APPEALS RESOLUTION OFFICER DECISION
decision number:
20220008
OBJECTING PARTY:
ESTATE OF THE WORKER
REPRESENTED by:
WORKER ESTATE REPRESENTATIVE
RESPONDENT:
EMPLOYER (ACCOUNT NO LONGER ACTIVE)
HEARING:
HEARING IN WRITING
HEARD by:
Stephen Crisostomo, appeals resolution officer
December 23, 2021
ISSUE
The estate of the worker objects to the Adjudicator’s decision dated June 1, 2021, which denied entitlement for colon/colorectal cancer due to the worker’s employment exposure to nitrosamines, PAHs (polycystic aromatic hydrocarbons), aromatic amines, solvents (Benzene, Xylene) and CTPVs (coal tar pitch volatiles), while employed by the employer.
BACKGROUND
The Appeals Resolution Officer’s (ARO) decision dated June 10, 2020 provides a thorough history of the claim. Therefore, I will not repeat it all here.
The estate of the worker completed the Worker’s Report of Injury/Disease (Form 6) dated March 19, 2019 and claimed the worker’s occupational exposures, while employed by the employer from 1949 to 1993, significantly contributed to the development of the worker’s colon cancer. Unfortunately, the worker passed away in February of 2013.
The ARO’s decision dated June 10, 2020, determined the worker did not have an occupational exposure to asbestos, x-radiation or gamma radiation, and found the worker’s occupational exposures did not significantly contribute to the development of their colon cancer. Thus, the ARO denied entitlement to colon cancer.
On April 15, 2021, the estate’s representative requested a reconsideration of the ARO’s June 10, 2020 decision, based on significant new evidence, which included:
Dr. Demers’ January 9, 2020 report that was released by the Ontario Ministry of Labour on July 8, 2020;
The Rubber Manufacturing Industry Report (Monograph 100F) released by the International Agency for Research on Cancer (IARC); and,
The September 11, 2020, Occupational Health Clinics for Ontario Workers Inc. (OHCOW) Occupational Hygienist’s (OH) assessment and the medical opinion provided by Dr. Pysklywec dated October 5, 2020.
The request for reconsideration was reviewed by the ARO on April 28, 2021 and denied. As a result, the estate’s representative requested a new decision that takes into consideration the worker’s potential exposure to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and CTPVs, Dr. Demers’ report, the OHCOW OH’s assessment and the medical opinion of Dr. Pysklywec.
Entitlement for colon cancer was re-adjudicated in June of 2021. Based on the review, entitlement for colon cancer related to the worker’s potential exposure to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and CTPVs was denied. This decision was communicated on June 1, 2021.
The estate of the worker objected to the June 1, 2021 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Estate’s Representative’s Position
The estate’s representative submits that Dr. Demers’ report, the worker’s full occupational exposures, while employed by the employer and the evidence in the file should all be considered, in determining if the worker’s colon cancer was work-related. The representative indicates that the re-adjudication of the file should be guided by the appropriate legal principles and informed by an understanding of the relevant scientific principles cited by Dr. Demers in his report.
AUTHORITY
Sections 2(1) and 15 and Schedule 3 and 4 of the Workplace Safety and Insurance Act, 1997
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, legislation and relevant operational policies in reaching this decision.
The ARO’s decision dated June 10, 2020 found that the worker’s occupational exposures (related to asbestos, x-radiation or gamma radiation) did not significantly contribute to the development of the their colon cancer. As a fellow ARO made this finding, I am bound by the finding and have no jurisdiction on the issue.
As such, the issue before me is related to the worker’s potential employment exposure to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and CTPVs.
I find the worker’s employment exposures, other than the exposures already ruled by the ARO in the decision dated June 10, 2020, were not a significant contributing factor in the development of their colon 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 Workplace Safety and Insurance Board (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 s. 2 (1) and s. 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 estate of the worker claims the worker’s colon cancer was a result of their employment exposures, while employed by the employer.
There is no WSIB policy that applies specifically to colon cancer and the additional potential employment exposures to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and CTPVs. Therefore, entitlement for colon cancer must be determined based upon the available evidence and the individual merits of the case in accordance with Operational Policy 11-01-01
Diagnosis
In the decision dated June 10, 2020, the ARO accepted the evidence supported the worker was diagnosed with primary colon cancer. As such, I am bound by this finding.
