. After 1983, his asthma was described as well controlled and continued to become temporarily aggravated whenever the worker was exposed to an irritant. Review Office did not find that there was sufficient evidence to conclude that the worker's asthma was permanently enhanced by his exposure to wood dust and therefore his claim for further benefits was not acceptable.

In October 2011, the worker asked the WCB to correct any and all statements on his file referring to a history of asthma and allergies prior to 1983 based on the following documentation: a written statement signed by his parents; a medical history dated June 2, 1978; clinical notes from 1978 to 1984; and a clinic letter that he was not treated by an allergist at the clinic. On October 19, 2011, the WCB's Access and Privacy Officer advised the worker that his request was declined as the WCB was unable to change his medical records.

In a report dated August 10, 2012, the family physician stated:

This letter will serve notice that I wish to correct information contained in my medical files on the above named. [The worker] was a patient of mine from 1980 to 2006. Any statements in my medical file that reference the diagnosis of asthma prior to 1983 are incorrect. In fact, there are no records or tests by any physicians or laboratories that confirm the diagnosis of asthma prior to 1983. Any reference to asthma prior to 1983 were related to me by [the worker's] parents, who are not medical professionals and had no factual corroboration to support this diagnosis.

On November 15, 2012, the worker provided the WCB with a report from the medical clinic dated November 13, 2012 which stated: "This letter is to indicate that there is no record of destruction for a previous chart on [the worker], which indicates that there was no chart before the one created in 1996."

The worker spoke with a Review Officer on December 10, 2012. The worker confirmed that he was appealing the decision made on March 27, 2011 that he suffered from asthma prior to the October 26, 1983 compensable incident.

On December 17, 2012, Review Office decided that the worker did have asthma prior to his October 26, 1983 workplace incident. Review Office indicated that it did not accept the family physician's position. It noted that the family physician was the worker's doctor from 1980 to 2006. Review Office found no information on file to suggest that the family physician would have had access to the worker's complete medical records prior to 1980 and noted that he could not refute the medical records of other doctors.

Review Office commented that the worker presented a letter from his parents on several occasions since 2010 which indicate that they told medical professionals their son had asthma as a child but that he really did not have it. Review Office did not accept this position, noting that there was a material inconsistency in the parents' statement. The information was not in keeping with the historical evidence on file and Review Office indicated that it was unable to account for the parents' statement decades later based on the file evidence. In making its decision, Review Office placed weight on the following reports:

• a June 2, 1978 report from a physician indicated the worker was diagnosed with extrinsic asthma, that the symptoms began in 1970 and that he was treated by an allergist.
• immunization records which showed that the worker suffered from asthma and a variety of allergies prior to the 1983 accident.
• an October 26, 1983 emergency room report indicated that the worker was prescribed an inhaler and medications by his family physician which he refused to take.
• the worker talked of having asthma since he was four years old in the initial claim form (industrial chest conditions).
• September 18, 1981 medical report that the worker had asthma and was treated with an inhaler and medication.
• on December 29, 1983 the WCB's internal medicine consultant reported that the worker had inherited genetic asthma and exposure to red cedar dust precipitated the present asthmatic attack.
• the medical clinic where the worker was seen by an allergist replied to the WCB on March 9, 2011 noting that their charts start in 1990 and they do not have records that pre-date this time.

Review Office found that the diagnosis of extrinsic asthma noted in the June 1978 medical report was in keeping with the worker's numerous reactions and hospital visits throughout the claim. It stated that it accepted the opinion expressed by the WCB medical advisor on March 2, 2011 that the worker had a pre-existing asthmatic condition which was reported by previous healthcare providers including reference to pre-existing allergies to cats, dogs, feathers and peanuts.

Review Office noted that the doctors who provided the worker with treatment prior to October 1983 have not corrected their medical records nor had it been established that the records prepared by the WCB are incorrect. Review Office noted that the worker's family physician indicated that he became the worker's doctor beginning in 1980 and that the references to asthma in the worker's claim predate 1980. It stated that no information had been provided to dispute the medical reports on file that pre-date the 1983 workplace incident.

