The Worker's Estate v. Employer (Out of Business), 2019 CanLII 26568

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS MANAGER RECONSIDERATION DECISION

DECISION NUMBER: 20190057

OBJECTING PARTY: The Worker’s Estate

REPRESENTED by: Estate Representative

RESPONDENT: Employer (Out of Business)

HEARING: Hearing in Writing

HEARD by: Fred Broad, Appeals Manager

DATED: January 28, 2019

ISSUE(S)

The Director of the Occupational Disease and Survivor Benefits Program (OD&SBP) seeks reconsideration of the Appeals Resolution Officer (ARO) decision dated March 17, 2000. The ARO decision denied entitlement to chest disease.

BACKGROUND

This claim was established with the Workplace Safety and Insurance Board (WSIB) in late 1990 to determine if the worker’s chest disease was related to his exposures in the mining industry over many years. The claim was denied at the operating level and subsequently by a Decision Review Specialist in 1994 who agreed the worker’s workplace exposures were not significant contributing factors in the development of bronchitic obstructive lung disease that was “more correctly attributable to his past smoking habit.”

An Appeals Resolution Officer in the Appeals Branch subsequently reviewed the case. The decision of the ARO dated March 17, 2000 denied entitlement to chest disease. In her assessment of the evidence, the ARO clarified the worker did not have entitlement for silicosis, emphysema or bronchitic lung disease with possible asthmatic component.

In a memorandum dated July 18, 2018 directed to the Vice President, Appeals Services Division (ASD), the OD&SBP Director requested reconsideration of the March 17, 2000 ARO decision. Her request noted, in part:

I am requesting your assistance in arranging reconsideration of the ARO decision…on the basis that significant new information has become available since that decision was rendered with the potential to affect the decision outcome. Subsequent to the ARO decision, there have been two significant developments with respect to the WSIB’s approach to the adjudication of COPD claims…a significant new approach to the review of COPD cases adopted by the WSIB in 2001 following a review of the scientific literature, as well as new information that has emerged more recently pertaining to McIntyre Powder and its potential for contributing to COPD.

As the ARO who made the original decision in this case is now retired, I reviewed the request for reconsideration. I determined the threshold to reconsider the decision had been met. In making this determination, I noted, “The development of a significant new approach to the review of COPD cases, coupled with additional exposure information not factored into the original review of this particular worker’s case represents significant new evidence that did not exist at the time the ARO decision was made, and that is relevant to the issue(s) under appeal. On this basis, the threshold to reconsider the ARO’s decision is met.”

To assist me in my review of the case, I requested a review by an Occupational Hygienist in the OD&SBP of the worker’s exposures while employed in the mining industry. This was to ensure that all exposures relevant to the worker’s case were accounted for, assessed, and reflected the current approach taken by the WSIB to claims of this nature.

I shared the Occupational Hygiene Review document completed by the Occupational Hygienist with the representative for the worker’s Estate and requested a final submission from her. In her correspondence dated January 7, 2019, the representative argued that the worker’s entire work and exposure history, including his exposure to McIntyre aluminium dust powder needs to be factored into my consideration of his claim. She also clarified that, on behalf of the worker’s Estate, they are seeking entitlement for silicosis and COPD. My reconsideration decision will address the worker’s entitlement for these two conditions.

For the record, I note that, subsequent to the ARO decision dated March 17, 2000, the worker passed away. The executor for the worker’s Estate has authorized the Representative to represent the Estate’s continuing pursuit for entitlement to WSIB benefits in the worker’s claim.

AUTHORITY

Section 121 of the Workplace Safety and Insurance Act and WSIB Operational Policy 11-01-14 (Reconsiderations of Decisions) allow the WSIB to reconsider any decision made and to confirm, amend or reverse the decision.

I am reviewing this reconsideration under the following:

Workers’ Compensation Act, R.S.O., 1980

WSIB Operational Policy 11-01-04 – Determining the Date of Injury (Published October 12, 2004)

WSIB Operational Policy 16-02-04 – Silicosis

Scientific Review of Chronic Obstructive Lung Disease dated April 2001

ANALYSIS

Following my review of the case in light of the applicable Act and WSIB policies, I have determined the worker does not have entitlement for chronic obstructive lung disease. Additionally, there is no entitlement for silicosis. The following details my determination on these issues.

