DECISION NUMBER:
20240002
OBJECTING PARTY:
WORKER
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
EMPLOYER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
L.CIRILLO, APPEALS RESOLUTION OFFICER
DATED:
NOVEMBER 1, 2023
ISSUE
The worker objects to the Adjudicator’s decision dated May 20, 2021, which denied initial entitlement for lung cancer as being related to their employment exposures primarily in the manufacturing industry and as a Volunteer Firefighter.
BACKGROUND
This claim was established in August 2020 upon receipt of a Form 8, Health Professional’s Report completed by a physician from the Occupational Health Clinics for Ontario Workers (OHCOW). The Form 8 stated the worker had been diagnosed with lung cancer, related to work as a Volunteer Firefighter.
Note is also made that the worker had a previous claim, in which a prior Occupational Hygienist (OH) assessment was completed.
The history reveals that in October 2019, the worker sought medical clearance for their volunteer work, which was required on an annual basis. This led to a diagnosis of right lung cancer and resulting treatment. The worker claimed that they developed the condition as a result of occupational exposures to multiple agents during their 40+ year career primarily in the Manufacturing Industry and as a Volunteer Firefighter. The date of injury has been determined to be October 10, 2019.
The worker’s employment and health records were referred to the WSIB’s OH and Occupational Medical Consultant (OMC) in order to obtain an opinion on their potential for occupational exposures to various agents of interest, to confirm the diagnosis and to determine whether the diagnosis was related to the employment exposures.
It was accepted that the primary diagnosis in this case was non-small cell carcinoma of the right lung.
It was ultimately concluded that the presumption under operational policy 23-02-01 did not apply. It was also concluded that it was not more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of their lung cancer. As a result, initial entitlement was denied. The decision was communicated to the worker in correspondence dated
May 20, 2021.
Note is made that in correspondence dated October 17, 2022, the worker’s representative argued that not all of the worker’s employment exposures had been considered in the entitlement decision. In correspondence dated December 21, 2022, the Adjudicator indicated that they had; however, the evidence did not support that the occupational exposures significantly contributed to the development of the worker’s lung cancer.
In correspondence attached to the Appeal Readiness Form (ARF) dated April 12, 2023, the worker’s representative refers to previous case law (2522/11) and argues the following:
The combination of the worker’s employment history (Firefighter from 1979, 17 years at Company A and two years in the X Army) made a significant contribution to the development of their lung cancer;
While the worker does not meet the threshold under operational policy 16-02-13, they do meet the threshold under operational policy 23-02-01 [sic], taking into account the exposures in all the employments;
While operational policy 23-02-01 excludes those that have smoked a tobacco product in the 10 years prior diagnosis, he submits that the claim should be adjudicated on the individual merits
Following receipt of the above, the operating area reconsidered the initial entitlement decision; however, once again concluded that the decision remained unchanged. The reconsideration decision was communicated to the worker in correspondence dated April 28, 2023.
As the worker continued to object to the denial of initial entitlement, the matter was referred to the Appeals Services Division for further consideration.
Worker’s Position:
The worker’s representative relies on their submission dated April 12, 2023. Employer’s Position:
The employer is not participating in the worker’s appeal and did not provide 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
16-02-13 – Lung Cancer – Asbestos Exposure
23-02-01 – Cancers in Firefighters and Fire Investigators
November 3, 2008
October 12, 2004
July 4, 2018
ANALYSIS
I have reviewed the record and considered the information, legislation and relevant operational policies. In considering all of the evidence, including the opinions of the WSIB OH, OMC, the OHCOW report and information from the International Agency for Research on Cancer (IARC) as well as the arguments presented, I find initial entitlement for lung cancer is in order as the workplace exposures were a significant contributing factor in the development of the condition. The rationale for my decision is as follows.
Prior to my analysis, I must note that while I have had regard for the previous case law, which has been referred to, the WSIB is not bound by this decision and each case is adjudicated based on its own merit.
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 worker claims they developed lung cancer as a result of their workplace exposures in the manufacturing industry and as a Volunteer Firefighter.
