Tribunal originally found worker’s silicosis was related to occupational exposure to silica dust, but said claim was for worker’s lung transplant that was unrelated
A British Columbia worker is getting a re-evaluation of his claim for workers’ compensation benefits for a lung disease after an appeals tribunal agreed his condition was from occupational exposure to silica dust but said the claim was for a lung operation.
Sergey Goik, 54, was a stone finisher who worked for Atlas Stone Products in Burnaby, B.C., from 2007 until 2011. His job with Atlas involved cutting and polishing marble, which frequently generated silica dust in the air around him.
During his time with Atlas, Goik began experiencing chest pains and shortness of breath. In July 2011, he went on vacation in Israel — where he has citizenship — to take a break. After he arrived in Israel, he had to go to a hospital, where he was diagnosed with severe respiratory failure due to silicosis — a lung disease caused by inhaling siliceous particles. Doctors soon determined that he needed to have a double lung transplant.
Goik wasn’t able to fly because of his condition, so he remained in Israel for one year while he waited for donor lungs to become available. On Oct. 1, 2017, Goik underwent successful double-lung transplant surgery in Israel. A lung biopsy revealed fibrosis in his lungs.
Cause of disease uncertain
In March 2013, Goik made a workers’ compensation claim for “worker-asbestos-related disease. However, the B.C. workers’ compensation board (WCB) case manager working on Goik’s case was unable to contact the doctors in Israel who treated and operated on him. As a result, the case manager had to consult an internal WCB medical advisor who wasn’t involved in Goik’s treatment. The advisor also didn’t examine Goik.
The internal medical advisor stated that Goik’s lung fibrosis was of “unknown origins” and had an “unknown cause.” The advisor noted that the biopsy “raises the concern” about silicosis causing the lung fibrosis but also said it could be related to Goik’s rheumatoid arthritis or the medication he was taking for it. The advisor later cautioned that her information was limited due to the lack of contact with Goik’s physicians, but determined that silicosis was not “the culprit” for his fibrosis.
The WCB case manager determined that there was “insufficient medical evidence” to conclude Goik developed silicosis prior to his lung transplant and denied Goik’s claim.
The WCB review division denied Goik’s request for review, confirming that “based on the available evidence, I find that the worker’s lung disease and need for bilateral lung transplants is not as a result of silicosis.”
Goik appealed to the Workers’ Compensation Appeals Tribunal because “silicosis is compensable.” He was also able to obtain a medical report from the doctor who performed the double-lung transplant surgery, which stated: “This is a worker who, during his work for many years, developed severe silicosis, which caused respiratory failure that required lung transplantation. His exposure to marble mainly of Caesar stone type, which contains high concentrations of silica resulted in lung functioning decline until it reached the level that required lung transplantation. Therefore the patient should be recognized as suffering from an occupational disease of silicosis.”
The surgeon also noted that Goik’s rheumatoid arthritis was caused by exposure to silica and the medication that contributes to fibrosis of the lungs was discontinued.
The tribunal consulted the medical advisor, who reiterated her opinion that the cause of Goik’s fibrosis was unclear and the evidence didn’t confirm the lung transplant was the result of silicosis. The advisor also maintained that the rheumatoid arthritis and its medication could cause the fibrosis. Based on this opinion, the tribunal denied Goik’s claim, saying it accepted that Goik had silicosis that was causally related to his employment, but the double-lung transplant wasn’t necessitated by the silicosis. Goik appealed to the B.C. Supreme Court, arguing that it was unreasonable to conclude he wasn’t claiming entitlement for silicosis and to deny him after accepting the silicosis was causally related to his employment.
The court noted that the B.C. Workers’ Compensation Act defines silicosis as “a fibrotic condition of the lungs caused by the inhalation of silica dust.” The act also specifies that workers are entitled to compensation only if the worker was free from tuberculosis and other similar ailments before the workplace exposure, and workers who are exposed to silica dust at work and develop silicosis are presumed to have had it caused by the nature of their employment.
Denial of claim unreasonable: Court
The court found there “is no evidence that can rationally support the conclusion that (Goik) was not seeking to have his claim accepted for silicosis,” as the tribunal had determined. Goik had appealed to the tribunal with the statement that “silicosis is compensable” and indicated he was appealing the WCB review division’s denial of his silicosis as an occupational disease. In addition, the review division’s decision indicated that the main issue was whether Goik’s silicosis developed from his occupational exposure to silica dust and his bilateral lung transplants were not the result of silicosis. The tribunal’s denial of Goik’s appeal seemed to overlook this statement, said the court.
As a result, the tribunal —though it found Goik had silicosis that was related to his occupational exposure to silica dust — failed to address whether Goik was entitled to workers’ compensation for his silicosis, inexplicably adhering to an analysis of whether he deserved entitlement for his double lung transplant.
“The review decision found that the lung disease was not a result of silicosis,” the court said. “Notwithstanding that the (tribunal’s) decision confirmed the review decision, (the tribunal) accepted that (Goik) had silicosis and that it was causally related to employment. The (tribunal’s) decision is internally inconsistent and the decision is not rational.”
The court determined the Workers’ Compensation Tribunal didn’t reasonably adjudicate Goik’s appeal when it decided not to examine the disease itself and whether it was compensable. It set aside the tribunal’s decision and remitted it back to the tribunal for redetermination.
For more information see:
