WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100164
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s Representative
HEARING DATE: July 26, 2010
ISSUES
The worker objects to decisions under several claims. The entitlement issues include neurotoxicity resulting from ethylene oxide (EtO) exposure and a psychological condition claimed as a result the various compensable conditions; maxille facial (Temporal Mandibular Joint –TMJ) impairment; Hand Arm Vibration Syndrome (HAVS) and Carpal Tunnel Syndrome (CTS); blastomycosis and osteomyelitis; and left and right hip impairment.
HOW THE ISSUES AROSE
The worker is now 54 years of age. He began work with the employer May 20, 1975. He was employed as a labourer/groundskeeper to June 7, 1985. Following a back injury under claim D he returned to accommodated work as a purchasing department/shipping/receiving/ storekeeper and file radiology in September 1985. This work was not suitable and he was placed as a communications clerk (switchboard operator) in March 1986. He continued in this position until stopping work June 3, 1998. He has not worked since. Claim D has been accepted for organic low back and cervical spine impairments and fibromyalgia. A 35% permanent disability pension and Section 147(4) benefits were awarded.
The worker is not objecting to his entitlement under claim D. Rather, he requests in addition to the previously recognized compensable conditions entitlement be accepted for a number of additional health concerns.
AUTHORITY
11-01-03 - Merits and Justice (Decisions related to occupational disease)
15-02-01 – Definition of an Accident
15-02-02 - Accident in the Course of Employment
15-03-02 - Traumatic Mental Stress
15-04-02 - Psychotraumatic Disability
16-01-05 – Vibration Induced White Finger Disease (Hand Arm Vibration Syndrome)
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
Submissions
The employer provided written submissions in respect of the appeal. The employer also provided a “Condensed Physical Demands Analysis” for a general service worker. As the employer submissions have been placed on the case record I have not reiterated the detailed submissions in the body of this decision.
The worker representative provided a February 24, 2010 letter confirming the various issues in dispute. In addition to previous written submissions the worker representative presented oral submissions addressing the issues.
The representative notes the September 25, 2008 operations decision denied entitlement for EtO exposure and neurotoxicity. The representative suggests based on the medical evidence provided and considering the occupational hygienist reviews it would be appropriate to accept the worker was exposed to ethylene oxide and allow entitlement for the resulting neurotoxicity.
The representative notes the January 25, 2008 operations decision denied ongoing entitlement for the occiput and jaw. The representative notes the November 1, 1981 accident involved injury to the left cheek and back of head. The representative suggests the medical reporting does not support the subsequent symptoms were due to the loss of teeth and continued entitlement is in order.
The representative notes the September 5, 2008 operations decision denied entitlement for Hand Arm Vibration Syndrome (HAVS). The representative notes entitlement was denied based on insufficient exposure. The representative suggests there was extensive vibratory tool exposure from 1976 to 1985 for multiple hours a day. The representative suggests it would be appropriate to accept the worker testimony, recognize exposure, and allow HAVS entitlement. The representative notes this condition has not resolved to date.
The representative notes the November 19, 2008 operations decision denied entitlement for blastomycosis. The representative notes the WSIB medical consultant noted the worker would be at risk of exposure while working as a groundskeeper although the elapsed time made this exposure unlikely. The representative suggests based on the worker testimony and symptoms described it is reasonable to conclude the worker had symptoms from exposure between 1976 and 1998. The representative suggests while working as a communications clerk the worker continued to have mould exposure. The representative suggests based on the worker evidence and exposure history entitlement for blastomycosis is in order.
Finally the representative notes the April 17, 2008 operations decision denied left and right hip entitlement. The representative suggests the September 9, 1981 accident involved injury to both hips and based on the evidence and testimony entitlement for these conditions is also in order.
Analysis
There are several claims addressing the various entitlement issues being claimed.
While claim C does not form part of the current appeal the case is significant in that prior to his March 6, 1984 accident the worker was employed as a groundskeeper from 1976. Following his March 1984 accident the worker was employed in a number of accommodated positions. He was permanently accommodated from March 1986 to June 1998 when he stopped work due to a non-compensable health condition. Permanent neck and low back disability was accepted under this claim with entitlement to Section 147(4) benefits process from July 1, 1999 (February 9, 2010 appeals decision).
a) Entitlement for Ethylene Oxide Exposure (EtO) Resulting in Neurotoxicity and Psychological Impairment (Psycho-Traumatic Disability and/or Traumatic Mental Stress) under claims E and J.
