Worker v. Employer, 2021 CanLII 65132

WORKPLACE SAFETY AND INSURANCE BOARD

APPEALS RESOLUTION OFFICER DECISION

DECISION NUMBER: 20210005

OBJECTING PARTY: Worker

REPRESENTED by: Worker Representative

RESPONDENT: Employer (Not Participating)

HEARING: Hearing in Writing

HEARD by: L. Cirillo, Appeals Resolution Officer

DATED: March 19, 2021

ISSUE

The worker objects to the Adjudicator’s decisions dated October 8, 2019 & September 3, 2020, which denied initial entitlement for squamous cell carcinoma of the tongue.

BACKGROUND

This claim was registered in March 2019, upon receipt of a Form 6, Worker’s Report of Injury. The worker claimed that he developed tongue cancer related to his occupational exposures to multiple toxins including coke oven emissions, tar, oils, grease, and asbestos and high heat areas. The worker was employed in various roles with the employer between 1974 and 2013 including work as a Labourer, Millwright Helper, Millwright, Mechanic and International Union Co-ordinator.

On or around late summer/September 2018, the worker felt something in his throat making it difficult for him to swallow. Following investigation, he was found to have a mass involving the right base of the tongue, right pharyngeal wall, right epiglottis extending into the vallecula. Biopsy completed on September 27, 2018 confirmed a diagnosis of a squamous cell carcinoma. The worker was in his 60’s at the time of diagnosis. Note is made that the worker had a previous smoking history, reported as ½ pack to 1 pack per day from the late 1970’s and he drank 12-15 alcoholic drinks per week.

The employer submitted an Occupational Hygienist (OH) report dated June 21, 2019, which confirmed the worker’s employment and exposure history, which was accepted by the operating area.

The file was referred to the WSIB Occupational Medical Consultant (OMC) in order to obtain an opinion on the primary diagnosis, date of the diagnosis and whether or not there were any occupational exposures associated with his type of cancer.

It was ultimately determined that the diagnosis was repeatedly referenced as a T3 N2c squamous cell carcinoma (SCC) involving the base of the worker’s tongue. The OMC opined that scientific literature did not identify an elevated risk of tongue cancer in an exposure setting comparable to that of the worker. Furthermore, it was noted that the most established non-occupational risk factors for this type of cancer was the use of tobacco products, mainly smoking. He also noted that the combination of alcohol consumption and tobacco use may have had a multiplicative effect. Based on the above, the operating area concluded that the workplace exposures were not a significant contributing factor in the development of the worker’s cancer and that there were well-established non-occupational risk factors for this type of disease. As a result, initial entitlement was denied. The decision was communicated to the worker in correspondence dated October 8, 2019.

The worker’s representative objected to the denial of initial entitlement. In correspondence dated August 31, 2020, he wrote to the WSIB and requested reconsideration of the initial entitlement decision.

In support of his position, he argued the following in part:

• While the WSIB does not have a specific policy with respect to the diagnosis of squamous cell carcinoma of the tongue and that this diagnosis is not included in either Schedule 3 or 4, it is his opinion that the disease listed as Epitheliomatous covers the worker’s diagnosis and the worker’s claim ought to be afforded the presumption prescribed by s. 15 (3) of the Workplace Safety & Insurance Act (WSIA);
• He further stated that traditionally epitheliomatous cancer claims have involved skin covering the outside of the body, but in his view, there is nothing in the Schedule restricting the application of the disease to the epithelial tissue of the tongue;
• Therefore, in his view, the application of the presumption under s. 15 (3) does not require that the worker’s case be proven as it requires the contrary be shown in order to deny the claim.

Following receipt of the above, the operating area used ICD-9 codes to conclude that the tongue is not considered under the presumption as suggested by the representative. The CM determined that the oral mucosa and the surface of the tongue, was a distant type of epithelioma compared to that of the skin and as result, the presumption did not apply in this case. The reconsideration decision was communicated to the worker in correspondence dated September 3, 2020.

The worker continued to object to the denial of initial entitlement; however, the decision remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.