Review of Medical Reports

In considering entitlement for both COPD and silicosis, I found the following medical documents/reports relevant:

• Ministry of Labour documents showing the Medical Service Chest Clinic monitored the worker throughout his career. The documents include a recording of pulmonary function test (PFT) results from 1976.
• A July 12, 1989 report from the St. Mary’s General Pulmonary Function Laboratory. This is the first detailed report of the worker’s pulmonary function and showed him to have moderate obstructive lung disease.
• A consultation report from Dr. Leonard Peress dated September 17, 1990 indicating the worker had bronchitic obstructive lung disease with PFTs showing moderate airway obstruction. It was the opinion of Dr. Peress that smoking was the most likely cause of the worker’s chest disease although he noted workplace exposures as a potential aggravator. Additional reports from Dr. Peress showed similar findings and conclusions while noting deterioration in the worker’s pulmonary function.
• Hundreds of pages of documents from the Timmins and District Hospital covering many years of treatment the worker received. Of note are two reports from November 1998 and June 1999 when the worker was admitted for lung surgery. Biopsy results from both surgeries revealed the presence of silicotic nodules.

The Worker’s Date of Injury

In my review of the worker’s claim, I was unable to find a date of injury identified for the onset of the worker’s COPD. This was not likely factored into the original analysis of the case given the determination that the COPD was not considered work-related. The determination of a date of injury is important in this case in light of changes to the Worker’s Compensation Act that came into effect in 1990.

WSIB policy 11-01-04, Determining the Date of Injury, published October 12, 2004 provides direction to decision makers in determining the date of injury. The policy notes the “date of injury is the date that the worker experiences a disabling physical or functional abnormality or loss due to a disablement, occupational disease or trauma.” For an occupational disease, the policy clarifies the date of injury as the “date the worker suffers the impairment (i.e., the date on which the worker experiences the disabling physical or functional abnormality or loss).

Based on the direction provided in policy, I have determined the worker’s date of injury related to his COPD condition is July 12, 1989. As noted above, this is the date of the report from the St. Mary’s General Pulmonary Function Laboratory. It is the first detailed report of the worker’s pulmonary function and showed him to have moderate obstructive lung disease.

The Worker’s Smoking History

As COPD is one of the conditions under review in this claim, and as entitlement was originally denied in this case largely on the basis of the worker’s smoking history, it is relevant for me to review the documents pertaining to his smoking history and make a finding of fact in that regard. In this light, I note the following:

• When interviewed by the WSIB Investigator in 1991, the worker reported he smoked for 36 years, quitting in October 1990.
• The MOL reports show the worker smoking from at least 1976 (15 cigarettes/day), through 1983 to 1988 (25 cigarettes/day) and into 1990 (20 cigarettes/day).
• The PFT from July 1989 where the worker indicated he had smoked a pack of cigarettes per day for 34 years. Dr. Hall confirmed these numbers when he completed the Doctor’s Report of Occupational Chest Disease, as did Dr. Peress in his September 1990 consultation report.
• Dr. Champion’s letter dated July 28, 2016 indicating the worker had a “robust” smoking history of over 30 years, having quit in 1996.

The above shows a consistent smoking history reported by the worker. Taking the various reports in consideration, I accept the smoking history reported by the worker to the Investigator. I find the worker’s smoking history amounted to 36-pack years.

Entitlement for Silicosis

WSIB Operational Policy 16-02-04 reads in part:

Silicosis is an industrial disease listed in schedule 3 to the Act. If a worker files a claim for disablement due to this disease, silicosis is deemed to have been due to the nature of the worker’s employment, provided the employment is a process, trade or occupation set out in Column 2 of schedule 3…

The policy goes on to clarify there must be a clear and adequate history of at least two years of occupational exposure to silica dust. Additionally, a diagnosis of silicosis must exist.

Regarding the worker’s exposure, an Occupational Hygienist in the OD&SBP completed an updated Occupational Hygiene Review, providing a respirable dust exposure estimate in light of the worker’s employment history in Ontario. While I will discuss the review in more detail later in the decision, the report confirms that, throughout his employment history, the worker had the potential for exposure to silica dust far exceeding the 2-year requirement detailed in the policy. I find that the worker meets the exposure requirements of the policy.

