WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
Decision number: 20100011
OBJECTION BY: Worker
WORKER: Participating
REPRESENTATIVE: None
EMPLOYER: Not participating
ISSUE
The worker objects to the adjudicator’s decisions dated March 17, 2009, July 16, 2009 and October 14, 2009, setting September 20, 2007 as the date of accident used to determine entitlement to occupational asthma.
The worker is appealing for the date of accident to be adjusted back to October 26, 2001.
HOW THE ISSUE ARISES
This claim has been established with a date of accident (DOA) of September 20, 2007. Entitlement has been accepted for a permanent aggravation of a pre existing mild asthma and for a fixed airflow limitation, based on a Specialist report of December 21, 2007, confirming the diagnosis.
The worker representative reports (in correspondence dated September 24, 2009) that the worker was seen medically for breathing concerns on October 26, 2001 and that the accident date should therefore be adjusted from September 20, 2007 to October 26, 2001.
The adjudicator determined that as there was no objective medical evidence to confirm the diagnosis until September 20, 2007, the accident date was correctly set.
The worker’s objection to this decision is the issue presently under appeal.
AUTHORITY
11-01-04 Determining the Date of Injury
RESOLUTION METHOD AND PROCESS
The worker’s representative submitted a 60-Day Decision Option form received on December 31, 2009. By completing this form, the representative is aware the appeals resolution officer will provide a final decision of the Workplace Safety and Insurance Board (WSIB) based on the information on record and any additional information submitted with the objection form.
The employer did not return a signed participant form and was therefore not contacted for this appeal.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision in this claim, I have reviewed and considered the file evidence in the context of the relevant legislation and WSIB policy. The following is a summary of my observations and assessment.
It is the worker’s position that an accident date of October 26, 2001 be used to establish the date of initial evidence of occupational asthma in this claim as this is the date that is mentioned in the family doctor’s report of June 10, 2008. The adjudicator has ruled that since the earliest medically confirmed date of reversible airway disease or asthma was September 20, 2007, this date has been correctly used as the DOA. The adjudicator notes that the first objective medical evidence was confirmed in a pulmonary function test (PFT) dated September 20, 2007.
In considering a worker’s entitlement to WSIB benefits, a decision maker is mandated to have regard for WSIB legislation and related policy.
WSIB policy 11-01-04 regarding determining the date of injury states in part:
Most occupational disease claims do not result from a single event occurring at a specific time. As work-related diseases generally result from the cumulative effect of occupational exposure spanning many months or years, the date of injury is not based on when the exposure to the causal agent(s) occurred, but rather on when the illness or disease first becomes apparent. An example of this type of occupational disease claim is where a worker develops lung cancer after many years of exposure to asbestos dust at work. In these cases, the decision-maker determines the date of injury based on either
the date initial medical attention is sought for symptoms consistent with the diagnosis, or
if medical continuity of compatible symptoms is unclear, the date a medical specialist conducts a full clinical assessment and determines the diagnosis.
The issue before me is not whether the occupational asthma is allowable but rather whether the date of accident used is accurate. As such, my review will centre on this issue alone.
When I assess all of the pertinent information in the claim file, I find that the worker’s date of accident (DOA) was correctly set as September 20, 2007. I do not find that there is sufficient relevant evidence to adjust that date. In reaching this conclusion, I had regard for all of the available information, however found the following details particularly pertinent:
The worker representative argues that the worker first sought medical attention for symptoms of wheezing, coughing, tightness in the chest and shortness of breath much earlier than September 20, 2007. However, the worker’s family doctor submitted a letter dated Jun 10, 2008 confirming that the worker “is a chronic cigarette smoker with episodic nasal allergy, bronchitis, one to two times a year…Dr. P. Jugnundan from occupational health clinics has done tests to confirm he has reversible airway disease; the likely cause of it is from his fume exposure of many years. I agreed. Other lesser factors are cigarette smoking and his nasal allergy. The only relevant test I have done on him was normal chest x-ray on March 22, 2006”.
The Clinical Occupational Hygienist, report of February 18, 2009 records that the worker reports experiencing symptoms in October 2001. However a confirmed diagnosis was not provided until PFT’s were conducted in (September) 2007. It is noted that the worker has been a smoker for 40 to 45 years.
Specialist, Dr. Tarlo, in report dated February 25, 2009 notes “He notes upper respiratory infections to exacerbate his symptoms once or twice per year. He began smoking around the age of 15 initially two or three cigarettes a day …and then smoked around 20 cigarettes a day…he noted the symptoms were worse on exposure to cats and dogs…Since leaving work, he feels that his symptoms have worsened…there is a small possibility that he might have developed occupational asthma from an exposure in his workplace”.
Dr. Tarlo’s report of March 12, 2009 opines “Therefore, his findings were of firstly mild asthma which likely was exacerbated in his work …he has findings of fixed airflow limitation likely relating in part to his smoking and dust at work.”
I note that Dr. Pravesh Jugnundan’s report of September 20, 2007 arranged for the worker to have PFT testing in order to confirm the diagnosis. PFT testing of December 21 2007 confirmed the diagnosis. The claim was allowed based on the confirmed objective evidence of asthma.
It is implicit in the policy document that where the date of accident is “the date the worker suffers the impairment”, such impairment must be attributable to the compensable condition. In this case, there were a number of factors, apart from workplace exposure, which might have been responsible for the worker’s respiratory impairment. These include the fact that the worker has smoked for at least 40 to 45 years, the worker was diagnosed with bronchitis approximately one to two times per year, the worker had nasal allergies, and the worker had symptoms on exposure to cats and dogs. Respiratory difficulty might have been attributable to the worker’s pre existing conditions.
Although the worker experienced breathing difficulties prior to 2007, the Workplace Safety and Insurance Board (WSIB) sets the accident date for occupational asthma based on the evidence of a functional abnormality or loss. I do agree that the date of diagnosis should not, in and of itself, be the sole determinant of the date of accident. However, at the same time, I do not agree that the onset of symptoms – in the absence of a physical or functional abnormality or loss- is sufficient to establish the date of accident.
In this appeal there is no objective medical evidence to support a diagnosis of occupational asthma in October 2001 to qualify for occupational asthma entitlement and a permanent impairment evaluation prior to September 20, 2007. The first objective medical evidence was on September 20, 2007 when the doctor ordered PFT’s which concluded asthma. There is no documented evidence supporting this diagnosis before that date.
I acknowledge the worker’s contention that he experienced shortness of breath and other respiratory symptoms prior to 2007, but in the absence of any medical documentation to support an objective occupational diagnosis, I find that there is an insufficient evidentiary basis to accept any date earlier than September 20, 2007 as the accident date in this case.
Accordingly, I am unable to adjust the accident date. I find that the accident date, as set by the adjudicator, is correctly applied and should not be altered. I do not find sufficiently persuasive evidence to allow me to consider altering that date.
CONCLUSION
I conclude that the accident date was correctly set as September 20, 2007.
The worker’s objection is therefore denied.
DATED February 11, 2010
S. Bennett Appeals Resolution Officer Appeals Branch