APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20250040
OBJECTING PARTY:
WORKER
RESPONDENT PARTY:
EMPLOYER (NOT PARTICIPATING)
HEARING:
HEARING IN WRITING
HEARD by:
S. Crisostomo, appeals resolution officer
ISSUE
The worker objects to the Adjudicator’s decision dated September 18, 2024, which denied entitlement for pulmonary fibrosis (PF) and emphysema related to their employment exposure to asbestos.
BACKGROUND
This claim was established based the Health Professional’s Report (Form 8) dated February 5, 2024 completed by Dr. Klassen which indicted the worker had interstitial lung disease. Dr. Klassen also noted the worker was exposed to asbestos, while employed as a technician working on commercial heating and cooling, and that the worker had a pre-existing smoking history.
The worker completed the Worker’s Report of Injury/Disease (Form 6) dated May 29, 2024 and indicated that from 1978 to 1990, they worked for the employer and then another company, maintaining gas boilers, and that the companies were removing asbestos from the boilers and building, while they were working on the boilers with no personal protective equipment. The worker also worked for another company from 1990 to 2000 as a Gas Technician performing work on boilers, furnaces, and air conditioners.
After obtaining the worker’s employment history and medical documentation, the Adjudicator referred the file to an external Occupational Medical Consultant (OMC) for an opinion on the occupational relatedness of the worker’s lung disease.
In September of 2024, entitlement for PF and emphysema was reviewed related to the worker’s employment exposure to asbestos. Based on the review, the Adjudicator denied entitlement for the worker’s PF and emphysema after determining the worker’s occupational exposure to asbestos did not significantly contribute to the development of their PF and emphysema. This decision was communicated on September 18, 2024.
The worker objected to the September 18. 2024 decision; however, it remained unchanged and as a result, the matter was referred to the Appeals Services Division for further consideration.
Worker’s Position
The worker submits that they feel their exposure to asbestos while working as a Gas Technician from 1978-1990 with no personal protective equipment was a significant contributing factor in the development of their PF and emphysema. Thus, entitlement should be allowed for their PF and emphysema.
Employer Representative’s Position
The employer is not participating in the appeal and did not provide a submission related to the issue before me.
AUTHORITY
Sections 2(1) and 15 and Schedule 3 and 4 of the Workplace Safety and Insurance Act, 1997 (the Act)
Operational Policy Manual:
Published
11-01-01 Adjudicative Process
11-01-02 Decision-Making
November 3, 2008
September 29, 2023
ANALYSIS
I have carefully considered all of the available information, the applicable legislation, and the relevant operational policies in reaching this decision.
I find the worker’s employment exposure to asbestos was not a significant contributing factor in the development of their PF and emphysema. The reasons for my decision follow.
Operational Policy 11-01-01 related to the adjudicative process states in part:
Five point check system
All decision-makers use the same criteria for ruling on initial entitlement to Workplace Safety and Insurance Board (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.
Occupational disease cases are adjudicated under Section. 2 (1) and 15 of the Act 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 their PF and emphysema was a result of their employment exposure to asbestos.
There is no WSIB policy that applies specifically to PF and emphysema and worker’s employment exposures. Therefore, entitlement for PF and emphysema must be determined based upon the available evidence and the individual merits of the case.
Diagnosis
A review of the file reveals:
The worker was diagnosed with PF in 2013.
Dr. Binnie’s, Respirologist, report dated November 20, 2020 indicated the worker’s most likely diagnosis was a combined PF and emphysema with usual interstitial pneumonia (UIP) secondary to connective tissue disease.
The file was reviewed by Dr. Spilchuk, OMC, on August 1, 2024 who opined the worker’s diagnosis was PF and emphysema with UIP secondary to connective tissue disease.
Based on the medical evidence before me, I am satisfied the worker had and was diagnosed with PF and emphysema.