It is not sufficient to have exposure to silica dust for entitlement under the silicosis policy; one must also have a diagnosis of silicosis. Based on my review of the medical reports on file, and in keeping with comments made by various WSIB consultants, the worker was never diagnosed with silicosis. In coming to this determination, I note the following:

• Dr. Peress did not diagnose the worker with silicosis in any of the three consultation reports he prepared based on his assessments of the worker between 1990 and 1994. In addition to his examination of the worker, he also had chest x-ray reports and PFT studies available to him, all of which would have pointed to the presence of the disease.
• The comment of Dr. Thakur in memo 35 dated May 17, 1994 that the worker’s chest x-rays did not suggest any evidence of silicosis and the “PFTs since ’89 all indicate severe COPD…”
• The review of the case by Dr. Woolf, Chest Disease Consultant dated May 18, 1994 again noting PFT results compatible with chronic bronchitis and severe obstructive lung disease from cigarette smoking. Equally important is his reiteration that, “the x-rays have never shown any evidence of silicosis but there is evidence of hyperinflation…”
• Two reports from the Timmins and District Hospital from November 1998 and June 1999 when the worker underwent lung surgery. Biopsy results from both surgeries revealed the presence of silicotic nodules.
• Regarding the presence and significance of these findings, I note the opinion of Dr. Roos, Chest Disease Consultant dated February 10, 2000 that nodules of this type are found in worker’s who have had significant silica dust exposure. He also noted, “The finding of discrete silicotic nodules on pathology or surgery is not diagnostic of silicosis.” Finally, with respect to this particular case, he noted, “the available chest x-ray reports have not noted the presence of simple silicosis.”

As noted earlier, my review leads me to conclude the worker did not have silicosis. I place weight on the absence of a diagnosis made by the specialist who both treated the worker and had access to his test results. I also accept the opinions of the WSIB chest disease consultants, both experts in this field, that the worker’s medical information, and his chest x-rays in particular, showed no evidence of silicosis. Entitlement for silicosis is denied.

Entitlement for Chronic Obstructive Pulmonary Disease

In considering the worker’s entitlement for COPD, there is no WSIB Operational Policy applicable to his case. There is a policy relating to COPD in smelter workers that does not apply to this worker, as he was not involved in that occupation.

Based on the date of injury for this worker’s COPD, the Workers’ Compensation Act, R.S.O., 1980 is the applicable legislation. Under this Act, industrial disease (the term used at that time) cases were adjudicated under s. 1 (1) (n) and s. 122 and by Regulation in Schedule 3 of the Act.

As COPD is not listed in the Schedule, entitlement to WSIB benefits and services is determined based on the merits and justice of the case. It must be established that it is more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of the medical condition being claimed, COPD in this case.

As noted earlier, I agreed with reconsideration in this case in part because of the release in April 2001 by the then Medical and Occupational Disease Policy Branch of a document titled Scientific Review of Chronic Obstructive Lung Disease. The document includes a section of adjudicative advice to guide decision-makers in assessing COPD cases.

A senior scientist in the WSIB’s Operational Policy Branch provided a description and summary of the COPD document that is on file in this claim. She notes the following:

The COPD Binder is comprised of two main parts: a scientific review of the epidemiological literature on dust and COPD, and an adjudicative advice section. The scientific review section is based on three literature reviews conducted by the former Medical and Occupational Disease Policy branch in 1999 and 2000. The first two literature reviews evaluated the potential causal associations between exposure to mineral dusts (silica, asbestos, coal and cement) or other dust exposures related to industrial processes (smelting, foundry and welding) and the development of COPD.^{2, 3} The third review was an assessment of the exposure-response relationships for exposures to silica, asbestos, coal, cement, cadmium, smelter dusts, foundry dusts and welding dusts and the development of COPD.⁴ The findings of these three scientific reviews were used to form the basis of the adjudicative advice section.

The scientific review sections of the COPD Binder indicated that long-term high-level exposure to coal dust, hard-rock mining dusts containing silica or dusts containing asbestos is associated with clinically substantial COPD. In addition, long-term workplace exposure to cadmium, and exposures in aluminum smelters, foundries and welding operations are associated with eventual development of clinically substantial COPD. It was found that the evidence for these associations was compelling enough to be accepted as causal in both smokers and non-smokers.

Quantitative epidemiologic studies point to an elevated risk of developing COPD after a cumulative dust exposure of approximately 50 mg/m³-years. The COPD Binder accepts a minimum threshold of 20 years at about 2 mg/m³ respirable dust exposure, which amounts to 40 mg/m³-years.

The estimate of cumulative exposure to respirable dust is dependent upon an individual’s intensity and duration of exposure. The COPD Binder specifies that various factors may influence the estimate of cumulative exposure, including silica content of dust, individual exposure factors (e.g., use of personal protective equipment, changes in work environment and practices, and time period in which work was preformed) and other types of agents and mixed exposures.

To overcome limitations in available Ontario mining exposure data, broad exposure categories (high ≥2 mg/m³; medium 1-2 mg/m³; or low <1 mg/m³) were developed based on the type of mining job and time period in which it was performed. Appendix 1 of the COPD Binder outlines the procedure for assessing worker’s mining exposure to respirable dust and provides dust exposure tables for gold, uranium and nickel mining.

In summary, the COPD Binder provides a review of scientific literature and adjudicative advice to guide decision makers contemplating these types of cases. It provides a cumulative dust exposure “threshold” for entitlement consideration that is a guideline and not reflected in a WSIB policy.

To have an accurate assessment of the worker’s cumulative exposure to respirable dust, an Occupational Hygienist in the OD&SBP completed an updated Occupational Hygiene Review, providing a respirable dust exposure estimate in light of the workers employment history in Ontario.

The worker representative, in her submission dated January 7, 2019 takes issue with aspects of the assessment provided by the hygienist. She questions the accuracy of the number of years used by the hygienist to calculate the worker’s dust exposure. She questions if the totality of the worker’s exposures were taken into consideration. She also indicates, “Assumptions are made as to his exposure or lack of exposure levels rather than actual readings.” Finally, she indicates the exposure assessment should include the 22 years the worker was exposed to McIntyre Powder.

I accept the Occupational Hygiene Exposure Assessment report dated November 13, 2018 as providing an accurate and detailed review of the worker’s employment and potential exposure to substances of importance in the development of his COPD. In making this determination, I note the hygienist provided his assessment based on his review of the information in the worker’s claim including information from the worker, his employer, the Ministry of Labour and mining master file records retained by the WSIB. He made use of historical data compiled by the Ministry of Labour in arriving at the likely exposure levels the worker would have encountered in the jobs he performed.

I accept the worker worked from 1956 to 1991 although not necessarily for an entire year each year. Based on the information available in the claim, I accept the worker worked the equivalent of about 29.25 years during this timeframe. For the purposes of this claim, in determining the worker’s exposure to respirable dust, I accept that the periods of employment in 1956 and from 1987 to 1991 should not factor into the calculations, as the worker did not have respirable dust exposure based on the nature of his employment as a warehouse clerk and carpenter. Additionally, I accept the worker’s employment as a Mill Operator totalled 2.83 years and his employment in the Crushers totalled 5.83 years. The remaining period of employment is equivalent to 16.29 years and not the 14.71 years noted by the hygienist in his assessment. However, as will be seen later in the decision, the addition of 1.58 years does not substantially change the overall exposure assessment.

I acknowledge the representative’s point that some assumptions were made by the hygienist in providing his assessments. By its very nature, a retrospective assessment requires some assumptions particularly when looking decades back on exposures covering many years and in the absence or availability of actual readings. The hygienist provided comment on the potential for occupational exposure to respirable dust. I remain of the view that the assessment accurately captures as best possible the worker’s likely exposure to substances of importance in the development of COPD.

I accept the conclusions reached by the Occupational Hygienist in his report. The hygienist provided a total cumulative exposure to respirable dust of 7.7 mg/m³-years. Taking into account the additional/revised period of employment noted earlier, the revised total cumulative exposure is 8.04 mg/m³-years. I therefore accept the worker’s respirable dust and respirable quartz exposure amounted to 8 mg/m³-years.