Based on the whole of the evidence, Review Office said it was unable to find that the worker did not have pre-existing asthma prior to the October 26, 1983 workplace accident. On January 2, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on March 18, 2013.

On May 14, 2013, the panel asked the worker to provide comment on the following queries:

1. Can you please clarify for the panel whether or not you had an allergy to hazelnuts when you were a child as you indicated at the hearing that your only childhood allergy was to cats.
2. Can you provide any clarification as to why the hospital emergency record attached indicates a previous reaction at age 12?

The worker responded to the panel's May 14 request on May 16, 2013.

On May 29, 2013, the panel met further to discuss the worker's appeal and decided to request additional information from four local hospitals that the worker had attended for treatment. Responses were later received from the four hospitals and then forwarded to the worker for comment. On August 17, 2013, the panel met further to discuss the case and rendered its final decision.

Reasons

Commissioners Finkel and Kernaghan

The worker is appealing a decision by the Workers Compensation Board in respect of his accepted October 26,1983 claim for a severe allergic reaction to red cedar, that concluded that his asthma condition was a pre-existing condition. This is a narrow medical matter which may have implications for the worker for access to a number of potential entitlements under the The Workers Compensation Act (the Act).

Worker's Position

The worker was assisted with his presentation at the hearing by his wife. It was noted that the worker had recently suffered a significant traumatic head injury that may have an impact on his ability to give evidence at the hearing.

The primary focus of the worker's presentation was that the adjudication of his case had been tainted right from the outset of the claim by information provided by his mother to him and to his healthcare providers and to the WCB, that he had childhood asthma since the age of 4. He, as well as his mother, continued to provide this information to healthcare providers and to the WCB over the years. He had no idea of the negative implications of this earlier information on his 1983 claim until he actually developed asthma-type conditions in later years. In recent years, his mother disclosed to him that he had never had the condition as a child. Rather, she herself had serious asthma as a child which had gone undiagnosed for quite some time and then worsened, all of which caused her significant difficulties. The worker was her only child and she was extremely overprotective of her son and fearful that he would get asthma as well. She felt that her son would get the best of care if she told his healthcare providers that he had asthma, and kept telling this to healthcare practitioners throughout his childhood and beyond.

The worker referred the panel to a written statement signed by both parents dated September 29, 2010, which reflected this evidence. It states in part,

"Throughout [the worker's] medical history it is stated repeatedly and wording varies, that [the worker] has had asthma since childhood and/or since about the age of 4 years old. This information is inaccurate and incorrect. [The worker] never had asthma as a child, was never diagnosed with asthma as a child, nor was he ever treated for, or prescribed medications for the treatment of asthma…As his mother and an asthmatic, I felt it was my utmost priority to ensure exceptional care was to be provided (should the need arise) for my son [name]. This information was provided in a protective manner and was never meant to be malicious or intended to harbor his ability to receive proper care or insurance as an adult, when referencing his past medical history files…"

In response to a question by the panel, the worker advised that his mother had significant health issues that precluded her attending the hearing as a witness.

The worker advised that his mother was present at all doctor visits before he was 18, and it would have been her, not him, providing his medical history to various doctors. He indicated that he does not recall ever being tested for an asthmatic condition prior to 1983. Although the file references him being referred to a respirologist at a specific clinic, the worker's evidence is that no such appointment ever took place and that he and his wife followed up with the clinic who found no records of a visit. He made reference to a letter from the clinic which indicated that he had not been a patient at that facility.

The worker notes that he was 17 years of age when his workplace accident took place in 1983. He had no reason to doubt the medical history that he kept hearing about from his mother.

Regarding a hospital visit and the medical history recorded, the worker advised that it was his mother's boyfriend, and not the worker, who provided a medical history at the time of entrance, stating that he had asthma. He noted that he was in acute distress when he was taken to the hospital.

