The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on July 20, 2021 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On May 26, 2017, the employer provided the WCB with an Employer's Accident Report, indicating the worker reported an injury to his lungs as a result of exposure to chemicals. The employer advised that the worker had retired in 2012, having worked full-time from 1989 until his retirement. It was noted the worker had worked an average of 6 hours per day on the job site for 32 weeks of the year, with 2 months off during the summer time. In 2013, 2014 and 2015, he came back to work on a contract position for approximately 2 months each year. The employer reported that the worker started noticing difficulties in 2008, sought medical treatment and was diagnosed with bronchitis. His breathing got progressively worse, and in 2015, he was sent for a spirometry test and was diagnosed with chronic obstructive pulmonary disease ("COPD").

The worker filed a Worker Incident Report with the WCB on May 31, 2017 reporting an injury to his lungs due to "Prolonged exposure to toxic levels of contamination in welding." The worker also provided a Chest Condition Questionnaire and Work History Summary on June 22, 2017.

In a discussion with the WCB on June 23, 2017 with respect to his claim, the worker advised that he was notified by the employer's safety supervisor in April 2017 that the job site he had worked in had recently been deemed unsafe and he should seek medical advice. The worker noted he had worked in that job site from 1989 to 2012, had experienced respiratory issues for quite some time, and had recently been diagnosed with COPD. The worker confirmed that he returned on a contract position with the employer for 3 years after his retirement, but declined to work in 2015 and 2016 due to respiratory difficulties. The worker filed his WCB claim as he believed his respiratory difficulties were related to his exposure at his job site.

On June 26, 2017, in response to a question from the WCB, the employer advised that they believed the worker would have been exposed to "…gases or byproduct of the welding rods such as manganese" while working at the job site.

On July 17, 2017, the WCB received a narrative report from the worker's treating family physician indicating the worker first referred to respiratory concerns on May 25, 2015, after reporting "…episodes of bronchitis (couple / year)." It was noted by his family physician that the worker was a former cigarette smoker of approximately 30 years, who had quit smoking approximately 3 years previously. The physician also noted the worker was sent for spirometry testing on June 16, 2015, and enclosed the results of that testing, noting they were interpreted to be consistent with mild COPD. The physician went on to note that the worker was seen in July 2016 "…with no reference at that time to increase in respiratory problems."

On September 6, 2017, the WCB received an email from the employer advising that the only negative airborne chemical found in the worker's job site was in 2016, but the level of that chemical was within the threshold limit value ("TLV") that existed prior to a change to that TLV in 2013.

On September 25, 2017, the worker's file was reviewed by a WCB medical advisor who opined that "…the reported occupational exposures to welding fumes would not likely be the dominant cause…" for the worker's diagnosis of COPD. The advisor further opined "Cigarette smoking is the most important single causal factor for developing COPD…" and referenced the worker's treating family physician's report of the worker's past history of 30 pack-years of smoking. The WCB medical advisor concluded the worker's diagnosis of COPD was "…most probably related to other non-work related factors." On September 27, 2017, the WCB advised the worker that his claim was not acceptable, as they could not establish an accident arising out of or in the course of his employment.

On October 16, 2017, the worker provided additional information and asked that the WCB review the air quality testing information that had apparently been performed. The WCB requested the air quality testing information from the employer. On January 29, 2018, the WCB advised the worker that the information had been reviewed, but there was no change to the earlier decision that his claim was not acceptable.

On June 26, 2018, the worker provided the WCB with additional information in response to the air quality testing information provided by the employer, and on September 13, 2018, the WCB advised that following a review of that information, there was no change to the decisions of September 27, 2017 and January 29, 2018.

On September 20, 2018, the worker requested that Review Office reconsider the WCB's decisions. At the request of Review Office, the WCB medical advisor reviewed the worker's file in its entirety, conducted a further review of the medical literature with respect to welders and the development of COPD, and provided a further medical opinion on November 27, 2018. The medical advisor opined that "[The worker] has both a past medical history of longer-term cigarette smoking in the past and bronchial asthma, both known, well-established risk factors for COPD. The epidemiologic evidence regarding a causative relationship between welding fume exposure and the development of COPD is inconsistent and needs further study. As such, on a balance of probabilities, I am unable to establish a probable dominant cause between the worker's reported occupational exposure and the diagnosis of COPD."

The WCB medical advisor's opinion was provided to the worker, and the worker provided a response to that opinion on January 10, 2019, including medical literature relating to acute and chronic health effects of welding fume exposure. On January 17, 2019, Review Office again requested that the medical advisor review the information provided by the worker, and on January 23, 2019, the medical advisor recommended the worker be assessed by a respirologist, that full pulmonary tests and lung imaging studies be performed, and that copies of chest x-rays or CT scans be obtained. On February 15, 2019, the worker's treating family physician provided copies of spirometry testing conducted in September 2018, and Review Office advised the worker that his request for reconsideration would be placed on hold pending receipt of information from additional medical testing from an upcoming appointment with a respirologist and pulmonary studies.

