The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The estate of the deceased worker is appealing the decision made by the Workers Compensation Board ("WCB") that there was no entitlement to death benefits. A hearing was held on June 8, 2016 to consider the estate's appeal.

Issue

Whether or not there is entitlement to death benefits.

Decision

That there is no entitlement to death benefits.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for asbestos related plural plaques and interstitial fibrosis of the lungs.

On December 12, 2014, the family physician wrote the WCB that the worker had reached end of life on December 9, 2014. The physician stated: "The cause of death was stated as cardiorespiratory arrest. The comorbid or contributing conditions were asbestos pleural lung disease and lower respiratory tract infection, as well as difficulty swallowing with risk of aspiration. His generalized weakness and weight loss was a result of his chronic lung disease, chronic obstructive pulmonary disease, and asbestos pleural lung disease."

On December 18, 2014, the WCB case manager referred the claim file to the WCB's healthcare branch to obtain a medical opinion as to whether the cause of death was related to the compensable injury.

On December 29, 2014, a WCB medical advisor commented as follows after his review of the reports on file concerning the worker's hospital admission on October 8, 2014 and the family physician's report:

Based on the little information I have available for review, it appears that he was admitted with increasing confusion and unwitnessed fall and a brain CT scan showed moderate diffuse cerebral and cerebellar atrophy (often seen in dementia) and a subarachnoid hemorrhage (bleed). A follow-up brain CT scan 6 days later showed resolution of the small brain bleed. Subarachnoid hemorrhages most often occur following rupture of an intracranial aneurysm or AV malformation. There were no fractures reported form (sic) his reported fall. An esophageal swallowing study showed poor swallowing with multiple episodes of laryngeal penetration and aspiration. This type of swallowing problem leaves an affected individual at high risk of recurring aspiration pneumonia. Subsequent chest x-rays done Dec 5 and Dec 9 do in fact show aspiration pneumonia and he died December 12, 2014.

Previous reports on file predating his most recent hospital admission in October 2014 indicate that [the worker] had bilateral pleural plaques and mild interstitial fibrosis, both of which were thought to be secondary to asbestos exposure. Other unrelated pre-existing or co-current medical conditions were also previously reported including: chronic obstructive lung disease, pulmonary tuberculosis, bronchiectasis, coronary artery disease, near-fainting spells, anemia, chronic pancreatitis …

Based on the limited information available for review, [the worker's] death does not appear to be primarily related to asbestosis-related pleural and lung conditions.

Additional hospital reports were added to the file and were reviewed by the WCB medical advisor on February 9, 2015. The medical advisor stated:

… reviewed the emergency room doctors' report and medical chart progress reports sent in from [name] Hospital. Those reports indicate that he was admitted October 8, 2014 with confusion following an unwitnessed fall. The admitting diagnosis was small subarachnoid bleed (brain). Chart notes report he had falls and was weak and frail. He was held in hospital due to increased risk of further falls. Difficulty with swallowing was reported Oct 16 and it was noted that he had abnormal swallowing and was at risk of aspiration. He developed Shingles December 2 and subsequently developed pneumonia and urinary tract infection.

He appears to have died of aspiration pneumonia related to swallowing difficulties, which is unrelated to a previous diagnosis of asbestos-related benign pleural plaques and mild interstitial pulmonary fibrosis.

In a letter to the worker's estate dated February 10, 2015, Compensation Services advised that based on WCB medical opinion, it was determined that the cause of the worker's death was not related to his compensable diagnosis of asbestos pleural plaques and pulmonary fibrosis. On March 24, 2015, the decision was appealed to Review Office by the estate's advocate.

On April 28, 2015, Review Office determined that there was no entitlement to death benefits as it was unable to find that the worker's death was predominately attributable to the compensable occupational disease and the accepted compensable diagnosis.

In making its decision, Review Office considered the arguments put forth by the estate's advocate, the medical opinions expressed by the family physician over the course of the claim and the WCB medical advisor's opinion of December 9, 2014.

Review Office noted:

'The medical condition that leads to a worker's death must be directly related to the compensable accident in order to make the determination the accident resulted in the death of a worker.'

