Decision #68/01 - Type: Workers Compensation

Preamble

A non-oral file review was held on January 25, 2001, at the request of the claimant. The Panel discussed this appeal on January 25, 2001 and April 20, 2001.

Issue

Whether or not the Workers Compensation Board (WCB) should accept responsibility for the costs of the claimant's prescriptions for Lanoxin/Digoxin and Furosemide; and

Whether or not the claimant's impairment rating should have been reduced by 50%.

Decision

That the Workers Compensation Board (WCB) should not accept responsibility for the costs of the claimant's prescriptions for Lanoxin/Digoxin and Furosemide; and

That the claimant's impairment rating should have been reduced by 50%.

Background

In 1987, the claimant filed a compensation claim for a respiratory condition that he related to his exposure to grain dust during his employment activities as a grain buyer.

On April 18, 1988, the case was reviewed by a medical officer at the Workers Compensation Board (WCB) and it was determined, based on medical reports and pulmonary function studies, that the claimant qualified for a 16.9% permanent partial disability rating for his lung condition. The medical officer stated that the impairment rating pertained to the claimant’s grain dust exposure, cigarette smoking, excess body weight of over 30 kg. and an underlying cardiac condition.

On May 17, 1988, the claimant was informed by the WCB that his impairment rating of 16.9% for chronic obstructive pulmonary disease would be reduced by 50% to 8.45% as cigarette smoking contributed to his condition. The Review Committee confirmed this decision on September 9, 1988.

On July 19, 1992, a WCB medical advisor reassessed the claimant’s impairment rating at 20.76% with an additional 5% rating for the positive “methacholine challenge test”. The total impairment was 25.76%. The medical advisor commented that the contribution of obesity and atrial fibrillation to the impairment rating was difficult to quantify. In his opinion, it would be around 5%. In a letter dated August 24, 1992, the claimant was informed that his impairment rating had increased from 8.45% to 12.88% of total (50% of 25.76%).

The claimant’s respiratory status was next assessed in October 1994. The claimant’s impairment rating was calculated at 35.38%, reduced by 5% for obesity and atrial fibrillation, bringing the total to 28.38%. Five percent was added for bronchial hyperactivity bringing the total to 33.38%. Reduced by 50%, the impairment rating was calculated at 16.69%.

The claimant’s respiratory condition was again reassessed in 1996. The claimant’s impairment was calculated at 32.1%, which was reduced by 50% making the total to be 16.05%.

In February 1997, the claimant advised the WCB that his current respiratory condition may be attributed to his chemical exposure to Photoxin in the workplace between the 1960’s and 1980’s. On May 28, 1997, the WCB advised the claimant of the following:

“The testing that you have undergone on a fairly regular basis since the inception of your claim is representative of your overall condition and the results would include any damage which may have been done due to your exposure to these substances. It is noted, however, that you are continuing to smoke and as such we feel that the reduction of your impairment rating by 50% is an accurate reflection of the factors that have contributed to your condition.”

On July 21, 1997, the WCB advised the claimant that it would no longer accept responsibility for the purchase of certain medications, i.e. nitroglycerin, furosemide, extra-strength Tylenol and entrophen, as the need for these medications were not considered related to the compensable injury.

At the request of the claimant, the case was considered by Review Office on September 19, 1997. Review Office determined that the claimant’s impairment ratings should have been calculated as follows:

                                                           Previously                              Presently

                                                           1988 – 8.45%                        8.45%

                                                           1992 – 12.88%                     12.88%

                                                           1994 – 16.69%                     15.19%

                                                           1996 – 16.05%                     17.85%.

Review Office noted that the WCB initially adopted a 50% reduction in the overall impairment rating for the claimant’s loss of respiratory function due to causes other than the occupational hazard (e.g. grain dust). Review Office did not believe that this should have been changed when the claimant’s respiratory function was subsequently assessed, although different rating practices for impairment may have been initiated for “new” claims. Review Office accepted that some errors had been made in the calculation of the claimant’s overall rating for respiratory impairment in the past, and was of the opinion that these should be corrected as part of the more general adjustment to the ratings which affect benefit entitlement in this case.

On October 6, 2000, the claimant was advised by the WCB that no responsibility would be accepted for the costs of Digoxin/Lanoxin that were prescribed by his attending physician. It was felt that these medications were not related to the compensable accident. On October 13, 2000, Review Office confirmed that there was no relationship between the claimant’s respiratory condition and the prescribed Lanoxin/Digoxin.