Worker’s Position:

In correspondence dated September 24, 2020, the worker’s representative disagrees with the decision, which denied initial entitlement. In support of his position, he argued the following in part:

• There is nothing in s. 15 (3) of the WSIA or Reg. 175/98 to suggest that it is subject to ICD-9 codes;
• Policy 11-01-03 directs decision makers to apply all relevant WSIB Policies as well as the relevant provisions of the WSIA;
• The only operational policies that speak to ICD-9 codes are not applicable to this claim;
• Nothing in Schedule 3 suggests that it is subject to ICD-9 codes or policies that identify them. Therefore, he argues that the decision was not consistent with the applicable sections of the WSIA or the applicable WSIB policies;
• It was on a basis of an irrelevant policy that the Adjudicator determined the presumption afforded by s. 15(3) of the WSIA for Epitheliomatous was not applicable in this claim. He submits that a determination based on an error cannot stand and therefore, the presumption ought to be applied in this claim;
• It is his position, that the application of the presumption should result in granting initial entitlement in this claim;
• He submits the medical opinion provided is not a rebuttal of the presumption. In addition, he maintains that this is a question of law and not medicine so a referral to a medical consultant would not be necessary or productive;
• In his view, the worker was exposed to substances mentioned in Column 2 for Epitheliomatous and his cancer is a form of that disease, therefore, the presumption applies and there has not been a valid rebuttal;
• He argues that Epitheliomatous is an umbrella term that covers various cancers of the epithelium without any specificity regarding the type of cancer or epithelia tissue affected. Given the broad and general nature of the language used for Epitheliomatous any specificity requirements would be an apprehension of the language;
• He submits that Schedule 3 could have easily stipulated that only basal or squamous cell skin cancers on the epithelial tissue covering the body were afforded the presumption of s. 15(3) of the WSIA. In his view, the general terms used were quite obviously intended to cover more than one type of epithelial cancer, and given that there are no restrictions regarding the location then interpreting the language in the fashion identified in the Adjudicator’s decision is an error in law;
• He states that s. 46 of the Legislation Act, 2006 states that it applies to all Acts and regulations which would mean that the rule of liberal interpretation in section 64 applies to the WSIA and O. Reg. 175/98. The rule of liberal interpretation requires a fair, large, and liberal interpretation, which would eliminate any of the restrictive criteria used on the decision;
• Simply put, he states there is no authority for this claim to be denied on a restrictive interpretation of s. 15(3) or the Schedule 3 disease Epitheliomatous and therefore, the decision ought to be overturned;
• For these reasons, he requests initial entitlement be allowed.

Following my preliminary review on January 26, 2021, I determined that a referral to the WSIB OMC was necessary in order to obtain an opinion on whether or not the accepted diagnosis in this case fell within the list of diseases included in Schedule 3 of the WSIA. The following questions were posed to the OMC:

Opinion Required:

Noting the information on file, including the accepted accident history, all of the medical evidence, in addition to the arguments presented in the worker representative’s letters dated August 31, 2020 and September 24, 2020, please answer the following questions:

1. Please clarify the worker’s diagnosis;
2. Please provide your opinion as to whether or not the diagnosis falls under the list of diseases included in Schedule 3 of the WSIA, specifically the disease listed as Epitheliomatous cancer.

A copy of my referral memo and the OMC’s response dated February 4, 2021 were sent to the worker’s representative in correspondence dated February 8, 2021. The representative was given the opportunity to provide a rebuttal in response to the OMC’s review.

In correspondence dated February 25, 2021, the worker’s representative provides a rebuttal to the new report from the OMC. He also provided new information from Dr. Joel E. Andersen, Occupational Health Clinics of Ontario Workers (OHCOW) dated February 18, 2021.