As is outlined above, it has been accepted that the worker was diagnosed with non-small cell carcinoma of the right lung. The date of injury was confirmed to be October 10, 2019, the date of the CT scan report, which was concerning for a lesion in the worker’s right upper lung lobe.
I also note, and there is no issue with, that the worker’s employment history is as follows:
X Army 1966 to 1968 – assembled, disassembled, and inspected missiles; and 1968 to 1973 with Company B – welder/press operator – mainly operated press, but each day a part would require MIG welding (non-Province A employment)
Company A – City A (1973 to 1990) - wool and pipe mould plant / warehouse labourer / operator/ /group leader
City of B ( 1979-2020) – Volunteer Firefighter
Company C (1982-1995) – Labourer
Company D (1996 to 2015) – Labourer – Installer
In addition, the record reveals that the worker is a long-standing and ongoing smoker with a 50-100-pack years smoking history.
Operational policy 23-02-01 states the following in part:
If a firefighter or a fire investigator is diagnosed with a prescribed cancer on or after January 1, 1960, and meets the employment duration and additional criteria for the prescribed cancer, then the disease is presumed to be an occupational disease due to the nature of the worker’s employment, unless the contrary is shown.
The purpose of this policy is to outline the prescribed cancers and the circumstances under which they will be presumed to be work-related occupational diseases, as set out in the applicable Regulation.
Presumption
The presumption provides that the prescribed cancers are occupational diseases presumed to occur due to the nature of the worker’s employment as a firefighter or fire investigator, unless the contrary is shown. To qualify for this presumption, workers must meet the inclusion criteria of this policy, and also must have been:
diagnosed with a prescribed cancer
diagnosed after the prescribed minimum employment duration, and
diagnosed with that cancer on or after January 1, 1960
Workers not meeting the inclusion criteria, and those excluded from this policy, will have their claims determined on their individual merits
With respect to lung cancer, the above Operational Policy indicates that for the presumption to apply, the minimum duration of firefighting employment is 15 years AND that for primary-site lung cancer, the worker must not have smoked a tobacco product in the 10 years prior to diagnosis.
In reviewing the record, I note the worker was employed as a part-time Volunteer Firefighter for a period of 40 years at the time of their diagnosis. Therefore, this meets the minimum duration of employment criteria. The issue however, is the worker’s smoking status at the time of diagnosis.
Given the medical information and OMC opinion on file, it is confirmed that a diagnosis of primary site lung cancer has been identified with an accident date of October 10, 2019; however, the information on file confirms that at the time of diagnosis, the worker continued to smoke. As a result, the criterion under the presumptive legislation has not been met.
Operational policy also states that workers not meeting the inclusion criteria will have their claims determined on their individual merits [my emphasis added].
Workplace Exposures
I accept the OH Exposure Assessment report dated April 20, 2021 as providing an accurate and detailed review of the worker’s employment and potential exposure to substances of importance in the development of their cancer. In making this determination, I note the hygienist based her review of the information in the worker’s claim, as it was available and created at the time. More importantly, the report was created based on the hygienist’s interview of the worker and she was able to draw on her training, experience and expertise in asking the appropriate questions of the worker to draw out aspects of their work and exposures pertinent to the nature of their claim and medical condition.
The OH’s report noted the worker worked for various companies between 1966 and 2015 primarily as a labourer in the manufacturing industry and as a Volunteer Firefighter in Province A.
In assessing the worker’s potential occupational exposures, I accept the hygienist’s findings as well. She noted that over the course of the worker’s identified employment, they were potentially exposed to a wide range of airborne workplace substances as follows (with various areas of emphasis added):
Company A(1973-1990):
Their greatest direct exposures would have been prior to the mid 1980’s and associated with occasional to intermittent furnace, pipe mould press and oven maintenance, repair and housekeeping tasks. Exposures would have included asbestos, silica, PAH’s and nitrogen oxide acids associated with furnace and oven emissions.
