WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110026
OBJECTION BY: Worker
HEARING DATE: October 18, 2010
PARTICIPANTS: Worker, Worker Representative, Employer
ISSUE
The worker objects to the December 17, 2009 adjudicator decision rescinding entitlement for lung cancer. The worker requests the WSIB reinstate allowance of this condition.
HOW THE ISSUE ARISES
This now 78 year old retired miner worked for the employer from 1950 to 1972. The claim was initially accepted based on the worker having worked in the Sinter Plant and Nickel Refinery May 9, 1950 until July 25, 1950. A 50% Non Economic Loss (NEL) award was assessed.
The employer then reported the Refinery did not exist in the 1950’s, the worker could not have worked in the Refinery, and this employment was in fact in the Smelter. Based on a 50 pack year smoking history and 6 weeks work in the Sinter the adjudicator rescinded entitlement.
AUTHORITY
11-01-02 – Decision Making (Weighing Evidence, Natural Justice)
11-01-03 - Merits and Justice (Decisions related to occupational disease)
16-02-02 – Lung Cancer in the Nickel Producing Industry
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions. I note the claim was initially allowed based on combined employment in the sinter plant and nickel refinery and related exposures. Entitlement was later rescinded when the employer reported the worker could not have worked in the refinery during the period in question as the refinery did not exist at that time.
Testimony
The worker provided testimony addressing his employment history and personal risk factors. The worker reports smoking from 1950 to 1981 at a rate of 8-10 cigarettes (or less than ½ a pack a day). He reports he smoked a ½ pack a day for 30 years and never smoked 2 packs a day as had been indicated on file.
The worker reports he worked in the sinter plant beginning May 9, 1950 and while he successfully applied to transfer to the nickel reverb he was kept in the sinter for an extra 2 ½ weeks before he was moved. The worker reports he did not even work two weeks in the reverb; the air was very bad in the smelter and no better in the reverb, so he got out of there. He reports he left the company at the end of July 1950.
He reports he was hired back in 1951, declined work in the smelter, and went underground where he worked for 22 years. The worker reports he worked with electric and air slushers for 1 ½ years and was exposed to smoke off the brake bands which he would help to replace about once a month. He reports while jack leg drilling he would be covered in lubrication oil and wore rubber suits due to water and oil. He reports diesel scoop trams were introduced in 1966-67, he was the first operator on a 3 month trial, and the employer decided to go with the diesels. He reports the air was not good with the smoke from the machines, they were breathing exhaust all the time, and the drift was small with poor ventilation. He confirmed he went on staff as a shift boss in 1968 and worked in this position until he retired in 1972. The worker confirmed he did not wear protective equipment up until he retired in 1972, and his cancer was diagnosed in 2002.
Submissions
Pre-Hearing Submissions
In his initial submissions the worker representative submitted the employment records cannot be accepted as accurate as the existing time sheets do not identify workers temporarily assigned to the sinter plant from other operations. The representative noted these assignments were recorded in a log book kept in the sinter plant which was subsequently destroyed. The representative suggested the remaining records do not capture workers who were assigned to the sinter plant on a temporary basis. The employer position on this issue is that the existing time cards identify workers who were assigned to the sinter plant (with the designation SP) and any additional days claimed to have been worked in the sinter cannot be confirmed. The worker representative also submitted the historical documents in respect to the development of the WSIB policy regarding sinter plant workers and lung cancer.
Hearing Submissions
a) Worker Representative
The representative notes two concerns with the decision to deny entitlement. The first is the reliance on the requirement for 6 months employment in the sinter plant to accept entitlement while the second is the conclusion the greatest risk factors were non-compensable.
The representative suggests based on hours worked and the standards used for the purposes of epidemiology it is evident the worker worked approximately 2.5 months in the sinter plant. The representative suggests based on the exposure threshold used in various WSIAT decisions being 25 or 50% the calculated in this instance of 48.25% is more than sufficient to accept entitlement based on probable risk in the sinter plant alone.
In terms of personal risk factors the representative suggests environmental exposures cannot be separated from the general population and should not be a factor in the entitlement decision. In terms of smoking history the representative suggests based on the worker testimony he was a moderate smoker. The representative suggests the 25 year gap between quitting and diagnosis based on the WSIB’s own medical review memo suggests a low probable relationship between the smoking history and diagnosed condition.
In assessing risk factors following sinter plant exposure the representative suggests there is evidence of significant PAH exposure (first diesel operator, poor mine ventilation, quality of diesel oil and exhaust controls in the 1960’s), mineral oil exposure (jack leg drilling), and asbestos exposure (as confirmed based on clinical lung findings of pleural thickening and fibrosis). The representative suggests these compounding factors were not accounted for in the decision to deny entitlement.
