WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100079
OBJECTION BY: Estate
PARTICIPANTS: Estate, estate’s Representative, Employer, Employer’s Representative
HEARING: N/A
ISSUE
On behalf of the worker’s estate the worker representative objects to the October 31, 2007 claims adjudicator decision denying entitlement for pancreatic cancer and survivors benefits.
HOW THE ISSUE ARISES
The claim was established in 2007 to consider entitlement for cancer arising from employment exposures. The worker had retired in 2003 after 32 years of service. Bile duct cancer which metastasized to the liver and lung was diagnosed in 2005. His condition deteriorated and the worker passed away May 18, 2007.
Based on a review of the medical reporting, medical research, and the employment history the claims adjudicator concluded they were unable to establish an occupational link and entitlement to WSIB benefits was not in order.
On behalf of the estate the worker representative has objected to this conclusion.
AUTHORITY
- 11-01-01 – Adjudicative Process (Five Point Check, Proof of Accident)
- 11-01-02 – Decision Making (Weighing Evidence, Natural Justice)
- 11-01-03 - Merits and Justice (Decisions related to occupational disease)
- 15-02-01 – Definition of an Accident
- Workplace Safety and Insurance Act – s.2(1) – “Definition - Occupational Disease”
- Workplace Safety and Insurance Act – s.15 – “Entitlement - Occupational Diseases”
RESOLUTION METHOD AND PROCESS
The parties agreed to proceed to a decision based on the evidence on record and written submissions.
ASSESSMENT OF THE EVIDENCE
Submissions
The worker representative notes the worker died as a result of pancreatic cancer with metastisization from the primary site. The representative notes the bile duct is in the pancreas. The representative indicates the worker was employed as a trammer and scoop tram operator underground where the work area contains carcinogenic materials both from the blast rock and diesel motors. The representative suggests the primary pancreatic carcinoma was directly related to the workplace exposure to carcinogens. The representative indicates the worker was a non-smoker and had a healthy lifestyle.
The employer representative notes it was the opinion of the senior WSIB consultant that there is no evidence to suggest an occupational link as the cause of the worker’s biliary tract cancer. The representative also notes the February 23, 2009 OHCOW consultation failed to find an occupational cause associated with the diagnosis. Finally, the representative notes the hospital discharge summary indicated an occupational cause was unlikely to be demonstrated through autopsy. Relying on these opinions, the representative suggests the evidence fails to support a finding of occupational causation.
Analysis
I have reviewed the record and considered the evidence and submissions.
In assessing entitlement for industrial diseases which are not defined by regulation or specific policy, decision-makers must consider possible entitlement based on the merits of the case. Under these circumstances the evidence must establish on the balance of probability the employment exposure was a significant contributing factor in the development or progression of the condition.
The merits and justice policy directs:
“When determining entitlement to a disease claim, a decision-maker considers the worker’s clinical condition and exposure at work, the up-to-date clinical and scientific information, any pertinent non-occupational factors, and all relevant policies.”
Based on this policy direction, in order to accept entitlement for conditions such as that suffered by the worker the evidence must demonstrate a probable relationship between the workplace exposure and the diagnosed condition. In this respect the burden of proof lies with establishing entitlement rather than simply concluding the cause of the condition is unknown.
I note in this instance the facts of the case are not in dispute. The parties have not disputed the employment history or the nature of the work performed. The facts of the worker’s retirement in 2003, symptom onset, and initial medical attention in 2005 are also undisputed.
In reviewing the medical reporting I note the initial diagnosis was adenocarcinoma of the common bile duct with resection surgery May 19, 2005. This was subsequently reported as carcinoma of the pancreatic head. While the initial reports were positive by September 2006 the oncologist confirmed several hepatic metastases. In January 2007 the oncologist reported ongoing treatment for metastatic pancreatic carcinoma and by August 2007 the condition had progressed to include lymphangitic carcinomatosis of the lungs. At the worker’s passing on May 18, 2007 the primary diagnosis was reported as bile duct carcinoma with the most responsible diagnosis of metastatic cancer to lung and liver. The doctor noted an autopsy was considered but while this would confirm the diagnosis it would not provide answers as to the cause of the condition. Ultimately an autopsy was not performed.
To assist in assessing the cause of the worker’s condition the worker representative provided a February 2009 OHCOW report. This report reviewed the employment and medical history with the occupational medicine specialist concluding they were unable to suggest an occupational cause for the worker’s bile duct cancer.
The case record was also reviewed by the WSIB chest consultant. The consultant noted this cancer is uncommon with a good deal of research to identify possible causes. The consultant noted the research literature did not identify any significant occupational exposure factors and concluded there was no evidence to suggest an occupational link as the cause of the biliary tract cancer.
As I interpret the medical opinions, both the senior WSIB consultant and OHCOW occupational specialist were unable to identify any epidemiological evidence to support a relationship between the primary cancer and employment exposures. While there may be some discussion as to the appropriate definition of the initial diagnosis (bile duct as opposed to pancreatic cancer) I do not consider this a significant distinction based on the WSIB consultant notation this type of condition is defined as a biliary tract cancer for the purposes of the available research. For this reason I do not consider the differential diagnosis significant for the purposes of establishing WSIB entitlement.
In summary, while the circumstances are unfortunate, I am unable to conclude the evidence implicates workplace exposures as a causal factor in the development of the initial disease. For this reason I am unable to accept entitlement for the worker’s primary cancer (bile duct, pancreatic, or biliary tract).
CONCLUSION
The Estate’s objection is denied.
DATED June 7, 2010
M. Evans
Appeals Resolution Officer
Appeals Branch