Worker v. Employer, 2021 CanLII 126667

decision number:

20210035

REPRESENTED by:

HEARD by:

STEPHEN CRISOSTOMO, appeals resolution officer

DATED: OCTOBER 27, 2021

ISSUE

The worker objects to the Eligibility Adjudicator’s decision dated October 4, 2019, which denied entitlement for Basal Cell Carcinoma (BCC), related to their employment exposures while employed by the employer.

BACKGROUND

This claim was established based on the Worker’s Exposure Incident Form dated December 1, 2018, which indicated the worker was employed by the employer from 1969 to 1973 and was exposed to Lampblack, which caused them to develop lung mucus, a heart attack and skin cancer on their face, back and other areas of their body.

The employer provided employment records for the worker, which showed the worker was hired on September 19, 1969, terminated on November 21, 1972 and discharged, while on compensation on February 14, 1973.

After obtaining a statement from the worker along with their medical documentation, the Eligibility Adjudicator referred the file to a Workplace Safety and Insurance Board (WSIB) Occupational Hygienist (OH) for an opinion on the worker’s potential for occupational exposure related to the worker’s diagnosed BCC and coronary artery disease/heart attack. Following the OH’s review, the file was referred to an external Occupational Medical Consultant (OMC) for an opinion on the work-relatedness of the worker’s diagnosed conditions.

In October of 2019, entitlement for BCC was reviewed. Based on the review, the Eligibility Adjudicator denied entitlement for BCC after determining the Schedule 3 presumption under the Workplace Safety and Insurance Act, 1997 was rebutted and on a balance of probabilities, the worker’s employment exposures, while employed by the employer did not make a significant contribution to the development of their BCC/skin cancer. This decision was communicated on October 4, 2019.

The worker objected to the October 4, 2019 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Worker Representative’s Position

The worker’s representative submits:

They are pursuing entitlement for skin cancer in this claim at this time.
There is no evidence of childhood sunburns in the file.
The OMC’s opinion in the file provides strong casual support that the occupational exposure to mineral oil played a significant role in the onset of the worker’s BCC even though it was not the only factor.
Sections of Dr. Demers’ report titled Using Scientific Evidence and Principles to Help Determine Work-relatedness of Cancer should be considered when reviewing the evidence in this claim.
Entitlement for skin cancer/BCC should be allowed in this claim.

AUTHORITY

Sections 2(1) and 15 and Schedule 3 and 4 of the Workplace Safety and Insurance Act, 1997 (the Act)

Operational Policy Manual:

Published

11-01-01 Adjudicative Process 11-01-02 Decision-Making

November 3, 2008 October 12, 2004

ANALYSIS

I have carefully considered all of the available information and relevant operational policies in reaching this decision.

I find the presumption under Section 15 (3) of the Act has been rebutted and that the worker’s employment exposures, while employed by the employer were not a significant contributing factor in the development of their BCC/skin cancer. The reasons for my decision follow.

Operational Policy 11-01-01 related to the adjudicative process states in part:

Five point check system

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system.”

An allowable claim must have the following five points:

an employer
a worker
personal work-related injury
proof of accident, and
compatibility of diagnosis to accident or disablement history.

Occupational disease cases are adjudicated under Section 2 (1) and Section 15 of the Act and by Regulation in Schedules 3 & 4 of the Act. If the disease is not listed in the Schedules, entitlement to 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. In this case, the worker claims their diagnosed BCC is a result of their employment exposures while working for the employer.

I recognize that epitheliomatous (skin) cancer is listed in Schedule 3 of Act and the process in which the condition is presumed is “any process involving use or handling, of tar pitch, bitumen, mineral oil or paraffin or any compound, product or residue of these substances”.

Diagnosis

On March 22, 2017, the worker underwent surgery for their diagnosed clinical BCC of the right forehead and mid-back. The excised lesions were sent for testing and based on the March 29, 2017, Surgical Pathology Report, the lesions/specimens were diagnosed to be BCC of the right upper forehead and back.

Based on the medical evidence before me, I am satisfied that the worker was diagnosed with BCC of the back and right forehead.

Employment Exposures

It has been accepted in the claim that the worker was employed by the employer from 1969 to 1973 and that the worker worked in the Prep, HS Building, Press and Mill Departments and held positions of Re-Roll all liners; Tire Builder; HS Service Trucker, General Trucker and Banbury Service.

