The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim was not acceptable. A hearing was held on April 20, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on October 4, 2021, reporting an injury to their lungs. The worker described working for the employer for 30 years during which time they were exposed to gas and diesel fumes from vehicles operating around where they were working. The worker noted there was ventilation in the work area. The worked reported they sought medical treatment approximately 6 months earlier with various healthcare providers, including a lung specialist on September 28, 2021 who diagnosed chronic inflammatory lung disease due to the worker’s exposure to diesel and gasoline fumes. The worker described current symptoms of losing their voice and blood in their mucous.

On October 15, 2021, the worker advised the WCB that they first noticed symptoms some two years earlier, when laying down and having trouble breathing, and noting blood in their mucous. The worker reported difficulty with dislodging mucous in their throat and an increase in their symptoms, including hoarseness in their throat, which leads to them being barely able to speak by the end of the day. The worker advised the WCB while they were employed with the employer, their job duties included being exposed to diesel and gasoline fumes 8 hours per day for the 30 years they were employed until they retired in 2006. The worker confirmed they did not smoke cigarettes, have allergies or asthma, and did not have chronic bronchitis or lung conditions. The worker also confirmed they took medication for a cardiac condition.

The WCB requested and received a copy of a September 28, 2021 report from the worker’s treating respiratory specialist, who noted the worker’s history of coronary heart disease, and a coronary artery bypass graft surgery in 2013, and that the worker was on anti-coagulant medication since that time. A chest x-ray taken on September 7, 2021 indicated normal findings and pulmonary function testing conducted the same day indicated moderate obstruction. The report outlined the worker’s report of a daily cough with bloody mucous for at least the previous two years. The specialist noted the worker was seen previously and had a bronchoscopy done in 2019 with normal findings, and that the bloody mucous was presumed to be due to the blood thinner medication. The specialist also reported that a June 2019 CT scan to investigate their bloody mucous found “…no evidence of suspicious pulmonary lesions or nodules” but documented “…generalized airway thickening.” On examining the worker, the specialist opined the worker’s diagnosis was moderate airway obstruction, and noted the worker was exposed to lots of fumes due to their employment and had a history of intermittent hemoptysis (bloody mucous) suspected to be secondary to their chronic cough in the setting of being prescribed anti-coagulant medication.

In a follow-up report arising out of the worker’s virtual visit on February 25, 2022, the respiratory specialist noted the worker had a further CT scan on February 3, 2022 and opined the worker’s hemoptysis was “…most likely due to a combination of being on anticoagulation [medication] and also pulmonary edema” and recommended the worker contact their treating family physician for further treatment.

A WCB medical advisor reviewed the worker’s file on May 13, 2022 and concluded that the worker’s intermittent hemoptysis was accounted for by the diagnosis of pulmonary edema and the worker’s use of anti-coagulant medication, both of which were secondary to the worker’s pre-existing cardiac condition. The medical advisor further opined that neither diagnosis was medically accounted for by occupational factors.

On May 26, 2022, the WCB advised the worker that, after a review of the medical information provided, their claim was not acceptable as their breathing difficulties were not medically accounted for in relation to their employment.

On June 13, 2022, the worker requested Review Office reconsider the WCB’s decision, submitting that their job duties involving exposure to diesel and gasoline fumes left permanent scarring on their lungs and noting their belief the claim should be accepted. On August 10, 2022, the employer provided a submission in support of the WCB’s decision, noting the evidence that the worker’s pre-existing coronary artery disease was the cause of the worker’s symptoms and not their employment. Review Office determined on August 26, 2022 that the worker’s claim was not acceptable, relying upon the WCB medical advisor’s opinion that the worker’s difficulties were not related to their job duties or their work environment.

The worker filed an appeal with the Appeal Commission on January 18, 2023 and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information. After the requested information was received and provided to the interested parties for comment, the appeal panel met on December 7, 2023 to further discuss the case and render its decision on the appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the legislation and policy in force at the date of accident are applicable.