The representative suggests there can be no doubt these exposures had a negative effect on the worker’s health and were a significant contributing factor in the disease. The representative suggests the Muir et al epi-study did not consider workers such as this where exposures were combined and the results for underground workers were further diluted by classifying workers as miners.
In summary the representative suggests on one side there is an ex-smoker who developed lung cancer 25 years later while on the other there is a worker who was employed in the sinter plant with dust and nickel oxide exposure, 22 years of silica exposure, findings of fibrosis, and evidence of asbestos exposure. The representative suggests the risks associated with occupational exposures far outweigh the non-compensable factors. The representative suggests that even if equal then benefit of doubt would apply and initial entitlement is in order.
b) Employer
The employer acknowledges that based on the worker testimony there was sinter plant exposure and notes the worker representative argument this be established as 2.5 months exposure. The employer suggests that based on the Muir nickel industry study sinter plant exposure would lead to entitlement after 6 months exposure while less than 6 months is possible. The employer notes even accepting the worker representative submission and worker testimony in terms of the period worked this would equate to only 6 weeks exposure.
In terms of the smoking history the employer notes the family doctor reported a 50 pack year history with the worker having quit in 1984. The employer suggests one must consider the smoking history in determining entitlement. The employer suggests the Muir epi-study would have considered the hours of work while in assessing other risk factors the employer suggests there was unlikely significant asbestos exposure working underground as the pleural effusion noted by the worker representative may arise from multiple causes.
Analysis
In assessing entitlement there are several factors to consider. The first is to address the work history and potential exposure to carcinogens. The second is to address the personal history and associated risk factors. Finally, the relevant policy criteria and appropriate interpretation of the relevant research, scientific literature, and appropriate interpretation of the evidence must be assessed in the terms of entitlement to WSIB benefits.
At the outset I would point out the nature of the worker’s health condition is not in dispute and is clearly documented in the medical reporting on record. Additionally, I would acknowledge I accept the worker evidence as his truthful recollection of events, while recognizing the worker was asked to recall information some 50 years after the fact. At the root of the appeal is therefore the question as to whether the various workplace exposures dating from 1950 to 1972 are accepted as being implicated as causal factors in the condition diagnosed as lung cancer in 2002.
In reviewing the employment history I note the worker evidence is that he worked in the sinter plant and nickel reverb (in the smelter) between May 9, 1950 and the end of July 1950 (by the employer records July 25). The worker then left the employer for approximately a year before returning in 1951 and working underground until retiring in 1972. From the record diesel scoop trams were introduced in approximately 1966 and the worker became a shift boss in 1968. In terms of the argument regarding diesel fume exposure while I note the worker was underground for approximately 22 years his testimony suggests potential diesel fumes exposure for at most 6 years (1966 to 1972). I further note for a significant portion of this 6 year period the worker was a shift boss (which presumably would have led to less direct exposure to diesel fumes).
From an adjudicative perspective the case is complicated by the fact the operations division has reversed its position on entitlement on two occasions as the claim was initially denied, accepted, and finally denied.
The initial records indicated the worker was employed in the sinter plant from May 9, 1950 to June 22, 1950. The worker at the time suggested he recalled working in the sinter plant for approximately one year. The evidence was reviewed by a WSIB chest consultant who suggested based on the available evidence (12 cigarettes a day /20 years and between 1 to 2.9 months sinter plant exposure) the relative risk of sinter plant exposure was considered to be 14% of the total causation of the lung cancer. Based on this review the initial conclusion was that entitlement was not in order. Following further consideration and accepting 6 weeks employment in the sinter plant and 4 weeks in the nickel refinery the adjudicator concluded the evidence did not establish the employment was a significant contributing factor in the development of the condition. On reconsideration and based on information from the employer confirming sinter plant exposure the adjudicator then concluded it was appropriate to accept the employment likely made a significant contribution to the condition and the claim was allowed.
The employer then reported the worker had been employed in the smelter not the nickel refinery as previously indicated. The employer also reported the worker was not on the sinter registry. The adjudicator concluded the worker was employed 34 days in the sinter plant and 23 days in the smelter (reverberatory furnaces) and arranged for an occupational hygiene review of this employment and the subsequent employment in the mine. Having regard for the limited employment in the sinter the adjudicator concluded entitlement was not in order.
Having regard for the available evidence and worker testimony I note the parties are now generally in agreement as to the employment history. From May 9, 1950 to July 25, 1950 the worker initially worked in the sinter plant and briefly in the smelter (reverb). On returning in 1951 the worker went underground where he worked until 1972.