On January 25, 2001, a non-oral file review was held at the request of the claimant with respect to the WCB’s refusal to accept responsibility for the costs associated with two medications and whether or not the claimant’s impairment rating should have been reduced by 50%. Following discussion of the case, the Appeal Panel requested clarification from the WCB’s Healthcare Management Services Department with respect to the calculation for reducing the PPD award.

On February 20, 2001, all parties were provided with a memo dated February 5, 2001 that was received from the WCB’s Healthcare Management Services Department concerning the Panel’s request for additional information.

On March 7, 2001, the Panel met further to discuss the case. The Panel requested that the Appeal Commission’s Recording Secretary write to the claimant to obtain the names of the chemicals that he was storing in the basement of his house which he felt caused and/or contributed to his respiratory difficulties. The claimant responded to the Panel’s request on March 17, 2001. The letter was then forwarded to the employer for comment. On April 20, 2001, the Panel further to consider the case and render its final decision.

Reasons

The medications (Lanoxin/Digoxin and Furosemide) are being prescribed to the claimant for his heart condition, which is not related to his partial permanent impairment. Therefore, the WCB should not be required to accept responsibility for the costs of the claimant’s prescriptions.

As the background notes indicate, the claimant questions the reduction of his impairment rating by 50%. On May 28th, 1997 a WCB occupational disease adjudicator wrote to the claimant and advised as follows:

“In the spring of 1988 following an examination and test results it was determined that the amount of your impairment at the time was 16.9%. This was reduced by 50% to 8.45% to reflect the fact that you have been a heavy smoker for a number of years. The rationale behind reducing the impairment rating by 50% was that it was felt that your exposure to grain dusts plus your smoking history had contributed equally in the development of your respiratory difficulties.”

Throughout the history of this file, on each occasion when the claimant’s impairment rating has been recalculated, a 50% smoking factor reduction was consistently applied. Prior to making any decision on this issue, we decided to request clarification from the WCB’s impairment award medical advisors as to the rationale for employing the 50% reduction. In a memorandum dated February 5th, 2001, a medical advisor responded, in part, as follows:

"Airway disease can also be caused by cigarette smoking.

The effects of cigarette smoking are well documented in the literature. Briefly, it causes hypertrophy of the bronchial mucus glands and later, destruction of the elastic fibres of the lungs resulting in emphysema. The hypersecretion of the bronchial mucus glands results in symptoms of cough with sputum production. The loss of elastic fibres leads to destruction of the aveolar wall resulting in emphysema. The physiological changes resulting from this is manifested in irreversible airflow limitation and increase in total lung capacity. There may also be air trapping resulting in increased residual volume. There is reduction in diffusing area causing reduced gas transfer as measured by CO.

According to the history, Mr. [the claimant] was still smoking in 1999. He has not worked since 1987. Thus, there is no further exposure to the grain dust.

Reduction in the diffusing capacity reflects loss of diffusing surface and the results of 1996 and 1999 indicates such progression. The continued inhalation of cigarette smoking has resulted in this change suggesting emphysema.

There is no formula to separate out the damage caused by cigarette smoking and by grain dust. One would also have to consider the effect of atrial fibrillation and development of congestive heart failure, and pulmonary congestion.

In summary, the reduction, caused by smoking alone, would be arbitrary and 50% reduction would be reasonable in my estimate.”

After having reviewed the above commentary in conjunction with the rest of the evidence, we are satisfied that the 50% reduction for the claimant’s smoking component is, on a balance of probabilities, quite reasonable. Accordingly, the claimant’s appeal is hereby dismissed.

The claimant asked the Panel to take into consideration during the course of our deliberations the fact that he had possibly been exposed to a chemical called Photoxis sp. (Phostoxin). As this question has not been previously dealt with by the WCB, we unfortunately lack the necessary authority and jurisdiction to deal with it at this time. We note the WCB medical advisor’s comment in his February 5th, 2001 memo: “The question of chemical exposure was not raised before. I could not find any reference to photosin or phototoxin in the research I have. However, there is a substance called Phostoxin which is used to fumigate the grain.” Should the claimant wish to pursue this issue, then the initiative rests entirely with him.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of May, 2001

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