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 is no entitlement to benefits in relation to the worker's death. A file review was held on July 16, 2020 to consider the worker's appeal.

Issue

Whether or not there is entitlement to benefits in relation to the worker's death.

Decision

There is no entitlement to benefits in relation to the worker's death.

Background

On January 21, 2018, the worker filed a Worker Incident Report with the WCB regarding injury to his lungs arising from his exposure to asbestos in 1958 and 1959 while working for the employer. The WCB contacted the worker on January 26, 2018 to discuss his claim. The worker advised he had been diagnosed with asbestosis after having difficulty breathing, which he related to his job duties with the employer in 1958 and 1959. During that time, his job duties included sweeping up "…asbestos insulation that was being pulled out from the pipes in the steam plant." He reported this task was repeated daily for approximately one and a half weeks. He further advised that his family physician referred him to a lung specialist approximately 2 years ago at which time he was diagnosed with asbestosis.

The worker's treating lung specialist provided the WCB with a report dated March 27, 2018, along with chart notes from November 10, 2016 when he began treating the worker. The specialist noted the worker was initially referred for assessment of interstitial lung disease and that the worker was at that time being treated for "…an idiopathic case of nonspecific interstitial pneumonitis…" but the specialist could not rule out the worker having asbestosis given his previous exposure to asbestos.

The worker's file was reviewed by a WCB medical advisor on June 5, 2018 who opined the worker's diagnosis "…related to inhalational asbestos exposure is bilateral pleural plaques" and on June 13, 2018, the WCB accepted the worker's claim for asbestos exposure with a resultant diagnosis of bilateral pleural plaques.

On June 28, 2019, the worker's spouse contacted the WCB to advise the worker had passed away that same day.

The WCB received an autopsy report from the worker's treating lung specialist on December 19, 2019. A WCB medical advisor reviewed the report on January 3, 2020 and noted the worker was admitted to the hospital in June 2019 with progressive renal failure and respiratory failure. While in the hospital, the worker was found to have metastatic live neoplasm (cancer) of unknown primary origin. The autopsy report noted that the primary site for the origin of the worker's cancer was the right lung and found evidence of several health conditions, including the diagnosed bilateral pleural plaques. Based upon the histopathologic criteria for a diagnosis of pulmonary asbestosis, the WCB medical advisor concluded that the worker's suspected clinical diagnosis of pulmonary asbestosis was not histologically confirmed. The WCB medical advisor went on to provide that the main risk factor for lung cancer was cigarette smoking, and that while a diagnosis of bilateral pleural plaques was indicative of past exposure to inhaled asbestos, it did not normally cause "significant respiratory impairment" or "…confer additional risk of lung cancer."

The WCB advised the worker's spouse on January 30, 2020 that it was unable to establish a relationship between the worker's death and his accepted compensable injury.

On February 5, 2020, the worker's spouse requested reconsideration of the WCB's decision to Review Office. In her request, the worker's spouse advised that the worker did not have a history of being a heavy cigarette smoker and had quit completely in 2001. Further she noted exposure to asbestos was a more significant risk for development of lung cancer than smoking and that the worker was exposed to significant levels of asbestos that may have reduced over time.

On March 25, 2020, Review Office determined there was no entitlement to benefits related to the worker's death. Review Office accepted the January 3, 2020 opinion of the WCB medical advisor and found that the evidence did not establish that the worker's death was caused by the accepted diagnosis of pleural plaques. Review Office accepted that the worker had bilateral pleural plaques but noted that the presence of these did not establish "…breathing or other pulmonary functional deficits attributable to the workers (sic) death."

The worker's spouse filed an appeal with the Appeal Commission on April 7, 2020 and a file review was arranged. Following the file review, the appeal panel agreed to grant the worker's spouse additional time to provide a written submission in support of the appeal. Ultimately, the requested information was not provided and on September 10, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

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

Section 28 of the Act provides for payment of compensation on the death of a worker to dependents and the estate where “an accident results in the death of a worker.”

This is an appeal by the estate of the deceased worker, represented by the worker’s spouse. The estate is seeking payment of benefits related to the worker’s death.

Worker Estate's Position

The estate was represented by the spouse of the deceased worker, who outlined the position of the estate in the Appeal of Claims Decision form received April 6, 2020 and in an email to the Review Office dated February 5, 2020.

The estate’s position is that the worker was exposed to asbestos in the workplace and that this exposure resulted in a diagnosis of pulmonary asbestosis which caused the lung cancer that caused his death. The estate relies on the statement in the autopsy report that “Asbestosis cannot be completed excluded given the presence of this [ferruginous body] and the presence of pleural plaques and known clinical history of asbestos exposure.”

In an email to the Review Office sent February 5, 2020, the estate’s representative outlined a number of reasons for appealing the WCB decision that the estate was not entitled to benefits in relation to the worker’s death. First, the representative noted that the worker was a “very light smoker” and ceased smoking entirely in 2001. As noted in the autopsy report, small cell and squamous carcinomas are generally associated with heavy smoking history. Where there is not a history of heavy smoking, then exposure to asbestos would significantly increase the risk of developing pulmonary carcinoma.

Second, there is documentation in medical literature that finding a rare asbestos body in a biopsy showing chronic interstitial fibrosis is “highly suspicious” for asbestos exposure. In this case, the estate’s representative argued, there is significant exposure to asbestos which is consistent with a diagnosis of asbestosis. Further, as the number of asbestos bodies may be reduced over time, the finding of a single ferruginous body, combined with the worker’s history of asbestos exposure, does not rule out a diagnosis of asbestosis.

