The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his current respiratory difficulties were not related to exposure to chemicals in his workplace and that instead, they were due to his smoking history. A hearing was held on January 8, 2015 to consider the matter.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In July 2008, the worker filed a claim with the WCB for a chest condition which he related to inhalation of paint fumes in the workplace.

On June 20, 2008, the employer's accident report stated that the worker had problems breathing from exposure to a hot tank cleaner stripper chemical and a jel aid chemical. The products were used in the wash bay area to clean old paint from machines before they were painted again.

The claim information included medical reports from the worker's treating physicians and Material Safety Data Sheets ("MSDS") regarding the chemicals that the worker was exposed to during working hours. These reports were reviewed by a WCB medical advisor on February 24, 2009. The WCB also spoke with the worker to obtain additional information related to his work history with the accident employer.

On March 3, 2009, the worker was advised that his claim for compensation was denied as the WCB was unable to establish that his respiratory condition arose as a direct result of his employment. The case manager's decision was based on the following rationale:

It was noted by you that you have a 30 plus year history of smoking a package of cigarettes per day. Medical information obtained from the hospital also revealed you suffer from additional conditions...your file was referred to one of our medical advisor's (sic). He indicated that your diagnosis of chronic obstructive pulmonary disease complicated by pneumonia was caused by a significant smoking history. He noted that your exposure to the chemicals in the workplace may cause temporary irritation resulting in coughing spells but would not be the cause of your lung disease. He indicated that the x-ray, CT scan and pulmonary functions test all support the sole cause of the problem to be related to a long duration of cigarette smoking.

The medical advisor also noted that the additional conditions you suffer from would result in the severity of your pneumonia and felt this was also complicated by your chronic obstructive pulmonary disease. Based on the medical information and the opinion of our medical advisor that your condition is related to your history of smoking, I am unable to accept your claim for respiratory difficulties related to chemical exposure to your workplace.

On November 20, 2012, the worker appealed the WCB's decision to deny his claim. Included with his submission were a number of medical reports from treating respiratory specialists as well as a medical report from an occupational health physician dated November 1, 2011. These reports contained medical opinions that the worker's exposure in the workplace enhanced his underlying respiratory condition and/or that the worker's condition was due to the combined effects of the workplace exposure and his pre-existing condition(s). The worker also stated in his submission that he had been exposed to Aluminox Sodium Hydroxide during his employment and that he wore little personal protective equipment.

Following receipt of the worker's submission, the WCB gathered additional information from the employer. It was documented that the worker began working in the wash bay area on August 14, 1989 and that he was supplied with respirators, rain suits, rubber gloves and a face shield. The worker had access to showers around 1992 to 1993 in the same building and prior access to a shower in another building. During the use of the reported products, the door was closed and he would spray it on and then leave. The employer indicated that the worker was never exposed to sodium hydroxide in its primary form.

On February 18, 2013, a WCB medical advisor reviewed the new medical information submitted by the worker and the MSDS information related to Aluminux LL, AR Stripper, Jell Aid, and Hot Tank Cleaner Stripper N.F. The medical advisor stated that the primary dominant cause of the worker's lung condition appeared to be chronic obstructive lung disease (COLD). He stated that the worker also had reversible airways obstruction (probable asthma) and a possible restrictive lung disease, not yet diagnosed. With respect to the MSDS information, the medical advisor stated: "The chemicals involved are capable of causing irritation of the mucosal surfaces of the eyes, nose, throat, and lungs. Exposure to higher levels, i.e., levels higher than the TLV-TWA (threshold limit value - time weighted average) or TLV-Ceiling levels of sodium hydroxide may potentially cause some corrosion of the skin and respiratory tract. There is however no information on file that might quantify [the worker's] occupational exposure to sodium hydroxide."

On March 25, 2013, the worker was advised that after further investigation, the WCB was unable to establish that his reported employment activities had placed him at an increased risk for developing obstructive pulmonary and/or reversible airways obstruction and that the original decision of March 3, 2009 remained unchanged.

On June 12, 2013, the Worker Advisor Office requested Review Office to reconsider the WCB's decision to deny the worker's claim. The worker advisor presented argument that the worker's exposure to harmful substances in the workplace contributed to the progression of his lung disease and therefore his claim for compensation was acceptable. The worker advisor's position was that the severity of the worker's COPD was the result of prolonged and excessive exposure to chemicals in the course of his employment over a period of two decades.

In a July 16, 2013 decision, Review Office confirmed that the worker's claim was not acceptable. Review Office identified various inconsistencies in the file information and concluded that there was no evidence, scientific or otherwise, to suggest that the worker's emphysema or COPD was caused or enhanced by his working environment. It was felt that the worker's breathing problems were predominantly caused by a 30 year history of smoking and were further complicated by other health related issues such as bronchial infections, pneumonia and acid reflux disease. On March 4, 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)

The subsection 1(1) definition of occupational disease states:

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

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

b) peculiar to the particular employment;

but does not include

c) an ordinary disease of life; and

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

Subsection 4(4) of the Act deals with the 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.

