WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090051
OBJECTION BY: Worker
WORKER: Participating
REPRESENTATIVES: Worker
EMPLOYER: No longer in business
HEARING DATE: July 2009
ATTENDEES: Worker, Worker Representative
ISSUE
The worker claims entitlement for multiple chemical sensitivity (MCS) as causally related to his exposure to various fumes in the workplace between 2003 and November 29, 2004.
HOW THE ISSUE ARISES
The worker submitted this claim to the Workplace Safety and Insurance Board (WSIB) in early 2005 for a claimed aggravation to a pre-existing Hepatitis C condition as a result of being exposed to various fumes and chemicals in the workplace.
The claim was investigated and on contact with the worker and his representative, the worker advised that he claimed to being exposed to chemicals that would affect his liver and his pre-existing Hepatitis C disease.
The full job description as well as any possible exposures were obtained.
The worker was also referred to the Occupational Health Clinic of the St. Michael’s Hospital where an Occupational Medicine Specialist concluded that the worker may have had some irritant affects from possible solvents in the workplace; however, the current symptoms of which the worker complained were related to anxiety rather than a toxicity.
It was concluded that the available evidence did not support a causal relationship between the workplace and the development of the worker’s anxiety condition.
Prior to the hearing, the worker’s representative provided a new medical report from Dr. K. Kerr dated March 27, 2008 which diagnosed the worker as suffering with a multiple chemical sensitivity, it was agreed that this would be dealt with at the hearing.
AUTHORITY
Operational Policy Manual (OPM) Document(s):
11-01-01 – Adjudicative Process
11-01-02 – Decision-Making
Workplace Safety and Insurance Act (the Act) Section 2 (1) and Section 15
METHOD OF RESOLUTION
A hearing was held in July 2009.
ASSESSMENT OF THE EVIDENCE
Based on the available evidence, it is my view that this claim does not have merit for multiple chemical sensitivity for the following reasons:
At the time of the establishment of the original claim, the worker in 2005 along with his representative claimed that he was being exposed to chemicals that would affect his liver and his pre-existing Hepatitis C condition. He indicated in the WSIB investigation that he lost time from work effective November 29, 2004 because his employer would not accommodate him and allow him to work away from possible exposures.
In 2004, the worker did not seek any medical attention with his family physician for any symptoms that could be associated with a multiple chemical sensitivity. The worker was visiting his family physician in late 2004 not for any symptoms associated with anything he was exposed to at work but rather to get the family physician to provide a medical note to the employer because the worker was concerned that any fumes he was exposed to in the workplace might have adverse consequences on his pre-existing Hepatitis C condition.
The worker was assessed by a number of specialists in 2004 and 2005 and none of the physicians who examined him concluded that he was suffering with a multiple chemical sensitivity. Most notably, the family physician did not diagnose a multiple chemical sensitivity. The notes on file from the office of the family physician indicated that the worker should not be exposed to hazardous chemicals, such as aluminium, paints, and industrial solvents, etcetera. This was not based on any symptoms that the worker was experiencing but rather on a preventative basis because the worker asked for a medical note in order that the employer may not move him from his work environment at the time in the Framing Department.
The worker had originally been hired in the Framing Department and he was moved by the employer in August 2004 to the Roll Coat Department. While working in the Roll Coat department, the worker claims that he had symptoms of: headaches, fatigue and dizziness. He was not exposed to any chemicals directly while working in this area. The worker and employer confirmed in the WSIB investigation on file that the Roll Coat area is located in a separate building and an adhesive was used at a machine which was contained under local exhaust. As isocyanates were present in the glue, the employer had instituted a medical surveillance program. The worker was then moved back to his framing department in November 2004 and again asked to work one day on November 15, 2004 in a new department – Flooring. The worker claimed that he developed symptoms after being exposed to fumes from the glue that was put on by co-workers using caulking guns. The worker did not work directly with this glue. He complained to his supervisor after working for half a shift in the Flooring Department on November 15, 2004 and was moved back to the Cab Framing department. He did not have any additional symptoms until November 29, 2004 when he was again asked to go back to the Roll Coat department and he refused. The employer indicated that they would be able to provide a self contained breathing mask for him; however, the worker claimed that he was unable to work at all in this area. The worker then chose to claim sickness and accident benefits which were denied. He last worked on November 29, 2004. On December 16, 2004 the employer offered a new job to the worker in the Sheet Metal Department which involved stuffing insulation. He would be provided with nitrile gloves, a dust mask or a respirator. The worker refused to return to work and was later terminated by the employer.
The worker never sought medical attention for any of the claimed symptoms with his family physician until after he was terminated by the employer.
The chronological progress of the information on file confirms the employer’s position that the worker initially asked to only work in the Framing Department because he was concerned about the possible adverse effects of aluminium, paints and solvents on his Hepatitis condition. In attempting to clarify the worker’s restrictions, the employer contacted the family physician and the chart notes on the family physician confirm that the worker did not complain of any adverse effects during the time period between September 2004 and November 29, 2004 when he last worked.
The family physician chart notes indicate that on September 20, 2004 the worker was seen for his Hepatitis C and needed a note for work (with respect to any restrictions for the Hepatitis C condition). The note of September 21, 2004 from doctor stated that the worker should not be exposed to hazardous chemicals such as aluminium, paints, industrial solvents, etcetera. The doctor did not indicate that the worker had any symptoms at all from anything in the workplace. The chart notes of the family physician for September 20, October 4, December 2, and December 15, 2004 all confirm that the worker did not complain of any symptoms now reported by the worker. There is nothing in the chart notes other than the worker’s attempt to have his family physician provide clarification to the employer that he should not work anywhere else other than Framing department due to concerns with an aggravation of his Hepatitis C condition.