In deciding to move forward with a reconsideration in this case, I also noted a more recent development that determined a worker’s exposure to McIntyre Powder should also be considered in the assessment of their overall respirable dust exposure estimates. I agree with the representative that these exposures are an important consideration in determining the worker’s entitlement.

Regarding McIntyre Powder, I again quote from the senior scientist referenced earlier:

Between 1944 and 1979, a silicosis prophylaxis program was conducted in northern Ontario hard rock mines. As part of the program, miners were exposed to a finely ground aluminum dust, known as “McIntyre Powder”. Based on the evidence at that time, it was thought that inhalation of the aluminum dust would prevent the development or worsening of silicosis. The practice was ended on the recommendation of a Ministry of Labour scientific task force, which concluded that there was no evidence that the aluminum powder had a therapeutic effect.

As described above, the COPD Binder provides guidance regarding respirable dust exposures encountered by workers in various industries, including mining. However, it does not specifically address aluminum dust exposures from the prophylactic use of McIntyre Powder. The COPD Binder accepts that aluminum dust and fume exposures through employment in other industries/occupations such as aluminum smelters or aluminum welding may increase the risk of developing COPD. The hard rock mining studies^5-7 examined by the MODPB paper on the exposure-response relationships for exposures to various dusts and the development of COPD⁴ were reviewed for this Memo. None of these studies mentioned McIntyre Powder, nor was there any indication that aluminum dust exposures were considered in mining dust exposure estimates.

In summary, it does not appear that McIntyre Powder dust exposures were considered in the mining dust exposure estimates contained within the COPD Binder. Therefore, it is recommended that McIntyre Powder dust exposures be incorporated into the cumulative respirable dust calculations for COPD claims, where applicable.

Additionally, there is a document from the Manager – Occupational Hygiene, OD&SBP dated October 5, 2017 that provides an “estimate of inhalation exposure to aluminum dust, associated with the McIntyre powder aluminum prophylaxis.” In her summary, the manager notes, “it is reasonable to expect that as a result of McIntyre powder aluminum prophylaxis…the worker’s equivalent 8-hour Time Weighted Average exposure to aluminum dust would be in the range of 0.5-1.0 mg/m³, during each working day when the practice was in place.”

In memo xxxxx, dated May 3, 2017 a BCR in OD&SBP provided information showing the worker had aluminum powder prophylaxis exposure totaling 205.25 months. This figure was derived based on the records kept for this worker through his mining certificate number (x-xxxxx). When the worker attended for his annual chest x-rays, a record would be made of his employment over the previous year. Included with the record was a reporting by the worker if he was receiving aluminum powder prophylaxis.

I have reviewed these records and accept the figure of 205.25 months as accurately capturing the worker’s period of aluminum powder prophylaxis exposure. This is equivalent to 17.1 years of exposure. Taking into account the information provided by the OD&SBP manager, the worker’s aluminum powder prophylaxis exposure resulted in additional respirable dust exposure in the range of 8.55 mg/m³-years to 17.1 mg/m³-years.

Accounting for the worker’s respirable dust, quartz and aluminum powder exposure, the worker’s overall respirable dust exposure was in the range of 16.25 (mg/m³) years to 24.8 (mg/m³) years. I favour using the higher end of the range estimate and find that the worker had respirable dust exposure of 25 mg/m³-years.

As noted earlier in this decision, “quantitative epidemiologic studies point to an elevated risk of developing COPD after a cumulative dust exposure of approximately 50 mg/m³-years. The COPD Binder accepts a minimum threshold of 20 years at about 2 mg/m³ respirable dust exposure, which amounts to 40 mg/m³-years.” Accepting the higher end of the exposure range as I have done, the worker’s overall exposures to respirable dust fall well short of even the minimum threshold to suggest they resulted in an elevated risk for the worker developing COPD. This leads me to conclude the circumstances of the worker’s employment and exposure history did not significantly contribute to the development of his COPD. Thus, I find the worker does not have entitlement for chronic obstructive pulmonary disease.

CONCLUSION

The worker’s objection on reconsideration is denied. The worker does not have entitlement for silicosis or chronic obstructive lung disease.

DATED: January 28, 2019

Fred Broad

Manager

Appeals Services Division