WCB Policy 44.20, Disease/General (the "Policy") deals with the adjudication of claims that involve disease. The policy sets out an approach for adjudication of claims involving disease whether the claim is to be adjudicated as a claim for compensation of an occupational disease, or if the disease is a pre-existing condition and the claim is to be adjudicated as an accident.

Worker's Position

The worker was assisted by a worker advisor and his wife attended the hearing as an observer. It was submitted that the worker's claim was acceptable because his occupational exposure to sodium hydroxide (also known as caustic soda or lye), either caused, contributed to a worsening of, or synergistically contributed to the severity of, his respiratory condition. The products used by the worker in the course of his work were known to be hazardous to the respiratory system. It was acknowledged that while documentation on file supported that acute exposure to sodium hydroxide would result in severe irritation or burns of affected tissue, there appeared to be little research into the effect of long-term exposure. Literature on file, along with reports from the worker's family doctor supported that exposure to sodium hydroxide could have serious long term effects. The attending respiratory specialist as well as other medical specialists who had treated the worker provided evidence that the worker's exposure to sodium hydroxide likely contributed to his condition. While the WCB concluded that the worker's exposure was limited to 20 minutes per day, it was submitted that the exposure was much greater and that the worker would be exposed to sodium hydroxide mists for most of his workday.

Overall, it was submitted that the worker's exposure to harmful substances in his workplace was the dominant cause of his respiratory disease. In the alternative, the worker's position was that long-term occupational exposure to sodium hydroxide caused an enhancement of an underlying respiratory illness. Finally, it was submitted that the worker's claim should be accepted because the evidence supported that his occupational and personal exposures (history of smoking) interacted in a synergistic way, resulting in a disease more severe than it would have been had he only had a singular source of exposure. It was acknowledged that statistics show that smoking is responsible for the majority of COPD cases; however statistics also establish that exposure to vapours, fumes, dust and gases are also responsible for many cases. The risk of developing COPD increases exponentially when there is exposure to both cigarette smoke and occupational irritants. It was submitted that there was sufficient evidence to accept a probable relationship exists between the worker's respiratory condition and undue exposure to sodium hydroxide at work.

Employer's Position

The employer was represented by a health and safety supervisor and a manager, both of whom participated via teleconference. The employer's position was that the worker's occupational exposure to sodium hydroxide was not sufficient to cause or exacerbate his pre-existing condition of severe COPD, with the real cause being his long smoking history. It was submitted that there was no real information on file that might quantify the worker's level of occupational exposure as being anywhere near or exceeding the threshold limit value, based on the facts that: (a) the mixture was diluted before it was misted, (b) the fact that the worker was wearing continuous personal protective equipment while using the product and (c) the fact that he was not working in the wash bay for a continuous period of time. It was only for a couple of years that the worker was primarily working in the wash bay. Beyond the initial two years, the worker only worked in the wash bay occasionally. The degree of exposure would probably equate to about two to three hours per day. When misting the product, the worker always wore personal protective equipment, which initially was a dust mask covered by a face shield, and in 2000 and beyond, a respirator. It was submitted that the worker's exposure could not be considered repeated or continuous. He wore personal protective equipment the entire time thus it was difficult to establish acute high volume exposures.

The WCB medical advisors provided opinions that the sole and primary cause of the worker's COPD was a long smoking history and that the occupational exposure to mist containing sodium hydroxide may have caused temporary irritation versus any permanent symptoms. It was therefore submitted that the worker's claim should not be accepted.

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 his respiratory condition was causally related to his employment, either as an occupational disease, or as a workplace accident which interacted with a pre-existing medical condition. We are not able to so find.

The worker's respiratory condition has been diagnosed as COPD/emphysema. The panel first considered whether or not his COPD/emphysema fell within the subsection 1(1) definition of an occupational disease. In the panel's opinion, COPD/emphysema was neither peculiar to the worker's particular trade or occupation or to his particular employment. According to the Policy, in order for a disease to be described as being peculiar to or characteristic of a particular trade, work process or occupation, there must be a preponderance of scientific evidence to support a conclusion of an increased likelihood of the disease. There was no such scientific evidence available in this case.

In order for a disease to be described as being peculiar to the particular employment, one of three factors must be established:

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

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

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

In the present case, none of these three factors were established. At most, the evidence of the treating physicians recognized that acute/prolonged exposures to sodium hydroxide may contribute to lung disease.

