Worker's estate v. Workplace Safety and Insurance Board, 2010 CanLII 35736

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20100074

OBJECTION BY: Worker’s estate

PARTICIPANTS: Estate, Estate’s Representative

HEARING LOCATION: N/A

ISSUES

The Estate requests:

1. Entitlement to recognize that the workplace exposures were a significant contributing factor in the development of lung cancer.
2. Entitlement to survivor benefits.

HOW THE ISSUES ARISE

The worker was born in May 1950. He was concurrently employed as a welder/ fitter when on June 25, 1988, while working for his part time employer, he jumped from a crane that was toppling and sustained multiple injuries. His injuries included; a comminuted left femur fracture, a comminuted distal left radius fracture with carpal tunnel dislocation, right distal radial fracture, left shoulder, left knee, and low back injury. The worker underwent surgery, which resulted in a permanent shortening of the left leg.

The worker underwent a permanent disability pension assessment on June 15, 1989. He was granted a total pension of 44%, 5% for the right wrist, 7% for the left wrist, multiple factor of 2.5%, 8% for the left shoulder, 11.5% for the left leg and knee, and 10% for the low back. The worker could not return to his pre-accident duties, and was referred for vocational rehabilitation services. A wage loss was recognized and he was granted Section 147 (4) and (14) supplementary benefits.

The worker passed away on May 22, 1998 from lung cancer at the age of 47. The worker’s estate requested entitlement on the basis that his workplace exposures as a welder/fitter contributed to the development of lung cancer. A new claim was not established and inquiries were conducted under the 1988 claim.

A WSIB occupational hygienist conducted an investigation, and met with the worker’s spouse for an interview on February 27, and March 15, 2001. The hygienist obtained information regarding the worker’s smoking history, personal and family health history, onset of symptoms, and workplace exposures.

The worker’s spouse stated that the worker was employed from 1973 - 1987as a lead hand plate fitter at an iron works factory, which has gone out of business. He was working from drawings to fabricate boilers, heat exchangers, reactor storage tanks, steam accumulator pipelines, propane tanks, and blast furnaces. The work involved welding and the use of radial drills. He was also involved in spraying with paints or rust inhibitors, which contaminated his clothing, hands and hair. He worked with metallic parts in heated processes and his uniforms were covered with silver, gray and black dust. He ate in the cafeteria, and the food was likely contaminated. The environment was often dusty and smoky and the worker experienced breathing difficulties.

The Ministry of Labour (MOL) conducted several inspections and ordered that the doors be kept open for ventilation. The employer was located right next to a metal works factory which has since closed, but had a lead smelter which contributed to the poor workplace environment.

The worker was concurrently employed as a plate fitter from 1987 – 1988, with another employer who is also out of business. This is the accident employer under the 1988 claim. He worked from blue prints and fabricated heavy equipment. He also worked inside large hydro containers and transformers. He did not wear respiratory protection or gloves.

The worker’s spouse noted a smoking history from age 22-23, but could not say the amount. He was down to about 3 – 4 cigarettes a day during the last few years of his life. He did not drink alcohol. There was no history of asthma or allergies, no family history of cancer, and he ate healthy and was active and fit until his work accident in 1988. The spouse described symptoms he was experiencing over the years including; headaches, fatigue, nausea, abdominal cramps, coughing up black material, joint pains, constipation, tiredness, dizziness, irritability, muscular tremor, poor attention span, memory problems, anxiety, decreases in vision and hearing, dry and itchy skin, and metallic taste in his mouth. The worker felt the symptoms were related to the chemical exposures at work.

The hygienist reviewed the medical information on file noting that blood testing in 1977 showed the worker had 12 ug/dl of lead in his blood. The hygienist noted that he would be completing the investigation and exposure assessment upon receipt of the MOL reports which he requested. However, there does not appear to be any further input from the hygienist or a further exposure assessment on file.