Given these tasks the worker’s daily average asbestos and silica exposure is expected to have been low to moderate (asbestos: less than 0.1f/cc and respirable silica less than 0.05mg/m3) with occasional to intermittent periods of noteworthy exposure;
The OH report (2004) estimated that the worker’s asbestos exposure was 0.87 fibres/cc for 0.59 years or a cumulative dose of 0.52 (fibres/cc)-years. In addition, silica average concentration of
0.028 mg/m3 for 16.43 years or a cumulative dose of 0.46 (mg/m3)-years;
Polycyclic aromatic hydrocarbons (PAH’s): Their daily average exposure is expected to have been low to intermittently moderate when compared to a dedicated coke oven operator;
Acids: Their occasional exposure to noteworthy or peak concentrations for short durations of nitric and nitrogen oxides cannot be discounted
Firefighting (1979 – 2020):
Exposures to combustion by-products and concentrations vary with location of firefighter (inside/outside building), ventilation, stage of firefighting (knockdown or overhaul), type and size of fire (industrial/residential) and effectiveness of respiratory protection. Until recently, firefighters typically did not use respiratory protection during overhaul or inspection tasks or during less visibly smoky fires. The worker’s greatest exposures would have occurred while fighting major structural/vehicle fires (an average estimate of 15% of calls or 10-15 fires/year) or typically 20-100 hours/year of active fire response. The worker’s intermittent exposure to mists or particulate fumes associated with fighting fires, may have included asbestos, PAH’s(including benzo(a) pyrene) ,diesel exhaust, heavy metals (in particular arsenic, lead, chromium, possibly nickel/ cadmium ),benzene and acid mists ( sulphuric
oxides) in peak or noteworthy concentrations over short durations, as described above, and cannot be discounted.
Asbestos: The worker’s exposure would have been likely greatest in the first 5-10 years, when asbestos protective suits and ACM building materials were more common and hazard awareness and exposure control procedures were less likely. Their short duration exposure during structural fires may have been similar to a pipefitters, ranging as high as 2.7f/cc during certain tasks. Their daily average exposure may have been low to possibly moderate ,with the routine use of fire protective clothing, and with intermittent periods during active structural fire calls (approximately 20-100 hrs. or 15% of calls) in the range of 0.0029f/cc-0.2f/cc;
Metals: The worker’s daily average airborne and skin (and associated ingestion hazard) exposure to heavy metals (in particular arsenic, lead, chromium, possibly cadmium or nickel) is expected to have been low with intermittent periods (15%) of daily average exposure under worse case conditions ranging from moderate to high when compared to current MOL daily average limits;
PAHs: Exposure to PAHs including skin exposure and contamination, would have been more routine. Their daily average exposure would have been low with intermittent periods during active firefighting possibly ranging from 6.4 -470 mg/m3 (assuming no SCBA) during knockdown
/overhauls and 10.7mg/m3 during training exercises and included exposure to benzo (a) pyrene: during overhaul tasks averaging 0.033 (n=88; range 0.019-0.05mg/m3);0.47mg/m3 (n=10) during training; 0.01mg/m3 during knockdown (n=3);
Diesel exhaust: Their daily average exposure would have been low or similar to a diesel fuelled truck driver or low activity diesel mechanic, with occasional to intermittent periods of peak exposure similar to or less than that of a heavy equipment operator;
Benzene: Their intermittent airborne and direct skin contact exposure to noteworthy or peak concentrations for short durations cannot be discounted. Their daily average exposure would have been low to possibly moderate, with occasional to intermittent periods of noteworthy (greater than 0.5ppm) daily average exposure;
Acids: Their intermittent exposure to noteworthy or peak concentrations for short durations of sulfuric acid and sulfur dioxides cannot be discounted. Municipal firefighter task exposures to Sulphuric acid ranged from less than detectable to 28.5 mg/m3 and varied with task or fire stage: no respirator use/visible smoke during overhaul (mean 4.9 mg/m3 ±8.5; n=23) or during SCBA use 13mg/m3 (n=19); knockdown ranged less than detectable to 8.5mg/m3 (n=22); and during post fire arson inspection averaged 0.27mg/m3 (n=8)
WSIB Operational Policy 16-02-13 Lung Cancer – Asbestos Exposure states in part:
Lung cancer in asbestos workers is accepted as an occupational disease under sections 2(1) and 15 of the Workplace Safety and Insurance Act as peculiar to and characteristic of a process, trade or occupation involving exposure to asbestos.