A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. The Act sets out the definition of an accident in s 1(1) 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….

The definition of occupational disease in the Act includes “…a disease arising out of and in the course of employment and resulting from causes and conditions that are peculiar to or characteristic of a particular trade or occupation, or peculiar to the particular employment” but does not include an ordinary disease of life. Section 4(4) of the Act sets out that:

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.

The WCB has established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy"), which addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is identified, in part, as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker’s Position

The worker appeared at the hearing and made an oral submission in support of their appeal. The worker also provided testimony in answer to questions posed to them by members of the appeal panel. The worker’s son attended the hearing as a support to the worker.

The worker’s position is that their ongoing exposure to gasoline and diesel fumes over the course of their employment with the employer, without use of personal protective equipment, caused scarring in their lungs which in turn causes breathing difficulties and coughing up blood. In advance of the hearing, the worker submitted a report indicating what the worker described as an elevated level of lead in their blood. In the hearing, the worker stated their belief that this was also a result of workplace exposure.

In answering questions posed to them by members of the appeal panel, the worker stated that their breathing problems developed gradually, beginning before 2012, and they described the treatment and diagnostic testing they have undergone to address their symptoms to date. The worker also described their regular job duties with the employer, which included cleaning items and the work area itself. The worker testified that fumes within the workspace would be exhausted outdoors, and that during the summer months, the doors to the workspace remained open.

The worker confirmed their belief that their current lung condition is related to their occupational exposure to gasoline and diesel fumes is based on the opinion provided to them by their treating lung specialist. The worker noted they had a recent bronchoscopy, approximately three weeks before the hearing date, as well as a recent CT scan of their lungs.

Employer’s Position

The employer was represented in the hearing by legal counsel who made an oral submission in support of the employer’s position. The employer was also represented by its senior disability management consultant.

The employer’s position is that the workplace exposures were not the dominant cause of the worker’s respiratory symptoms, as demonstrated by the evidence; rather, the evidence confirms that the worker’s respiratory symptoms are secondary to their mild pulmonary edema and the effects of the anti-coagulant medication the worker is prescribed in relation to their cardiac condition. The employer’s counsel submitted that the panel should rely on the opinion of the WCB medical advisor who concluded that the worker’s symptoms are accounted for by their pre-existing cardiac disease and mild obstructive airway disease and noted that this opinion is also supported by the opinion of the treating specialist. Counsel further argued that that panel should give the greatest weight to the most recent medical opinions.

The employer’s counsel also noted that the worker’s occupation with the employer was not the occupation noted in the medical report of the treating specialist, although the evidence indicates that the worker did work in that occupation prior to working with the employer.

The employer’s counsel further submitted that, in the event the panel determines that the worker’s claim is acceptable, which the employer does not concede, the date of accident should be set to 2019, which is when the worker began seeking treatment and undergoing testing for their respiratory symptoms.

In response to the additional information obtained by the appeal panel following the hearing, the employer’s counsel noted the most recent opinions of the treating respirologist indicate that the worker’s “…hemoptysis is likely related to anticoagulation in the setting of valvar heart disease and dilated endobronchial vessels” and that there is no evidence within the additional medical reporting to support the worker’s position.

Analysis

The question for the panel to determine in this appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker’s lung condition developed as an occupational disease, the dominant cause of which arose out of and in the course of their employment. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal is denied.

The panel noted that in the hearing, the worker raised an argument in relation to an increase in their blood lead levels and potential workplace exposure to account for those levels; however, the panel noted that this issue has not previously been considered and decided by the WCB. As such, the panel does not have authority to consider that argument, and we therefore make no findings regarding the blood lead level evidence provided by the worker.