In the chart notes of April 2005 (the exact date is unclear), the family physician notes that the worker saw Dr. Sherman and was told that chemicals would not affect him any differently than other people.
The chronological letters of the employer on file indicate that they made attempts to clarify what the doctor meant by the worker not being exposed to the agents. Once they were aware of any limitations/restrictions, they attempted to accommodate the worker by offering him work that was available and willingly provide a self contained breathing apparatus. The worker’s union was involved the discussion however, the worker refused the personal protective equipment as documented in the meeting notes of November 30, 2004. At that time, the worker requested a voluntary termination.
The employer did continue to attempt to clarify the worker’s limitations and again offered a new position in the Sheet Metal department as per the internal note of December 16, 2004. It is apparent that this position did not involve any fumes exposure however; the worker did not accept this job offer and chose to stay off work. This is despite a return to work note of Dr J. Simpson, dated Dec.16, 2004 authorising a return to work without restrictions.
The company notes of February 24, 2005 under the signature of the company Environmental Health and Safety Administrator noted in handwriting that the worker was claiming “not chemical sensitivity in general, but chemical sensitivity with the liver”.
The worker was assessed by Dr. M. Sherman on April 19, 2005 for his Hepatitis C condition. At no time during this assessment did the worker report any symptoms related to toxicity from anything in the workplace.
The worker was assessed by Dr. A. Fu on April 21, 2005 and at that time she noted that the worker was having symptoms with dizziness and shortness of breath as well as palpitations as soon as he enters the workplace. She also reported that the worker finds that immediately on leaving the workplace his symptoms resolve.
The worker was assessed by Dr. R. Kureshi, Occupational Medicine Specialist, at the St. Michael’s Hospital Occupation Health Clinic. She noted that the worker’s symptoms did not occur when he worked in the Framing department but were present when he worked in the Roll Coat department and Flooring department. She also noted that the worker’s symptoms resolved on cessation of exposure. She noted; “… has now been out of chemical exposure for several months, and he feels fine...” She did note that he does feel unwell whenever he is exposed to cigarette smoke, fabric softener, javex and car air freshener. Dr. Kureshi concluded; “I informed (him) that I believed that his current symptoms which he experiences around various environmental exposures represent an anxiety response rather than a toxicity. ...”
There is a lack of continuity of any symptoms or treatment of any symptoms until the report of March 27, 2008 of Dr. K. Kerr. Dr. Kerr has a completely different history of onset of symptoms as she notes that the worker was generally healthy through the years until between the years 2003 and 2005, when he began to develop recurrent symptoms in the workplace. This is contrary to the previous history that the worker gave to Dr. Kureshi that his symptoms in fact only occurred when he worked in the Roll Coat and Flooring departments. The worker’s history to Dr. Kerr is therefore not supported by the previous information he provided to the WSIB investigator and other physician’s on file. Dr. Kerr when on to note that the worker has had ongoing symptoms since 2005. This again is in contradiction to the findings of the other physicians who noted that the worker’s symptoms had resolved with his removal from exposure, especially from the Roll Coat department and Flooring departments. Dr. Kerr concluded that the worker was suffering with a multiple chemical sensitivity.
In looking at the entire claim, the worker originally claimed to the employer and his family physician that he was concerned about the toxicity effects of any fumes/chemicals in the workplace on his Hepatitis C condition.
The employer acted on the worker’s request and decided to accommodate him by providing the necessary self contained breathing apparatus to him if he was likely to be exposed to any of the claimed agents. The worker refused to wear the self contained breathing apparatus.
The employer then offered the worker a new job in the Sheet Metal department, a job which did not involve any exposure to any fumes or chemical agents. They were willing to provide a dust mask or respirator and necessary gloves. The company note of January 7, 2005 documents a meeting in which the worker stated he told his doctor about the job in Sheet Metal and the doctor “didn’t have a problem with that”. The worker however chose not to return to this job either.
The employer has provided air quality testing on file which indicates that the workplace did not have any issues with air circulation, high dust levels, or high isocyanate and airborne glass fibres in their plants.
I also note that other workers were directly involved in the use of agents that contained isocyanates and as such, the employer had complied with all of the necessary regulations regarding this regulated substance. I also note that no other worker’s, especially those who worked directly with the glues and solvents in the workplace were similarly affected.
In looking at the available evidence, the worker did not complain of any adverse symptoms up to the time that he was working (November 29, 2004). The claim up to the time that he stopped working was that he was concerned about the potential adverse affects of the fumes in the workplace on his Hepatitis condition. It was not until 2008 that the worker made a claim for multiple chemical sensitivity, despite the fact that he had not been exposed to any fumes in the workplace since November 29, 2004. As well, as documented in the reports previously quoted, the worker’s symptoms had disappeared by the time he stopped working in November 2004. The claimed ongoing symptoms beyond November 2004, therefore, cannot be related to the workplace as he was no longer there.
The opinion of Dr. Kerr that this condition is related to his workplace is not reliable given that the worker did not provide an accurate history of onset or continuity.
The available evidence therefore does not support that the worker suffers with multiple chemical sensitivity that can be related to his workplace.
CONCLUSION
The evidence does not support a causal relationship between the claimed multiple chemical sensitivity and the workplace.
The worker’s objection is denied.
DATED October 6, 2009
N. Kissoore
Appeals Resolution Officer
Appeals Branch