APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20240032
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTATIVE
RESPONDENT:
employer
REPRESENTED by:
self
HEARING:
HEARING IN WRITING
HEARD by:
l. mansueti, appeals resolution officer
MARCH 8, 2024
ISSUE
The worker objects to the Occupational Disease and Survivor Benefits (OD&SB) Adjudicator decision dated May 6, 2022, denying entitlement to benefits for mental health injury/chemical overexposure injury due to occupational exposures.
BACKGROUND
On December 13, 2021, the worker experienced a “serious mental breakdown,” and they were brought to Health Sciences North crisis centre for medical attention. The worker submitted a claim for WSIB benefits on the basis their mental health issues were related to occupational chemical exposures. A Naturopathic Doctor diagnosed them with a “chemical concussion.” The worker was working as a Support Miner at the time of injury, and they had worked with the employer for approximately 3 years. The worker submitted a WSIB claim on or about March 22, 2022.
The decision letter dated May 6, 2022, communicated there was no entitlement to benefits, as a work-related accident could not be identified. As per the Intent to Object (ITO) form, the worker objected to the denial of benefits, and requested entitlement to benefits under the Psychotraumatic Disability policy 15-04-02 for an organic brain syndrome secondary to toxic chemical exposure. The reconsideration letter dated October 28, 2022 denied entitlement to benefits on (2) grounds: the diagnosis of “chemical concussion” was not provided by a health professional as defined in the Regulated Health Professions Act (RHPA), and the medical evidence from Health Sciences North did not support the worker’s condition was work-related. The parties provided additional information for review and consideration. A reconsideration letter dated October 3, 2023, upheld the decision to deny entitlement to benefits under this claim.
The worker continued to object to the decision dated May 6, 2022, and this is now the issue before the Appeals Services Division (ASD).
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
11-01-01 Adjudicative Process
11-01-03 Merits and Justice
11-01-13 Benefit of Doubt
15-04-02 Psychotraumatic Disability
17-01-02 Entitlement to Health Care
November 3, 2008
October 12, 2004
October 12, 2004
September 7, 2018
October 12, 2004
Administrative Practice Document: Weighing of Medical Evidence February 2024
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons that follow, I find there is no entitlement to benefits under this claim.
Worker Statement & Description of Symptom Onset
As per the Worker’s Report of Injury/Illness (Form 6), the worker submitted that on December 13, 2021, they had a “serious mental break down,” and they were brought to hospital for a crisis intervention. The worker indicated they felt paranoid and they were unable to determine what was real. The worker subsequently saw a Naturopathic Doctor, who determined the worker experienced a “chemical concussion” due to exposure to chemicals in the workplace.
The worker provided a written submission dated October 17, 2022, providing additional information in support of their claim for benefits. The worker submitted they commenced their employment with the employer as a Support Miner on a full-time basis. They performed Conveyer Belt/Crush Operator and Sweeper Operator duties. In April 2021, the worker commenced a Road Crew position, working 10-hour shifts Monday to Thursday. The job involved applying Petrotac® (self-adhesive paving membrane geotextile designed to protect pavements from moisture damage) on a daily basis.
The worker submitted a vehicle was filled with Petrotac®, similar to that of a water truck, and Petrotac® was sprayed onto the dusty roadways underground. The worker operated the vehicle and managed the controls. The worker donned a half-mask respirator with organic cartridges; however, they had to remove the mask at times to communicate with others on the radio. Their last day worked was on December 9, 2021. The worker began noticing something was wrong on December 11, 2021. They indicated they were experiencing paranoid thoughts that someone was going to break into their house and that they would be attacked. On December 12, 2021, the worker experienced a “massive breakdown” and their mind was lost. The worker continued to feel paranoid thoughts that everyone was against them, including their girlfriend, friends and family. They advanced they were mentally confused with everything. The worker indicated they were unable to sleep, and they had paranoid thoughts that the police were going to come and arrest them. They began ruminating about all the bad things they had done in the past. The worker deleted all their social media accounts, and turned off their phone. The worker accompanied their family to pick up a kitchen table; however, the whole time the worker was under the impression they were being taken to a psychiatric centre.
The worker was seen in hospital on December 13, 2021, and they were diagnosed with Adjustment Disorder with Depressed Mood and GAD. The worker indicated they were in a “state of psychosis.” They had a difficult time communicating with hospital staff because they “had no idea what was actually going on.” The worker saw their primary care physician on December 14, 2021; however, they do not recall much of what transpired at that appointment. Their father did most of the talking as their mind continued to wander.
