- Encephalopathy (toxic)
- Expenses (report) (payment for)
- Exposure (hydrocarbons)
- Occupational disease
The issues under appeal were: a) whether the worker had initial entitlement for occupational disease, including solvent-induced encephalopathy, related to his past workplace exposures as a watchmaker; and, b) whether a medical report should be reimbursed by the Tribunal.
The appeal was allowed. The Panel referenced Decision No. 661/93, which states: "…the Panel is required to apply [the evidentiary standard of] a balance of probabilities… [where] there are…several possible scenarios, [the] Panel must decide what the most probable scenario is." Accordingly, the issue was whether, on a balance of probabilities, the worker's work exposure history from 1999 to 2007 and from 2010 to 2013 made a significant contribution to the development of his solvent-induced encephalopathy. The evidence supported that the worker was regularly exposed to petroleum hydrocarbons and petroleum solvents during his eleven years of work as a watchmaker. This work necessitated the use of various chemicals. The proximity of the chemicals to the worker's breathing zone was significant as an inhalation risk. The worker also worked with an ultrasonic cleaning machine and cleaning bath where various chemicals and rinses were used. The worker's opportunity for exposure to these various chemicals was significant. The route of entry consisted of both inhalation of associated vapours and dermal (skin) absorption. The risk for exposure was heightened by the fact that personal protective equipment was not used until 2012, the year preceding the cessation of his work. The worker regularly inhaled and handled these chemicals for approximately ten years without personal protective equipment.The Board's occupational hygienist also found that the location of the fume hood for the cleaning machine would actually pull vapours through his breathing zone, which was a significant flaw in the control design. The ventilation of the worker's work area was sub-optimal. Additionally, the filter for the cleaning machine had not been changed in years. This would have lowered the efficacy of the filtration process and allowed for additional vapours or fumes to exist in the ambient atmosphere in this workplace. The Panel found that the worker's work environment posed a significant risk for him. There was an identifiable relationship between these exposures and his solvent-induced encephalopathy. The Panel also granted the request for reimbursement by the Tribunal of the specified medical report. Although the Tribunal did not request this report, the Panel noted that it made a difference in the decision-making process, and answered the question of whether the worker's occupational exposure to petroleum hydrocarbons caused or contributed to his claimed condition. Given the doctor's renowned credentials in the field of toxicology, the Panel accepted his report as an "expert report" for the purposes of the worker's appeal. The Panel authorized the Tribunal to pay for the report "based on the approved schedule of rates" as set out by the Tribunal's Practice Direction on Expert Evidence.