Decision #130/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim was not acceptable. A teleconference hearing was held on September 16, 2021 to consider the worker's appeal.
Whether or not the claim is acceptable.
That the claim is not acceptable.
The worker filed a Worker Incident Report with the WCB on September 10, 2020, reporting an occupational disease. The worker stated he believed he developed bladder cancer as a result of being exposed to high levels of heavy metals and chemicals during his over 30 years of employment in the plumbing - pipefitting trade.
On September 14, 2020, the WCB contacted the worker to discuss the claim. The worker advised he was first diagnosed with bladder cancer in approximately 2000. He had never smoked, had no prior cancer treatment, no history of bladder infections, and was not aware of any family history of bladder cancer. The worker noted his job duties involved cutting old pipes where he was exposed to chemicals. He stated he was also exposed to airborne contaminants while scrap metals were being melted down.
On September 18, 2020, the WCB received medical reports and chart notes from the worker's family physician for the period 2000 to 2007. The medical reports indicated the worker underwent surgeries in 2000, 2001 and 2002 to remove tumours from his bladder which were found to be cancerous. An April 29, 2004 chart note from the worker's then treating urologist indicated the worker was asymptomatic and a "…cystoscopy demonstrated no evidence of disease in the lower urinary tract."
On October 5, 2020, the worker provided the WCB with a list of his treating healthcare providers and his employment history from 1966 to 2012. On October 13, 2020, the WCB received an October 6, 2020 report from an out-of-province physician who had treated the worker between 2000 and 2004. The out-of-province physician noted that the worker's medical records had been destroyed due to the length of time that had passed, but provided his recollection of the worker's treatment. The physician wrote he remembered the worker had "…an environmental history positive for exposure to various toxic metals including lead and mercury" and that testing revealed "…an increased body burden for heavy metals including lead and mercury as well as a number of other metals." The treatment provided by the physician included a "…heavy metal detoxification program with intravenous chelation therapy in conjunction with careful/safe removal of mercury amalgams from his teeth; nutrition and vitamin therapies as well as pulsed microcurrent therapy…" The physician stated he supported the worker's claim "…as it is most likely his high risk occupation exposed him to various metals including lead."
On October 26, 2020, the worker provided the WCB with copies of his treatment plan from the out-of-province physician, including testing results, treatment schedules, and a list of suggested nutritional supplements for detoxification.
On November 12, 2020, the WCB received copies of chart notes from 2011 to 2020 from the worker's current treating urologist, including a September 2, 2020 chart note which indicated a recurrence of a tumour within the worker's bladder that would require further surgery.
On December 7, 2020, the worker's file was reviewed by a WCB internal medicine consultant. The internal medicine consultant noted that the worker's current diagnosis was bladder cancer, and that the risk factors for the development of bladder cancer included "…older age, the male gender, a Caucasian ethnicity, cigarette smoking, chronic cystitis, upper urinary tract cancer, bladder augmentation, radiation therapy, cyclophosphamide use, a family history of bladder cancer and genetic factors." The consultant opined that research on occupational factors for the development of bladder cancer did not indicate an increased risk in the worker's occupation.
The WCB internal medicine consultant further opined that the elevated metal levels noted by the treating out-of-province physician were not scientifically established or accepted risk factors for the development of a bladder cancer. The consultant noted that an August 27, 2001 letter from the out-of-province physician indicated that a decision had been made to proceed with a treatment program to eliminate lead and mercury from the worker's system and improve the worker's health in general, and that the treatment program was not performed in relation to the worker's diagnosis of bladder cancer. The consultant also noted that she had contacted the out-of-province physician's clinic, and had been advised that the clinic "…does not treat bladder cancer."
On December 9, 2020, the worker's WCB adjudicator requested that the WCB internal medicine consultant advise as to whether the studies she had reviewed had identified any chemical specific to the worker's trade as causative of bladder cancer. The adjudicator also requested that the consultant review information added to file regarding boiler chemicals and advise as to whether they were considered causative of bladder cancer.
