The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his respiratory condition was not the result of an accident arising out of and in the course of his employment. A hearing was held on June 19, 2014 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

On April 23, 2008, the worker filed a claim with the WCB for a respiratory condition that he attributed to the nature of his employment activities as a firefighter which exposed him to fires and smoke inhalation.

As part of the adjudication process, the WCB contacted the worker to gather information related to his employment and medical history as well as details regarding the development and progression of his respiratory condition. The WCB also obtained medical reports and test results from the treating physicians which were reviewed in consultation with a WCB medical advisor specializing in internal medicine.

The claim for compensation was accepted by the WCB and benefits and services were paid to the worker, which included a permanent partial impairment award.

On May 26, 2010, the worker was advised that based upon a further review of his claim, the WCB should not have issued benefits for his respiratory condition and therefore no further responsibility would be accepted for his absences from work or related treatment. The decision letter stated:

According to information provided by you, we were advised that there was no history of respiratory difficulties until 2005. However, medical information obtained indicates you experienced respiratory symptoms dating back as far as 1967. You also claimed that your respiratory symptoms were due to your inhalation of smoke and fumes while performing your employment duties...

Information provided by your employer indicates that you started employment...in 1987. It was required that positive flow self contained breathing apparatuses be used from 1985 on. This was enforced. According to the incident notification forms received you had 4 separate incidents where you were exposed to smoke. These documented exposures were from September 1988 until January 2006. No medical treatment was sought for any of these exposures.

Medical information on your file confirmed the presence of a respiratory condition which predated your employment...spirometry testing completed in 1988 confirmed the presence of your respiratory condition. This was also confirmed by pulmonary function testing.

It was also noted that the above information had been reviewed by a WCB Internal Medicine Consultant. Given the medical information on file he suggested that the respiratory difficulties were consistent with your pre-existing condition rather than your employment activities.

To determine whether your respiratory difficulties were related to your employment activities, your file was discussed more recently with the Senior Medical Advisor, along with the Internal Medicine Consultant to the WCB. It was agreed that there was a well documented history of respiratory difficulties prior to your employment. According to the medical information on file, we were not able to determine that the medical information on file supported a relationship between your respiratory symptoms and your employment activities. It is our position that your current airway restriction is consistent with your pre-existing condition. It is recognized that your employment exposures to smoke or fumes may cause a temporary irritation of your underlying respiratory condition but this would have occurred immediately following exposure and would resolve without lasting effect shortly after.

On August 21, 2013, a worker advisor appealed the above decision to Review Office. The worker advisor referred to medical evidence on file to support that the dominant cause of the worker's respiratory condition diagnosed as bronchiolitis obliterans was due to his work exposure to smoke and other toxins in the workplace and was not the result of a pre-existing condition.

On October 10, 2013, the employer's representative submitted to Review Office that there was no basis to rescind or amend the decision of May 26, 2010.

On November 4, 2013, Review Office confirmed that the worker's claim was not acceptable. Review Office noted that the evidence on file provided that the worker suffered from and had sought treatment for breathing difficulties and/or upper respiratory infections since 1983. These difficulties were referenced as far back as 1967 and were confirmed through an approximate history as documented by the treating specialist in 1983.

Review Office further stated that the worker's condition had not objectively deteriorated from the date of his hire with the employer in late 1987 to his current breathing complaints. The worker experienced infections and flare ups of his condition prior to starting his employment and he continued to experience flare ups in the absence of any workplace aggravating factors. Review Office concluded that the worker's breathing difficulties and the diagnosis of bronchiolitis obliterans did not arise out of and in the course of his employment. On March 13, 2014, the worker advisor appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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 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 was assisted by a worker advisor at the hearing. It was submitted that the worker's respiratory illness claim, diagnosed as bronchiolitis, should be accepted on the basis that, over the course of his career as a firefighter, he was exposed to various airborne chemicals and irritants which were the dominant cause of his current condition. Evidence of exposure to airborne irritants included eight exposure reports on file spanning 1998 to 2006 which were significant enough to warrant formal documentation, a description of seven types of lesser fires for which firefighters did not typically utilize self-contained breathing apparatus, a description of the fire stations where there were many years of exposure to diesel exhaust, and changes to self-contained breathing apparatus whereby, in earlier years, one-size-fits-all types of gear were used which provided a lower degree of protection from exposure.

With respect to the medical information on file, the worker disagreed that his bronchiolitis pre-existed his employment and submitted that there was medical evidence to support this position. Medical reports from an occupational health physician and the treating respiratory specialist both supported that the worker's employment exposure was the dominant cause of his respiratory condition. The panel was urged to attach greater weight to these medical reports over the opinion of the WCB medical advisors as both were internal medicine specialists.

Although the WCB asserted that the worker was already demonstrating symptoms of his current lung condition during the years 1980 to 1982, one might expect that he would remain symptomatic in the years leading up to his employment as a firefighter. This was not the case. He had been able to participate in various sports at a high competitive level, which was not consistent with having an existing respiratory condition.

The panel was therefore asked to overturn the decision of the WCB and accept the claim.