Claim A was established in July 1980 to consider possible entitlement for exposure to EtO fumes February 8, 1979. The complete record for this claim is now found in claim E. The October 3, 1980 appeals branch decision confirmed the denial of entitlement for health conditions resulting from this exposure.
The September 25, 2008 adjudicator decision under claim E denied entitlement for symptoms related to ethylene oxide exposure based on the conclusion there was insufficient evidence of prolonged exposure. The March 17, 2010 adjudicator decision under claim J noted the claim was established to consider psychological deterioration resulting from EtO exposure and will be amalgamated into claim E following completion of the appeal process.
While the administrative details have been complicated by the creation of multiple claims the issue is effectively one of whether the worker was exposed to EtO and whether this exposure led to both immediate and subsequent impairments.
In addition to EtO exposure the worker testimony also identified a number of additional concerns regarding possible chemical exposure. The worker reported his initial employment was as a printing clerk March 21, 1975. He reports working in an enclosed area making copies of documents which were stored in shelves around him. He reports exposure to chemicals and glue working with the copiers and documents. He reports a gradual onset of burning eyes while working in this area.
The worker reports he transferred to housekeeping as a general labourer in the fall of 1975 where he worked with laboratory waste, germicidal cleaners, and floor stripper. He reports he would be working in closed areas where he would get nauseous with other symptoms including rash and headaches. He then applied for a maintenance job which he started in the fall of 1976. He initially was helping trades people but was then placed in charge of all outside gardening. He reports in the garage he would have containers of herbicides, gas, oils, and fertilizer. He reports in 1977/78 the sterilizer was leaking in the garage and he got a burst on his face and hands. He also experienced a severe reaction in 1981/82 when he removed the top from a filtration tank which had not been serviced from 1975 to 1981. He worked in maintenance until January 1985 when he could no longer physically handle the job due to his organic injury and his EtO exposure symptoms.
He reports while working in radiology he noticed he was very sensitive to odours and smells with similar problems when he became a communications clerk. He reports in this job he had difficulty with the smell from markers, florescent lighting bothered his eyes, when the carpets were removed the smell and glue was a problem, and personal odours from co-workers (perfume / hairspray) were also a problem.
In support of entitlement the worker representative provided a substantial report dated May 1, 2009 from a Dr. Singer. This doctor suggested the record provided significant evidence of EtO exposure. While Dr. Singer noted the worker also reported numerous other exposures the doctor suggested the EtO exposures were the most significant. The report reviews the neurotoxicity of EtO and notes previous medical reports suggested this exposure was implicated as a cause for the worker’s symptoms and confirmed a peripheral polyneuropathy. Dr. Singer also noted the evidence confirmed a co-worker was accepted as having had EtO exposure. Dr. Singer concluded the worker’s EtO exposure contributed or more likely caused his neuropsychological illness and generalized nervous system decline as the evidence documented a significant hazard of over-exposure. Finally, the doctor also suggested the worker had suffered an emotional reaction to his condition, resulting in a psychological impairment.
Effectively, when comparing the submitted medical reported with the June 30, 2008 WSIB Occupational Hygienist report there is a significant difference of opinion as to EtO exposure. The most recent report also identifies a difference of opinion between Dr. Singer and the specialist whose opinion formed the basis for the February 3, 1988 decision denying entitlement. September 28, 1987 Dr. Bril concluded the neuropathy was demyelinating, not axonal and would not be a result of EtO exposure. In the alternative, Dr. Singer suggested the probable cause of the neuropathy is EtO exposure but did not address the distinction made by Dr. Bril. While the general practitioner Dr. Jacques suggested in his September 20, 2007 report that “demyelination” is part of the pathology of EtO neuropathy his report does not provide specifics as to the basis of this opinion.
In assessing the evidence I am satisfied it is probable the worker had a greater EtO exposure than recognized at the time of the previous decisions addressing this concern. I am also satisfied the record confirms the standards for acceptable exposure levels have been revised downwards from those in 1987. The June 30, 2008 occupational hygienist review concluded there were no job duties identified which required working with or near EtO for any extended periods. While the worker evidence confirms the storage of EtO in his work area and that he had occasion to work with the equipment which used EtO, I also note the worker was employed in a position which would have involved his spending the majority of his work time in areas well removed from the immediate area.
