Canadian Safety Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 CSR | June 2016 | News Worker's asthma not caused by workplace, but aggravation warrants compensation Worker's claim for occupational asthma initially denied, but tribunal finds entitlement for work-exacerbated asthma BY JEFFREY R. SMITH A WORKER'S OCCUPATIONAL asthma was a pre-existing condi- tion but the worker is entitled to compensation for aggravation of the disease from workplace con- ditions, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled. The 67-year-old worker start- ed work with his employer, a furniture manufacturer, in 1988. Over his career, he sustained sev- eral workplace injuries, but was always able to return to work. For 15 years, his job involved work- ing around machinery that pro- duced wood dust and he gradu- ally 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 ventila- tion at the plant other than a large shipping and receiving door at one end. There were small ex- haust vents over the sanding ma- chines, 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 com- plete 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 wors- ened. 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 occupa- tional 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 ex- isting 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 asth- ma wasn't occupational asthma and was instead an existing un- derlying 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 de- cision, but an appeals resolution officer denied the appeal on the same grounds. The worker ap- pealed again. The tribunal considered the WSIB's operational policy man- ual document that covered aggra- vation 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 consid- ers entitlement to benefits on an aggravation basis." The document specifies that it applies for acute episodes only and benefits con- tinue until the worker returns to "pre-accident state." Aggravation of existing condition compensable The tribunal consulted discus- sion paper on occupational asth- ma prepared by a respirologist. The paper indicated that occu- pational asthma can develop in workers at low exposure levels, especially for workers with ge- netic 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 occu- pational 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 asth- ma condition that was diagnosed early on in his career. However, the medical evidence demon- strated that exposure to dusts and wood dusts in the workplace aggravated the worker's condi- tion, which met the definition of work-exacerbated asthma in the tribunal's discussion paper. The WSIB's failure to inves- tigate the level of exposure in response to the worker's claim and its reliance instead on an in- vestigation from another claim made it impossible to quantify the level of the worker's expo- sure 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 in- creased 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 evi- dence indicated a pre-existing condition. However, the evi- dence showed the worker's oc- cupational exposure "signifi- cantly aggravated" his asthma, particularly after the change in duties in 2008. "The evidence generally sug- gests that (the worker) was di- agnosed with asthma in or about 1998 and he began working for the employer in 1988. We also note, however, that our atten- tion was not drawn by any con- temporaneous evidence that the worker's initial diagnosis of asth- ma was considered to be work- related," said the tribunal. Based on its finding that the worker suffered from work-ex- acerbated asthma, the tribunal allowed the worker's appeal in part. The worker was granted initial entitlement to compensa- tion for a workplace aggravation of his asthma condition. See De- cision No. 332/15, 2016 Carswel- lOnt 5319 (Ont. W.S.I.A. Trib.). Credit: Carlos andre Santos (Shutterstock)

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