On March 4, 2020, the worker provided Review Office with a February 3, 2020 report from his treating respirologist, and asked that Review Office reconsider the WCB's decisions. The respirologist noted in her report that she had seen the worker on August 27, 2019 and December 6, 2019, and stated that:

Based on the multiple pulmonary function tests including spirometry of 2015, a spirometry in May 2019, and pulmonary function test from [August 27, 2019], [the worker] has a definitive diagnosis of asthma/COPD overlap syndrome. I have to mention that having the diagnosis of asthma does not exclude that the occupational exposure has a significant role in worsening of his respiratory disease. Asthma is an airway disease where most patients have normal pulmonary function tests to start with and usually their disease will get worse due to different factors including ongoing exposure to respiratory irritants including dust and fumes from occupational exposure and smoking.

On April 22, 2020, the employer provided a submission in support of the WCB's decision. At the further request of Review Office, the WCB medical advisor reviewed the medical information provided by the worker's treating respirologist. On April 29, 2020, the medical advisor opined that risk factors for the development of asthma-COPD overlap syndrome ("ACOS") had not been fully set out in the medical studies, and based on his file review and a review of the relevant medical information, he could not establish a relationship between the worker's respiratory difficulties and his diagnosis of ACOS. On May 13, 2020, the worker provided a response to the employer's April 22, 2020 submission and the medical advisor's April 29, 2020 opinion. On May 5, 2020, the employer also provided a response to the medical advisor's opinion.

On May 14, 2020, Review Office determined that the worker's claim was not acceptable. Review Office placed weight on the opinions of the WCB medical advisor who reviewed the worker's file and was unable to establish a relationship between the worker's respiratory condition and his exposure at the workplace.

On November 13, 2020, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged for July 20, 2021.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On November 18, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

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.

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, 

(b) any 

(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.

Worker's Position

The worker was self-represented on the appeal. The worker provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker also responded to questions from the panel.

The worker's position was that the toxic welding fumes to which he was exposed during his employment led to the development of his respiratory condition and his claim should be accepted.

The worker began by clarifying that he was employed by the employer on a part-time basis only for the first 15 years of his employment with the employer, then full-time for the next 8 to 9 years, and on contract for the 3 years after that.

The worker submitted that the facility he was working in was not properly cleaned or maintained. The equipment they used was faulty and did not work properly, including the air extraction units and ventilation system which were in terrible condition. As a result, the facility would regularly fill up with smoke and it would become very difficult to breathe. The worker submitted that the air quality in that environment was so poor, his condition continually got worse, going from bronchitis, to chronic bronchitis, to asthma, then chronic asthma and COPD.

The worker noted that a multitude of particular contaminants and gases were released in the air during the welding process due to the decomposition of minerals, and submitted that the synergistic effects or interaction of those elements produced a greater effect than what was produced by the elements individually. The worker submitted that the WCB's focus appeared to be on his exposure to manganese, and they failed to address the other elements he was exposed to in the course of the welding process.

The worker noted that there was limited air quality testing, with no testing being performed at the job site from 2002 to 2016. The worker submitted that it is unclear what methodology was used for the earlier testing, and that it appeared the more recent tests were performed under optimal work conditions as opposed to when the site was in maximum use. Even so, the test results showed that there were daily levels of exposure which were well above acceptable levels.

The worker relied on the reports and opinions from his treating respirologist, and from a further internal medicine physician he had been referred to for a second opinion. The worker submitted that these 2 specialists, who had seen the available test results from the workplace and examined the worker, both firmly believed that his welding exposures in the workplace led to the development of his respiratory condition. The worker submitted that by contrast, the WCB medical advisor, who was not a specialist, was unable to give a conclusive answer in this regard.

The worker submitted that medical studies and statistics from health and safety bodies show that welders are subjected to a wide variety of health and safety risks, and that workplace injuries such as burns, cataracts and back problems are significant among welders. The worker submitted that the health risks of inhaling welding fumes are equally as important, and that even within the permissible regulatory exposure limits, welding exposure fumes can cause short-term acute effects and long-term chronic effects.

In conclusion, the worker submitted that there was no question that working in this toxic environment, where he was exposed to welding fumes which were far above the acceptable levels, caused his respiratory condition, and his appeal and claim should be allowed.

Employer's Position

The employer was represented by its Supportive Employment Coordinator, who provided a written submission in advance of the hearing. The employer's representative made an oral submission at the hearing and responded to questions from the panel.

The employer's position was that they agreed with the Review Office decision, and were requesting that it be upheld.

The employer's representative submitted that they continued to rely on the employer-related details which had been provided to the WCB, including information most recently provided in connection with the worker's appeal to Review Office. The representative noted that based on their review of the evidence, they too had difficulty finding a nexus between the worker's respiratory condition and exposure at the workplace resulting in an occupational disease.

The representative submitted that they had no additional information to provide, and maintained their position in support of the Review Office decision to deny the worker's claim, as outlined in their May 5, 2020 submission to Review Office.

Analysis

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 respiratory condition 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 all of the evidence, on file and as submitted at the hearing and in response to questions from the panel, the panel is unable to make that finding.

