Decision #136/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the worker's death is not a result of a compensable condition or treatment. A file review was held on September 12, 2019 to consider the worker's appeal.
Whether or not the worker's death is a result of a compensable condition or treatment.
That the worker's death is not a result of a compensable condition or treatment.
On January 26, 2015, the worker filed a Worker Incident Report reporting an injury to his lungs. The worker noted that he was exposed to asbestos while working for the employer from 1966 to 2001. The worker reported having breathing difficulties for the last 4 to 5 years. He noted that he had been hospitalized on and off since December 3, 2014, and had been in hospital since December 17, 2014.
The WCB wrote to the worker's healthcare providers for further information. On March 23, 2015, the worker's family physician provided a report, in which he noted that the worker first complained of shortness of breath and a cough on July 14, 2008, which improved by August 12, 2008. The family physician provided reports of x-rays of the worker's lungs taken in June 2008 and July 2008, both of which noted calcified pleural plaques. The physician also noted that in March 2009, the worker had increased symptoms of shortness of breath, and in June 2009, he was seen for treatment by a respirologist. The physician opined that the worker's condition was a result of being exposed to asbestos.
On March 30, 2015, the worker's respirologist provided the WCB with a report, in which he noted that the worker was known to have "…previous asbestos exposure and some previous asbestos related pleural disease with calcifications." The respirologist stated that the worker had recently been hospitalized due to "rapidly progressive interstitial process" but that the exact diagnosis for the worker's current difficulties was uncertain. It was noted that the worker had reported previous difficulties with breathing but noticed a "fairly rapid progression" of difficulties occurring prior to his admission to hospital in December 2014.
On April 13, 2015, a WCB medical advisor reviewed the worker's file and opined that the worker's diagnosis was bilateral pleural plaques, and there was no other information on file that might suggest the worker had asbestosis. The WCB medical advisor provided that the medical records for the worker's admission to hospital with chest pain and shortness of breath on December 6, 2014 which was related to other conditions and that the worker was being treated for interstitial disease. The medical advisor opined that the medical reports on file indicated that the dominant cause of the worker's respiratory difficulties was not related to asbestos exposure.
On April 16, 2015, the worker's claim was accepted by the WCB for bilateral pleural plaques. A further review of the worker's claim was completed by another WCB medical advisor on June 2, 2015. The WCB medical advisor opined that there was not enough medical information on the file to confirm asbestosis and that the presence of pleural plaques was not sufficient to account for the reported shortness of breath.
A report from the treating respirologist dated May 27, 2015 described the worker having "interstitial lung disease presenting as an acute interstitial pneumonitis", with further testing being requested to clarify the cause. The WCB medical advisor reviewed that report on June 17, 2015 and again opined that the evidence did not support the worker's lung difficulties being related to his prior asbestos exposure. On June 24, 2015, the WCB's Compensation Services advised the worker that they were unable to authorize coverage for medical expenses which had been submitted to the WCB as it had been determined they were not related to the accepted diagnosis of bilateral pleural plaques.
On October 15, 2015, the worker requested that Review Office reconsider Compensation Services' decision. On December 3, 2015, Review Office returned the worker's file to the worker's WCB case manager for further investigation. Further medical information was gathered by the WCB, and on January 13, 2016, Compensation Services advised the worker that there was no change to the June 24, 2015 decision.
On July 18, 2016, a worker advisor acting on behalf of the worker filed a further request for reconsideration, along with copies of CT scans and a May 16, 2016 report from the worker's respirologist. On July 19, 2016, it was determined that this information was new medical information and the WCB requested that the information be reviewed by the WCB medical advisor.
The medical information was subsequently reviewed by the WCB medical advisor in consultation with the worker's respirologist. The worker's respirologist advised the WCB medical advisor that a complete workup of the worker's respiratory condition had been done and a specific cause, other than potentially asbestosis, had not been identified. As such, the medical advisor and the treating respirologist agreed that it was reasonable to conclude that the cause/diagnosis of the worker's lung condition was asbestosis. On November 7, 2016, Compensation Services advised the worker that they had accepted his claim for asbestosis and related expenses were accepted.
On April 20, 2018, the worker's spouse advised the WCB that the worker had been taken to the hospital on April 4, 2018 and had passed away on April 8, 2018. Medical information requested from the hospital was received on April 23, 2018. A death summary dated April 9, 2018 noted the worker's diagnosis as "…cholecystitis that was complicated with a type 2 MI with pulmonary edema" and that the worker passed away from these complications. The medical information was reviewed by the WCB medical advisor on May 17, 2018 who noted that the cause of the worker's death was an "…inflammation of the gall bladder that was complicated by a heart attack with development of fluid in the lungs." The WCB medical advisor further opined that the worker's death was not related to effects of his compensable condition of asbestosis. On June 6, 2018, Compensation Services advised the worker's widow that after reviewing the medical information, they had determined the worker's passing was unrelated to his compensable diagnosis.
