Decision #104/00 - Type: Workers Compensation
An Appeal Panel review was held on October 23, 2000, at the request of the claimant.
Whether or not the claimant is entitled to an impairment award greater than 6.9%.
That the claimant is not entitled to an impairment award greater than 6.9%.
On May 15, 1996, the claimant filed a compensation claim for a respiratory condition which he related to his exposure to asbestos in the workplace. Following an investigation into the claimant's employment history and after receipt of pertinent medical information, the claim was accepted by the Workers Compensation Board (WCB) and the claimant's diagnosis was confirmed as asbestos related pleural plaques.
In April 1999, the claimant attended the offices of the WCB for an assessment to determine whether he was entitled to an impairment award with respect to his respiratory condition. Following receipt and review of laboratory test results (i.e. chest x-rays, sputum and blood tests, pulmonary function studies, etc.), the WCB's internal medicine consultant calculated a 6.9% impairment rating. In a report dated April 22, 1999, the consultant stated that the 6.9% impairment rating was mainly due to poor exercise tolerance and few symptoms. "The cause of his reduced exercise tolerance could be the reduced volume as noted above and possibly some other unidentified reason. Clinically, he has a systolic murmur and although he has no symptoms of chest pain, dyspnea or orthopnea, one may be inclined to investigate this further with an electrocardiogram and an echocardiogram."
On October 15, 1999, a WCB payment specialist advised the claimant that he was entitled to a 6.9% impairment rating and that the award resulted in a one-time payment of $636.00. On October 19, 1999, the claimant appealed this decision stating that the settlement amount was totally unfair and unjust. The claimant commented that he was told by a doctor that he was in no immediate danger but there was the possibility of him getting lung cancer due to the scar tissue in his lungs, especially since one of his lungs was thicker than the other.
On November 12, 1999, an appeal submission was received from the employer's representative who contended that a relationship between the 6.9% impairment rating and the compensable condition had not been clearly established. The case was referred to Review Office to consider both the employer's and the claimant's appeals.
Prior to rendering its decision, Review Office referred the case back to the WCB's internal medicine consultant for a further review and for responses to a number of questions. The consultant responded to the Review Office's queries in a memo dated February 2, 2000.
On February 4, 2000, Review Office determined that the claimant was entitled to an impairment rating of 6.9% in relation to his compensable claim for asbestos exposure. It was also determined that the impairment rating of 6.9% accurately reflected the worker's current impairment. Review Office stated that after reviewing the additional information provided by the WCB's internal medicine consultant and after discussing the assigned rating with him, it was satisfied that the 6.9% impairment rating adequately reflected the worker's current degree of impairment.
With respect to the employer's concerns, Review Office indicated that it was satisfied that a relationship had been established between the claimant's loss of lung function and the compensable condition.
On July 31, 2000, the claimant appealed Review Office's decision and a non-oral file review was arranged.
The Appeal Panel met on October 23, 2000 to conduct a non-oral review of the file related to this claim.
The Appeal Panel is of the unanimous opinion that the decision of the WCB Review Officer on this matter was correct and that the appropriate impairment award on this file should be 6.9%. This amount represents the claimant's impairment related to asbestos-related pleural plaques causally linked to employment in the Province of Manitoba.
Section 60(2) of the Workers Compensation Act of Manitoba (the Act), provides exclusive jurisdiction to the WCB to determine the existence and degree of an impairment by reason of any injury arising out of and in the course of employment. According to Section 38(1) of the Act, the WCB shall determine the degree of a worker's impairment expressed as a percentage of total impairment. Also, Section 4(9) allows the awarding of compensation in respect of an impairment even though there has been no loss of earning capacity.
The impairment rating in the case before the Panel was established as a result of a medical examination conducted on the claimant by a medical advisor to the Board, on April 22, 1999.
The calculation of an impairment rating depends on loss of function of the affected organ. In making the calculation in this particular case, the medical advisor considered both subjective and objective factors. The subjective rating was determined to be 4 out of a worst case scenario of 60, based on symptoms of cough, sputum and shortness of breath. One half of this is assigned to the final total. The objective rating was determined to be 7 out of 70. This was based on a loss of lung capacity, oxygen tension and exercise capacity. All of this rating is added to the final: 2 + 7 = 9 out of a worse case scenario of 130, which equals 6.9%.
We find that the claimant's impairment award was correctly calculated in accordance with the rating schedule that has been adopted by the Board of Directors of the WCB. There was no new medical evidence presented to the Panel which would cause us to alter this assessment, at this time.
The claimant has expressed concern that he remains at risk of contracting lung cancer and is worried that should this happen, he would be denied further compensation. We would like to point out that he is entitled to be reassessed every two years; and, should his disability further deteriorate, his impairment award would be recalculated. Furthermore, should new medical evidence arise in respect of his disability, the claimant may seek reconsideration by the Appeal Commission.
The claimant has expressed further concern as to the amount of the compensation offered to him. We note that the Panel is bound by the provisions of section 38 of the Act, which provides as follows:
38(2) - Calculation of impairment award
Where the board determines that a worker has suffered an impairment, the board shall, subject to subsection (3), pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be
(a) 1% or greater but less than 5%: $500.;
(b) 5% or greater but less than 10%: $1,000.;
(c) 10% or greater: $1,000. plus $1,000. for each full 1% of impairment in excess of 10%.
38(3) - Reduction for worker over 45
A sum payable under subsection (2) shall be reduced by 2% for each year of age the worker is over 45 years at the time the board determines the worker has an impairment, but the reduction shall not exceed 40%.
The award values are subject to periodic adjustments, under Regulation, and were correctly applied in this instance.
While the claimant has expressed his disagreement with this section of the statute, the Panel has no alternative but to adhere to it.
Accordingly, the claimant's appeal is hereby dismissed.
T. Sargeant, Presiding Officer
A. Finkel, Commissioner
B. Leake, Commissioner
Recording Secretary, B. Miller
T. Sargeant - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of November, 2000