The worker's respiratory condition has been diagnosed as asthma-COPD syndrome (ACOS). Based on the information which is before us, the panel is of the view that ACOS was neither peculiar to the worker's particular trade or occupation or to his particular employment.

The panel notes that according to the Policy, in order for a disease to be described as being peculiar to or characteristic of a particular trade, work process or occupation, there must be a preponderance of scientific evidence to support a conclusion of an increased likelihood of causing the particular disease. The panel finds that there was no such scientific evidence available in this case.

Also according to the Policy, in order for a disease to be described as being peculiar to the particular employment, one of 3 factors must be established:

• there are factors identifiable in that workplace that are known to cause the disease, or 

• there is scientific evidence that the particular workplace is the cause of a significantly increased risk of the disease even though the cause has not been identified, or 

• a factor can be identified at the workplace as being the proximate cause of the disease.

In the present case, the panel is satisfied that not one of these factors has been established.

In this regard, the panel notes that no specific factor or environmental toxin has been identified as the cause or trigger for the worker's respiratory condition of COPD/ACOS. The test results as noted in the December 7, 2016 Airborne Metals Exposure Survey report on file showed that "the largest component of the welders' exposure arises from the presence of manganese" and that the welders tested received exposures to manganese above the TLV on the day of testing. The report went on to note that "High exposure to manganese has been associated with central nervous system effects resulting in symptoms similar to Parkinson's disease." Safety and health literature which the worker provided and is on file similarly indicated that "Excessive exposure to manganese can result in neurological damage, causing an array of symptoms, referred to as manganism, that resembles those of idiopathic Parkinson's disease." There is an absence of any indication in the reports or information on file, however, that manganese causes respiratory conditions or COPD/ACOS.

The worker has argued that the synergistic effects of the toxic elements which were present in the workplace produced a greater effect than the effect of those elements individually and led to his respiratory difficulties. The panel is unable to accept that argument. The panel accepts that the worker was exposed to a number of different contaminants or gases. Apart from the reference to manganese, however, the evidence does not support that the worker was exposed to such elements above the TLV or in a significant way, or that any such elements would have been causative of respiratory conditions.

The panel acknowledges the worker's position that there was limited testing and that the testing which was provided was not done at peak work times and should have been done differently. The panel also acknowledges the worker's evidence with respect to the nature of the job site, the equipment and the environment in which he was working. The panel notes that the worker indicated at the hearing that when working full-time he would have been welding or exposed to ongoing welding processes a little less than 5 hours per day. The panel finds that it is not clear, based on the evidence, what the worker's level of exposure would have been in this case.

The panel is unable to place significant weight on the opinions of the treating respirologist. The panel notes that the respirologist broadly and unequivocally asserted in her report dated February 3, 2020 that based on her review of the information provided to her by the worker, "…there is no doubt that [the worker] was exposed to significant occupational hazard from the welding fumes that has contributed significantly to his severe obstructive airway disease." In making that assertion, the respirologist referred a level of exposure based on the test results for one worker's exposure to manganese in 2016 which, as indicted above, has been linked to nerve damage, particularly Parkinson's disease, but not to respiratory problems.

The worker indicated at the hearing that he had been referred by his treating respirologist to another internal medicine physician for a second opinion. Following the hearing, the panel requested and was provided with a copy of a report from the internal medicine physician dated August 4, 2020, who concluded that "Overall, I feel that [the worker's] occupational welding exposures led to him developing significant obstructive airways disease."

The panel reviewed the internal medicine physician's report, but is again unable to find that the available evidence supports the physician's broadly-stated conclusion. The panel notes that the physician indicated that the worker reported excessive exposure to a variety of compounds in his work in the welding shop. He also noted that elevated levels of manganese were reported in 2016, which was after the worker left work so might not be representative of his exposures in prior years, but that the occupational exposure limit for this compound was based on neurologic and not respiratory effects. The physician further noted that studies looking at welding and COPD have been mixed likely related to differing levels of exposure in the population being evaluated.

The panel notes that the WCB medical advisor was twice asked by Review Office in this case to consider and advise as to whether the medical evidence established a probable relationship between an occupational exposure and the worker's diagnosis. In his opinion dated April 29, 2020, the medical advisor opined that "Specific well-defined risk factors for the development of ACOS have…not yet been fully delineated in epidemiological studies," and concluded that "Based on my file review and a review of the relevant medical literature, I am unable to establish a probable dominant cause between [the worker's] reported workplace exposures and a diagnosis of ACOS."

The panel accepts that the worker would have been exposed to noxious contaminants and gases while working at the job site. That the worker was exposed to such contaminants, however, does not mean that those elements caused his respiratory condition. Based on the foregoing, and in the circumstances of this case, the panel is unable to find that the worker's respiratory condition or ACOS was causally related to the worker's exposure to such contaminants, or in any event, that such exposure was the dominant cause of the worker's respiratory condition.

The panel therefore finds, based on the evidence and on a balance of probabilities, that the development of the worker's respiratory condition 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. Accordingly, the worker's claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

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 4th day of January, 2022