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 is not acceptable. A hearing was held on October 12, 2023 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker submitted a Worker Incident Report to the WCB on July 22, 2022 reporting injury to their lungs that occurred at work on January 1, 2017. The worker reported that they believed their lung injury was caused by inhaling rock dust while at work. The worker stated they wore a face mask “…more often than not” while at work and described first noticing they were not able to breath as easily when walking in the summer of 2017. During an unrelated surgery in 2017, the worker was diagnosed with sarcoidosis, and then referred to a lung specialist, who provided a diagnosis of fibrosis on July 20, 2022.

In discussion with the WCB on September 27, 2022, the worker confirmed the information provided in their Report and advised they worked for the employer from 1997 to their retirement in 2006. The worker stated their belief the diagnoses of sarcoidosis and fibrosis resulted from exposure to rock dust in their employment and confirmed use of a mask while performing their job duties. The worker also noted they smoked for 40 years, quitting in 2008. The WCB advised further investigation was required.

On September 28, 2022, the treating lung specialist provided a narrative report to the WCB, noting the worker’s history of pulmonary sarcoidosis since 2017 and that in July 2022, the worker was started on medication after a CT scan of their chest “…showed evidence of pulmonary fibrosis…”. Enclosed with the report was a pulmonary function test, which the specialist noted indicated the worker had a “…mild restrictive pattern.” The lung specialist described the worker’s current symptoms of a “…daily cough with some phlegm and wheeze” and “…increased shortness of breath especially with the stairs.”

The treating nurse practitioner provided their chart notes for the worker from 2017 to 2022 to the WCB on October 12, 2022. The chart notes indicated the worker was referred to the lung specialist on July 14, 2017 after an unrelated surgery found “…a sarcoid with no evidence of infection or lymphoma.” A report from the lung specialist after the August 29, 2017 appointment with the worker indicated a diagnosis of sarcoidosis and “…mild changes in keeping with interstitial lung disease…” with the worker’s pulmonary function testing finding normal lung function. The specialist opined at that time that no treatment was required, with the worker to be monitored and repeat pulmonary testing every 6 months to a year. A further report from the lung specialist dated September 30, 2018, noted spirometry testing showed normal results and an x-ray from April 24, 2018 found the worker’s lungs “…were essentially clear without any area of consolidation.” At the next appointment on July 8, 2019, the specialist again noted normal pulmonary function testing, with “…some evidence of interstitial changes…” noted on a chest x-ray and referred the worker for a CT scan. At their next appointment on May 19, 2022, the worker reported developing acute symptoms of tiredness, fatigue, and fever while out of the country in March 2022. The specialist recommended an additional CT scan. In a virtual appointment with the worker on July 26, 2022, the lung specialist noted the July 6, 2022 CT scan showed a slight improvement from the scan in 2019, advised they would trial the worker on medication and recommended follow-up pulmonary function testing.

The employer provided additional information to the WCB, including a job description, occupational hygiene survey and material data safety documents on October 24, 2022.

A WCB medical advisor reviewed the worker’s file on January 5, 2023, noting the treating lung specialist diagnosed progressive interstitial fibrosis secondary to pulmonary sarcoidosis. The medical advisor stated that the cause of sarcoidosis was unknown and may affect the lungs and other organs, and that a definitive cause for sarcoidosis has not been identified. On February 8, 2023, the WCB advised the worker the claim was not acceptable as an occupational cause for the worker’s difficulties could not be established.

On October 5, 2023, the worker requested Review Office reconsider the WCB’s decision, noting their belief they were exposed to rock dust and chemicals, without the proper equipment, while working for the employer. On May 4, 2023, the treating lung specialist submitted a further report to the WCB indicating the worker’s condition remained stable with a good response to the medication prescribed. The specialist opined the worker’s “…occupational history also is considered a risk factor for sarcoidosis as there is a link between exposure to pollution dust and the development of sarcoidosis.”

On June 2, 2023, Review Office upheld the WCB’s decision and determined the worker’s claim was not acceptable. Review Office relied upon the WCB medical advisor’s opinion that the medical information on file did not establish a connection between the worker’s diagnosis and symptoms and their job duties. As such, Review Office found the worker’s difficulties were not the result of an accident as defined by the WCB’s legislation.