I note the worker’s file was referred to a WSIB OH to comment on the worker’s occupational exposures to tar pitch, bitumen, mineral oil or paraffin or any compound, product or residue of these substances, as listed in Schedule 3 of the Act for epitheliomatous (skin) cancer. Based on the assessment, the WSIB OH concluded in the report dated July 23, 2019 that over the worker’s 3.5 years of employment with the employer, they had different duties:

Activities in the worker’s short tenure in Banbury area likely resulted in dermal exposure to mineral oil, extender oil and carbon black due to routine handling of uncured rubber. These compounds are expected to contain varying concentrations of benzo[a]pyrene.
The worker handled petroleum-based products such as gasoline and naphtha while they worked in the tire building and as a trucker (approx. 0.5 years) in the pressroom and mill room areas. Thus, the worker was likely exposed to kerosene, gasoline and naphtha, and aromatics such as xylene and benzene.
The worker’s employment as a forklift driver did not result in direct dermal exposure to any chemicals in question.
Based upon the information collected and comparable literature reviewed, the worker’s dermal exposure to bitumen, arsenic, shale oils, soot, creosotes is not anticipated. The worker’s job/task does not suggest that the worker was exposed to ionizing radiation.
Carbon monoxide (CO): The worker’s duties suggests a portion of their work could have exposed them to CO as a forklift driver and Banbury operator. The available data suggests the worker’s average exposure to CO during their latter tenure in the rubber industry was likely below the current exposure limit.
Carbon disulfide (CS2): the available information suggests a portion of the worker’s duties in Banbury operation (< 1 year) could have resulted in exposure to CS2. The available information and anticipated work conditions suggests the worker’s average exposure to CS2 during their tenure in the rubber industry was likely below the current exposure limit.

In assessing the available evidence, I accept the OH exposure assessment report dated July 23, 2019 as providing an accurate and detailed review of the worker’s employment exposures. In making this determination, I note the assessment was performed by an Occupational Hygienist who specializes in recognizing health hazards in the working environment and was based on information, as it was available at the time.

As such, I accept the worker’s employment with the employer likely resulted in dermal exposure to mineral oil.

Discussion and Reasoning

In the written submission of May 11, 2021, the worker’s representative based their arguments, in part, on Dr. P.A. Demers’ January 9, 2020 report entitled Using Scientific Evidence and Principles to Help Determine the Work-Relatedness of Cancer. The Workplace Safety and Insurance Board addresses Dr. Demers’ report on its website at https://www.wsib.ca/en/wsib-occupational-disease-moving-forward, stating the following:

When we look at occupational disease claims, we rely on the best scientific evidence available, in addition to information about the person’s illness, workplace exposures and other relevant factors.

As the scientific research related to occupational disease evolves, we continue to look for new information that may help with our evidence-based decision-making.

In 2019, the Ontario government engaged Dr. Paul Demers to conduct an independent review of Occupational Cancer and workplace insurance compensation. His report - Using scientific evidence and principles to help determine the work-relatedness of cancer - was released in July 2020.

Dr. Demers’ review looked at how scientific evidence can be used to help determine whether a cancer claim is work related, and which scientific principles can best contribute to the development of occupational disease policy. The review also considered if there were best practices in other jurisdictions that could work well for Ontario.

The release of the Demers report coincided with the release of the KPMG, “Value for Money Audit Report: Occupational Disease and Survivor Benefit Program” in 2019 and our reviews of past occupational disease cohorts in recent years.

Drawing on all of this valuable information, we are developing an Occupational Disease Strategy to achieve a more responsive and sustainable approach to occupational disease policy and decision-making.

The Demers report includes recommendations for both the WSIB and the Ministry of Labour, Training and Skills Development (MLTSD). While the review did not specifically pertain to the WSIB’s adjudication process or individual claims, its recommendations inform the basis of our strategy.

The Occupational Disease Strategy will include short-term, medium-term, and long-term activities. In the short term, the WSIB is exploring:

an overarching occupational disease policy framework
a research strategy to facilitate the timely collection of up-to-date scientific evidence to support evidence-based decision-making

Strategy work is ongoing with the MLTSD and other system partners. More details will be provided as we progress through its development and implementation.

As the WSIB continues to work with its system partners in relation to the development and implementation of the recommendations in Dr. Demers’ report at this time, I make no finding of fact regarding the report in this decision because the report does not, at this time, form part of the WSIB’s legislative, policy, and/or best practices frameworks.

As per Section 15 (3) of the Act if, before the date of impairment, the worker was employed in a process set out in Schedule 3 and if he or she contracts the disease specified in the schedule, the disease is presumed to have occurred due to the nature of the worker’s employment unless the contrary is shown (my emphasis added).

In this case, the worker was diagnosed with BCC/skin cancer (epitheliomatous), which is listed as a Schedule 3 occupational disease in the Act. Column 2 of the Schedule for epitheliomatous (skin) cancer provides the process of for epitheliomatous (skin) cancer as “any process involving use or handling, of tar pitch, bitumen, mineral oil or paraffin or any compound, product or residue of these substances”.

Noting the worker was diagnosed with BCC of the forehead and back and that I accept the worker was involved in the handling of mineral oil, while employed by the employer during their employment from 1969 to 1973, which is prior to the date of impairment for the worker’s BCC, it is presumed that the worker’s BCC is work-related.

The question that remains is: Does the evidence show that the worker’s BCC of the forehead and back was caused by something other than their exposure to mineral oil, while employed by the employer? For example, is there sufficient evidence to confirm that the worker’s diagnosed BCC was not caused by their workplace exposure to mineral oil.