Finally, the estate’s representative noted the worker was exposed to asbestos in a number of work sites where he did not wear a mask and where there was significant presence of asbestos.

In sum, the estate’s position is that as a result of the worker’s exposure to asbestos in the workplace, he developed asbestosis and that the asbestosis ultimately caused the worker’s death. For this reason, there should be entitlement to benefits in relation to the worker’s death.

Employer's Position

The employer did not participate in the appeal.

Analysis

In order to find in favour of the appellant on this appeal, the panel would have to determine that the worker’s death resulted from the workplace exposure to asbestos, which the WCB has accepted as a compensable accident. The compensable workplace accident as accepted by the WCB is the worker’s past exposure to asbestos in the workplace. The accepted compensable injury is the development of asbestos related pleural plaques.

A WCB medical advisor who reviewed the file on October 23, 2018 explained that “[b]ilateral pleural plaques are considered a marker of previous inhalational asbestos exposure....but are considered benign. They do not have a further disease potential and are not associated with respiratory symptoms or respiratory impairment.”

After the worker’s death on June 28, 2019 but before the results of the autopsy were available, the WCB medical advisor again reviewed the worker’s file, noting his overall impression that the worker had “...a number of significant medical problems including congestive heart failure, renal failure, emphysema and interstitial lung disease. A specific cause for the interstitial lung disease does not appear to have been identified with any certainty.” At that time, based upon the available medical information the WCB medical advisor was unable to establish a diagnosis of asbestosis.

The position of the worker’s estate is the autopsy results do provide evidence that the worker did develop asbestosis and that this caused the worker’s death. The worker’s estate notes the comment of the respiratory pathologist in the autopsy report that “...the presence of a single asbestos body in a biopsy showing chronic interstitial fibrosis should be considered highly suspicious” for asbestosis and that the diagnosis of asbestosis must be confirmed by a history of exposure to asbestos. Further, the respiratory pathologist stated that the numbers of asbestos bodies may be reduced over time, and concluded “Therefore, in this clinical setting and with these morphological features, I believe that this is suspicious for asbestosis in this particular case. If there is significant exposure to asbestos, then this would be consistent with asbestosis.”

The WCB medical advisor reviewed the entire autopsy report and provided a further opinion dated January 3, 2020. In that opinion, the WCB medical advisor noted that the most significant autopsy findings reported “...were related to metastatic high-grade neoplasm (cancer), involving the liver and left adrenal gland.” The cancer is further described as a “metastatic small cell carcinoma” with the primary site of origin in the lower lobe of the worker’s right lung.

The WCB medical advisor also noted that the respiratory pathologist’s finding of a single ferruginous body that has features highly suspicious for an asbestos body but “...does not meet the current quantitative criteria for a diagnosis of asbestosis which requires fiber content of 2 per cm2 of tissue.” The medical advisor explains that asbestosis is defined as bilateral diffuse interstitial fibrosis of the lungs caused by the inhalation of asbestos fibers. He goes on to outline that: 

“The term is reserved for interstitial fibrosis of the lung tissue in which asbestos bodies or asbestos fibers can be demonstrated.... [W]hen a histologic specimen is available, such as when a biopsy is done or an autopsy is done, the histopathologic findings must show the presence of 2 or more asbestos bodies per square cm of lung tissue sampled, in combination with interstitial fibrosis of the appropriate pattern for a diagnosis of asbestosis to be confirmed. The current histopathologic criteria for the diagnosis of asbestosis are mandated by the College of American Pathologists and Pulmonary Pathology Society. In [the worker]’s case, a suspected clinical diagnosis of pulmonary asbestosis has not been histologically confirmed and I am unable to confirm a suspected diagnosis of pulmonary asbestosis.”

In making its determination as to whether or not the worker’s death was a result of the workplace exposure to asbestos, the panel must apply a standard of a balance of probabilities. In other words, is it more likely than not that the worker’s death resulted from his asbestos exposure? The worker’s estate suggests that the panel rely upon the respiratory pathologist’s opinion that the diagnosis of asbestosis cannot be completely excluded, taking into account the worker’s known asbestos exposure, the existence of asbestos-related bilateral pleural plaques, and the “suspicious” finding of a single asbestos body in the tissue sampled.

The panel however notes that both the respiratory pathologist and the WCB medical advisor agree that the finding of a single ferruginous body is not sufficient to establish a diagnosis of asbestosis, according to the accepted diagnostic criteria, even in the presence of asbestos-related pleural plaques and a known history of exposure.

The panel cannot disregard the accepted diagnostic criteria on the basis of suspicion and relies upon the conclusion of both the respiratory pathologist and the WCB medical advisor that the histologic evidence does not support the diagnosis of pulmonary asbestosis.

The autopsy report points to metastatic high-grade malignant neoplasm involving the liver and left adrenal gland as the primary cause of death. In the absence of a diagnosis of pulmonary asbestosis, the evidence does not support a finding that this cancer is related to the compensable workplace injury.

The panel finds on a balance of probabilities that the worker's accident did not result in the death of the worker and the worker's death was not the result of his compensable asbestos-related condition. Therefore, the panel finds there is no entitlement to benefits in relation to the worker’s death.

The appeal is dismissed.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of September, 2020