The worker was referred to the Partial Hospitalization Program (PHP), and they participated in a videoconference meeting on December 17, 2021. The worker indicated they were against seeking help on an online platform due to their paranoia. The worker believed they were being live-streamed on television, and it felt humiliating. The worker missed the follow-up meeting scheduled for December 20, 2021.
The worker reached out to K. H., Registered Nurse (Extended Class), Psychotherapist and Hypnotherapist for help. The worker was initially seen by K. H. on December 20, 2021; however, they do not recall much of the appointment due to their mental state. K. H. recommended the worker see Dr. K. R., Naturopathic Doctor. The worker received bio neuro feedback treatment from December 20, 2021 to February 10, 2022, to help settle the paranoid thoughts. The worker credited K. H. for their recovery. Dr. R. assessed the worker on December 21, 2021. Dr. R. diagnosed the worker with a pattern of neurotoxicity, and prescribed a treatment plan. They used electro dermal screening to determine the worker’s liver and kidneys needed to detox due to their chemical exposure. The worker submitted their body healed tremendously with the treatment they received and the natural medicine they had taken. The worker returned to work on June 20, 2022 with accommodations to work on ground surface.
Employment and Exposure History
The record indicated the worker worked with the employer since 2018. They were employed as a Support Miner, and they were potentially exposed to dusts, ammonia, nickel, diesel fumes and tar products. The employer indicated that from 2019 to 2021, the worker worked as a Conveyor Person, and from 2021 to layoff, they were a Petrotac® Spray Operator.
The record contains Safety Data Sheets (SDSs) for Cationic Slow Setting Emulsion (Petrotac®) with ingredients including bitumen, water, styrene-butadiene, copolymers, Stoddard solvent, fuel oil #2, and emulsifier. Toxicological information indicates skin corrosion, irritation, serious eye damage, respiratory tract irritation, and central nervous system (CNS) depression. An SDS for Citrus Klaw Plus showed ingredients including 1-Tetradecene and D-Limonene. Toxicological information notes skin, eye, and respiratory irritation; ingestion may cause gastrointestinal irritation, aspiration hazard if swallowed, and may cause sensitization by skin contact.
The employer’s Occupational Health Analyst indicated the contaminants in the workplace include normal dust (inhalable and respirable), nickel insoluble inhalable dust, silica and ammonia. Monitoring was completed in the area several times with no results above the applicable exposure limits.
As documented in the employer’s correspondence dated March 31, 2023, the Occupational Health Analysist submitted air-monitoring data for the worker. They indicated dust contaminants are generated as part of the mining process. The Conveyor Feeder Operator operates the feeder to pull out any scrap material such as steel to prevent damage to the conveyor belt. Some dust is generated in this process, though it is well under legislated requirements. Operators use a water hose to wet down the ore as it comes down the feeder and also sprays water above. Silica is part of the resiprable dust size fraction and is simply part of the matrix of the ore that is mined, along with inhalable insoluble nickel. The Occupational Health Analyst indicated asphalt is found in concentrations varying between 55 and 75 per cent in the product Petrotac®. It is the surface coating used on hard packed roads and walls to create a tack coating which helps dust stick to it, thus removing dust from the atmosphere. Before being sprayed, it is diluted with water (50/50), and it is sprayed within a closed cab equipment. Even area samples conducted outside of the equipment yield results of asphalt fumes at 2 per cent of the Occupational Exposure Limit.
Medical Evidence
On December 13, 2021, the worker was taken to Health Sciences North Emergency Room (ER). The triage report indicated the worker was experiencing anxiety, panic, situational crisis and they were hearing voices. It was noted the worker had smoked cannabis on the weekend. The report indicated the worker was not feeling like themselves for the last couple of days, and they were under a lot of stress.
On December 13, 2021, the worker underwent a psychiatric screening at the Health Sciences North Crisis Department, accompanied by their father. The worker stated they had not “felt like himself” and they were “confused with everything.” They endorsed experiencing panic attacks, racing heart, and having auditory hallucinations. The report indicated the worker owned 3 homes and rented out 2 of them while working a full-time job. The worker’s father indicated the worker had a recent breakdown of friendships. They indicated they smoked cannabis on the weekends. The worker was referred to the ER Physician, who recommended a psychiatric consultation.