A review of the file reveals:

According to Canada Pension Plan (CPP) documentation, the worker was self-employed in the construction business from 1976 to 1979 and from 1985 to 2001.
The worker reported they worked in construction from 1974 to 2009. The CPP records do not identify employment from 1980 to 1984 inclusive and from 2002 to 2003 inclusive. The CPP records further confirm the worker’s ongoing work in the construction industry from 2004 to 2006 working for a construction company.
The worker reported that they always worked outdoors when they were self-employed working construction and further confirmed they never worked outdoors while employed by the employer.
The March 29, 2017, Surgical Pathology Report noted the right forehead specimen was consistent with severely sun-damaged skin with a superficial ulceration with nests of a BCC extending from the dermal-epidermal junction into the deep reticular dermis reveals. While the back specimen was consistent with sun-damaged skin with an atrophic epidermis with nests of a BCC extending from the dermal-epidermal junction into the papillary and reticular dermis.
The file was reviewed by Dr. Somerville, OMC, on June 6, 2019, who provided the following background information on BCC and risk factors:
- BCC is the most common malignancy in individuals of European descent and is increasing in incidence due to an aging population and sun exposure habits.
- The malignancy is strongly associated with exposure to UV radiation.
- Lesions develop primarily on sun-exposed skin in middle-aged and elderly individuals with fair skin.
- There is a higher incidence in men. Those with skin type I, red or blond hair, blue or green eyes, freckles and history of sunburn in childhood are most prone to this cancer.
- The latter risk factor is contrasted with history of sunburn as an adult, which does not seem to be associated with the development of BCC.
- Even recreational sun exposure in childhood seems to be an important risk factor.
- Several studies have shown an association between cumulative ultraviolet exposure and risk of BCC, although the magnitude of risk conferred has been small, with odds ratios in the region of 1.0 to 1.5.
- Other studies have failed to find a significant association between estimated cumulative sun exposure in adulthood and the presence of BCC.
- Other risk factors for this cancer include ionizing radiation, arsenic, positive family history, various genetic conditions and immune suppression.
- Additionally, the International Agency for Research on Cancer (IARC) lists several other exposures including coal tar pitch, mineral oils and soot, as carcinogenic agents with sufficient evidence in humans with respect to non-melanoma skin cancer.
The file was reviewed by Dr. Somerville again on July 30, 2019, who noted and concluded the following:
- BCC is closely associated with sun exposure. The surgical pathology report of March 29, 2017 describes sun-damaged skin from the right upper forehead and mid-back sections along with basal cell carcinoma, suggesting sun exposure as the likely main cause of the skin cancer.
- There are also occupational risk factors, including mineral oil exposure for this cancer.
- The worker only worked for the employer from 1969 to 1973 but workplace exposure to mineral oil is mentioned in the OH review. The IARC lists mineral oil as carcinogenic to humans with respect to non-melanoma skin cancer.
- It seems reasonable to consider workplace exposures may have contributed to the development of the BCC but sun exposure was likely the main cause.

While I acknowledge the worker had BCC, which is a Schedule 3 occupational disease and that the worker was involved in a process for which BCC would be presumed to be work-related, I find the evidence in the file is compelling and establishes the significant contributing factor in the development of the worker’s BCC of the forehead and back is the worker’s sun exposure and not their exposure to mineral oil or any other occupational exposures, while employed by the employer. I make this finding noting BCC is closely associated with sun exposure, the worker’s self-employment where they worked outdoors and was exposed to the sun and based on the Surgical Pathology Report, which specifically indicates the specimens removed from the worker’s forehead and back during the March 22, 2017 surgery showed sections of sun-damaged skin with nesting of a BCC. I also rely on the Dr. Somerville’s July 30, 2019 opinion, which indicates the worker’s sun exposure was likely the main cause of the BCC, based on Dr. Somerville’s medical expertise in occupational medicine and noting that the opinion is unrefuted by a medical professional, with equal or greater evidentiary weight than Dr. Somerville.

As such, I find the presumption under Section 15 (3) of the Act has been rebutted, based on the evidence establishing the worker’s sun exposure was likely the main cause (significant contributing factor) of their BCC of the forehead and back, and not their exposure to mineral oil, while employed by the employer from 1969 to 1973. In addition to the above, I am satisfied on a balance of probabilities that the worker’s other workplace exposures as identified in the WSIB OH assessment dated July 23, 2019, did not significantly contribute to the development of their BCC, based on the available evidence. Therefore, entitlement for BCC of the back and forehead, related to the worker’s employment exposures with the employer is denied.

CONCLUSION

Based on the evidence outlined in this decision, I conclude entitled for Basal Cell Carcinoma (of the back and forehead) related to the worker’s employment exposures with the employer is denied.

The worker’s objection is denied.

DATED October 27, 2021

S. Crisostomo

Appeals Resolution Officer

Appeals Services Division