In a letter dated July 31, 2001, the worker’s spouse provided additional information. She noted that her husband wanted to establish a claim for his cancer sooner, but she asked him to wait until he began treatment. She again outlined the symptoms he was experiencing. She also advises that she discussed the health hazards at his work with him shortly before his death, his efforts to have the MOL and Public Health Department look into the situation, and his problems with management because of this. The worker was an avid reader with interests in chemicals, science, and workplace safety. He had conducted research and read a lot of information, and was certain that his cancer was related to his exposures at work.

The information was reviewed by the claims adjudicator and manager as per memo #77. It was determined that there was no occupational exposure established to account for the lung cancer, and entitlement was denied as outlined in the September 4, 2001 letter.

On behalf of the estate the representative objected to this decision and requested claim file access in a letter dated December 20, 2001. In a subsequent letter dated October 28, 2005, they requested access to the firm file for the iron works employer. The adjudicator responded in a letter dated November 23, 2005, advising that there was no record of any occupational disease claims for this employer.

The representative submitted a further letter dated March 10, 2008 enclosing a report from the Dr. Kerin, of the Occupational Health Clinic for Ontario Workers (OHCOW), and also providing a copy of the Ministry of Labour file for the iron works for the period when the worker was employed there from 1973 – 1987. As noted by Dr. Kerin, there were numerous orders issued by the MOL pertaining to sandblasting using silica sand, welding fumes, and other matters.

This information was reviewed by the claims adjudicator (memo #84), and an exposure assessment was completed by the occupational hygienist (memo #86). It was determined that the worker had potential for the following exposures; hexavalent chromium from mild steel welding fumes, lead, silica, diesel exhaust, cutting oils, asbestos, coal tar, ionizing radiation, ultraviolet light radiation, paint solvents, and degreaser solvents.

A medical opinion was requested from the occupational medicine consultant (memo #88). The consultant noted that the list contained a host of substances associated with the development of lung cancer, and further information was requested re the solvents used. The adjudicator considered the information (memo#89), and requested an opinion from their manager. The adjudicator determined that noting exposure to trace quantities of hexavalent chromium, the unknown synergistic quality of the solvents, and the smoking history, it could not be concluded that the worker’s exposure caused the lung cancer. The manager reviewed the claim (memo #92), and concurred with this opinion. The denial of entitlement was confirmed as outlined in the October 14, 2008 letter.

The representative completed an objection form February 6, 2009, attaching a letter detailing his position. He stated that he felt the medical evidence was not properly considered, the synergistic effects of the worker’s exposure and smoking history were not considered, the hygienist’s assessment was flawed, and Occupational Disease Advisory Panel (ODAP) principles were not applied.

The adjudicator considered this position, and requested a further review by the occupational hygienist and occupational medicine consultant (memos #101 -#106). The occupational medicine consultant noted the difference of opinions on the worker’s exposure between the occupational hygienist and Dr. Kerin. He commented that if the worker was exposed to significant levels of lung carcinogens (hexavalent chromium and asbestos welding rods) then the claim should be allowed. He also commented on the differences of opinion regarding the level of exposure on file.

The adjudicator considered this opinion, and outlined their rationale in memo #108. It was determined that the worker’s exposure was not at significant levels, and the denial was confirmed as outlined in the June 18, 2009 letter.

The claim was referred to the Appeals Branch, and assigned to me in September 2009. I provided updated access to the worker’s representative, and we discussed the issue. We agreed to proceed via written submission, and he advised that he was attempting to obtain statements from co-workers. The representative submitted a letter dated January 26, 2010, outlining his position, and providing a sworn affidavit from a co-worker dated January 20, 2010 outlining the workplace exposures.

The decision is based on the information on file and the further submissions.

AUTHORITY REFERENCE

Section 15 Workplace Safety and Insurance Act 1997

Operational Policies:

11-01-03 Merits and Justice

16-01-13 Lung Cancer – Asbestos Exposure

11-01-04 Determining the Date of Injury

ASSESSMENT OF THE EVIDENCE AND SUBMISSIONS

In reviewing the issue before me, I have considered all of the information in the claim file record, the medical reports and opinions, the submission on behalf of the estate, and the relevant policies and legislation. I conclude that the balance of evidence supports that the workplace exposures were a significant contributing factor in the development of lung cancer.