The panel also considered the evidence regarding the extent to which the worker was exposed to the identified chemicals. We noted the following:

• The worker only worked full time in the wash bay area for his first two years with the employer, from 1989 to 1991.
• After 1991, the worker was promoted to the paint shop, where he was stationed 70% of the time. He was still periodically assigned to the wash bay area as relief.
• By 1998, the worker was only assigned to the wash bay area approximately 5% of the time.
• When he worked in the wash bay area, the worker would conduct approximately 12 mist sprays of equipment per week (generally 4 rounds of spraying on 3 machines per week). Each spray down would take approximately 15-20 minutes to complete.
• For the first five months, the personal protective equipment worn by the worker consisted of a dust mask and a face shield along with a bump cap, safety glasses, rain suit, gloves and rubber coveralls when spraying on the chemicals. After the first five months, the worker used a respirator when spraying the machines.
• After spraying, the worker would leave the wash bay area and would allow the chemicals to sit on the equipment for approximately 45 minutes. He would then return to the wash bay area to remove the chemicals using high pressure steam. The steaming process would take approximately 45 minutes and sometimes up to 75 minutes.
• While steaming, the worker did not use the respirator. He only used the dust mask and face shield for this process.

In the panel's opinion, the worker's occupational exposure to sodium hydroxide was neither acute nor high volume. The length of exposure was only sporadic throughout the day and was diminished by the personal protective equipment worn by the worker. During the first five months, a dust mask and face shield was used, and subsequently, the worker wore a respirator. With respect to the steaming process, the worker characterized the environment as a "toxic sauna" but the panel finds that the sodium hydroxide concentrations would have been diluted as the chemical was being rinsed away. The sodium hydroxide was not being aerated, but rather was being removed. It was also notable that the worker's evidence at the hearing was that he did not suffer from any problems with coughing or burning sensations when breathing. This would indicate that the degree of exposure was limited.

Based on the foregoing evidence, the panel finds that the worker's COPD/emphysema cannot be described as being peculiar to the particular work environment. The evidence does not disclose factors in the workplace that are known to cause the disease or that can be identified as being the proximate cause of the disease. There is no satisfactory scientific evidence of significantly increased risk of disease in the workplace.

The panel notes that even if we did find that the worker's diagnosis of COPD/emphysema was peculiar to the particular employment of the worker, the worker's claim would not meet the dominant cause test, given the worker's 30+ year history of smoking a pack a day. The statistics on file provided by the WCB medical advisor indicated that smoking is the predominant cause of COPD and estimates attribute 80-90% of COPD cases to cigarette smoking. We find that it is far more likely that the worker's smoking history was the dominant cause of his COPD.

We therefore find that the worker's respiratory condition does not meet the subsection 1(1) definition and his claim cannot be accepted as an occupational disease.

The panel also considered whether the worker's claim for his respiratory condition could be accepted as a workplace accident which has interacted with his pre-existing COPD/emphysema resulting in an enhancement or aggravation of a pre-existing condition. We find that the evidence does not support this conclusion.

The nature of sodium hydroxide is that it is a caustic agent classified as an irritant. The literature indicates that cases of long term industrial exposure to sodium hydroxide are almost non-existent due to the strong and immediate irritation caused by the chemical which deters workers from extended periods of exposure. In the present case, the worker's evidence was that he never experienced acute symptoms in his upper respiratory tract while performing his job duties. There was no coughing, shortness of breath or red eyes. He did not describe any change in inhalation or his respiratory condition while at the workplace.

As noted earlier, the worker was only exclusively assigned to the wash bay area for a period of two years from 1989 to 1991. Thereafter, he was only occasionally assigned to the wash bay area as relief. By the time the worker was diagnosed with COPD in 1999, this was approximately eight years after he had been working full time in the wash bay and his exposure to sodium hydroxide was minimal. It is notable that the worker's COPD diagnosis went from mild in 1999 to severe in 2008. During that time, he had only minimal occupational exposure, as he was only in the wash bay approximately 5% of the time.

The panel feels that the suggestion by the medical specialists that occupational exposures may have influenced the worker's COPD/emphysema is insufficient evidence to establish on a balance of probabilities that there was a synergistic effect between the worker's respiratory condition and sodium hydroxide exposure. This is particularly so given our findings of minimal exposure, whereas the medical reports reference "significant exposure," "prolonged occupational exposure" and "acute high volume exposure." This discrepancy causes us to place less weight on the medical reports.

The panel notes that there is a lengthy time gap between the worker's full time assignment to the wash bay area and the diagnosis of COPD in 1999. We feel the timing does not support the finding of an aggravation or enhancement of a pre-existing condition.

Overall, the evidence is not sufficient to establish that the worker's level of occupational exposure to sodium hydroxide altered the course of his COPD/emphysema by aggravating or enhancing the pre-existing condition. We therefore find that the worker's claim cannot be accepted as a workplace accident.

The claim is therefore not acceptable and 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 2nd day of March, 2015