Dr. A. Sanchez, Psychiatrist, assessed the worker on December 13, 2021. The consultation report indicated the worker’s diagnoses included Adjustment Disorder with Depressed Mood and Generalized Anxiety Disorder (GAD). The worker was offered psychiatric hospitalization; however, they declined. The worker declined to be on any scheduled psychotropic medication. They agreed to take Quetiapine for anxiety and sleep. The worker was scheduled for a psychiatric follow-up the following day, they were advised to see their Primary Care Physician as well as connect with a counsellor through their Employee Assistance Program (EAP). The worker was referred to the Partial Hospitalization Program (PHP), a group-based therapy program.
On December 17, 2021, C. L., Registered Social Worker (RSW) at the PHP, met with the worker and their father to discuss the program via videoconference. The progress note indicated the worker and their girlfriend were now residing with the worker’s family, the worker was taking medication, and the worker was involved in private therapy. The progress note indicated the worker’s affect was completely flat, and they had a glazed look in their eyes. The worker appeared to be mentally and cognitively elsewhere. C. L. indicated the worker’s presentation seemed “quite strange overall, like there may have been more going on.” C. L. questioned whether the worker would be able to manage or even benefit from a group program. The worker indicated they would take a few days to think about whether they wished to proceed with the PHP. The worker was a “no show” at the December 20, 2021 follow-up appointment.
A revised psychiatric consultation report dated January 17, 2022, indicated the worker was assessed on December 13, 2021, and they presented with increased anxiety and depression on and off for the last couple of years, much worse in the last month. The worker indicated in the last month, their uncle passed away, and their niece experienced baby loss due to premature birth. The worker expressed feeling guilty for not being there for family and friends. They indicated their emotions have been building up, and last Saturday while at a party with friends, they drank alcohol and used cannabis. The worker experienced an overwhelming sense of guilt regarding their relationships, and they felt like a horrible person. The worker’s sleep was reduced and they had a decreased interest in activities, diminished concentration and loss of appetite. They endorsed having a panic attack that week, which was the first in many years. The worker denied having any thoughts of self-harm, suicidal ideation or homicidal ideation. They denied any manic-like episodes, symptoms of Obsessive-Compulsive Disorder (OCD) or Posttraumatic Stress Disorder (PTSD). The worker endorsed having auditory hallucinations; however, they indicated it was their own voice racing in their head. The worker’s father indicated they were unsure what made the worker get so anxious and depressed. The worker’s father explained the worker was apologizing for things that happened many years ago, and they continued to state they were worthless and a bad person. The worker’s past psychiatric history included possible panic attacks, which occurred a few years ago without any trigger. The worker’s social history included drinking six to 10 vodka drinks at parties several times per month, and using three to four cannabis joints per week. The worker indicated they were currently living with their girlfriend, and they expressed guilt regarding cheating on their girlfriend in the past.
Dr. K. R., Naturopathic Doctor, assessed the worker on December 21, 2021, February 2, 2022, and March 9, 2022.
The record contains a Health Professional’s Report (Form 8) dated March 30, 2022, completed by the worker’s Primary Care Physician. The report indicated the worker was assessed by a Psychiatrist, who diagnosed them with depressed mood and GAD; and a Naturopathic Doctor told the worker they had a “chemical concussion” due to toxic chemical exposures. The Primary Care Physician stated, “As a medical MD I am not aware of what that is.”
K. H., Registered Nurse (Extended Class), submitted a report dated June 28, 2022 indicating the worker’s stepmother asked them to see the worker after the worker was taken to hospital due to unexplained paranoid behaviours in December 2021. The report indicated the worker was told they may have schizophrenia and they were prescribed anti-psychotic medication. K. H. noted the worker was exposed to chemicals at work, and it was theorized toxicity from the chemicals may be a potential cause for their symptoms. K. H. referred the worker to Dr. K. R., Naturopathic Doctor, who specialized in complex cases such as this. It was noted Dr. R. practiced as a Registered Psychotherapist and worked in neuroscience for years. The worker’s liver was tested for toxicity and the worker received biofeedback treatment for the next month. The report indicated toxicity due to the chemical sprays used at work was indeed the culprit causing the worker’s symptomology. The worker was off all medications, and their symptoms subsided within a few weeks.