Based on medical studies, lung cancer claims are favourably considered when the following circumstances apply
there is a clear and adequate history of at least 10 years occupational exposure to asbestos, and
there is a minimum interval of 10 years between first exposure to asbestos and the appearance of lung cancer.
Claims which do not meet these guidelines will be individually judged on their own merit, having regard to the intensity of exposure and other factors peculiar to the individual case [my emphasis added].
As outlined above, I accept the opinion of the OH. In the body of her review, she noted that the worker did not directly or routinely handle asbestos containing material while working in Province A and thus, they would not be classified as an asbestos worker.
Operational policy is quite clear in that it states that lung cancer in asbestos workers is accepted when there is clear and adequate history of at least 10 years occupational exposure to asbestos and there is a minimum interval of 10 years between first exposure to asbestos and the appearance of lung cancer.
Noting the above, the worker’s asbestos exposure does not meet the entitlement criterion as has been listed in operational policy and therefore, entitlement cannot be accepted on this basis.
Despite this, from 1973 to 1990 at OCFC, given their job description, they may have had low to moderate daily asbestos and silica exposure with occasional to intermittent periods of noteworthy exposure.
Further, from 1979 to 2020 as a Volunteer Firefighter, their exposure to asbestos would have been likely greatest in the first 5-10 years. In addition, their short duration exposure during structural fires may have been similar to pipefitters, ranging as high as 2.7f/cc during certain tasks [my emphasis added].
The OH also opined that the worker had several other noteworthy exposures during their career as follows:
Metals (i.e. arsenic, lead, chromium, possibly cadmium or nickel)
PAHs
Acids
Diesel Exhaust
Benzene
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 (identified in this case only) with sufficient evidence in humans for lung cancer are:
Arsenic and inorganic arsenic compounds Asbestos (all forms)
Cadmium
Chromium (VI) compounds Engine exhaust, diesel Nickel compounds
Rubber manufacturing industry (i.e. PAHs)
Silica dust, crystalline, in the form of quartz or cristobalite Tobacco smoke, second hand
Tobacco smoking
Agents with limited evidence in humans include:
Acid mists, strong inorganic Benzene
While I note the OMC’s review dated May 7, 2021, in my interpretation of his memo, I find the OMC focused solely on the worker’s exposures as a Volunteer Firefighter in coming to his conclusion.
Therefore, I place less weight on his opinion noting it did not take into consideration the entirety of the workplace exposures.
The OH assessment clearly outlines that over their 40-year employment period, the worker likely had daily (which I accept can be considered as being routine exposure) low to moderate with occasional to intermittent and possibly noteworthy exposure to several agents that have been identified by IARC to have sufficient evidence of carcinogenicity in humans for lung cancer. In considering the fact that the exposures have been determined to be routine, as outlined above, I am persuaded that the worker had clear and adequate exposure to various agents, which was not hypothetical or speculative, and it was continuous, repetitive and a major component of the worker’s occupational activities for several decades.
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 lung cancer.
While I acknowledge the worker has a significant smoking history and that IARC has identified this to have sufficient evidence of carcinogenicity in humans, the workplace exposures need not be the only factor causing the worker’s lung cancer. While it is possible that the worker would have developed lung cancer independent of any occupational exposures, I am not able to rule out the likelihood that the work exposures were also a significant contributing factor. In determining the significant contributing factor, the work-related cause(s) need not be the sole contributing factor, but rather a significant contributing factor. As a result, I find that in addition to smoking, the workplace exposures were also a significant contributing factor in the development of the worker’s lung cancer.
Therefore, I find that, on a balance of probabilities, the worker’s occupational exposures to arsenic, asbestos, cadmium, chromium, diesel, nickel, silica and PAHs during their employment career were a significant contributing factor in the development of their lung cancer.
On this basis, the worker has initial entitlement for lung cancer.
The level and duration of benefits is left to the discretion of the operating area.
CONCLUSION
I conclude initial entitlement for lung cancer is in order. The level and duration of benefits is left to the discretion of the operating area.
The worker’s objection is therefore, allowed.
DATED November 1, 2023
L. Cirillo
Appeals Resolution Officer Appeals Services Division