In summary, while I can accept that based on the physical layout of the work environment and the results of tests completed by the Ministry of Labour it was probable the worker had greater EtO exposure than recognized in the previous decisions I do not consider the evidence conclusive in establishing exposure beyond the accepted standards.
Even had my conclusion as to probable exposure levels have supported possible entitlement my primary difficulty with accepting entitlement for a peripheral neuropathy condition resulting from neuro-toxicity of EtO remains the conclusion reached by Dr. Bril is September 1987.
Dr. Singer’s extensive report does not in my view address the specific issue raised in Dr. Bril’s report as Dr. Singer does not address the question as to the type of neuropathy from which the worker suffers. Dr. Singer addressed the deficiencies in the recognized exposure level (which I accept were likely higher than previously acknowledged) and confirmed the worker suffers from peripheral neuropathy (which was previously recognized by the WSIB). The doctor does not in my view provide any specific details refuting Dr. Bril’s comments regarding neuropathy type and relationship to EtO exposure.
In summary, while I recognize the worker suffers from demyelinating peripheral neuropathy and that there was a probability of some exposure to EtO I do not find the evidence persuasive in establishing this exposure was a significant contributing factor to the development of the disease. For this reason I do not find entitlement for peripheral neuropathy and neuro-toxicity as a result of EtO exposure in order.
In the absence of any accepted organic impairment resulting from EtO exposure there is no basis to extend entitlement for either psycho-traumatic disability or traumatic mental stress as a result of this claim. Additionally, noting the acceptance of entitlement under the Chronic Pain Disability (CPD) policy guidelines for fibromyalgia in claim D I would consider any psychological impairment to be addressed under this award noting the holistic nature of this entitlement. For these reasons I do not find entitlement for psycho-traumatic disability or traumatic mental stress in order under claim E.
b) Entitlement for Maxille Facial (Temporal Mandibular Joint –TMJ) Impairment under claim C
The January 25, 2008 adjudicator decision under this claim noted the claim was allowed as a November 1, 1981 no lost time accident. The adjudicator concluded there was no evidence of an ongoing impairment resulting from this injury.
While the worker injured his jaw in the November 1, 1981 accident when he was struck in the face by the tongue of a loaded trailer the medical reporting on record suggests the worker was suffering from mandibular symptoms prior to this accident. I do not consider the medical reports to suggest the compensable accident resulted in acute trauma affecting the TMJ or that this accident is medically implicated as the cause of the subsequent symptoms. Rather, the medical reporting suggests the mandibular symptoms are a result of orthodontal factors. Noting the extensive medical history of dental concerns, related treatment, and the lack of evidence directly implicating the compensable injury I am unable to conclude this accident was a causal factor in the subsequent condition. For these reasons I do not find entitlement for TMJ impairment or non economic loss assessment under claim C.
c) Entitlement for HAVS and Bilateral CTS under claims F and H
The September 5, 1998 adjudicator decision informed the worker HAVS entitlement under claim F was denied as the evidence was not sufficient to establish significant vibration exposure which contributed to the condition. The decision also informed the worker a claim would be established to consider CTS entitlement.
The relevant policy indicates HAVS entitlement may be accepted when there is a clear and adequate history of 2 or more years continuous employment in high frequency, rapid acceleration vibratory tools immediately preceding the onset of vasospastic response and the condition is confirmed by a specialist in vascular disease.
In considering HAVS entitlement I note the work duties involving potential exposure to vibratory tools dated from 1974 to 1985. The majority of this period was spent working as a groundskeeper. As noted in the occupational hygienist review the activities and equipment involved in these duties would have been variable and involve the use of a variety of pieces of equipment. While the potential exposure period would clearly exceed the two years required by policy given the varied nature of the employment duties I am unable to conclude the work involved “continuous employment in high frequency, rapid acceleration vibratory tools”.
Additionally, I note the actual review for HAVS did not occur until many years following exposure. Finally, the medical record clearly describes the presence of peripheral neuropathy. Given the fact the potential HAVS condition was not reported until several years after exposure and the presence of peripheral neuropathy (whose symptoms would overlap and potentially mask the symptoms from HAVS) I do not find the evidence confirms a vasospastic response immediately following exposure and this policy criteria is therefore also not met. For these reasons I do not find entitlement for HAVS under claim F.