On July 26, 2018, the worker's estate requested the Review Office reconsider Compensation Services' June 6, 2018 decision. The estate also requested that the medications the worker was taking prior to his death be reviewed. The worker's estate submitted that in their opinion, the long-term use of these medications was a contributing factor in the worker's death. Review Office returned the worker's file to Compensation Services on July 31, 2018 for further investigation regarding the worker's medication usage.
A list of the worker's medications was requested from the worker's treating respirologist and was received on September 18, 2018. This information, along with the medications listed in the worker's previous hospital admission records, were reviewed by the WCB medical advisor. On October 9, 2018, the WCB medical advisor opined that the medications prescribed for the worker were appropriate for the treatment of his compensable lung condition and would not have contributed to the development of any of the conditions listed as the cause of the worker's death. On October 23, 2018, Compensation Services advised the worker's estate that they had determined that the medications would not have contributed to the worker's passing and the decision that the worker's passing was unrelated to his compensable condition remained unchanged.
On December 10, 2018, the estate requested that Review Office reconsider Compensation Services' decisions. It was submitted that the worker's exposure to asbestos caused or contributed to his death, as the worker was in good health prior to his diagnosis.
On January 7, 2019, Review Office determined that the worker's death was unrelated to his claim for asbestosis or the prescriptions he took in relation to his asbestosis. Review Office accepted and placed weight on the WCB medical advisor's opinion that the worker's cause of death was due to separate medical conditions, not the compensable condition of asbestosis, and that the medications provided to the worker were appropriate to treat his lung condition and would not have contributed to the development of the separate medical conditions.
On February 19, 2019, the worker's estate appealed the Review Office decision to the Appeal Commission and a file review was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
WCB Policy 22.214.171.124, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury. The Further Injuries 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; or
(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.
The estate's position, as set out in their February 2, 2019 appeal form, was that:
[The worker] was a strong healthy man, actively volunteering and regularly bike riding long distances until this diagnosis of the asbestos related lung disease. This diagnosis and complications from this diagnosis brought on his early death.
In a further written submission dated August 13, 2019, the worker's widow submitted that it had been noticeable to her, as the worker's primary and constant caregiver, and to the worker that his condition was worsening and further steps had to be taken. It was noted that as the worker's condition kept deteriorating, his medications kept changing, with new medications being added and the dosages of existing medication being increased. It was submitted that the prescribed combinations caused more serious side effects to the worker's organs and other functions. The side effects were monitored by the worker's treating physicians but there was no option but to continue with the medications as the worker could not function without them. The widow submitted that as she watched the worker deteriorate during this time, it was evident to her that his compensable condition and/or treatment contributed to his death.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker's death is a result of a compensable condition or treatment. For the estate's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's compensable condition of asbestosis and/or the delivery of medications prescribed to treat that condition caused or contributed to his death. The panel is unable to make that finding.
The panel acknowledges the estate's submission with respect to the deterioration of the worker's health and the medications he was taking to treat his compensable condition. The panel finds, however, that there is a lack of clinical evidence to support the estate's position that the worker's unfortunate passing was causally related to his compensable condition or predominantly attributable to the medication he was prescribed to treat that condition.
Information on file shows that no autopsy was performed. The panel accepts that the worker's cause of death, as noted in the April 9, 2018 death summary from the hospital, as being "cholecystitis that was complicated with a type 2 MI with pulmonary edema."
The panel further accepts the March 17, 2018 opinion of the WCB medical advisor who reviewed the information regarding the worker's hospitalization and noted:
Based on the information on file, [the worker] died from "cholecystitis that was complicated with a type 2 MI with pulmonary edema" as noted in the April 9 2018 death summary on file. (Translation: inflammation of the gall bladder that was complicated by a heart attack with development of fluid in the lungs.)
The admission history noted that [the worker's] respiratory function at the time of admission was not changed from his baseline, indicating no respiratory component to his final illness.
Based on the information on file it is apparent that [the worker's] death was unrelated to effects of the compensable condition of asbestosis.
With respect to the worker's medications, the panel notes that in response to a November 1, 2017 Healthcare Service Request ("HSR"), the WCB medical advisor had reviewed the list of the worker's medications which the WCB had funded between November 1, 2016 and October 31, 2017. Following the worker's death, the WCB requested that his treating respirologist forward a copy of all prescribed medications at the time of the worker's passing. The WCB medical advisor then reviewed the worker's file and discussed it with the worker's case manager, following which he provided an opinion to file. The panel accepts the October 9, 2018 opinion of the WCB medical advisor, who stated, in part:
…The list of recent medications is not provided in the records from the hospital admission of April 2018 however it is likely that the medications were similar if not identical to those noted in the HSR of Nov 1 2017 and subsequently in correspondence from the respirologist (on file Sept 18, 2018).
These medications were appropriate for treatment of the compensable lung condition and would not have contributed in a material way to the development of cholecystitis (gallbladder inflammation/infection), MI (heart attack) or pulmonary edema (fluid in the lungs.).
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's compensable condition of asbestosis and the delivery of medications prescribed to treat that condition did not cause or contribute to the worker's death. The panel therefore finds that the worker's death was not a result of a compensable condition or treatment.
The estate's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of November, 2019