The worker described his childhood, including his extensive involvement in sports, the considerable amount of time he spent outdoors and in fields, and his recollection that he had never possessed an inhaler as a child. Meanwhile, his mother generally had to remain indoors because of her own asthma condition.

The worker acknowledged that when he was younger, he routinely told people that he had asthma, because he had grown up being told that he had it. However, his life and activities were never affected in any way by this condition.

He states that his first true asthma symptoms showed up after his 1983 workplace exposure to red cedar dust.

The worker notes that he saw a family doctor starting in 1980 and continued to see him for many years following the 1983 accident. In his letter of April 27,1997, the doctor confirms that he first saw the worker in 1980. The first indication of a respiratory problem was in October 1983.

The worker also relies on medical opinions on file stating that the worker's asthma condition developed out of the worker's exposure or allergic reaction to red cedar dust in 1983.

Employer's position:

The employer did not participate in the appeal.

Analysis

The worker in this case has an accepted claim in respect of a workplace exposure to red cedar dust in October 1983. The issue under appeal before this panel is a very narrow one, dealing with a single medical matter -- did the worker have a pre-existing, or more specifically a preceding asthma condition before the date of his accident? This was the primary argument and submission made to the appeal panel by the worker, and the panel has limited its scope to consideration of that single question.

For the worker to succeed in his appeal, the panel would have to find, on a balance of probabilities, that the worker did not have asthma prior to his 1983 workplace accident. The majority was able to make that finding.

Again, this decision is specifically limited chronologically to the period prior to October 26, 1983. The majority has not considered and makes no findings as to the potential causal connection between the worker's later respiratory difficulties and his 1983 workplace injury. This is a matter that remains to be adjudicated by the WCB.

At the outset, the majority notes that what appears to be a relatively straightforward medical question, which would often rely heavily on the medical record, has been confounded by a number of unusual circumstances including:

• The young age of the worker at the time of the workplace accident, being 17 years old in 1983.
• The direct involvement of the worker's mother and other adults in his care, his medical management, their input into the documentation of his childhood medical history, and their presence in doctor's offices and with the WCB during interviews, etc.
• The age of the claim file, which is now 30 years since the claim was opened in 1983. This leads to evidentiary challenges including: the accuracy of statements made in the intervening years/decades regarding events in that period; the destruction of medical records in the intervening period; and the availability of his treating physicians.
• The impact of the worker's mother on the evidence provided to this file, which has been used in the decisions made by the WCB to date and in particular the 180 degree shift from first insisting that the worker had childhood asthma to her later statements recanting those earlier statements. This has led to significant questions regarding the accuracy of information that she was providing to all healthcare practitioners as to her son's medical history. In other words, which version is true, especially given the familial relationship -- there is an obvious question of whether the restatement is truthful or self-serving.
• The weight to be given to inconsistencies in the reporting (and denying) by the worker and others of his various non-work-related allergies at a number of points in the file (over the 30 year span) and at the hearing, which may affect credibility findings (of the worker or his mother) on the bigger question, and on the reliability/accuracy/weighting of the medical evidence and opinions that are under consideration.
• The worker's recent medical setbacks which potentially affect the quality of his evidence at the hearing.

With due regard to all these considerations, the majority does find that the worker did not suffer from asthma prior to his August 1983 workplace accident. We place particular weight on the following evidence:

• The worker had a family physician that he saw since February 1980, when he was 14 years of age. The physician's records indicate a history of childhood asthma starting at age 4. There is evidence that the worker's mother attended those visits with her son and that she routinely provided this medical history to her son's doctor. We accept this evidence; the worker himself would not have had specific memories of visits to physicians at age four, of tests done or not done, or of a diagnosis being provided, or of the meaning of that diagnosis.

