Worker (Estate of) v. Employer, 2023 CanLII 122945

Appeals Resolution Officer Decision

Decision Dated: 20230138

Objecting Party: Estate or Worker

Represented by: Self

Respondent: Employer (Not participating)

Hearing: Hearing in Writing

Heard by: L. Cirillo, Appeals Resolution Officer Dated: November 17, 2023

Issue

The estate objects to the Adjudicator’s decision dated June 1, 2022, which denied entitlement to colon cancer arising from potential workplace exposures to methyl ethyl ketone (MEK), Creosote (PCBs) and Ammonia.

Background

The Appeals Resolution Officer (ARO) decision dated April 5, 2022, provides a detailed claim background, which will not be repeated in its entirety.

Briefly, on January 9, 2012, the worker underwent a colonoscopy, which revealed the presence of a mass in the colon. On January 16, 2012, they were diagnosed with colon cancer, which was found to have metastasized into the lungs and liver. The worker passed away on April 24, 2013.

In October 2019, the worker’s husband registered the claim, stating that the workplace exposures while working with the employer in various roles caused the worker to develop metastatic bowel cancer.

The ARO decision dated April 5, 2022 confirmed the worker’s employment history as follows:

“Full-time employee with the employer from 1955 to 1963 and from 1979 to 1998, working from 8:00 AM to 5:00 PM, in the following departments:

• Engineering – May 2, 1955 to May 23, 1955
• Tool Room – May 23, 1955 to February 6, 1956
• Marketing Admin – February 6, 1956 to September 6, 1958,
• Marketing Admin – September 6, 1958 to September 30, 1960
• Traffic, Receiving, Shipping – December 31, 1960 to February 27, 1961
• Nuclear – February 27, 1961 to March 31, 1962
• Relay Protection Equipment Engineering – March 31, 1962 to July 13, 1962
• Relay Protection Equipment Engineering – August 15, 1962 to July 12, 1963
• Development – August 12, 1979 to August 26, 1983
• Development Engineering – January 16, 1984 to January 4, 1988
• Generator Drafting – January 4, 1988 to July 1, 1998

Employment records show the following periods of layoff between May 2, 1955 and July 1, 1998:

• September 1960 to December 1960 – 3 months
• July 1962 to August 1962 – 1 month
• July 1963 to August 1979 – 16 years, 1 month
• August 1983 to January 1984 – 5 months
• July 01, 1998 – voluntary exit

This equates to 26.3 years of services with the employer from May 2, 1955 to July 1, 1998.

Based on the available information, from 1955 to 1963, the department names suggest that the worker performed office-based clerical based work. However, the job titles suggest that the worker may have held more production roles operating equipment, such as a radial drill and boring jig.

From 1979 to 1998, the worker held office-based, clerical positions (i.e. Designer, Draftsman). It is expected that the worker may have had to enter production areas while carrying out these roles, but was not directly performing production tasks.”

The ARO concluded that the workplace exposures, specifically asbestos and ionizing radiation, were not significant contributing factors in the development of the worker’s colon cancer and as a result, initial entitlement was denied. The ARO noted however, that the estate also referenced other agents of interest including creosote and ammonia as potential sources of the worker’s disease, which had not been ruled on by the operating area. As a result, no finding of fact was made in this regard; however, the ARO stated that the estate could pursue the matter, specific to those exposures, with the operating area.

Following the ARO decision, the estate re-argued various issues with respect to the worker’s exposures and requested consideration of entitlement based on additional agents of interest including ammonia, creosote (i.e. PCB’s) and MEK. As a result, the case was referred to the Occupational Medical Consultant (OMC) in order to obtain an opinion on whether these agents of interest had been linked to colon cancer and/or if they were a significant contributing factor in the development of the worker’s condition.

It was ultimately concluded that the above noted agents were not considered agents of interest in the development of colon cancer and as a result, a further review of potential exposures to these agents was not appropriate and the claim remained denied. The decision was communicated to the estate in correspondence dated June 1, 2022.