He argued the following in part:

• It remains his position that the diagnosis is a question of law and not one of medicine as stated in his previous letters;
• He argues the OMC is not qualified to interpret the WSIA, and his opinion that this claim is not listed in the Schedule is misguided;
• He notes that the worker’s diagnosis of T3 N2c squamous cell carcinoma (SCC) was confirmed via biopsy performed by Dr. Micomonaco on September 27, 2018;
• The representative states that technically, the OMC was correct in his statement that the worker’s diagnosis did not correspond to any of the Schedule 3 conditions because it is not specifically listed. However, his statement is not determinative on the issue of whether or not the worker’s cancer claim is afforded the presumption provided by s. 15 (3) of the WSIA. He notes that Column 1 in Schedule 3 provides a “Description of Disease” and does not require a diagnosis to be an exact match for that description. He submits that the union has had 23 claims allowed for Epitheliomatous, but not one of those claims had a specific diagnosis of Epitheliomatous;
• Admittedly, none of those Epitheliomatous claims involved the skin of the tongue but he argues that does not automatically eliminate the application of the presumption afforded by s. 15 (3) to such a claim;
• In support of his positon he refers to Dr. Andersen’s response stating that this is a skin cancer;
• Since this is a skin cancer, or more precisely, an epithelial cancer, then it is an Epitheliomatous cancer, and the presumption would apply;
• He argues the worker has the exposures listed in Column 2 and they were confirmed by the employer;

In his referral to OHCOW, the representative asked the following:

“A worker has been diagnosed with T3 N2c squamous cell carcinoma involving the base of the tongue. Is this a type of cancer that involves the epithelial cells, or does it involve some other cells/tissue?”

In his response dated February18, 2021, Dr. Andersen noted the following:

“One type of skin cancer called basal cell carcinoma begins in the basal cells, which make skin cells that continuously push older cells toward the surface. As new cells move upward, they become flattened squamous cells, where a skin cancer called squamous cell carcinoma can occur.

About 2 out of 10 skin cancers are squamous cell carcinomas (also called squamous cell cancers). These cancers start in the flat cells in the upper (outer) part of the epidermis. These cancers commonly appear on sun-exposed areas of the body such as the face, ears, neck, lips and backs of the hands.”

AUTHORITY

Workplace Safety & Insurance Act (WSIA)

s. 2 (1) & s. 15

Schedules 3 & 4

Operational Policy

11-01-01 – Adjudicative Process

ANALYSIS

I have reviewed the record and considered the information and relevant legislation and operational policy in reaching this decision. In considering the information including the accepted diagnosis, the accepted workplace exposures, the opinions of the OMC and OHCOW I find the worker’s diagnosis falls within the disease of Epitheliomatous listed by Regulation in Schedule 3 of the WSIA and that the presumption applies. As a result, initial entitlement is allowed. The rationale for my decision is as follows.

Operational Policy 11-01-01 states the following 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.

Diagnosis

If it is not clear that the (injury or disablement) diagnosis provided is the result of the accident or disablement history described, a decision-maker may consult with the WSIB's clinical staff to assist in making this determination.

Occupational disease cases are adjudicated under s. 2 (1) and s. 15 of the WSIA 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 particular case, the worker has been diagnosed with a T3 N2c squamous cell carcinoma involving the base of the tongue. While the pathology report dated September 27, 2018 does not appear on record, Dr. Baath’s letter to the WSIB dated July 11, 2019 mentions this diagnosis and it is repeatedly referred to in various other reports on file. Therefore, I accept that this is the confirmed diagnosis.

While the WSIB OMC opined that the diagnosis did not correspond to any of the Schedule 3 conditions, based on my review and in considering the opinion of Dr. Andersen and the arguments presented, I respectfully disagree.

While the worker’s diagnosis is not explicitly listed in Schedule 3 of the Act, it is my understanding that Epitheliomatous is a malignant tumor consisting principally of epithelial cells, also known as a carcinoma. It is also my understanding that the epithelium is is one of the four basic types of animal tissue, along with connective tissue, muscle tissue and nervous tissue. It is a thin, continuous, protective layer of cells. Epithelial tissues line the outer surfaces of organs and blood vessels throughout the body, as well as the inner surfaces of cavities in many internal organs. An example is the epidermis, the outermost layer of the skin. While squamous cells typically make up the epidermis, or the outermost layer of the skin, other parts of the body including the lungs, mucous membranes, and urinary tract also have layers of squamous cells. Therefore, in my view, in this particular case, a squamous cell carcinoma is not limited to the epidermis.