• The Worker's Claim for Industrial Chest Conditions form dated December 6, 1983 also states that he had asthma since he was four, and that it was never very serious. It repeats, almost exactly, the information provided to the worker's doctor when first seen in 1980. This is also the same history provided when he was admitted to the hospital on October 27, 1983 under respiratory distress. The worker was 17 years of age at the time. In our view, this history (most certainly at the hospital) would have been provided by the worker's mother or a family member. We accept and conclude in general terms that the worker's self-perceptions of his own medical history (as a child, teenager, and adult) were largely formed by his mother's ongoing descriptions of his health history.

• The worker's family doctor later undertakes a series of clarifications over the years, on what was on his files:
• On May 24, 1988, he states that the worker has had asthma for approximately four years. He was currently on an inhaler, and was described as having moderately severe asthma which was well controlled at that time. The majority notes that this report suggests that the onset of the asthma condition was in 1984, which was after the worker's 1983 compensable injury.
• On June 26, 1995, the doctor reviews his clinical notes and states that the worker had a history of asthma since childhood, but there had not been any serious attacks until August of 1983. He indicates that the worker went to hospital on October 26, 1983 where he was diagnosed with status asthmaticus.
• However, by April 27, 1997, the doctor clarifies his earlier statements. He indicates:

"There is a notation on my chart of him having had "asthma" as a child, but there is no objective evidence to corroborate this diagnosis, and unfortunately many physicians tell parents that their children have asthma when in fact they suffer from a viral illness which causes wheezing…In summary, this man has an uncorroborated history of childhood asthma; I have been his personal physician since February 13, 1980; in the interval between the onset of my care of this gentlemen in February of 1980 and August of 1983, there were no instances of his complaints of symptoms of asthma nor any objective physical findings of asthma, despite numerous examinations by myself. It appears that his symptoms were triggered by exposure to Red Cedar during the summer of 1983."

o On August 10, 2012, the doctor reiterates his position in a letter to the Manitoba Ombudsman, stating in part, "...[the worker] was a patient of mine from 1980 to 2006. Any statements in my medical file that reference the diagnosis of asthma prior to 1983 are incorrect. In fact, there are no records or tests by any physicians or laboratories that confirm the diagnosis of asthma prior to 1983. Any reference to asthma prior to 1983 were related to me by [the worker's] parents, who are not medical professionals and had no factual corroboration to support this diagnosis." 

• The worker's evidence of his own childhood and teenage years essentially corroborate the April 27, 1997 comments by his doctor. The worker describes his childhood and teenage years as being active. He was outdoors all the time and in all seasons. He contrasted his lifestyle to that of his mother, who was always indoors because of her asthma condition.
   
• The majority also notes that the worker was a patient of the family doctor starting February 1980, over 3.5 years before his workplace exposure in October 1983, and had not been prescribed with inhalers by the doctor. These were active teenage years for the worker, and there is no indication of an asthma condition being present, triggered, or treated in those years for that condition.
   
• The majority has also considered the recanting by the mother of her earlier versions of her son's medical history, and accepts that the mother was extremely overprotective of her son because of her own health issues, and felt that stating that her son had asthma would guarantee him the best access to healthcare services. The majority acknowledges that this behaviour might not be "reasonable" for a parent, but it is not our job to judge the worker's mother or her beliefs or her behaviours. It did happen, with unintended consequences for the worker. In this case, the worker's own reporting of an asthma condition right from the outset of his WCB claim (when he was a minor) was profoundly influenced by his mother, who was providing similar histories to his own doctor and to various healthcare providers in subsequent years. These histories were repeated by others down the line, including the worker, and developed a "weight" of truth.  

