APPEALS RESOLUTION OFFICER DECISION
decision NUMBER:
20240045
OBJECTING PARTY:
worker
REPRESENTED by:
self
RESPONDENT:
employer
HEARING:
HEARING IN WRITING
HEARD by:
l.cirillo, appeals resolution officer
MAY 27, 2024
ISSUE
The worker objects to the Adjudicator’s decision dated May 26, 2022, which denied initial entitlement for an inhalational injury.
BACKGROUND
This claim was established in April 2022, upon receipt a Form 7, Employer’s Report of Injury. The worker who is the owner/operator of the employer, with coverage, outlined that they developed an eye, lung and brain injury as a result of continuous exposure to diesel heaters, which were running with no ventilation. A date of injury was not identified, and the worker indicated that no medical attention had been sought. The worker was employed as a Drywall Finisher for 20 years.
The Form 8, Health Professional’s Report completed by Dr. Tyler Christie (dated April 3, 2022; however, received to the record on May 4, 2022), stated that the worker reported that they were exposed to diesel fumes and believed they injured their lungs. The diagnosis was listed as “cough”.
It was ultimately concluded that the worker was not given a diagnosis. The only information was that they reported having a cough, which is a symptom. Further, the physician did not provide a clinical opinion of any mechanism of injury of an occupational exposure that the worker was attributing their symptoms to and as a result, initial entitlement was denied. The decision was communicated to the worker in correspondence dated May 26, 2022.
Following the above, the worker contacted the WSIB to advise that they had been exposed to diesel fumes for two months and that they were having vision and respiratory issues. The worker submitted copies of the Emergency Room (ER) notes from their visit on May 3, 2022. In his report of the same date, Dr. Christie noted that the worker presented to the ER to start a claim for a noxious inhalation and that a Form 8 was filled out; however, the physician stated that the worker should pursue this with their family doctor as there was not any significant role for the ER department to play in at that point.
The worker also submitted a copy of a Ministry of Labour (MOL) investigation report dated
February 28, 2022, which outlined in part, that two DeWalt brand multi-fuel heaters were observed to be in operation on the interior of the project without means of measuring adequate air supply or ventilation.
The worker objected 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:
On the Intent to Object (ITO) form dated December 5, 2022, in correspondence received to the record on July 18, 2023, and on the Appeal Readiness Form (ARF) dated November 15, 2023, the worker argued the following in part:
The Adjudicator did not take all the information given to her in its totality – including the MOL field visit report;
Since their exposure, their mobility and vision has decreased dramatically. The worker requested long-term disability forms;
They submit that the MOL report shows long term exposure
Employer’s Position:
As the worker is the owner of the company, they did not provide any additional submission.
AUTHORITY
Sections 2 (1) & 15, Workplace Safety & Insurance Act (WSIA), 1997
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, legislation and relevant operational policy in reaching this decision. In considering all of the evidence, including the medical reporting on file, the MOL report, as well as the arguments presented, I find there is no initial entitlement for an inhalational injury as there is no evidence of a personal work-related injury.
The rationale for my decision is as follows.
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 that they developed symptoms to their eyes, lungs (cough) and brain, as a result of being exposed to diesel fumes from a heater in the workplace for two months.
In reviewing the record, the worker submitted a MOL field visit report, which states that the project interior at the entranceway and exterior perimeter at XX Road, City Y was inspected on February 28, 2022. One of the orders issued to the constructor, was that they were to ensure that a fuel-fired heating device that generates noxious products of combustion shall discharge the products of combustion outside the building or structure in which it is located, which was complied with at the time of the visit.
In reviewing the evidence on file, I note the worker sought ER care on May 3, 2022, or over two months after the MOL field visit. The ER clinical notes reveal that the worker reported feeling tired all the time and that they were shorter of breath than normal. The ER physician noted however, that the worker is a lifelong smoker and usually has wheeziness as well. The physical examination did not reveal any other abnormality. In addition, the chest x-ray completed on that day did not identify any pathology.
While I acknowledge the worker’s arguments, the issue is not whether there was a noxious agent identified in the workplace or if said noxious agent has the potential to cause symptoms or pose a health risk. The issue in this claim is whether the worker suffered a personal work-related injury as a result of possibly being exposed to said noxious agent.
As is outlined above, the ER physician indicated that the worker had a cough; however, this is a symptom, not a diagnosis. Further, the physical examination and x-ray were normal.
In order for entitlement to be considered for an occupational disease, there must be evidence of an occupational exposure and objective evidence of a condition or disease resulting from said exposure.
Based on the evidence on the record, I am unable to determine the possible exposure in the workplace caused or significantly contributed to the worker’s reported symptoms. This is supported by the fact that there is an inherent lack of objective evidence pointing to a diagnosis for which benefits would be considered.
I note the initial medical reporting on file, including the Form 8, indicates the worker complained of a cough and wheezing, however, these are not diagnoses in and of themselves. More importantly, however, is that the only medical opinion on file does not point to a diagnosis, which is compatible with exposure to the noxious agent identified in the workplace. This is supported by the fact that the worker’s investigations were normal, and the objective exam was also noted to be normal. In addition, the physician did not opine that the worker was suffering from a work-related illness, but rather that the worker themself believed they were suffering from fatigue and more shortness of breath than usual.
While I acknowledge the arguments presented by the worker and that, a worker and employer relationship exists, in order for entitlement to be considered there must be confirmation of a personal work-related injury. In this case, the medical is quite clear in that while the worker reports subjective symptoms, there is no objective evidence of an inhalational injury/illness.
In considering all of the above, I find there is no objective evidence of a personal work-related injury caused by exposure to a noxious agent in the workplace and as a result, initial entitlement is denied.
CONCLUSION
I conclude there is no initial entitlement for an inhalational injury as there is no evidence of a personal work-related injury.
The worker’s objection is therefore, denied.
DATED May 27, 2024
L. Cirillo
Appeals Resolution Officer
Appeals Services Division