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

Estate’s Position:

In correspondence attached to the Intent to Object (ITO) form dated August 23, 2022 and Appeal Readiness Form (ARF) dated May 1, 2023, the estate argues various issues, including re-argument on the issue of asbestos; however, as this has already been ruled on by the previous ARO, they will not be repeated. The estate argues the following in part:

• During their job duties, the worker was exposed to ammonia fumes or MEK, which are known tumour promoters. There were no safety warning signs posted at the employer and no safety procedures and/or instructions to wear gloves;
• He argued that ammonia is a toxic substance and MEK is a carcinogen. In support of his position, he submitted various documents/articles including a copy of the ammonia WHIMS sheet and document regarding ammonia from the Government of Canada (i.e. National Pollutant Release Inventory: ammonia and Canadian Centre for Occupational Health and Safety – Ammonia), a news article regarding an ammonia leak in March 2023;
• The estate noted that the worker was under the care of Dr. Seltzer who was perplexed at the condition of their lungs. In support of this he attached the diagnostic imaging report of March 12, 2012, which spoke to the ground glass attenuation and septal thickening in both lungs;
• The estate also requested that the worker’s exposure to PCB’s in building 16 be addressed as he argued that PCB is known to cause gastrointestinal cancer;
• The estate argued that a large number of draft persons have died of cancer in Building 2 and in his previous letters he asked if that number was within the expected death rate per thousand;
• He argued that there were 3000 chemicals actively used by the employer and not everyone’s immune system is the same. In fact, he stated that the worker suffered from a variety of ailments and that their body was under great duress;
• For these reasons, he requests that initial entitlement be allowed

Employer’s Position:

The employer is not participating in the estate’s appeal and has not provided a submission.

Authority

Workplace Safety & Insurance Act (WSIA), 1997 Sections 2 (1) & 15 Schedules 3 & 4

Operational Policy Manual Published 11-01-01 – Adjudicative Process November 3, 2008

Analysis

I have reviewed the record and considered the information and relevant legislation and operational policy in reaching this decision. In considering all of the evidence, including the opinion of the OMC and information from the International Agency for Research on Cancer (IARC), as well as for the arguments presented, I find there is no entitlement for colon cancer. The rationale for my decision is as follows.

Prior to my analysis, I must note the findings already made in the ARO decision dated April 5, 2022, as I am bound by them.

The worker’s accepted employment history is already outlined above.

The ARO also found that the workplace exposures to asbestos and ionizing radiation were not a significant contributing factor in the development of the worker’s colon cancer.

The WSIB’s Operational Policy 11-01-01 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.

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 case, the estate claims the worker developed colon cancer as a result of their workplace exposures to MEK, Creosote (PCBs) and/or Ammonia.

The file was reviewed by the OMC and in his memo dated May 31, 2022; he opined that in reviewing the IARC classification by cancer site, none of the newly identified compounds had been implicated in the development of colon cancer. Based on the above, a specific exposure assessment for these particular agents was not conducted and entitlement remained denied.

The International Agency for Research on Cancer (IARC) is an intergovernmental agency forming part of the World Health Organization. Their role is to conduct and coordinate research into the causes of cancer, the mechanisms of carcinogenesis and the development of scientific strategies for cancer control.

IARC has published a List of Classifications (updated July 19, 2023) by cancer sites with sufficient or limited evidence in humans, Volumes 1 to 134a.

The carcinogenic agents with sufficient evidence in humans for colon cancer are:

Alcoholic beverages Processed meat (consumption of) Tobacco smoking X- and Gamma-radiation

Agents with limited evidence in humans include:

Asbestos (all forms) Firefighter (occupational exposure as a) Night shift work Red meat (consumption of) Schistosoma Japonicum (infection with)

As already noted, the prior ARO has denied entitlement based on exposure to asbestos and ionizing radiation.

In his review, the OMC noted that he could find no studies implicating ammonia in the development of colon cancer. In reviewing creosote, the IARC has determined that it is likely a human carcinogen; however, studies supported primarily the development of lung cancer from inhalation, which is not the diagnosis in this case. Further, while creosote contains 85% polycyclic aromatic hydrocarbons (i.e. PCB’s), the IARC monograph for these compounds does not support a link with colon cancer.

While I acknowledge the arguments presented by the estate, in my review of the IARC monograph and in the absence of any other scientific literature indicating otherwise, I am in agreement with the OMC and find that there is no epidemiological link between ammonia, MEK and creosote (PCB’s) and the development of colon cancer.

The standard of proof required for entitlement to be granted is that it is more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of their colon cancer.

I find that even if there were potential workplace exposures to ammonia, MEK and creosote (PCB’s) they were not a significant contributing factor in the development of the worker’s colon cancer and for these reasons, initial entitlement is denied.

Conclusion

I conclude there is no initial entitlement to colon cancer on the basis of exposure to ammonia, MEK and creosote (PCB’s).

The estate’s objection is therefore, denied.

DATED November 17, 2023

L. Cirillo Appeals Resolution Officer Appeals Services Division