On December 17, 2020, the WCB internal medicine consultant opined that the studies did not show increased risk of bladder cancer in the worker's trade and that "The aforementioned boiler chemicals on file are not considered to be scientifically-determined causative risk factors for the development of a bladder cancer." On December 18, 2020, the WCB's Compensation Services advised the worker that they were unable to accept his claim, as the available medical information did not establish a causative relationship between the worker's employment and his development of bladder cancer.
On February 16, 2021, the worker requested that Review Office reconsider Compensation Services' decision. The worker submitted that his bladder cancer was caused by years of working with pipes treated with chemicals, with no protective equipment. The worker submitted that reports included in his records showed a high incidence of bladder cancer in his trade, and the recent return of his cancer supported his claim.
On March 29, 2021, Review Office upheld Compensation Services' decision that the worker's claim was not acceptable. Review Office agreed with and accepted the opinions of the WCB's internal medicine consultant, and found that the scientific and medical evidence did not support the worker's claim that his bladder cancer was caused by the materials he worked with, or the environments he worked in, throughout his career.
On May 27, 2021, the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act, and policies of the WCB's Board of Directors. The applicable provisions of the Act are those which were in effect at the deemed date of injury, being January 5, 2000.
Subsection 4(1) of the Act, as at the date of injury, provided that compensation shall be paid where a worker suffers personal injury by "accident arising out of and in the course of" employment.
What constituted an accident was defined in subsection 1(1) of the Act, as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured.
"Occupational disease" was further defined in subsection 1(1), as follows:
"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 dealt with the cause of occupational disease, and provided:
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"), sets out guidelines applicable to claims for disease. The Policy provides a definition of several phrases which are relevant to occupational disease, including:
a) "peculiar to or characteristic of a particular trade or occupation"
A disease will be described as being peculiar to or characteristic of a particular trade, work process, or occupation if there is a preponderance of scientific evidence to support a conclusion that the nature of the work processes or environment have significantly increased the likelihood of causing a particular disease in the workers who work in that trade or occupation.
b) "peculiar to the particular employment"
A disease will be described as being peculiar to the particular employment if:
1. there are factors identifiable in that workplace that are known to cause the disease, or
2. there is scientific evidence acceptable to the WCB 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.
The worker was represented by his spouse, who made an oral presentation at the hearing. The worker and his spouse responded to questions from the panel.
The worker's position was that his bladder cancer was caused by working with lead pipes and chemically-treated pipes during the more than 30 years of his employment as a steamfitter/pipefitter, and his claim should be accepted.
The worker's representative referred to their earlier submissions to the WCB and Review Office which were on file. It was submitted that the worker's bladder cancer was not caused by a specific accident but by repetitive and cumulative exposure to pipes which were treated with chemicals, with no venting or personal protection equipment being provided.
It was submitted that after years of working in the pipefitting trade, the worker was diagnosed with bladder cancer by a urologist and underwent numerous cystoscopies and several treatments and surgeries to remove recurring cancerous tumours.
The worker's representative submitted that due to concerns the cancer would return, the worker sought treatment from an out-of province physician. The physician sent blood and urine samples for testing at a laboratory outside the country, and it was found that he had very high levels of metals, including lead, from working with chemically-treated industrial pipes for years. The worker underwent several treatments with the out-of-province physician to remove the high levels of metals.
It was submitted that in denying the claim, the WCB was relying on the opinion of one internal medical consultant only and misquoting the worker's treating physicians and research. It was submitted that the worker's research, as well as medical reports and information included in his records, indicate that working with chemically-treated pipes in the industry causes a much higher incidence of bladder cancer.
The worker's representative noted that cancer was again found in the worker's bladder in mid-2020, for which he underwent further surgery in November 2020. It was submitted that the worker's continuing treatment and surgeries for bladder cancer, and recent recurrence of same, support that this is an occupational disease which is related to his employment, and his appeal should be allowed.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker's claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the development of the worker's bladder cancer was the result of an occupational disease that was peculiar to his trade or his employment, or arose out of and in the course of his employment. After careful review and consideration of the evidence on file and as submitted at the hearing, the panel is unable to make that finding.