While I note the worker representative has presented arguments in relation to the synergistic effects and long-term exposures in the mine this argument is only relevant should entitlement not be accepted based on the initial exposures dating to 1950.
In assessing the evidence I note it is agreed the worker was employed in the sinter plant from May 9 to June 22, 1950. The worker was then recorded as working in the smelter from June 23 to July 25, 1950. The worker recollection was that while his transfer request was accepted he did not actually move for some 2 ½ weeks and worked less than 2 weeks total in the smelter. The worker representative has suggested the worker actually worked in the sinter plant to
July 9, 1950. Based on the hours worked the representative has suggested this would equate to some 2.5 months work in the sinter plant.
In assessing the evidence I find it reasonable to conclude the worker actually worked in the sinter plant from May 9, 1950 to July 9, 1950. By calendar days this is exactly two months or just less than 9 weeks. I do not accept the argument regarding calculating increased exposure based on hours worked as there is no indication on record the worker worked in excess of the regularly scheduled shifts (While I accept the hours worked were extensive this shift schedule would not in my estimation have been unusual in 1950). I further note the research data used to develop the relevant policy was based on weeks of employment with no indication of an adjustment based on hours worked. Therefore for the purposes of this decision I accept the worker was employed in the sinter plant for 2 months (8+ weeks).
I consider the above finding of fact significant in respect to the relevant policy, consideration of the evidence, and the WSIB chest consultant review. The relevant policy is not specific in terms of the required exposure and simply notes claims for workers who have been employed in the nickel sintering process may be accepted. It is important in my view to note that while the policy provides entitlement guidelines the disease and process are not listed in either schedule 3 or 4 of the Act. In the absence of inclusion in either schedule there is no specific presumption for entitlement simply based on a worker having worked in the sinter plant for any period. Rather, the evidence must still establish that on the balance of probability the work related exposure was a significant contributing factor in the development of the disease.
In terms of the available evidence I would accept the worker’s exposure was not insignificant. I base this on both the period of exposure accepted above and the year in which the exposure occurred. My understanding of the previous policy guidelines is that a clear distinction as to required sinter plant exposure to accept entitlement differed considerably if the exposure occurred prior to 1952. While this distinction is no longer identified in the current policy I do consider the distinction relevant when assessing relative risk where the exposure occurred prior to 1952. Finally, in considering the initial WSIB chest consultant review I note the consultant assessed the relative risks based on a lower estimated period of exposure than I have accepted. Based on my interpretation of the evidence I would accept the relative risk associated with sinter plant exposure is higher than previously identified.
In terms of other risk factors I note the chest consultant review also notes a somewhat more limited smoking history than that later recorded on file. While the worker testimony suggested he smoked fewer cigarettes a day than previously identified he also reports a longer smoking history and having quit in 1981 (some 6 years later than indicated in the chest consultant review). The smoking history is significant both in terms of smoking as a causal agent in lung cancer and the decrease in relative risk (not absolute risk) based on the period between cessation and the onset of the disease. In this instance I consider the relative risk at the time the worker quit smoking to have been somewhat higher than suggested by the chest consultant, however based on the still lengthy period of cessation I accept the relative risk related to smoking would remain comparable to that identified in the chest consultant review.
In summary, I have accepted a higher risk of occupational exposure than previously identified on file. I have accepted that based on both the date of exposure (pre-1952) and duration of exposure (some 9 weeks) the relative risk of work related disease would be higher than previously recognized. I have also concluded the relative risk related to smoking remains similar to that previously identified. Applying this analysis to the previous chest consultant review which apportioned the relative contribution of workplace exposure at about 14% I accept the relative contribution would be higher than previously recommended by the chest consultant.
While it is of course possible to arrange for a further relative contribution calculation I do not find this a specific requirement in order to reach an entitlement decision. The relevant test in my view does not require the board to apportion the entitlement based on a strict qualifying percentage. If this were the case I would anticipate the policy would simply provide such direction. Rather, the applicable test requires the decision-maker to assess whether the evidence establishes the workplace exposure as a probable significant contributing factor in the development of the disease. In this instance based on my interpretation of the evidence and policy I accept this test has been met. While recognizing the confirmed exposure level threshold falls short of the exposure level typically accepted as meeting the board practice I note the accepted exposure approaches the prior guidelines of 3 months exposure at Copper Cliff during 1948 to 1951. I therefore accept it is probable the workplace exposures were a significant contributing factor in the development of the worker’s lung cancer. On this basis entitlement is in order.
CONCLUSION
The objection is allowed.
DATED March 8, 2011
Mark Evans
Appeals Resolution Officer
Appeals Branch