In adjudicating claims for occupational disease, if the disease is not listed in Schedule 3 or 4, and there is no relevant WSIB Operational Policy, the case is adjudicated on its own merits, in accordance with Occupational Disease Advisory Panel (ODAP) principles. In these circumstances, the decision maker must be satisfied that in weighing the balance of probabilities, it is more likely than not that an individual’s workplace exposures were a significant contributing factor in the onset of the illness/disease.

The “Final Report of the Chair of the Occupational Disease Advisory Panel – Executive Summary” dated February 2005, which is available on the WSIB website, provides an explanation of the ODAP principles, and speaks to the role of scientific and exposure evidence.

The summary states in part that when the scientific evidence is inconclusive or there is no research as to whether an occupation is a definitive or likely cause of a disease, a causal relationship cannot be ruled out. The evidence may be too equivocal or inadequate to make a general policy. Alternatively, the scientific evidence may be conclusive but the worker may not fit the study group or occupational category sufficiently to meet the schedule or policy requirements. Nonetheless, as with all claims, a decision must still be made on the balance of probabilities as to whether the work was a significant contributing factor in the development of the disease.

The report speaks to the “Role of Evidence”. The report notes that the standard that determines the use of different kinds of evidence will vary with circumstances. For example, the primary evidence to be considered in drafting policies or entries to the schedules is scientific findings. In contrast, the Report notes that:

Adjudication of individual claims should require consideration of a number of other types of evidence where available including; employment history, hygiene exposure assessments, third party observations and anecdotal reports, as well as scientific evidence. Establishing causation for a disease does not have to be done with scientific certainty. Rather, the causal link between the workplace and disease must be established using the legal standard, which is, based on the balance of probabilities, taking into account all of the evidence.

In this case the only relevant policy which partially applies to the worker’s exposures is Operational Policy 16-02-13 Lung Cancer – Asbestos Exposure. There are no other operational policies that speak specifically to the worker’s other exposures, or to the synergistic effects of all of his exposures combined. The claim is therefore adjudicated on its own merits in accordance with ODAP principles.

I have considered the information that is available pertaining to the worker’s exposures. Unfortunately, the worker passed away and there is no statement on file from him regarding his exposures. The employer is out of business, and could not be contacted for information. The worker’s spouse did provide information pertaining to her knowledge of her husband’s exposures when interviewed by the investigator.

The WSIB occupational hygienist has provided exposure assessments based on his interviews, historical data pertaining to the job duties and industry, and the MOL reports. Memo #86 outlines the worker’s potential exposures, and the hygienist attempts to quantify these exposures. The hygienist identifies at least 10 carcinogens present in the workplace.

The worker was exposed to cutting oils containing polycyclic aromatic hydrocarbons (PAH’s), which as a welder he would have used sporadically. He was exposed to welding fumes on a daily basis, at times in combined spaces. The MOL reports do confirm confined welding readings of 43 mg/m3. However, he notes only mild steel welding was done in this shop, so hexavalent chromium was present in trace amounts only. There would be trace amounts of arsenic and cadmium as well, but there is no evidence that the worker did any silver brazing or stainless steel welding.

There would have been incomplete combustion in confined spaces, resulting in soot and smoke measured as part of total welding fume. Fumes would have contained metals, fluorides, and other by-products of welding including oxides of nitrogen. It is possible that if the worker had welded previously painted steel, he could have been exposed to decomposition by-products, but this is unlikely as he fabricated and welded new equipment, and was not involved in demolition or repair operations.

