The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker's estate is appealing the decision made by the Workers Compensation Board ("WCB") that there was no entitlement to further benefits. A file review was held on July 20, 2017 to consider the estate's appeal.

Issue

Whether or not the worker's estate is entitled to additional benefits.

Decision

That the worker's estate is not entitled to additional benefits.

Background

The worker filed a claim with the WCB in March 1991 noting that he stopped work on August 14, 1990 due to a reported diagnosis of pneumonia and adult onset asthma. Following receipt and review of medical information, the claim for compensation was accepted for industrial asthma and the worker was provided with a permanent partial disability award of 7.5%.

On October 1, 1992, medical information received from a specialist reported that the worker had hyper-reactive bronchial mucosa resulting in airflow obstruction and asthma-like symptoms which the specialist said was likely related to welding fumes at work.

On June 13, 2011, the worker's wife called the WCB to advise that her husband was diagnosed with prostate cancer and was told that the cancer may be covered by the WCB. She also stated that her husband was a type 2 diabetic and was having problems with his knees.

On June 16, 2011, the worker's wife advised that her husband had been diagnosed with prostate cancer in 2008 and asked whether the WCB would cover any of the expenses. The case manager advised the worker's wife that the claim was accepted as an occupational asthma claim and that it would be difficult to establish a relationship between the worker's current prostate cancer and his lung condition.

In 2013, the WCB requested medical information from the worker's treating physicians as the worker claimed that his current lung condition, diabetes, kidney, prostate and bladder difficulties were related to his 1990 claim.

On June 27, 2013, the WCB advised the worker that based on medical information received from his treating medical providers, his kidney, prostate and bladder conditions were not related to his compensable claim for his lungs.

On March 8, 2016, the worker's wife advised the WCB that her husband passed away on March 4, 2016 and that all of his treating physicians said his death was due to his compensable lung condition as his lungs were filled with phlegm.

Following receipt of medical reports, Compensation Services determined on May 17, 2016 that the estate was not entitled to further benefits as the worker passed away from a medical condition that was unrelated to his WCB claim. On May 21, 2016, the worker's wife appealed the decision to Review Office.

On June 6, 2016, Review Office found that the worker's estate was not entitled to additional benefits. Review Office noted that the claim was accepted by the WCB for hyper-reactive bronchial mucosa with airflow obstruction. As the most responsible diagnosis provided on the death summary was not related to the worker's compensable condition, his estate was not entitled to additional benefits.

On December 9, 2016, the estate was advised by the WCB that the additional information provided by the family physician dated October 28, 2016 had been reviewed and that no change would be made to the previous WCB decision dated May 17, 2016.

On February 22, 2017, the worker's wife appealed Review Office's decision to the Appeal Commission and a 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 ….

This is an appeal by the worker's widow, on behalf of the worker's estate. She is appealing the WCB decision that the worker's estate is not entitled to additional benefits.

Estate's Position

The estate was represented by the worker's widow who has expressed the view that the worker's illness and subsequent death were caused by the worker's workplace injury.

In an email message dated April 12, 2013, the worker's widow submitted that the worker's kidney disease, diabetes, prostate cancer and bad bladder were caused by inhalation of battery acid, fumes, and forklift fumes at work.

The worker's widow also submitted that the worker's medical conditions, specifically kidney disease/prostate cancer/ bladder difficulties were a consequence of the worker's diagnosed compensable injury, hyper-reactive bronchial mucosa with airflow obstruction.

In an email message dated May 19, 2016, the worker's widow submitted that the worker's death was caused by his inability to breathe due to an obstruction to his airway caused by the lung damage he suffered at work. She disputed that the worker's death was due to his prostate cancer. In another note, she advised that the worker complained that he could not breathe due to his lung problem. She indicated that the worker's physicians believe that he died from his lung condition.

The worker's family physician provided a letter to the WCB on October 26, 2016 in support of the worker's widow. He advised that:

• the worker had been under his care for years • the worker has a claim with the WCB for a diagnosis of COPD 

• the worker was treated for several exacerbations of his COPD 

• on or about January 18th of this year he was admitted to hospital with Urosepsis and Pneumonia and possible aspiration 

• a few days prior to this admission he had undergone rectal biopsy which confirmed poorly differentiated adenocarcinoma thought to be secondary to his locally advanced prostate cancer 

• on January 29 he underwent a CT chest which noted bilateral pleural effusions, which on balance were more likely due to his pneumonia/aspiration rather than CHF as there were no reports of enlarged heart, pericardial effusion or pitting ankle edema noted 

• additionally he underwent a total body scan on Feb 5th which noted no bone metastases 

• on March 3rd he had a portable CXR performed more so for assessing the placement of his PICC line, there were no radiologist's comments regarding further status of his lungs 

• his wife reports that prior to passing while visiting the bedside he had for a few hours been complaining about his breathing and appeared to be struggling to catch his breath 

• review of the death certificate lists metastatic cancer of the prostrate as being the cause of death 

• he had several co-morbid conditions that were also involved or contributory to his ultimate decline. These were not reflected in the completion of the death certificate. 