In the worker's case, he was diagnosed with plural plaques (benign) and interstitial fibrosis (mild). The worker died as a result of aspiration pneumonia brought on by swallowing difficulties, food aspiration and secondary infection. The worker's swallowing difficulties and the pneumonia which resulted are not attributable to the compensable diagnoses.

With no cause and effect relationship between the medical condition which ultimately caused the worker's death and the compensable accident, the worker's estate is not entitled to death benefits.

On January 26, 2016, the estate's advocate appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), any supporting regulations and policies established by the WCB Board of Directors.

Subsection 28(1) and (2) of the Act provide for payment of compensation on the death of a worker:

Compensation to dependents of deceased worker

28(1) Where an accident results in the death of a worker, compensation is payable to the worker's dependents in accordance with sections 29 to 35.

Compensation and costs payable on death of worker

28(2) Where an accident results in the death of a worker, the board shall pay to the estate of the worker or to such person as the board may determine, $9,310 and such part of expenses as the board may approve in respect to transporting the body….

This is an appeal by the estate of the deceased worker. The estate is seeking payment of death benefits.

Worker Estate's Position

The estate was represented by the son of the deceased worker and two worker advocates.

The primary advocate provided the panel with a copy of the appeal presentation and a copy of an article from asbestos.com.

The primary advocate submitted that:

After years of working through the system, [the worker] finally established that his medical condition; asbestos pleural plaques (changes in the membranes surrounding the lungs) restricting breathing, along with pulmonary fibrosis, was the direct result of asbestos exposures over the years in the workplace, and was accepted as a compensable injury. These medical conditions can make patients very weak and frail.

The primary advocate reviewed an article which noted the symptoms that can result from asbestos exposure. The symptoms include labored breathing during routine tasks, chest pain and coughing. He noted that as patients age their symptoms worsen. He said that the primary symptoms are decreased tolerance for physical exertion and shortness of breath. He said that:

In severe cases, the drastic reduction in lung function may cause the heart to have to pump at a faster rate than is healthy. It is not uncommon for someone with this disease to die from heart failure, even though asbestosis is a contributing factor.

In later stages of development other complications may arise. High blood pressure, referred to by a doctor as pulmonary hypertension, heart disease, other lung conditions, and the thickening of lung membranes and respiratory difficulty.

The primary advocate advised that the WCB recognized that the worker had asbestosis, yet the Review Office and the WCB medical advisor relied only on the medical evidence from the time the worker was admitted to hospital on October 8, 2014 from an unwitnessed fall. He said that "Very little weight or value was placed on the medical evidence of what contributed to the fall, resulting in [the worker] hitting his head and having swallowing difficulties that led to his untimely death."

The primary advocate was critical of the WCB for attaching less weight to the evidence of the family physician. He suggested that decision makers should place additional weight in reviewing the claim to the medical opinion of the medical doctor who has seen the patient over the years, than to one who is only reading a portion of the medical history. He noted that the WCB medical advisor had never physically seen the worker and he was basing his opinion strictly on the limited material that was provided to him.

The primary advocate submitted that the worker's asbestos-related diseases caused the worker to become weak and frail, resulting in him falling, hitting his head and being admitted to hospital in October 2014. He said that the worker's chronic lung disease, chronic obstructive pulmonary disease and asbestos pleural lung disease made it extremely difficult for him to swallow, increasing the risk of developing aspiration pneumonia which he unfortunately developed resulting in cardio-respiratory arrest. He said the worker died from the effects and medical disorders resulting from his chronic asbestos pleural lung disease.

Regarding the worker's exposure to asbestos, the worker's son advised that the worker was working with asbestos in a very small confined little area, mixing the asbestos with his hands in a little steam pipe tunnel that's 3 or 4 feet wide and may be 4 feet deep.

The primary advocate submitted that while pneumonia is what kills most patients, at the end of the day it's their lung conditions and in this case it leads to the asbestos that originally created the problems.

In reply to a question, the primary advocate said he could not say whether the asbestos-related condition got worse but that:

So, whether they got worse or not, that was the main cause, that caused the heart, the weakened heart because it had to work that much harder to get through to the one, he ended up with cardiac arrest, pneumonia, of course, his untimely death.

The worker's son advised that an autopsy was not performed.

Employer's Position

The employer did not participate in the appeal.

