Decision Nº Released_Decisions from Workplace Safety and Insurance Appeals Tribunal of Ontario, 19-11-2019

• Judge: A.G. Baker : Vice-Chair M. Lipton : Member Representative of Employers C. Salama : Member Representative of Workers
• Judgment Date: 19 November 2019
• Judgement Number: Released_Decisions
• Hearing Date: 12 April 2018
• Issuer: Workplace Safety and Insurance Appeals Tribunal of Ontario

Workplace Safety and Insurance

Appeals Tribunal

DECISION NO. 1077/18

BEFORE: A.G. Baker : Vice-Chair

M. Lipton : Member Representative of Employers

C. Salama : Member Representative of Workers

HEARING: April 12, 2018 at Thunder Bay Oral

Post-hearing process completed on August 19, 2019

DATE OF DECISION: November 19, 2019

NEUTRAL CITATION: 2019 ONWSIAT 2548

DECISION UNDER APPEAL: WSIB decision dated September 7, 2016

APPEARANCES:

For the worker: R. Hamilton, Office of the Worker Adviser

For the employer: Not Participating

Interpreter: n/a

reasons

(i) Introduction and Issue

1. The worker appeals the decision of Appeals Resolution Officer (ARO) S. Bennett, dated September 7, 2016. The sole issue under appeal from that decision is the worker’s entitlement for asthma as a result of occupational exposures, or on an aggravation basis due to such exposures. As noted in the interim Decision No. 1077/18I, the worker claimed that silica dust, second hand cigarette smoke, and diesel exhaust were either the cause of, or were aggravating factors, leading to the onset of his ongoing asthma.
2. Interim Decision No. 1077/18I ruled that a medical assessor would be engaged in this case, and stated in part as follows:

(iii) Factual Background for the Assessor

[4] The background to this matter was well described by the ARO in the decision under appeal, as follows:

A Workplace Safety and Insurance Board (WSIB) claim was established for this 58 year old (born March 28, 1958) underground miner who was diagnosed with asthma on February 26, 2008. The worker attributes asthma, on its own, and/or on an aggravation basis, to the nature of his employment.

Adjudicator's (Case Manager) Decisions

On February 10, 2010 the Adjudicator denied that workplace exposure played a significant role in the development of the worker's claim for headache symptoms/respiratory condition (asthma). As such initial allowance of this claim for asthma was denied.

On June 8, 2016 the Case Manager (CM) reconsidered whether allowance of this claim can be granted on an aggravation basis. Once again the CM denied allowance of this claim on its own as well as on an aggravation basis.

The Workers Position

The worker is objecting to the Adjudicator/CM decisions dated February 10, 2010 and June 8, 2016.The worker representative (WR) argues that the work has a long standing history of asthma that was diagnosed as early as 1986, and confirmed by the specialist in July 1987. It is argued that the worker's pre-existing asthma, that was present at least in 1987 (4 years after he started working in the mines) was aggravated by the workplace exposures hence asthma should be allowed on an exacerbation/aggravation basis. The WR argues that the worker was not a heavy smoker and hence his smoking history should not be considered a non-compensable factor. They contend that the worker's exposure to carbon monoxide in the workplace led to the aggravation of his asthma. They argue that this claim should be allowed on an aggravation basis.

[5] The ARO in this case denied the worker’s objections on both a direct and aggravation basis. In doing so, the ARO provided a broad description of the onset of occupational asthma to include variable airway obstruction that is causally related to a substance or agent relating to a particular process, trade or occupation. Evidently, the condition may develop from a few weeks to many years after initial exposure. It was also noted that the Board will typically look at whether a worker has been sensitized to a workplace substance and whether the sensitization is clinically significant. It was noted that an assessment would include examining airflow limitation, airways hyper-responsiveness and the minimum medications needed by the worker to remain stable.

[6] As the ARO also noted, the worker in this case claimed that the gradual onset of occupational asthma was caused by the exposure to workplace irritants, and that it caused him to leave his job. The ARO did not agree with the claimed causal connection. It was found that there was medical uncertainty and a lack of evidence that workplace exposures played a causative role in the onset or aggravation of the worker’s asthma. In reaching that finding, the ARO provided a helpful review of much of the medical and file evidence, including the following excerpts:

• It is noted that the worker was hired by the employer in March 1983 as an underground miner.
• Dr. Rosenblatt, in his report dated July 7, 1987 noted that the worker had smoked intermittently for years. It was indicated that he had recurrent croup in early childhood, which from the description was probably asthma. There is a family history of both his brother and sister who have histories of asthma and rhinitis.
• In the above referenced report Dr. Rosenblatt opines whether the worker primarily has non-allergic or intrinsic rhinitis and asthma, the type triggered by nonspecific respiratory tract irritants, climatic conditions, and respiratory infections. It was mentioned that there are quite a number of patients who note the development or worsening of asthma when a cigarette smoking habit has been discontinued.
• I note the employer's correspondence dated October 5, 2011 whereby they confirm that there is no record of a carbon monoxide exposure occurring for this worker in 2007.
• This was confirmed after a review of their paper charts as well as their computer charts. Regarding the exposure in February 2008, they do have documentation of the incident and treatment provided. However there is no documented number on what the exposure amount was. …
• In memo 3 dated October 5, 2011the worker confirmed that he has smoked for 25-30 years and quit smoking about 4 years ago when he started having headaches. He is claiming for headaches and difficulty breathing.
• In the above referenced memo the worker also attributes his symptoms to exposure to second hand smoke in the workplace….
• … the WSIB occupational hygienist … comments are noted in memo 10, dated...