Employment History
Information in the file supports the following:
The worker commenced employment with the employer on November 8, 1950, working in the tire department as a Liner Re-Roll.
In 1970, the worker moved to work as a supply bias splicer.
In 1986, the worker worked in receiving, receiving raw material.
The worker retired on December 1, 1992 after 42-years of employment with the employer.
Discussion and Reasoning
In the written submissions of April 15, 2021 and May 6, 2021, the estate’s representative requests that Dr. P.A. Demers’ January 9, 2020 report titled Using Scientific Evidence and Principles to Help Determine the Work-Relatedness of Cancer be fully considered when determining entitlement. 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.
In reviewing the IARC’s List of Classifications by cancer sites for carcinogenic agents with sufficient or limited evidence in humans, I note for colon and rectal cancer, IARC lists alcoholic beverages, tobacco smoking, x-radiation, gamma radiation and consumption of processed meat, as carcinogenic agents with sufficient evidence in humans. IARC also lists asbestos, along with schistosoma japonicum and consumption of red meat, as carcinogenic agents with limited evidence in humans with respect to colon and rectal cancer. Noting the IARC is part of the World Health Organization and that their mission is to coordinate and conduct research on the causes of human cancer, the mechanisms of carcinogenesis and the development of scientific strategies for cancer control, I find the IARC is a credible source for cancer related information.
In reviewing the Monograph 100F titled Occupational Exposure in the Rubber-Manufacturing Industry mentioned by the estate’s representative, I note the evaluation was that there was sufficient evidence in humans for the carcinogenicity of occupational exposures in the rubber-manufacturing industry. The monograph noted occupational exposures in the rubber-manufacturing industry cause leukaemia, lymphoma, and cancers of the urinary bladder, lung, and stomach. Also, a positive association was observed between occupational exposures in the rubber manufacturing industry and cancers of the prostate, oesophagus, and larynx (my emphasis added).
A review of the file reveals:
The September 11, 2020, OHCOW OH assessment, which the estate’s representative requested full consideration of in determining entitlement, failed to reveal the worker was exposed to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs, while employed by the employer.
Dr.Pysklywec’s medical report and opinion dated October 5, 2020, does not relate the worker’s colon cancer to any possible exposure to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs in the workplace.
The file was reviewed by Dr. Markus, Occupational Medicine Consultant, on May 27, 2021, who reviewed the file with respect to the worker’s potential exposure to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs. Based on the review Dr. Markus noted:
o It was noteworthy that in IARC’s list of carcinogens by tissue-type, these chemicals were not included.
o The IARC monograph for work in the rubber industry was reviewed, where the worker was employed as a Materials Handler. In the document, cancer of the colon was not mentioned. Chemicals listed as potential carcinogens included rubber fume, nitrosamine, PAHs, solvents of various types and phthalates. CTPVs were not listed as potential exposures.
o Overall, the literature review does not support an association between occupational exposures to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs and the development of colon cancer.
Based on their review, Dr. Markus opined there was no association between the worker’s occupational exposures and the development of their colon cancer.
Based on the information before me including the two OH assessments contained in the file and Monograph 100F, I find no compelling evidence that establishes the worker was exposed to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs, while employed by the employer. However, even if the worker was exposed to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs at work, I am satisfied that there is no reliable evidence before me that demonstrates satisfactory evidence of a causal connection between exposures in the rubber industry and the development of colon/colorectal cancer. In my assessment of the evidence, I place significant weight on Monograph 100F released by IARC, which did not mention occupational exposures in the rubber manufacturing industry caused or were positively associated with colon cancer and Dr. Markus’ medical opinion, which opined there was no association between the worker’s occupational exposures and the development of their colon cancer.
Based on the available information, I find the weight of the evidence noted above and contained within the record does not establish the worker’s colon cancer was causally related to any potential employment exposure to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs. Therefore, I am satisfied that on a balance of probabilities that the worker’s potential workplace exposures to any of above agents, did not significantly contribute to the development of their colon cancer. Thus, the criteria in Policy 11-01-01 for ruling on initial entitlement to WSIB benefits have not been met. Therefore, initial entitlement for colon cancer is denied.
CONCLUSION
Based on the evidence outlined in this decision, I conclude entitlement for colon cancer related to the worker’s potential exposure to nitrosamines, PAHs, aromatic amines, solvents (Benzene, Xylene) and/or CTPVs is denied.
The estate’s objection is denied.
DATED December 23, 2021
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division