While claim H was established for bilateral CTS in September 2007 the copy of the claim printed for this appeal does not contain an operations division decision addressing CTS entitlement. In the absence of a decision by the operating area I do not find this issue properly before me. For this reason I make no finding regarding CTS entitlement under claim H. This matter was discussed with the worker representative who requested I direct the operations division to provide a formal decision regarding this requested entitlement.
d) Entitlement for Blastomycosis sacral Osteomyelitis under claim G
Entitlement for this condition was denied in the November 19, 2008 adjudicator decision under claim G.
The worker claimed entitlement for a 1998 onset of symptoms resulting from this condition as a result of his previous employment as a groundskeeper between 1975 and 1985. The condition was first reported in June 1998 with a one month history of progressive pain in the left buttock. The record indicates that following a course of treatment (55 weeks) with an anti-fungal agent the infection resolved. The adjudicator concluded that given the most recent possible work exposure dated to 1986 the employment was not shown as a significant contributing factor in the left pelvic abscess diagnosed in 1998.
The medical reporting confirms the diagnosis of blastomycosis resulting in an abscess affecting the left hip area. The WSIB internal medical consultant noted that if this diagnosis and condition had occurred during the period of employment as a groundskeeper there would have been a significant risk of employment related exposure. The consultant noted the delay in symptom onset was however problematic. As I interpret the evidence I am being asked to accept the worker developed symptoms resulting from a work related fungal infection some two years following the last employment activities which would have reasonably suggested probable employment related exposure.
Noting the nature of the condition and the fact the blastomycosis is a naturally occurring and relatively common fungal agent I am unable to conclude the only possible exposure would be employment related. As well, I do not consider it probable a work related exposure would have remained dormant for some two years before progressing and resulting in the diagnosed abscess. For these reasons I do not find entitlement for blastomycosis and left hip abscess under claim G.
While the worker reported additional possible mould exposure while working as a communications clerk I do not find the available evidence confirms evidence of specific exposures or a clear association between the Blastomycosis and the work environment. Additionally, the worker has also reported symptoms which would possibly be more appropriately addressed as symptoms of multiple chemical sensitivity (MCS) (the worker reports sensitivity to scents and various odours in the workplace). As there is no decision on record addressing this condition I do not find possible entitlement on the basis of MCS properly before me.
As a further note in this instance I am uncertain as to what remedy would be applicable in this case even should entitlement be accepted noting the remote period of acute symptoms and the absence of any medical reporting indicating the condition resulted in permanent impairment. I interpret the medical reporting to suggest the condition resolved following the appropriate course of treatment.
e) Entitlement for Bilateral Hip and Left Leg Impairment under claim B
The April 17, 2008 adjudicator decision under claim 13568315 noted the worker injured his left thigh and groin while extending his leg to stop a mower tractor from tipping September 9, 1981. The adjudicator noted the worker had returned to work October 13, 1981 and concluded any current left and right hip impairment was not shown to be related to the 1981 accident.
The worker testimony suggests the left hip and leg injury was more substantive than recognized in the initial reporting. The worker reports this injury occurred when the lawnmower he was driving began to fall back and he attempted to jump off catching his pant leg on a hook on the machine. He reports this placed excessive force on his left leg and he heard a popping noise in his groin and hips. The worker reports his hip and groin symptoms have persisted since and while he had further injuries he relates the initial symptom onset to this accident. The worker reports it is only recently his current doctor arranged testing and damage was found.
In reviewing the medical reporting on record I note various reports have identified complaints regarding the hips and groin. The worker’s symptoms have primarily been considered potentially radicular in nature and to arise from the compensable back impairment. The most recent reporting on file has also confirmed osteoarthritic changes in both hips.
In considering entitlement while I recognize that based on the worker testimony the accident history was more significant than it initially appeared I have difficulty concluding this accident resulted in a specific permanent impairment evident some 25+ years later. While the case is complicated by the significant difficulty in addressing the cause of specific symptoms I do not find the evidence supports a direct causal relationship between the objective findings of mild osteoarthritic changes in the hips in 2007 with an October 1981 accident which resulted in some two weeks lost time. Additionally, I am again satisfied that given the holistic nature of the accepted entitlement under the chronic pain disability policy “fibromyalgia” in claim D would appropriately compensate the worker for any residual impairment affecting the bilateral hips. For these reasons I do not find entitlement for a bilateral hip impairment under claim B.
CONCLUSION
The objection is denied.
There is no additional entitlement under the various claims addressed as part of this appeal.
DATED October 29, 2010
M. Evans Appeals Resolution Officer Appeals Branch