Dr. R. submitted a report dated April 6, 2022, indicating the worker was initially assessed in December 2021 for the sudden onset of thought disorder, altered mood and mental confusion with no obvious antecedent triggers. Dr. R. indicated the worker had been exposed to “significant occupational related VOC toxicity earlier in 2021.” Dr. R’s objective assessment and electro dermal screening suggested a pattern of neurotoxicity consistent with “chemical concussion,” and a treatment plan was developed. Dr. R. indicated the worker experienced significant measurable improvements in response to treatment. Dr. R. opined the worker’s chemical concussion was in fact a work-related injury. Dr. R. completed a Form 8 on October 24, 2022, indicating the worker was diagnosed with a chemical concussion due to occupational exposures to Petro tech spray and ammonia. The treatment plan consisted of vitamins to promote detoxification, antioxidants, and liver support.
K. H., Registered Nurse (Extended Class), submitted a report dated February 15, 2023, in support of the worker’s claim for benefits. K. H. indicated they referred the worker to see Dr. R. after the worker was seen in the ER and they were diagnosed with possible schizophrenia based on one symptom of hallucinations. The report indicated minimal investigation was completed in the ER, and there was no consideration for other differential diagnoses. K. H. indicated the worker’s hallucinations disappeared once they were away from the workplace, where they were required to use chemicals, and liver detoxification was implemented. The report, states, in part:
As a nurse practitioner, a thorough history led me to the hypothesis of a psycho-biochemical cause for (their) hallucinations. This differential [diagnosis] was missed while the client was in emergency. With the assistance of Dr. R. and also using biofeedback, [the worker’s] symptoms improved, thus the correct root cause was determined.
K. H. submitted the differential diagnosis of psycho-biochemical cause was correct, and toxicity was the culprit. The worker was noted to be off all medications and their symptoms subsided within a few weeks. The findings supported the toxic spray used underground at work was the only change in their life months before their symptoms developed. K. H. confirmed the worker’s symptoms were chemically induced.
On September 27, 2023, Dr. V. Spilchuk, WSIB Occupational Medical Consultant (OMC), reviewed the record and provided an opinion with respect to this case. It must be noted Dr. Spilchuk did not assess or treat the worker at any time. The OMC indicated the worker’s confirmed diagnoses were that of Adjustment Disorder with Depressed Mood and GAD. Dr. Spilchuk opined the diagnoses were not compatible with occupational chemical exposures. The OMC submitted:
There is no evidence in the toxicology literature to casually link adjustment disorder or generalized anxiety disorder to chemical exposures. Additionally, there is no recognized medical diagnosis for “chemical concussion.”
Dr. Spilchuk further stated, in part:
The worker was reported to have a history of mental health symptoms (e.g. panic attacks years prior, as stated in the report dated December 13, 2021), and was noted to have multiple recent stressors (e.g. death of family members, managing several properties), and was recently consuming alcohol and cannabis, which are all well-recognized risk factors for triggering mental health disorders, and this is the most plausible explanation for the onset of symptoms in December 2021.
Assessment of the Evidence
In order to establish initial entitlement to benefits, operational policy 11-01-01 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.
With respect to the “five point check system,” the issues to be determined are whether there is evidence of a personal work-related injury and whether there is compatibility of the diagnosis with the accident history. As per operational policy 15-04-02, a worker is entitled to benefits when a disability/impairment results from a work-related personal injury by accident. Entitlement to benefits for a psychotraumatic disability may be established under certain circumstances, including but not limited to, organic brain syndrome secondary to a traumatic head injury, toxic chemicals including gases, hypoxic conditions, or conditions related to decompression sickness.
The worker representative submitted the worker sustained a personal work-related injury, in that they experienced a “chemical concussion” due to their exposure to occupational chemicals. The worker representative relied on the medical evidence submitted by Dr. R. and K. H., to support compatibility in this case. In essence, the worker is claiming entitlement to benefits for a condition due to exposures to chemicals in the workplace. The worker representative indicated the attending ER physicians did not comment on causation in the medical reporting; therefore, entitlement ought to be granted as per operational policy 11-01-13. The Benefit of Doubt policy indicates that if it is not practicable to decide an issue because the evidence for and against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits. It must be noted this policy is not to be used as a substitute for evidence. In review of the evidence before me, I find the evidence is not equal in weight; therefore, operational policy 11-01-13 is not applicable in this case.
The employer submitted significant weight ought to be assigned to the medical evidence submitted by the ER hospital attending physicians, and the expert opinion of the WSIB OMC. The employer pointed to the fact that “chemical concussion” was not a recognized medical diagnosis. They are of the position non-occupational factors significantly contributed to the worker’s health condition.