The hygienist noted that asbestos was not identified as a hazard in any of the MOL reports after 1980. It is noted that some welding electrodes contained asbestos, but it was likely present in trace quantities only. It is also noted that prior to 1980 asbestos blankets were used during welding operations. It is therefore likely that the worker handled asbestos blankets, and may have had occasional exposure to high levels of asbestos if the blankets were damaged during handling. He could have had high levels of exposure through the use of asbestos gloves, but noting the variety of work he performed his overall exposure would be low.

The solvents trichloroethane and trichloroethylene were present in the workplace, and he may have been exposed occasionally. However, the reported health effects involve the liver, kidney and lymphoma.

The MOL reports confirm that a cobalt industrial x-ray was used in the workplace to inspect welds and joints. Some workers were on a medical surveillance program, but not the worker. The MOL confirmed that safe work practices for the use of this equipment have been in practice since 1940’s. Even if there was a single accidental high exposure the worker’s risk would be low. He would be exposed to ultraviolet radiation from welding flash.

It is recognized that silica sandblasting was done at the workplace prior to 1984. MOL air sampling showed that airborne concentrations of silica (quartz) were well below current Ontario standards. It is probable that the worker was exposed to airborne silica, but his exposure was low.

The worker was probably exposed to some diesel fumes from heavy equipment operating in the shop. The MOL did not sample for diesel exhaust particulate. The hygienist notes that in his experience testing for diesel exhaust particulate in the railroad industry, it is unlikely that the worker would have been overexposed to diesel exhaust.

The worker reported spray painting rust inhibiting paints on metal. The MOL reported in 1984 that lead paints had stopped being used by the company in 1984. It is possible that prior to 1984 the worker was exposed to lead in paint and possibly hexavalent chromium if lead chromate paints were used. It is not possible to quantify his exposure. He refers to the report which confirms the worker had lead in his blood. He noted the exposure could have been to due to his intermittent exposure to lead paint, or from emissions from the lead smelter next door to his employer.

The worker may rarely have had contact with coal tar, but since it was applied cold and was not heated to boiling, airborne PAHs would probably be insignificant. He comments that his exposure with his part time employer from 1987 would be similar; welding fumes, silica, combustion by-products and solvents.

The hygienist noted that he took a conservative approach in his assessment of the available evidence. He concluded the worker’s only source of significant exposure would be to mild steel welding fumes, but these fumes likely only contained trace quantities of hexavalent chromium, metal grinding dust, and metal working fluids. He was probably exposed to low levels of lead (in paint and welding fumes), silica, diesel exhaust, and cutting oils. He probably had occasional asbestos exposure, with brief high exposures during work activities. His coal tar exposure was probably insignificant, as was his exposure to ionizing radiation from x-rays. He was probably regularly exposure to ultraviolet light radiation. He was probably regularly exposed to paint solvents and intermittently exposed to degreaser solvents.

In memo #104, the hygienist further analyzed the worker’s welding fume exposure. He notes that 95% of the steel used was carbon steel containing trace levels of hexavalent

chromium .3%. The other 5% of the time he would have been exposed to stainless steel welding fumes containing as much as 27% chromium (including hexavalent chromium) and 4% nickel. He referenced studies which support that stainless steel welders had higher chromium exposure. He does confirm that he would have had overexposure to hexavalent chromium when welding stainless steel in confined spaces. The worker would have had noteworthy exposure to chromium in grinding dust when prepping welds with a handheld grinder, and fumes from metal working fluids.

Dr. Kerin has also provided an exposure assessment based on historical date for the industry, and the information in the MOL reports. He also suggested obtaining more precise industrial hygiene data from the work site, and information from co-workers.

In his September 12, 2007 report, Dr. Kerin notes that there were approximately 9 known lung carcinogens in the work environment with the iron works employer. The worker was involved in metal fabrication, welding, grinding and finishing the various parts. He was also involved in repairing boilers, and some of the work was conducted in confined spaces for hours at a time.

Dr. Kerin noted that the MOL files were replete with orders with respect to sand blasting, with several references to welding fumes at or above TLV levels. It would appear that the worker and his co-workers were exposed to a mixture of various lung carcinogens. The number of work orders referencing silica quartz are too numerous to enumerate, but it is noted that a February 19, 1980 report notes silica blasting sand is inches thick all over the yard and free to blow in the wind.