However, two significant deviations from that "truth" have led us to recast the real facts of the worker's medical history. The first deals with the decision by the worker's mother in 2010 to disclose her role in providing a false history to healthcare providers since the worker was a young child. Standing alone, the restatement might not be enough to alter the balance of probabilities on this case. However, we place considerable weight on the April 27, 1997 letter from the worker's family doctor. He makes it very clear that he did not treat or see any signs of asthma in the worker between 1980 and 1983, was not aware of any diagnostic tests, did not make any referrals to specialists, and did not prescribe any medication for asthma. Other evidence from him (1988) suggests that the asthma condition (and inhalers) were first present four years earlier, or post-injury. In our view, this is the best evidence on this issue -- it is provided by a healthcare practitioner who was involved in the direct care of the worker pre- and post-accident. It is independent and it relies on clinical notes written contemporaneous with the events of that time. Taken together, the report of the family doctor and the mother's restatement provide a compelling case, to the majority, for our decision that the worker did not have asthma prior to 1983.

We note that the perpetuation of an inaccurate medical history by the worker's mother, other family members and even the early reports of the worker's family physician has dramatically affected the course of this claim. Healthcare professionals involved later in the file, either in terms of their recorded medical histories or by WCB medical advisors who have reviewed the file, have based their treatment or opinions on that inaccurate history. This has in turn influenced the decisions made on the worker's claim. Likewise, the worker's attempts to correct the earlier file history has led to an overcomplicated assessment and parsing of other inconsistencies in the file over the past 30 years, such as the presence or non-presence of various allergies, hospital admissions, referrals to specialists and the like, in order to determine the credibility of the worker and his mother.

In the majority's view, as noted above, the worker and his mother created problems in this claim for reasons unrelated to the claim (the desire for better healthcare) that significantly preceded the 1983 claim. There are indeed inconsistencies of evidence over the 30 year course of this claim, some related to the odd circumstances of a story created by an overprotective mother and some to the vagaries of time and memory. However, for the reasons described above, the majority places the greatest weight on the formal clarifications made by the worker's family physician in 1997.

The consequence of our recasting the worker's early medical history is that we therefore decline to place weight on the early statements by the worker or his mother that he suffered childhood asthma from the age of 4, or that he had an active asthmatic condition prior to his workplace exposure in 1983, at the age of 17, and likewise on any medical opinion that relies on that evidence to establish an asthmatic condition prior to 1983.

Based on this evidence, the majority finds on a balance of probabilities that the worker did not have a pre-existing asthma condition prior to his compensable accident in October 1983. Accordingly, the majority accepts the worker's appeal.

The majority wishes to reiterate the comments made at the outset of this analysis. This decision is specifically limited chronologically to the period prior to October 26, 1983 and whether the worker had asthma prior to that date. The majority has not considered and makes no findings as to the potential causal connection between the worker's later respiratory difficulties and his 1983 workplace injury. This is a matter that remains to be adjudicated by the WCB.

Panel Members

A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A.Finkel
Appeal Commissioner
(on behalf of the majority panel)

M. Thow - Presiding Officer

Signed at Winnipeg this 2nd day of October, 2013

Commissioner's Dissent

Chairperson Thow's dissent:

The worker’s position before this panel is that prior to the 1983 workplace accident he never suffered from asthma or any allergies and any medical information suggesting the contrary was provided by his mother and was not accurate.

As the majority noted, this case is complicated by the fact that almost 30 years has passed since the workplace accident occurred in 1983, when the worker was 17 years of age. It is further complicated by the fact that in 1984, when the claim was accepted, the medical evidence and the information provided by the worker and his mother indicated that as a child he had a mild asthmatic condition; that he used an inhaler once or twice a month; and that he suffered from a number of allergies including allergies to cats, dogs, dust and nuts. Again in 1995, when the worker applied for additional WCB benefits due to increased asthmatic symptoms, the medical evidence provided by the worker’s physician and the submission of the worker’s advisor reiterated that the worker had asthma as a child. It was not until 2010 that the worker’s mother provided a statement to the WCB advising that her son had not suffered from or ever been treated for asthma as a child and that she had misinformed those treating her son in order to ensure that he received better medical care.

