Worker’s claim for occupational asthma initially denied, but tribunal finds entitlement for work-exacerbated asthma
A worker’s occupational asthma was a pre-existing condition but the worker is entitled to compensation for aggravation of the disease from workplace conditions, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.
The 67-year-old worker started work with his employer, a furniture manufacturer, in 1988. Over his career, he sustained several workplace injuries, but was always able to return to work. For 15 years, his job involved working around machinery that produced wood dust and he gradually developed asthma as a result. His job duties included blowing wood dust off the wood cutting machine and sweeping the wood dust off the floor at the end of each day. There was no ventilation at the plant other than a large shipping and receiving door at one end. There were small exhaust vents over the sanding machines, but they didn’t do much, according to the worker.
The worker’s doctor diagnosed him with asthma around 1998, but medical records weren’t complete because the worker had changed doctors. A workplace accident in May 2003 resulted in a fractured vertebra, so the worker was assigned to light duties when he returned to work.
After about five years on light duties, the worker’s asthma worsened. In late 2008, he was assigned to a job cutting wood in a closed room with no ventilation — he had to wear a mask. He worked in this position for about one month until he had to go to the hospital for severe asthma.
On Oct. 14, 2008, the worker’s family doctor provided a note to the employer stating: “This patient is an asthma sufferer. He must not be exposed to sawdust (or) wood dust environment.”
The worker submitted a claim for compensation for occupational asthma to the Ontario Workplace Safety and Insurance Board (WSIB). However, the WSIB relied on an investigation report from another claim that found the employer’s workplace wasn’t dusty. Because of the existing report, the WSIB didn’t feel it was necessary to conduct another investigation of the same workplace. In addition, the worker’s earlier diagnosis of asthma and records that showed the disease was in his family led the WSIB to conclude his asthma wasn’t occupational asthma and was instead an existing underlying condition. It also noted the worker wasn’t sure about the trigger for the asthma. The worker’s claim was denied.
The worker appealed the decision, but an appeals resolution officer denied the appeal on the same grounds. The worker appealed again.
The tribunal considered the WSIB’s operational policy manual document that covered aggravation of illness or injury, which states: “In cases where the worker has a pre-accident impairment and suffers a minor work-related injury or illness to the same body part or system, the WSIB considers entitlement to benefits on an aggravation basis.” The document specifies that it applies for acute episodes only and benefits continue until the worker returns to “pre-accident state.”
Aggravation of existing condition compensable
The tribunal consulted discussion paper on occupational asthma prepared by a respirologist. The paper indicated that occupational asthma can develop in workers at low exposure levels, especially for workers with genetic susceptibility. The paper also found workers who have asthma that isn’t caused by their work can have it aggravated or exacerbated by work exposures. A worker may not have occupational asthma but could have work-exacerbated asthma, which the doctor estimated occurred in up to 25 per cent of workers with asthma.
The tribunal found that the worker had an underlying asthma condition that was diagnosed early on in his career. However, the medical evidence demonstrated that exposure to dusts and wood dusts in the workplace aggravated the worker’s condition, which met the definition of work-exacerbated asthma in the tribunal’s discussion paper.
The WSIB’s failure to investigate the level of exposure in response to the worker’s claim and its reliance instead on an investigation from another claim made it impossible to quantify the level of the worker’s exposure to wood and other dusts in his work environment. However, the worker’s testimony as to the environment was consistent with his statements made to the WSIB, so it could be accepted as legitimate and safe to assume that there was a significant amount of wood dust in the plant ,said the tribunal. In addition, the worker’s shift of duties in 2008 led to increased exposure to wood dust in an enclosed environment, which caused him to go to the hospital.
The tribunal found that the worker didn’t have occupational asthma since the medical evidence indicated a pre-existing condition. However, the evidence showed the worker’s occupational exposure “significantly aggravated” his asthma, particularly after the change in duties in 2008.
“The evidence generally suggests that (the worker) was diagnosed with asthma in or about 1998 and he began working for the employer in 1988. We also note, however, that our attention was not drawn by any contemporaneous evidence that the worker’s initial diagnosis of asthma was considered to be work-related,” said the tribunal.