In rendering this decision, I have considered the merits and justice of this claim, as per operational 11-01-03. Entitlement to WSIB benefits and services is determined based on the merits and justice of the individual claim. It must be established that it is more probable than not the worker’s employment and/or exposure history caused or significantly contributed to the development of the medical condition for which benefits are being claimed. As such, the question to be determined is whether the workplace exposures to Petrotac® and other chemicals caused or significantly contributed to the development of a chemical overexposure injury and/or a psychotraumatic disability. If established, the above will generally be considered persuasive evidence that the worker’s employment made a significant contribution to the worker’s illness. A significant or material contributing factor is one of considerable effect or importance.
The record contains varied medical opinions from the worker’s treating health care professionals. As per the Administrative Practice Document, Weighing Medical Evidence, the decision-maker is expected to assess and weigh each report in order to reach a decision. Consideration is given to:
The health care professional’s access to all the relevant medical records, including diagnostic reports available to review in order to obtain a complete understanding of the person’s relevant medical history and the injury process involved
Timeliness of the medical examination in relation to the issue at hand.
Degree of the health professional’s knowledge of past and present medical history and its impact on the medical opinion.
Extent of the health professional’s knowledge and understanding of the injured or ill person’s employment environment in relation to ongoing impairment.
Expertise of those offering an opinion and relevance to the issue. Reference to relevant medical literature that supports the opinion and recommendations.
Evidence or opinion based on an examination of the injured or ill person. Evaluation of the person’s complaints and symptoms relative to the medical findings.
Well-explained and logical conclusion of opinion, including supporting medical findings.
I have placed less significant weight on the medical opinion provided by K. H. and Dr. R. It is noted K. H. submitted the worker was told they may have schizophrenia; however, the hospital medical reports make no mention of this diagnosis. Moreover, I do not accept the diagnosis of “chemical concussion” as it is not a recognized medical diagnosis. The “chemical concussion” diagnosis was provided by a health professional that is not recognized by the Regulated Health Professions Act, 1991 (RHPA). In accordance with operational policy 17-01-02, the WSIB accepts medical evidence from a health professional that is a member of a college of a health profession as defined in the RHPA, which includes Registered Nurses (Extended Class); however, it does not include Naturopathic Doctors. While I appreciate K. H., endorsed the “chemical concussion” diagnosis provided by Dr. R., I have placed more significant weight on the medical opinion provided by Dr. Spilchuk. I do not find compatibility has been established in this case for any injury as a result of chemical workplace exposures.
I have assigned significant weight on the medical reporting provided by Dr. Sanchez and the expert medical opinion of Dr. Spilchuk. The OMC had the opportunity to review the entire medical record, and they provided a well-explained and logical conclusion for their opinion. While I acknowledge the OMC did not directly assess or treat the worker, I find deference ought to be assigned to their expert opinion. I accept the worker’s diagnoses were Adjustment Disorder with Depressed Mood and GAD; however, I find these are not compatible with occupational chemical exposures or a work-related injuring process. The OMC submitted there is nothing in the toxicology literature to causally link Adjustment Disorder or GAD to chemical exposures, and also confirmed there is no recognized medical diagnosis for “chemical concussion.” The OMC stated, in part:
None of the ingredients in the provided SDSs (reviewed above) are known or suspected to cause adjustment disorder or generalized anxiety disorder, nor would this be plausible form a toxicology standpoint, since typical symptoms suggestive of overexposure to those substances (e.g. skin/eye/respiratory irritation, CNS depression) were not reported, and these would be the earliest signs suggestive of overexposure.
Volatile Organic Compounds (VOCs) were referenced by (their) naturopath as a cause of (their) symptoms. This is implausible, as VOCs are a diverse, heterogeneous group of chemicals, all with different toxicologic profiles and effects, and are not known to cause mental health disorders.
In summation, I find entitlement to benefits is not in order as the “five point check system” has not been satisfied in this case. I find there is a lack of evidence supporting the presence of a personal work-related injury, and I find the diagnoses of Adjustment Disorder with Depressed Mood and GAD are not compatible with chemical workplace exposures or a work-related injuring process. In addition, there is a lack of supportive evidence linking the worker’s chemical exposures to an overexposure injury. Based on the foregoing, entitlement to benefits is not in order.
CONCLUSION
I conclude there is no entitlement to benefits for Adjustment Disorder with Depressed Mood, GAD or an occupational chemical overexposure injury.
The worker’s objection is denied.
DATED March 8, 2024
L. Mansueti
Appeals Resolution Officer
Appeals Services Division