WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20110031
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s Representative
HEARING LOCATION: N/A
ISSUE
The sole issue in dispute is the selection of the accident date in the under claim.
HOW THE ISSUE ARISES
This now 70 year old sheet metal worker was accepted as having work related asbestosis along with chronic obstructive pulmonary disease by the Workplace Safety and Insurance Board (WSIB). The decision letter is dated April 9, 2009.
The date of accident was determined to be February 4, 2005 when the medical conditions first became apparent. The worker subsequently asked that the accident date be adjusted to March 1979 noting that he was treated for a lung condition at that time. On further review, as outlined in decision dated December 23, 2009 the adjudicator noted she had obtained an opinion of the chest consultant who opined that the accident date should be April 2, 2005, the date of pulmonary function tests(PFT). However, the adjudicator noted that given the proximity of the April 2, 2005 accident date to the previous February 4, 2005 date the accident date would remain unchanged. The letter goes on to indicate that the 1979 lung episode was considered to be unrelated to the work related exposures.
AUTHORITY
Operational Policy
11 01 04 Determining the Date of Injury
RESOLUTION METHOD AND PROCESS
The worker though his representative submitted a 60 day option form dated February 18, 2011. This election requires the Appeals Branch to carry out an expedited review and issue a decision within 60 days. The review is restricted to the information already on file. The 60 day time frame in this case expires on April 20, 2011.
ASSESSMENT OF THE EVIDENCE
In cases of occupational disease where there is no definable chance event that caused the workplace injury or disease the date of accident is generally considered to be the date of diagnosis. In cases of long latency diseases it is not unusual for a worker to be diagnosed with a work related disease after he has retired from the work force. This is explained in policy 11 01 04, “Determining the Date of Injury”, a portion of is reproduced below:
…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.
In the case before me the worker worked as a sheet metal worker from 1963 to 1992 when he left the workforce due to reasons other than his lungs. It was subsequently accepted that as a sheet metal worker and welder he would be exposed to dust and in the earlier years, asbestos.
The first medical evidence of lung problems on file is medical reporting from 1979. The worker developed pain and shortness of breath in the spring of 1979. It was at one point considered to possibly be related to his welding of zinc material noting the onset occurred shortly after he welded this material. In any event, he was seen repeatedly by a respirologist, Dr. Wood. He had two periods of hospitalization. He underwent multiple diagnostics tests. It was Dr. Wood’s view as noted in his final report on file that the condition could be attributed to right plural infusion infectious in nature and the he had made a good recovery from this with no further treatment necessary.
Information on file suggests the worker was a not insignificant smoker up until his 1979 episode of plural effusion when most reporting suggests he quit smoking.
I note that the there are further x rays taken in 1982 that showed some vague abnormalities in the lung. A chest x ray taken in November 1992 stated the “ lungs are well expanded and clear and there is no evidence of pulmonary disease or abnormality”. In 1993 he was involved in a significant motor vehicle accident (MVA) that involved multiple rib fractures and a collapsed lung on the left side. He has not worked since this motor vehicle accident.
Subsequent to the MVA there was an extensive medical/ legal review completed by Future Health dated April 1, 1994. This report outlined the worker’s pre accident (pre MVA) status. I note there is no mention of any pre existing shortness of breath. It was recorded that pre MVA the worker was active mountain biking as a recreational activity which he performed almost daily. Post accident he could not continue due to his multiple injures.
The worker developed diabetes in the late 1980s. Several detailed reports from the specialists who were following his diabetes are on file. The initial report of March 2, 1988 mentions some mild shortness of breath however the subsequent reports do not mention any history of shortness of breath or prior lung problems another than at the previously documented 1979 episode now attributed to a viral infection
The worker was assessed on October 21, 2008 by Dr. Hollinger, a pulmonary specialist, for the purposes of determining his Non Economic Loss. Dr. Hollinger took a detailed history and appears to have most if not all of the worker’s clinical records. Dr. Hollinger concluded that the worker had “at least asbestos related plural disease, however, and this may in fact date back to the first pleural effusion which was tapped by Dr. Wood in the 70’s”.
Faced with the above opinion and noting the worker ‘s representatives request for a change in the accident date the clinical records were again reviewed by a WSIB chest consultant. Two responses are on file recorded in memo 25 and 28. An earlier review by a different consultant noted that the worker’s evaluation had been difficult due to his complicated history. In any event, the medical consultant in memo 25 dated October 21, 2009 confirmed the 1979 episode was the result of viral pneumonia with effusion and pleurisy. He states there is no evidence that the condition was anything but viral in nature and that it resolved. In memo 28 the same consultant notes that intermittent reports of shortness of breath cannot be used in this case to set an accident date and stated “shortness of breath can have very many causes and to sort this out one would have to have more than symptoms alone, noting that confounding factors exist here”.
ANALYSIS
Decision
The accident date in this case has been correctly calculated as February 8, 2005.
Reasons
The reporting of Dr. Woods is in my view quite detailed. Multiple tests occurred including biopsy and bronchoscopy. All of tests were essentially normal although there was in one test some evidence of fibrosis. However, over the course of three months and two hospitalizations Dr. Wood became satisfied in June 1979 that the lung problems were due to a viral infection. Dr. Hollinger with the benefit of hindsight speculates that the 1979 episode may have been related to his asbestos exposure. I disagree in that there is really no evidence of any ongoing impairment until the mid 2000s. In particular, the pre accident status as described in the Future Health report of 1994 does not indicate any respiratory deficits noting an active hobby of mountain biking. I am unable to conclude the 1979 episode resulted in symptoms that are compatible with the subsequently diagnosed work related conditions noting that the evidence at the time and the multiple tests all appear to confirm viral infection as the primary cause of the symptoms. Therefore, compatibility of the 1979 symptoms to the work related conditions has not been conclusively established. Further, there is a lack of documented continuity of symptoms from 1979 to 2005.
This particular worker has had several insults to his lungs. There is his personal smoking history, his work related exposures, a recurrent viral infection and a significant trauma due to a motor vehicle accident. Any of the above could be responsible for his respiratory condition. In reality all of them probably are contributory. The WSIB has concluded the work exposures were a significant contributing factor and has extended entitlement. However, noting the “confounding factors” and the lack of a confirmed history of lung problems that can be diagnostically attributable to the work related exposures prior to 2005 I am reluctant to alter the accident date in this case. The PFT test of April 2005 is the first medical reporting of significant disability that is work related in nature. I choose to confirm the accident date as February 8, 2005.
CONCLUSION
The accident date in this case has been correctly calculated as February 8, 2005.
The objection is denied.
DATED April 18, 2011
R. P. Horne Appeals Resolution Officer Appeals Branch