Decision #115/24 - Type: Workers Compensation

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 22, 2024 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 April 25, 2023, reporting that due to inhaling toxins while employed with the employer they sustained high levels of lead in their blood which has caused various medical issues since their retirement in 2006. The date of the accident was noted to be August 1, 1976, representing the approximate date the worker began their employment.

On May 5, 2023, the WCB contacted the worker to gather further information. The worker advised the WCB that an August 18, 2022 blood test indicated they had high levels of lead. The worker attributed their symptoms of leg weakness and bottoms of their feet being sore to their exposure to lead while at work. The worker advised the WCB of their belief they were in the early stages of a disease called “foot drop”, which symptoms had been increasing over the past 2 years and require them to use a cane for assistance while walking. The worker noted their treating family physician ordered the blood test and advised there was no treatment plan for their condition. The worker provided the WCB with locations of where they worked and advised they were aware of another coworker who had similar complaints regarding difficulties with their feet. The worker also confirmed they had not had other employment since they retired from the employer in 2006.

A copy of the blood test from August 18, 2022 was placed to the worker’s file on May 18, 2023. Chart notes from the worker’s treating family physician were requested and received by the WCB on August 21, 2023. In addition to chart notes from the worker’s treating physician, chart notes from the worker’s appointments with their treating respirologist were also received, and an undated neurology consultation. The worker attended an assessment related to low back pain and leg weakness. After examining the worker, the neurologist provided their impression that the worker had extensive degenerative joint disease involving their spinal column throughout, mainly on the cervical and lumbosacral area and noted their belief the worker had multilevel canal stenosis and significant polyradiculopathy. It was noted the worker had been sent for x-rays but a full spine MRI study was recommended.

The WCB requested information on the jobsites the worker worked at from the employer and on September 21, 2023, the employer advised one jobsite was noted to be an automotive garage, with another listed as a warehouse. The employer advised the third location provided by the worker was closed in the early 2000s but was believed to be an automotive garage and a warehouse, along with other business activities. Information on air quality testing was still being sought. On November 7, 2023, the employer advised the WCB that air quality testing information for those jobsites were not available. The employer confirmed on November 17, 2023, the worker was employed from August 23, 1976 to January 13, 2006.

The worker’s file was reviewed by a WCB medical advisor on December 22, 2023. The advisor opined that the worker’s blood lead level indicated on the blood test from August 18, 2022 did not meet the criteria to be considered at an elevated level or to be adult lead toxicity. The advisor went on to note that adult lead poisoning was defined by a mean blood lead level at a certain reading and signs and symptoms concordant with a diagnosis of adult lead poisoning, neither of which the worker had. The WCB medical advisor also made reference to the undated neurologist’s consultation which found the worker’s leg weakness was secondary to the diagnosis of extensive degenerative joint disease, with the worker having a risk factor for falls due to leg weakness. On February 6, 2024, the WCB advised the worker their claim was not acceptable as a relationship between their current symptoms due to an increased level of lead in their blood and their employment could not be established.

On May 2, 2024, the worker requested reconsideration of the WCB’s decision to Review Office. In their submission, the worker noted their blood lead levels were higher than reported by the WCB and that they disagreed with the assessment by the neurologist as there was no testing done to confirm the diagnosis. Review Office determined the worker’s claim was not acceptable on June 4, 2024. The Review Office accepted and agreed with the WCB medical advisor’s opinion that the worker’s blood lead level did not indicate a diagnosis of adult lead toxicity and as such, did not result in the worker’s current lower extremity difficulties. The Review Office further agreed with the advisor’s indicating of the neurologist’s finding that the worker’s leg weakness was likely secondary to degenerative joint disease. Further, the Review Office found that the worker did not have any lower extremity difficulties prior to their retirement in 2006 and therefore, any exposure to hazardous materials in the course of their employment did not result in an injury.

The worker filed an appeal with the Appeal Commission on June 19, 2024, and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations, and policies of the WCB’s Board of Directors. The applicable legislation is the Act as it existed at the date of injury.

A worker is entitled to benefits under Section 4(1) of the Act when it is established that a worker has sustained “personal injury by accident arising out of and in the course of the employment”. The Act defines accident, in Section 2(1) as a chance event occasioned by a physical or natural cause, or a wilful and intentional act that is not the act of the worker, or an event or condition, or a combination of events or conditions, related to the worker's work or workplace, that results in personal injury to a worker.

Worker’s Position

The worker was present at the hearing, supported by a family member. The worker made an oral presentation to the panel and provided testimony in the hearing through answers to questions posed by members of the appeal panel.

The worker’s position is that the inhalation of lead while working has caused them to have elevated levels of lead in their blood, which has resulted in the current leg difficulties and muscle deterioration they are experiencing.

The worker’s evidence is that during their employment as an automotive utility operator, the worker was involved with maintenance of the employer’s vehicles. The worker states that they would be responsible for refueling the fleet of vehicles and that gasoline and diesel were always present where they were working. The worker states that the inhalation of gasoline fumes has resulted in high levels of lead in their blood and further states that this has contributed to the difficulties the worker is now experiencing. The worker submits that the lead in their blood was responsible for their leg muscles deteriorating. The worker indicated that they now stumble when walking and therefore require the use of a cane.

The worker is seeking that the decision be overturned and their claim be accepted.

Employer’s Position

The employer was not present at the hearing.

Analysis

This appeal arises from the WCB’s decision that the worker’s claim is not acceptable. For the worker’s appeal to succeed, the panel would have to determine that the worker was injured as a result of an accident arising out of and in the course of employment. As detailed in the reasons that follow, the panel was unable to make such a finding and therefore the worker’s appeal is denied.

The panel is unable to establish that the worker suffered an accident or sustained an injury arising out of or in the course of their employment with the employer. The panel does not have any medical information from the worker’s treating health care professionals to support a conclusion that the lead found in the worker’s blood was causally related to an accident arising out of and in the course of employment.

The panel notes that having lead in the blood does not have to be a toxic level in order to qualify as an injury, however the panel does not have evidence before it to find, on a balance of probabilities, that the lead in the blood caused the worker’s leg difficulties. Furthermore, the panel does not have the evidence before it to find, on a balance of probabilities, that the worker’s employment is the cause of the lead in the worker’s blood.

The worker confirmed, when questioned by the panel, that the refueling of the fleet of vehicles occurred outside. The panel also queried whether the gasoline would have been unleaded during the period of time the worker was referencing. The worker also confirmed that the difficulties with their legs started in the last year. While the panel accepts that the worker has difficulties walking and attributes this to the lead in their blood caused by gasoline inhalation and usage at work, there is a lack of evidence that the workplace duties resulted in the lead in the worker’s blood and furthermore, the panel is unable to make a causal connection based on the available evidence that the lead has caused the worker’s leg difficulties.

Considering the totality of evidence before us and on the standard of a balance of probabilities, the panel is unable to find that the worker sustained injury arising out of and in the course of their employment. Therefore, the worker’s claim is not acceptable, and the appeal is denied.

Panel Members

R. Lemieux Howard, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of December, 2024

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