He also references a MOL report dated October 26, 1979 referring to a painting operation which contained coal tar coatings. There is no mention of personal protective equipment in any of the MOL report, except for the sand blasters directly involved in the operation who apparently wore air supplied masks.

He noted the use of the Cincinnati brake machine used to bend and form metal parts, which is fitted with an asbestos clutch which would expose operators to asbestos dust. As well, asbestos gloves and blanketing would be used

Dr. Kerin concludes that from the information supplied, it is reasonable to contend that based on the balance of probability it is more likely than not that the combination of at least 9 lung carcinogens contributed to or caused the worker’s fatal lung cancer. The worker had a 22 – 30 pack year smoking history, which in the presence of other know carcinogens may act as a synergistic or additive effect.

In his submission dated January 26, 2010, the worker’s representative provided a sworn affidavit dated January 20, 2010 from a co-worker of the worker. He was employed with the iron works employer from 1960 – 1962 and from 1975 – 1980, as a welder and trainee fitter. The worker was his co-worker during the 1970’s and he confirmed that the worker was a full fitter and welder. He would sometimes take instructions from the worker, and the worker performed the same tasks that he did.

The co-worker confirmed that the workplace was one large undivided room, the floor was cement, and hundreds of people would be in the room at once. There were usually 3 or 4 vessels being worked on at the same time. The ceilings were high, and large cranes were used to lift and move the vessels. There were a few vents and fans above the cranes, but the cranes blocked the vents and prevented the escape of fumes and dust.

The grinding of metal parts caused enormous amounts of particulate to fly into the air. Carbon torches were used which created large amounts of smoke and fumes. The worker’s would grind, weld and cut the same vessel simultaneously. On most days, you could barely see 5 feet in front of your face. When you blew your nose or cleared your throat, the mucus was black.

Silica sand blasting was used to clean the vessels and prepare them for painting. If the weather was bad or it was raining, the sand blasting would be done inside to prevent the sand from washing away, which created a huge fog.

To avoid the metal cracking after welding, it was covered with an asbestos blanket. The blanket was not put away, and was left lying around. The workers moved it around by kicking it and dust flew off the blanket and was inhaled. Chlorine was used to clean up oils spills and sprayed through tubes. The smell was so powerful that workers sometimes fainted. As well, occasionally vessels were welded that had already been painted.

X-rays were used to check for imperfections, every few weeks. They were usually done during the night, however it was not uncommon to do x-rays during the day as well. X-rays would typically last for hours, and sometimes took all day. Sometimes x-rays were accidentally done while workers were still in the vessels.

At first in the 1960’s, no protective equipment was used. During the 1970’s ear plugs and masks were provided. The masks were cheap and ineffective. While welding, the workers breathed in smoke, dust and fumes for 8 hours straight, and he felt that material got through. The masks were continuously clogged, and had to be removed several times every hour to be unclogged. The breathing was especially difficult when welding stainless steel. Stainless steel was welded regularly often for months on end. Sometimes the entire shop was taken up with welding stainless steel.

The co-worker stated that the exposures affected him even outside of work. He was always short of breath, and could not perform physical activity for very long before stopping to rest. Many of his co-workers died young usually of heart problems or cancer. He provided the names of 4 co-workers who died of cancer, and there were many others.

In his submission, the worker’s representative outlines his position that the preponderance of evidence including Dr. Kerin’s clinical consultation, and the co-worker’s statement supports that worker’s lung cancer was work related, and the claim should be allowed.

The representative referred to the reviews by the occupational medicine consultant, who noted the discrepancies in the opinions regarding the worker’s exposures. The medical consultant noted that if the worker was exposed to significant levels of lung carcinogens, the claim should be allowed, if not it should be denied.