Employment and Employment Exposures
A review of the file including the worker’s Canada Pension Plan records reveals the worked for various employers from 1972 to 2024 including the employer from 1979 to 1990.
I recognize the worker reported that they were exposed to asbestos while working as an HVAC Technician in commercial buildings and older government buildings in the GTA, as there was asbestos on the equipment, which they had to remove to repair parts of units and they had to mixed dry asbestos with water to form a mud used to repair boilers.
While there is no confirmation of the worker’s asbestos exposure between 1979 to 1990, based on the worker’s job duties as an HVAC Technician and the date they performed the work (1979 to 1990) I accept the worker was likely exposed to asbestos, while employed as a HVAC Technician from 1979 to 1990. However, the level and duration of the exposure is unknown based on the limited available information contained in the file.
Assessment of the Evidence
For entitlement to be established for the worker’s PF and emphysema, it must be established that it is more probable than not that the circumstances of the worker’s employment exposure significantly contributed to the development of the conditions.
A review of the file reveals:
Dr. Binnie assessed the worker on November 20, 2020, noting the worker’s occupational and non-occupational exposures along with their June 2019 CT scan which showed no evidence of pleural plaques. Based on the assessment, Dr. Binnie diagnosed the worker with PF and emphysema with a UIP pattern and opined the most likely etiology of the worker’s interstitial lung disease was connective tissue related.
Dr. Binnie assessed the worker on March 4, 2022, who opined the worker has UIP pattern fibrosis with underlying connective tissue disease, which was rheumatoid arthritis overlap syndrome. Dr. Binnie also opined the worker’s prior exposure to asbestos, while working in HVAC was not believed to be the cause of their lung disease.
Dr. Spilchuk reviewed the file on August 1, 2024, who noted Dr. Binnie’s opinion that the worker’s asbestos exposure was unlikely to have played a significant role in their disease progression, on the basis that there were no plural plaques on imaging and given the multiple positive biomarkers indicating an underlying connective tissue disease. Based on their assessment, Dr. Spilchuk opined the worker’s exposure to asbestos at work was not important and/or compatible with the development of their lung conditions.
In assessing the medical evidence in the file with respect to the worker’s work-related asbestos exposure and the development of their PF and emphysema, I place significant weight on the medical opinions of Dr. Binnie and Dr. Spilchuk for the following reasons:
Dr. Binnie is a Respirologist with extensive education and training in the respiratory system.
Dr. Spilchuk is an Occupational Medicine Specialist with extensive education and training on occupational diseases and their causes.
Both Dr. Binni and Dr. Spilchuk had a complete picture of the worker’s employment exposures, the worker’s medical conditions along with their occupational and non-occupational exposures at the time of their opinions,
Dr. Binni’s and Dr. Spilchuk’s opinions are consistent with each other in that they were both of the opinion the worker’s exposure to asbestos did not cause or was not a significant contributing factor in the development of their PF and emphysema, and
There is no specific medical evidence and/or opinion in the file from a health professional of equal or greater evidentiary weight than Dr. Binni and Dr. Spilchuk that refutes their opinion.
Thus, I accept the medical opinions of Dr. Binni and Dr. Spilchuk that the worker’s exposure to asbestos was not a significant contributor to the development of their PF and emphysema.
Based on my assessment of the evidence, I find the facts and circumstances of this case lead me to conclude that the weight of the evidence fails to show the worker’s occupational exposure to asbestos significantly contributed to the development of their PF and emphysema. Thus, the criteria in Operational Policy 11-01-01 for ruling on initial entitlement to WSIB benefits have not been met. Therefore, initial entitlement for PF and emphysema is denied.
CONCLUSION
Based on the evidence outlined in this decision, I conclude entitlement to pulmonary fibrosis and emphysema related to the worker’s exposure asbestos is denied.
The worker’s objection is denied.
DATED April 8, 2025
S. Crisostomo
Appeals Resolution Officer
Appeals Services Division