In reviewing the evidence, the panel considered whether there is support for the worker’s claim that their chronic lung condition is a result of exposure to hazards in the workplace while working with the employer over the course of some 30 years until 2006. The panel reviewed the October 21, 2021 report of the treating respiratory specialist to the treating family physician, which indicated that the worker has “moderate airway obstruction” with a “history of intermittent hemoptysis which could be secondary to [their] chronic cough in the setting of anticoagulation.” The specialist further noted the worker’s prior medical history of coronary artery disease with a bypass surgery in 2013, atrial fibrillation treated with an anticoagulation medication, and that the worker has reported intermittent hemoptysis for at least two years with a bronchoscopy and CT scan in 2019 and a September 7, 2021 chest x-ray that indicated the worker’s lungs were clear.

The panel also noted that the February 2022 chest CT scan indicated “Septal thickening and ground-glass …favored to be secondary to mild pulmonary edema rather than interstitial lung disease” as well as suspected mild subpleural fibrosis in the paravertebral lower lobes and new (since the June 5, 2019 CT scan) subpleural nodules. The follow-up scan on September 13, 2022 indicated “Presumed interval resolution of previously described new pulmonary nodules” as well as “Minor subpleural reticular and ground-glass opacities [that] persist in the lower lobes although this is less marked than on the previous exam. This is thought to be age related rather than representing interstitial lung disease.” In a further report dated February 25, 2022, the treating respiratory specialist indicated they told the worker that their “…hemoptysis is most likely due to a combination of being on anticoagulation…and also pulmonary edema” and recommended the worker see their family physician or cardiologist about adjusting their medication.

The panel also reviewed the more recent reporting from another respiratory specialist who assessed the worker in 2023. This specialist noted the worker’s hemoptysis was “likely related” to the anti-coagulant medication but referred the worker for another bronchoscopy “to rule out endobronchial lesions.” The bronchoscopy revealed no endobronchial tumors but did indicate “a few dilated and tortuous submucosal vessels which are the likely cause of [the worker’s] recurrent hemoptysis.” The specialist further noted in September 2023 that the worker was “stable from an obstructive airways disease standpoint” and that the worker’s “hemoptysis is likely related to anticoagulation in the setting of valvular heart disease and dilated endobronchial vessels.”

The panel also considered the May 13, 2022 opinion of the WCB medical advisor, who noted that the worker’s cardiac history “is important as cardiac conditions often present with respiratory symptoms.” The medical advisor also noted that anticoagulation medications are “associated with bleeding side effects, including intermittent hemoptysis.” The medical advisor outlined that the changes noted in the scans of the worker’s lungs, “namely the septal thickening and ground-glass changes, were attributed to pulmonary edema, a known lung complication of [the worker’s] pre-existing cardiac disease.” The medical advisor concluded as follows:

The symptom of intermittent hemoptysis is medically accounted for by the diagnosis of pulmonary edema and the use of anticoagulant medication, both of which are secondary to pre-existing cardiac diagnoses.... The symptoms of shortness of breath is medically accounted for by i) the diagnosis of pulmonary edema, … and ii) a mild obstructive airways disease that has not yet been attributed to a specific medical diagnosis.

The medical advisor further clarified that neither the worker’s intermittent hemoptysis nor pulmonary edema are medically accounted for by occupational factors.

The panel finds that the medical opinions and reports do not support the worker’s position that their respiratory symptoms are causally related to occupational hazards or exposures from their employment with the employer. Rather, the evidence of the treating and consulting physicians indicates that the worker’s current symptoms are secondary to their pulmonary edema and use of anticoagulant medications, both of which are causally related to the worker’s pre-existing cardiac condition. We further note that the most recent medical reports indicate some improvement in the worker’s lung condition and suggests that some of the findings are consistent with age-related changes.

Based on the totality of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker’s exposure to any hazards or conditions in the course of their employment are not the dominant cause to their respiratory symptoms but are more likely than not causally related to their pre-existing cardiac condition and the treatment of that condition. Therefore, we find that the claim is not acceptable, and the worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 3rd day of January, 2024