It is the representative’s position that the opinion of Dr. Kerin should be afforded more weight than that of the occupational hygienist, as he is a licensed physician specializing in occupational medicine. He noted that Dr. Kerin interviewed the family members and the hygienist did not. However, I do note that worker’s spouse was interviewed at the time of the initial occupational hygienist investigation conducted in April 2001.

The representative noted that the hygienist reconstructed what the work environment might have been like, based on academic studies of similar workplaces. He referred to the co-worker’s affidavit which contradicted the hygienist’s conclusions. The co-worker confirmed that cranes obstructed ventilation, sand blasting was done inside in bad weather, workers tasks were performed simultaneously exposing all workers, and stainless steel welding was done for months at a time sometimes by the entire shop.

The co-worker also confirmed exposure to asbestos blankets, x-rays, and materials coated in oil. He feels this responds to the occupational medicine consultant’s questions outlined in memo #103.

In reaching my conclusions, I have considered this position, the submission, and the information in the claim file record. I have also considered NIOSH, CCHOS and IARC information pertaining to the occupation of welding and the worker’s exposures.

I have reviewed all of the MOL reports for this employer, which are quite numerous. I note that even though the sandblasting was done outside, the doors were left open and the silica was entering the shop. The MOL visited the workplace on numerous occasions regarding this concern. The company was issued several orders and found in violation. As well, the co-worker confirms that the sandblasting was occasionally done inside.

As well there are several MOL reports related to welding fumes, and confined welding fumes with orders being issued. MOL air sampling confirmed confined welding fume readings of 43mg/m3. As well, the co-worker confirmed that stainless steel would be welded for months at a time resulting in breathing difficulties. As noted by the hygienist this would result in an overexposure to hexavalent chromium.

The hygienist also noted that the worker would have potential for high levels of asbestos exposure when using asbestos blankets. The co-worker has confirmed that these blankets were used regularly, and kicked around creating dust. The co-worker has also confirmed that x-rays were done in the day time, sometimes for the entire day, and sometimes when workers were still inside the vessel.

As noted by IARC, there are numerous substances that have been designated as lung carcinogens, with sufficient evidence to support a causal relationship. The strength of evidence is strong for lung cancer with exposures to substances the worker was exposed to including; asbestos, chromium compounds, hexavalent, ionizing radiation, nickel compounds, paints, silica. The evidence is suggestive of a link to lung cancer for other substances the worker was exposed to including; PAHs, coal tar, mineral oils and diesel exhaust.

The worker’s exact exposures will never be known, and his exposure levels cannot be quantified. However, the MOL reports, the spouse’s statements, the co-workers statement, Dr. Kerin, and the occupational hygienist all confirm his potential for exposure to several known and suspected lung carcinogens. They also confirm that at times his exposures would be high, multiple, and in confined spaces. The claim has been denied as it has been determined that the worker’s exposures to these carcinogens were not significant. As noted by the occupational medical consultant, if they are considered significant than entitlement should be accepted.

The worker does have a 22 – 30 pack year smoking history, and it is accepted that smoking can cause lung cancer. However, he was only 47 years old at the time of his death, and had a long history of workplace exposure to numerous known lung carcinogens from 1973 - 1988. I find that the balance of evidence supports that the worker’s exposure history to several lung carcinogens was significant. It is likely that the synergistic effect of all of the carcinogenic substances was a factor in the development of lung cancer. In weighing the balance of probabilities, I find that it is more likely than not that these workplace exposures were a significant contributory factor in the development of the worker’s lung cancer.

CONCLUSION

I conclude that the balance of evidence supports that the worker’s workplace exposures were a significant contributory factor in the development of lung cancer.

The operating area is directed to:

1. Set up a new claim for lung cancer and establish the date of accident. The diagnosis was confirmed on bronchoscopy April 23, 1998, but the symptoms began earlier. The date of accident is left to their discretion.
2. Determine entitlement to survivor benefits.

The objection on behalf of the worker’s estate is allowed.

DATED March 10, 2010

D. McParland

Appeals Resolution Officer

Appeals Branch