Employer's Position

The employer was represented by its compensation coordinator. It was submitted that the evidence indicated that the worker's respiratory problems were present prior to his employment and that there was no significant change in the test ratings while the worker was employed as a firefighter. In particular, the employer made reference to the following evidence:

- The history of bronchitis in 1967;

- Respiratory problems during the winters of 1980-82;

- Findings in 1983 which led to diagnoses of allergic rhinitis and asthma;

- Spirometry from 1988 which showed an obstructive pattern;

- The family doctor's confirmation of intermittent colds and bouts of respiratory infection;

- An allergist who provided a diagnosis of recurrent upper respiratory tract infections;

- The allergist's confirmation that prick testing to various inhalants revealed positive response to tobacco and dust mites;

- The WCB medical advisor's July 9, 2002 report which referenced three bouts of pneumonia during the last twenty years;

- Spirometry testing in 1988 which revealed airway changes five months after commencing employment as a firefighter;

- No appreciable change in spirometry results from 1988 through to the end of the worker's career in suppression;

- Spirometry testing in 2006 and 2007 which revealed a slight decrease in respiratory functioning despite the worker being out of the work force on both occasions;

- Exacerbations experienced in 2009 despite no longer working in suppression;

- Despite claims of worsening every time he went out firefighting, the WCB claim was not established until 21 years after the date of commencement of employment.

It was submitted that the totality of information on file failed to support a relationship between the worker's respiratory problems and his employment as a firefighter. The panel was therefore called upon to disallow the worker's appeal.

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. On a balance of probabilities, we are not able to make that finding.

The primary difficulty the panel had with acceptance of the worker's claim was the fact that the spriometry test from approximately 1988 already showed a slight obstructive pattern. The WCB medical advisor compared the worker's FEV 1.0/FVC ratio from 1988 to the spirometry results from September 2006, September 2007, September 2008, March 2009 and September 2009. His comment was that while the ratios had been mildly decreased, they had been stable since 2008. The other test measures indicated that there had been no material decline in the worker's lung function from 1988 to 2009. The panel notes that the worker stopped performing fire suppression work in 2008.

The worker commenced employment as a firefighter in November 1987. At the hearing, it was suggested by the worker advisor that the mild obstruction identified by the 1988 spirometry could have been incurred during the first year of employment. The panel was not, however, provided with any medical literature or other references as to the type and degree of exposure required in order to establish a causal connection. The worker did provide evidence as to the type of work he performed during his first year. The worker 's evidence was that when he first started, he underwent a training period at a facility, consisting of classroom work and physical training. They were rarely exposed to any fire scenes, except on a couple of occasions when

they went to assist an overhaul after the fires were extinguished. This training period continued for approximately three months. After the training period, the worker was assigned to a station which did not have many house fire calls. They had more medical calls than fire calls. While there were not many house fires, there were numerous garbage and car fires, which would be worse for smoke and burning products. The worker would have been provided shared (one-size-fits-all) self-contained breathing apparatus when attending calls, but was not encouraged to wear them, particularly at garbage or car fires.

In the panel's opinion, the worker's exposure to smoke and airborne toxins in his first year of employment would have been relatively limited. While there was undoubtedly some exposure, it was not at any great frequency or degree. We are not satisfied on a balance of probabilities that this limited degree of exposure caused the slight obstructive pattern identified in the 1988 spirometry. We therefore conclude that the worker had a pre-existing condition, i.e. the early stages of small airways obstruction. As this condition did not change significantly during the 21 years the worker was employed as a firefighter, we find that a causal relationship cannot be established between the condition and the worker's job exposures. If the worker's respiratory condition was indeed related to workplace exposures, we would have expected to see a steadily deteriorating condition as a result of the cumulative effect of the exposures. This is not evident. The panel therefore agrees with the assessment by the WCB medical advisor.

With respect to the two specialist opinions relied upon by the worker, the panel finds that less weight is to be placed on these reports for the reasons that follow.

With respect to the March 9, 2011 opinion of the treating respiratory specialist, at point 4 of his report he states: "I also do not believe that [the worker] had any chronic respiratory symptoms preceding his illness which occurred after exposure at work." Given that this assumption is contrary to the panel's finding regarding the presence of a pre-existing small airways obstruction, we place limited weight on the specialist's report.

With respect to the March 4, 2014 report of the occupational health physician, the panel does not accept the physician's analysis regarding the interpretation of the lung functioning testing. He discounted the 1988 FEV1/FVC ratios based on the fact that that the values are consistent with physiologically large lungs, but then later accepted the ratios from 2006 onwards. The panel observes that the worker would continue to have physiologically large lungs, so this does not explain why the later readings should be considered valid. The physician also did not dispute the WCB medical advisor's comment that there was only a mild decrease in the ratios and that the worker's ratios were relatively stable over the 21 year period. This is the critical information which the panel relied upon to reach our decision.

With respect to the occupational health physician's opinion on diagnosis and causation, the panel notes that the diagnosis addressed in the opinion is chronic obstructive pulmonary disease

("COPD"). The worker's appeal is being advanced for bronchiolitis and the medical opinions provided by the WCB medical advisors and the treating respiratory specialist address bronchiolitis obliterans, not COPD. While the panel understands that these medical conditions are similar, they are not the same. We therefore place less weight on this opinion.

For the foregoing reasons, the panel finds that the worker's claim is not acceptable. The worker's appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 13th day of August, 2014