The worker filed an appeal with the Appeal Commission on June 21, 2023 and a hearing took place on October 12, 2023. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. After the requested information was received and provided to the interested parties for comment, the appeal panel met again on February 6, 2024 to render its decision on the issue under 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.

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 daughter attended the hearing as a support to the worker.

The worker’s position is that the materials dust they were exposed to and inhaled during their years of working for the employer, from 1997 to 2006, caused them to develop fibrosis and therefore the claim should be accepted.

The worker testified to the nature of their job duties with the employer, noting that there were no respirator masks required in the workplace during those years, but that they did wear a hospital-type of mask occasionally, as well as other protective safety equipment. The worker noted that during the time they worked for the employer, there was a less robust safety environment than there is today. The worker described working 12-hour shifts, and approximately 2000 hours per year.

The worker stated that they currently have difficulty breathing and limit their activities because of their lung condition.

The worker noted the report provided by the employer to the WCB based on 2006 monitoring recommended use of respirator masks in the employer’s workplace. The worker submitted this information supports their position that they were exposed to hazardous materials in the workplace.

In response to questions from members of the appeal panel, the worker confirmed that they retired in 2006, and quit smoking in 2008. The worker confirmed their belief that they developed sarcoidosis, fibrosis, and interstitial lung disease because of their workplace exposures to materials dust.

Employer’s Position

The employer was represented in the hearing by its safety manager who took no position on behalf of the employer but indicated their willingness to provide information to the panel as needed.

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 considered whether the evidence supports a finding that the worker’s occupational exposure to dust from various material, is the dominant cause of the worker’s development of a lung condition. The panel noted the information provided by the employer to the WCB, including material safety data sheets for various compounds, indicates the specific compounds and components that the worker was likely exposed to in the workplace. The panel noted the evidence that the worker’s exposure to such materials ended in 2007 when the worker retired from their employment and that prior to that, the worker’s job duties required them to work in an environment where they were exposed to various materials as described in the data sheets.

The worker relies upon the opinion of the treating lung specialist in support of their position that breathing in such materials dust during their employment from 1997 to 2006 caused them to develop sarcoidosis, and subsequently developed secondary progressive interstitial fibrosis. The panel considered that the treating lung specialist set out in their May 5, 2023 report that the worker’s occupational history, referring to their work with the employer, “…also is considered a risk factor for sarcoidosis as there is a link between exposure to pollution dust and the development of sarcoidosis.” When asked by the panel for evidence in support of this statement, the lung specialist provided summaries of research articles indicating that exposure to certain materials may increase risk of developing lung conditions, including sarcoidosis. The panel noted the research relied upon by the lung specialist also indicates that “Sarcoidosis is a multisystem disorder of unknown etiology” and that “Several possible associations have been investigated” including occupational exposures such as beryllium, zirconium, and aluminum.

The panel further noted and considered the opinion provided by the WCB’s medical advisor, who had the benefit of reviewing the materials safety data sheets and occupational hygiene reports from the employer as well as the medical reporting. The WCB medical advisor, in their January 4, 2023 opinion, outlined that:

“Sarcoidosis is a granulomatous disease of unknown etiology…that may affect the lungs and other organs…. A definitive cause of sarcoidosis has not been identified but it has been hypothesized that sarcoidosis develops in genetically predisposed individuals who may be exposed to as yet unknown environmental, immunologic or infectious agent triggers. The data, however, is sparse and specific epidemiological weighted, risk factors are as yet unknown.”

The panel finds that the medical advisor’s opinion is consistent with the information provided by the treating lung specialist, in that it confirms that a specific cause, or etiology, for development of sarcoidosis is not yet known, and further that there may be risk factors, including both environmental and genetic factors, related to the development of that condition. As such, we are satisfied that while it is possible that there is a link between the worker’s occupational exposure to the dust of various minerals and mineral compounds, the evidence does not support a finding that the worker’s occupational exposure to such dust is, more likely than not, the dominant cause of the development of their lung condition.

Based on the totality of the evidence before the panel, and on the standard of a balance of probabilities, the panel is unable to establish that the dominant cause for the development of the worker’s lung condition was their occupational exposure to mineral or rock dust materials. 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 8th day of March, 2024