Worker claimed respiratory symptoms developed because of work at tobacco plant, but had history of smoking and allergies
An Ontario worker’s respiratory symptoms were not related to her job grinding tobacco but more likely stemmed from a pre-existing condition, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The 60-year-old worker immigrated to Canada from Poland in 1990 and worked in a hotel and a factory before being hired by the employer, a cigarette manufacturer, in February 2001. Some reports indicated she smoked up to 20 cigarettes a day for 11 years before coming to work for the employer, quitting in 1997. However, the worker claimed she was only a social smoker and smoked once per month as a teenager.
The worker’s duties involved recording physical measurements of cigarettes and other tobacco products before they were tested. She also prepared tobacco samples before testing, which included pulling cigarettes from their packages and marking them, sometimes blocking the filters with tape, and laying them in a conditioning tray. Sometimes she had to roll tobacco into cigarettes and grind tobacco leaves and other forms of tobacco. Grinding tobacco involved cutting cigarettes, placing them in a grinder and placing the tobacco into a Ziploc bag. She wore a disposable respirator/mask over her mouth and nose when performing these duties.
In 2005, the worker began experiencing respiratory symptoms such as choking and coughing. She underwent a chest x-ray, which came up negative, and was examined by an allergy specialist. The specialist couldn’t identify, an allergic cause for the symptoms, though it was noted she was on allergen immunotherapy 13 years earlier for an allergy to dust and smoke.
On May 8, 2006, the worker completed a work refusal form, saying she started “coughing and sweating and I could not breathe properly and also my face turned red” while marking and blocking cigarettes. Twelve days later, she stopped working due to respiratory symptoms. The employer temporarily assigned her to other duties such as shredding paper, sorting documents, and cleaning glassware in a storage room. However, she continued to experience the symptoms and went off work. The employer also purchased customized respirators for its employees and the worker wore one while grinding tobacco.
On May 23, the employer hired a consultant to assess the air quality and surface contamination of the work environment. The consultant concluded that all contaminants and particulates in the worker’s area fell within acceptable limits under Ontario Ministry of Labour standards.
In August, the worker underwent a pulmonary function test, which produced inconsistent results. A physician found “no obvious airflow obstruction” and a medical report indicated the worker’s symptoms were not related to her workplace as a cause.
In February 2007, the worker underwent a CT scan of her sinuses, which were ruled “essentially unremarkable” and led to a conclusion that her symptoms did not have an occupational component. The next month, the worker returned to work and was assigned duties in a different area of the plant that didn’t involve grinding tobacco. She measured and taped cigarettes on plates and didn’t experience symptoms while performing these duties.
The worker gradually resumed her regular duties — including grinding tobacco — by October 2008 in a different building. However, her coughing and sweating symptoms returned. On Oct. 10, 2008, she stopped working and indicated she suffered from respiratory problems related to grinding tobacco that had begun in May 2006.
The worker submitted a functional abilities form from her doctor saying she should avoid grinding tobacco due to “reactive airways” when exposed to toboacco dust. In January 2009, the employer informed the worker it was unable to provide an environment free of tobacco dust. It terminated her employment in the spring of 2009.
The worker applied for workers’ compensation benefits for “a cough and an onset of a general unwell feeling” stemming from her work. She was unable to return to any type of work since October 2008 due to anxiety and distress over her work situation, as well as “asthma exacerbation and bronchitis” in February 2011.
The tribunal found that the evidence didn’t support the conclusion that the worker’s job significantly contributed to her respiratory symptoms. Under the province’s workers’ compensation legislation and the Workplace Safety and Insurance Board operational policy manual, an injury had to be caused by a workplace accident in the course of employment.