After reviewing all of the information on file and the evidence presented at hearing, I am unable to accept the worker’s position. Rather, I have concluded on a balance of probabilities that the worker suffered from an asthmatic condition prior to his 1983 workplace accident. In reaching this finding I have placed significant weight on medical evidence that pre-dated the 1983 accident and subsequent statements made by the worker regarding his condition that contradict his current position.

With respect to the medical evidence, I am of the view that the information contained in the clinical notes and records of the two physicians that treated the worker from 1970 until 1980 indicate that from the age of 4 to 14 years of age, the worker was treated for extrinsic or atopic asthma, which is a type of asthma caused by allergies to such things as pollen, dust, smoke or animal dander, the symptoms of which include a wheezing respiration.

In particular, the referring physician that treated the worker from the age of 4 to 12 years noted in his June 2, 1978 letter summarizing the worker’s illnesses that his patient had extrinsic asthma with symptoms since 1970 and that the worker was both seen and followed by an allergist.

In addition, the clinical notes of the second physician that treated the worker from 1978 to 1980 when the worker was 12 to 14 years of age indicate that the worker’s mother and half-sibling are asthmatic; that the worker suffered from asthma due to allergies to cats, dogs, cold weather and nuts and that his first asthma attack occurred at the age of 4. The clinical notes of this physician include a specific note of a visit on October 18, 1978 indicating that the worker used a bronchaid inhaler and a pill whenever he wheezes. Clearly at some point prior to 1978 the worker was prescribed medication for the treatment of asthma like symptoms.

That the worker was treated and prescribed medication for asthma as a child is further supported by the 1981 pre-anesthesia report that indicates the worker had a history of allergies and of having been prescribed bronchaid inhalers and the asthma drug, choledyl, to use as needed. In addition, in 1986 when the worker was taken by a friend to the hospital emergency department due to an allergic reaction to hazelnuts, the attending physician noted on the record that the worker had a previous hospitalization at age 12 due to a reaction to hazelnuts. The report indicates that the worker was brought to emergency by a friend rather than his mother or father. It is therefore likely that the information of a previous hospitalization for an allergic reaction to hazelnuts was provided either by the worker himself or his friend.

The above medical evidence strongly supports a conclusion that the worker suffered from allergies that precipitated asthma attacks during his childhood. The fact that the physician, who later treated the worker beginning in February 1980, indicates that there were no symptoms of asthma during the period from 1980 to 1983 is, as pointed out by the WCB internal medicine consultant, consistent with the natural history of asthma where symptoms may abate during the teen years. In his February 19, 1996 report, the WCB internal medicine consultant provided the following opinion:

The natural history of asthma, which is unrelated to any industrial exposure, is quite consistent with [the worker’s] history that is the asthma was quite severe during his childhood, but during the teen years the symptoms seemed to abate. There is a notation by the anaesthetist who did a pre-anaesthesia examination in 1986, when [the worker] presented himself with an impacted wisdom tooth to the St. Boniface General Hospital. The anaesthetist had recorded that the patient suffered from bronchial asthma and used Choledyl and Bricanyl on an as need basis only. As the patient with asthma approaches an older age group, the symptoms reoccur with varying severity. It is also well known that any asthmatic attack would be brought on by exposure to irritants, such as dust, smoke, infection, etc. [The worker] has shown historically to be allergic to aspirin, which is a hallmark of a severe asthmatic. He developed angioedema on exposure to hazelnut, for which he was seen in St. Boniface General Hospital. The notes from St. Boniface state hospitalization for one week at the age of 12 for allergic reaction to hazelnut.

It is therefore, my opinion that [the worker] suffers from atopic asthma, which was aggravated in 1983 by exposure to dust in the lumber yard…”

In my opinion, the subsequent letter from the family physician dated August 10, 2012 seeking to correct his medical file is limited to the period of time after 1980 and does not address the previous physicians’ medical records and hospital reports indicating that the worker was treated for extrinsic asthma and suffered allergic reactions prior to the age of 14.