• Given that his prostate cancer was locally invasive and had not spread beyond his pelvis, and that [worker] had complained about having breathing issues and feeling dyspnoeic prior to his passing it is possible that he passed from the pulmonary or other conditions. 

• I would most certainly have included those conditions in completing said certificate had he been asked

Employer's Position

The employer is no longer in business.

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 worker had an accepted claim for hyper-reactive bronchial mucosa with airflow obstruction caused by workplace exposure. The worker's widow has submitted that the worker's accepted claim caused the worker's death.

As a starting point, the panel has considered the issue of the relationship between the worker's workplace duties, his compensable injury and his other medical conditions, specifically this prostate cancer and bladder condition. The panel notes that in May 2013 it was suggested that the worker's prostate cancer and bladder issues were related to his workplace and his hyper-reactive bronchial mucosa with airflow obstruction. The WCB contacted the specialists who were treating the worker's prostate cancer and bladder regarding this suggestion.

The cancer specialist who treated the worker for prostate cancer responded to the WCB on June 10, 2013. He indicated in part that:

I understand from your letter of May 23, 2013 that he claimed in August of 1990 that his hyperactive bronchial mucosa with airflow obstruction was related to inhalation and fumes while at work and could be related to his other conditions related to kidneys, prostate and bladder. In my opinion, his past history of inhalation and fumes while at work has no relation with his prostate cancer.

The urologist who treated the worker's bladder returned the WCB letter indicating there is no relationship between the worker's current medical difficulties and his 1990 August claim of hyperactive bronchial mucosa with airflow obstruction.

The panel places significant 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 there is no relationship between the worker's compensable injury and the worker's prostate cancer and bladder condition.

The primary issue raised in this appeal is whether the worker's death was caused by his compensable injury. In considering whether there is a relationship between the worker's compensable injury and his death for the purpose of WCB benefit entitlement, the panel finds that the appropriate test is 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:

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

In this case, the worker's compensable injury is hyper-reactive bronchial mucosa with airflow obstruction. The further injury was 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 his accepted injury of hyper-reactive bronchial mucosa with airflow obstruction.

The panel notes there are differing views on the cause of the worker's death. The family physician and widow believe that the compensable injury caused the worker's death. The opinions of the hospital internal medicine specialist and the worker's primary treating specialist do not support a causal relationship.

As noted above, the family physician provided a letter dated October 26, 2016 which indicated, in part, that:

Given that his prostate cancer was locally invasive and had not spread beyond his pelvis, and that [worker] had complained about having breathing issues and feeling dyspnoeic prior to his passing it is possible that he passed from the pulmonary or other conditions.

The worker's widow noted the worker had breathing difficulties near the time of his death and suggested this was evidence that his compensable injury caused his death.

On the other hand, the panel notes that:

• the Medical Certificate of Death, completed by an Internal Medicine Specialist identified the cause of death as "metastatic cancer prostrate"

• the hospital Death Summary, completed by an Internal Medicine Specialist, indicated:

"This 81 year old male has a history of metastatic prostate cancer with local invasion to the bladder for which he was on appropriate antiestrogen therapy. He also has a history of CHF (congestive heart failure), COPD (chronic obstructive pulmonary disease), atrial fibrillation and cognitive impairment.

…

He was supported with transfusions as necessary but he decided along with his family that he did not want any further therapy or care and he was made ACP-C and he died soon thereafter.

• a February 25, 2016 letter from the cancer specialist who treated the worker for prostate cancer noted that the worker was " …terminally ill from his advanced prostate cancer."

Regarding the condition of the worker's lungs, the panel notes that at the time of admission the hospital assessment note dated February 20, 2016, shortly before his passing, indicates that the worker denied shortness of breath. As well, the cancer specialist noted in his letter of February 25, 2016 that a CT scan of the worker's chest showed bilateral pleural effusion. He opined that the pleural effusion was related to the worker's congestive heart failure. In the panel's view, the worker's accepted compensable diagnosis from the 1990 claim were not in play at that point in time.

The panel finds that the opinion expressed by the family physician is speculative, in that it suggests "it is possible that he passed from pulmonary or other conditions." The panel finds that the possibility that the worker's compensable injury was a factor in the worker's death does not meet the requirements of the policy. As well, the widow's position that the worker's inability to breathe due to his compensable injury caused the worker's death is not supported by the preponderance of medical information.

The panel places greater weight on the opinion of the physician who was treating the worker's noted terminal condition and the opinion of the internal medicine specialist who completed the Death Summary.

The panel finds, on a balance of probabilities, that the evidence does not support a finding that the worker's further injury, his death in March 2016, was predominantly attributable to the compensable injury of hyper-reactive bronchial mucosa.

The panel further finds that the worker's injury did not cause or result in the death of the worker. 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
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of August, 2017