Analysis

This is an appeal on behalf of the estate of a deceased worker for death benefits arising from the worker's compensable injury.

The panel finds that the appropriate test for determining whether the worker's compensable condition caused the worker's subsequent death is that set out in WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury. The policy provides that a further injury occurring subsequent to a compensable injury is compensable:

1. when the cause of the further injury is predominantly attributable to the compensable injury;

In this case, the injury is exposure to asbestos and the development of asbestos related disease. The subsequent injury is the worker's death.

Applying the test in this policy, for the appeal to be approved, the panel must find, on a balance of probabilities, that the worker's death was predominantly attributable to the worker's compensable injury.

In addressing this issue the panel notes there are differing views on the cause of the worker's death being that of the family physician and of the WCB's medical advisor.

The family physician provided a letter dated December 12, 2014 which indicated that:

The cause of death was stated as cardiorespiratory arrest. The comorbid or contributing conditions were asbestos pleural lung disease and lower respiratory tract infection, as well as difficulty swallowing with risk of aspiration. His generalized weakness and weight loss was a result of his chronic lung disease, chronic obstructive pulmonary disease and asbestos pleural plaque.

The family physician also provided a summary dictated on April 26, 2015 and subsequently revised, which indicated that the worker had "chronic asbestos pleural plaque disease, which also contributed to long-term illness and weight loss and was definitely also a contributing factor in his death."

On the other hand, the WCB has taken the view that the asbestos related disease was not the cause of the worker's medical condition and was not the predominant cause of the worker's death. The WCB medical advisor provided an opinion dated February 9, 2015 that the worker "appears to have died of aspiration pneumonia related to swallowing difficulties, which is unrelated to a previous diagnosis of asbestos-related benign pleural plaques and mild interstitial pulmonary fibrosis."

As a result of these differing views, the panel has considered the worker's medical file to ascertain the extent of the worker's work-related condition. The panel notes that it is clear that the WCB has accepted an asbestosis-related condition that includes pleural plaques, which was assessed as benign, and interstitial fibrosis, which was assessed as mild. However, the panel finds that the evidence does not support a finding that the worker's other lung conditions were related to his exposure to asbestos and thus to his employment.

In reaching this opinion the panel notes and places significant weight upon the following medical evidence:

• report of a specialist in internal medicine (respiratory illness) and occupational health dated August 26, 2008. This independent specialist was retained to provide an opinion on the diagnosis/conditions that are directly related to the worker's asbestos exposure and an opinion on the diagnosis/conditions that are unrelated to the asbestos exposure. In making his assessment, the specialist reviewed lung function tests, CT scans, chest radiograph, the worker's medical chart and examined the worker. The specialist concluded that the worker's bilateral pleural plaques with interstitial fibrosis could certainly be related to his asbestos exposure. However, he opined that the worker's other conditions, specifically his history of a lobectomy for an unknown etiology, chronic sinusitis, and airway obstruction consistent with COPD were not related to his work.

• opinion of WCB internal medicine specialist dated January 6, 2010. This physician provided an opinion on the relationship between the worker's asbestos exposure and the skin lesion which was removed from the worker's back in August 2009. He noted that the "Pathology Report" indicated a diagnosis of the lesion was "Epidermal Inclusion Cyst." He advised that this is the most common cutaneous cyst and is caused by proliferation of epidermal cells with a circumscribed space. He opined that this condition and surgery were not related to the worker's asbestos exposure.

The panel notes the above medical information is not consistent with the position taken by the primary advocate that all the worker's lung problems were caused by the worker's asbestos condition. The panel places greater weight on the opinions of the medical specialists, based on their areas of expertise and their careful assessment of the medical evidence before them. The panel finds that the evidence supports a finding that the worker's asbestos exposure caused only the pleural plaques and the interstitial fibrosis, and would not have led to the multiple medical conditions that were presenting in late 2014, leading to the worker's death.

In conclusion, the panel finds, on a balance of probabilities, that the worker's accident did not result in the death of the worker. In other words, the worker's death was not predominantly attributable to his compensable asbestos-related condition. Given this finding, the panel finds that death benefits are not payable.

The appeal by the estate of the deceased worker is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of July, 2016