I also place significant weight on the worker’s written statement in 1995 and statements attributed to him when interviewed by WCB staff in 1984 and 1995 that contradict the worker’s current position that he never suffered from allergies and was never treated for asthmatic symptoms prior to the workplace accident. In particular, I note the following:

· The worker was interviewed on January 20, 1984 by a WCB rehabilitation counselor to assess his need for vocational rehabilitation services. The detailed report of the interview indicates that the worker advised the counselor that “prior to his employment with [the accident employer], he was only required to use an inhaler on occasion”.

· In a letter to the WCB written by the worker dated March 1, 1995, in which he is seeking additional benefits, the worker indicates that he never required medication or hospitalization for asthma. He does, however, confirm that he suffered from allergies prior to the 1983 accident writing as follows: “Weather changes as well as my previous “known allergies” as stated by [my physician] (ie: cats and dogs dust and smoke) are now a threat to my life as each of these, previously before my accident in 1983 were only allergies.” [italics added]

· The worker and his wife attended at the WCB on July 6, 1995 to provide a new medical report. They were interviewed at that time by the WCB adjudicator who was handling the file. The memorandum on file relating to this interview dated July 7, 1995 indicates that the adjudicator was left with the impression that the worker’s position was that he suffered from allergies prior to the 1983 accident but they required minimal treatment. The worker also advised that any medical treatment he received was provided by the physician who treated him from 1978 to 1980. As noted above, the medical records for that time period indicate treatment with bronchodilators and pills for wheezing.

As noted by the majority, another difficulty in assessing the credibility of the worker’s current position is the fact that the worker suffered a traumatic brain injury four years ago that potentially affects the quality of his evidence at the hearing. This might explain the worker’s contradictory testimony at the hearing when compared to the written response provided to the panel on May 17, 2013.

At the hearing the worker was specifically asked on three occasions whether he suffered from allergies to cats as a child and each time the worker confirmed to the panel that he was allergic to cats all of his life. However, in the written response to the question to “please clarify for the panel whether or not you had an allergy to hazelnuts when you were a child as you indicated at the hearing that your only childhood allergy was to cats”, the worker wrote that he did not have a childhood allergy to hazelnuts or cats and that he didn’t develop an allergy to cats until after the 1983 accident. In light of this clear contradiction, I question the reliability of the worker’s evidence at the hearing as it relates to whether or not he suffered from any allergies or asthmatic symptoms or recalls being treated or receiving medication for asthma symptoms prior to 1983. In my view the more reliable evidence is the medical evidence pre-dating 1983 and the worker’s statements and interviews in 1984 and 1995 referred to above.

I am also not persuaded by the mother’s statement in 2010 that she provided inaccurate medical information in order to protect her son and ensure he received better medical treatment. It is difficult to believe given the dangers of surgery that the mother would have indicated to the anaesthetist prior to surgery that her son was on specific medication for bronchial asthma, if that was not true.

In addition, the worker testified that his mother filled out the WCB claim form on December 6, 1983 and he just signed it. I find the specificity of the information provided by the mother when she filled out this WCB claim form indicating that her son used an inhaler when needed “maybe one [sic] or twice a month”, unusual if that was not in fact the case. She had already stated in the previous sentence on this form that her son suffered from asthma since the age of 4 and that he had had no reason to believe he was allergic to wood. In my opinion, it is not credible that she would go on to indicate that he took medication to treat the asthma on a monthly basis if that was not the case. When taken together with the medical information pre-dating 1983 and in particular the physician’s 1978 notes indicating that specific medication was being used by the worker for treatment of asthma symptoms, I am unable to place any significant weight on the mother’s assertions in the 2010 statement.

For all of the above reasons, I find that the worker suffered from a pre-existing asthmatic condition prior to his October 26, 1983 workplace injury. I would dismiss the appeal.

M. Thow

Presiding Officer

Signed at Winnipeg, this 2^nd day of October, 2013.