In his explanation dated February 18, 2021, Dr. Andersen outlines that one type of skin cancer called basal cell carcinoma begins in the basal cells, which make skin cells that continuously push older cells toward the surface. As new cells move upward, they become flattened squamous cells, where a skin cancer called squamous cell carcinoma can occur. While I acknowledge the opinion of the WSIB OMC, he did not provide an explanation as to why he chose that position. In the absence of any explanation to the contrary, I accept the opinion/explanation of Dr. Andersen, who is also well versed in occupational medicine.

I am also persuaded by the representative’s argument, in that Column 1 in Schedule 3 provides a “Description of Disease” and therefore, does not require a diagnosis to be an exact match for that description. As the worker has been diagnosed with a squamous cell carcinoma, I am persuaded that this is a skin cancer, or more precisely, an epithelial cancer, also known as an Epitheliomatous cancer.

While the operating area did not obtain an opinion from a WSIB OH, they accepted the OH report submitted by the employer. In the report dated June 21, 2019, the worker’s employment and exposure history was noted as follows:

1. For 2 years he worked as a Labourer

• During this time, the worker worked as a labourer in various departments and would have been exposed to total suspended particulate, iron oxide, calcium oxide, code dust, coal dust, coke oven emissions, coal tar, manganese, magnesium oxide, calcium oxide and crystalline silica.

2. For 15 years he worked as a Millwright Helper/Millwright

• During this time, the worker worked as a Millwright Helper for approximately 5 years and as a Millwright for the balance in various departments. He would have been exposed to total suspended particulate, iron oxide, calcium oxide, coke dust, coal tar, coke oven emissions, manganese, magnesium oxide, calcium oxide, oil and grease, carbon monoxide and sulphur dioxide.
• In addition, he may have been exposed to asbestos.

3. For 13 years worked as a Cokemaking (Mechanic)

• During this time, the worker worked as a Mechanic in the Cokemaking department. He would have been exposed to total suspended particulate, iron oxide, coke oven emissions, coal dust, coke dust, oil and grease.

4. For 9 years worked as an International Union Co-Ordinator

• Office environment – no significant exposure to any contaminants

As per s.15 (3) 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. In this case, it has been accepted that the worker developed a squamous cell carcinoma of the tongue (Epitheliomatous). In Column 2 of the Schedule, the process is defined as “any process involving use or handling, of tar pitch, bitumen, mineral oil or paraffin or any compound, product or residue of these substances”.

As outlined above the worker worked for the employer for approximately 40 years. The latter part of his career, he did not have any significant exposures. However, prior to that, or for a period of 17 years, the worker performed work as a Labourer, Millwright assistant and Millwright, which the employer, confirms involved exposure to coal tar, one of the contaminants listed in Column 2 of the Schedule.

In considering the above, I must rely on legislation and find that the presumption does in fact apply in this case.

Presumption – Rebuttal

As it has been determined that the presumption applies in this case, for entitlement to be denied, there must be sufficient evidence to rebut the presumption. For example, there must be sufficient evidence to confirm that the worker’s diagnosis was not caused by the work.

While the WSIB OMC outlined that the most established non-occupational risk factor for the worker’s cancer is the use of tobacco products (with multiplicative effect of tobacco and alcohol use) and while there is evidence that the worker had a relatively significant smoking history, none of his treating practitioners attributed his condition to his smoking history. Therefore, I am not persuaded that the contrary has been demonstrated or that the worker’s condition did not arise out of and in the course of his employment. In my view, I am more persuaded that the worker’s condition was significantly contributed to by exposure to tar while working as Labourer, Millwright Assistant and Millwright for 15 years.

For these reasons, I find initial entitlement to the development of squamous cell carcinoma of the tongue arising out of and in the course of the worker’s employment is in order.

CONCLUSION

I conclude initial entitlement to the development of squamous cell carcinoma of the tongue is in order.

The level and duration of benefits is left to the discretion of the operating area.

The worker’s objection is allowed.

DATED March 19, 2021

L. Cirillo Appeals Resolution Officer Appeals Services