The worker noted at the hearing that when he was first diagnosed with bladder cancer, there was little information as to a higher incidence of bladder cancer in the industry, but that subsequent studies and reports noted a rise in bladder cancer in people working with metals. The worker stated that there have been an increasing number of such reports, and indicated that in his research on an internet site on the morning of the hearing alone, he had found 19 articles on heavy metals and how they are causing cancer in metal workers.
The panel acknowledges the worker's position in this regard, but is unable to find that there is a preponderance of scientific evidence or sufficient evidence to support a conclusion that the nature of the work processes or environment in the pipefitting trade significantly increased the likelihood of their causing bladder cancer in workers employed in the trade.
The panel is further unable to relate the worker's job duties or his particular employment to identifiable factors in the workplace which were known to cause bladder cancer or to constitute a significantly increased risk of bladder cancer.
File information includes a list of the worker's jobs and locations where he performed work. The panel notes that the worker acknowledged at the hearing that he worked for a number of different employers on a number of different projects over the years.
The worker relies significantly on the treatment he received from the treating out-of-province physician. The evidence indicates that the out-of-province physician did not diagnose or treat the worker for bladder cancer. Information on file indicates that the treatment program outlined by the treating out-of-province physician was not performed in relation to the worker's diagnosis of bladder cancer but to improve his general health overall. In his August 27, 2001 letter, the out-of-province physician thus noted that based on tests done at a laboratory outside the country in November 2000 which showed elevated levels of lead and mercury, they had decided to proceed "…with a treatment program to eliminate these metals from your system and improve your health in general" and that treatment modalities were subsequently used in order to assist in achieving that goal. The letter went on to note that a further test done in April 2001 had shown a marked drop in lead and mercury excretion, and this "…goes a long way to improving your health at the cellular level."
The worker stated at the hearing that the out-of-province physician was ahead of his time in terms of treating cancer, and was also an alternative naturopath. The worker's representative acknowledged that the out-of-province physician did not really diagnose anything; that he did blood tests, sent them to a well-known laboratory outside the country to be tested, then treated the worker based on those results. The worker agreed that the physician was not treating cancer, stating that it was the causes of the cancer that he was treating. It was noted that with the treatment, the worker's lead levels decreased very significantly.
The panel notes that there is limited information with respect to the presence of heavy metals in the worker's system. There is no indication of any testing having been done in this regard within the province or country. The limited test results on file are ones which were ordered by the out-of-province physician from a laboratory outside the country in late 2000 to early 2001. The panel is unable to find, based on the evidence, that the worker had heavy metal "poisoning" or that the evidence indicates he developed metal exposure at work. The panel is further unable to find that any such heavy metal exposure or level of heavy metal detected in the worker's test results caused or was connected to his bladder cancer.
The panel is unable to attach weight to the October 6, 2020 report from the worker's out-of-province physician. The panel notes that the report was provided more than 15 years after the physician last treated the worker and was based on the physician's recollection of the worker's treatment, as his records had been destroyed. The panel acknowledges the physician's statement that he supported the worker's claim "…as it is most likely his high risk occupation exposed him to various metals including lead," but is unable to find that the evidence supports that statement or that the worker's bladder cancer is causally related to the worker's employment.
The panel notes that the worker also relies on the recurrence of his bladder cancer as further proof or confirmation that his cancer is related to his employment. As indicated above, the panel is unable to connect such a recurrence to the worker's employment.
In conclusion, the panel finds, based on the evidence and on a balance of probabilities, that the development of the worker's bladder cancer was not the result of an occupational disease that was peculiar to the worker's trade or his employment, and did not arise out of and in the course of his employment. The worker's claim is therefore not acceptable.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 15th day of November, 2021