Decision #15/03 - Type: Workers Compensation

Preamble

A non-oral file review was held on November 12, 2002, at the request of a worker advisor, acting on behalf of the claimant. Following receipt of additional information, the Panel met further to discuss the case on January 21, 2003.

Issue

Whether or not the worker is entitled to a permanent partial disability award based on the examination of February 17, 2000.

Decision

That the claimant is entitled to a 2.7% permanent partial disability award based on the examination of February 17, 2000.

Decision: Unanimous

Background

In 1991 the claimant filed a workers compensation claim for an asbestos condition which he related to his employment activities over the years. Investigations into the claim were undertaken by the Workers Compensation Board (WCB), however, in 1992 it established that the claimant did not suffer from any asbestos related condition and the case was closed. In 1998, the WCB reopened the case as it learned that the claimant was experiencing further difficulties with his lungs.

On October 29, 1999, primary adjudication advised the claimant that his diagnosed condition of asbestos related pleural plaques was being accepted as a WCB responsibility. Arrangements for a WCB examination and further testing would be undertaken to determine the claimant's level of impairment.

Subsequent file information contains an examination report prepared by a WCB internal medicine consultant dated February 17, 2000 and an addendum to this report dated April 17, 2000.

On May 19, 2000, the claimant was informed by primary adjudication that the WCB was unable to provide him with a permanent partial impairment award based on the following rationale:
"A WCB internal medicine consultant has provided the opinion you do have some respiratory impairment where you have reduced flow at lower lung volumes. The impairment rating would be calculated at 2.7%. However, the internal medicine consultant has provided the opinion the impairment is not due to the pleural placques (sic) produced by the asbestos, but rather related to reduced flow at lower lung volumes. The internal medicine consultant felt this was likely due to your smoking history and not the asbestos related condition.
The case was considered by Review Office on June 9, 2000, as the claimant appealed primary adjudication's decision of May 19, 2000. Review Office confirmed that the claimant was not entitled to a permanent impairment award. Review Office referred to the WCB's internal medicine consultant's examination findings and comments, the results of pulmonary function tests, gas exchange studies, etc. as well as the WCB's impairment rating schedule. Review Office stated that if all of the claimant's problems were directly related to his work activity and specifically asbestosis, he would then be entitled to an award of 6.8%. However, the figure was reduced or corrected after taking into consideration symptoms due to chronic rhinitis and poor performance due to the claimant's fitness. The corrected value was further reduced to 2.7%.

Review Office indicated that the reduced flow at lower lung volumes was not considered to be due to pleural plaques produced by an exposure to asbestos. It was possible and thought to be due to the claimant's previous lifestyle involving a history of smoking for approximately 18 years. The calculation was affected by an inability to perform the arterial blood gases, and therefore the overall calculation was over estimated in the impairment rating. The internal medicine consultant was unable to provide a definitive answer as to whether or not the claimant's difficulty was directly related to an exposure to asbestos. Review office therefore concurred with the adjudicator's decision that the claimant was not entitled to a permanent impairment award.

The claimant was reassessed on July 16, 2002 for a PPI review. In a letter dated September 17, 2002, primary adjudication advised the claimant that the PPI review revealed a slight increase in his rating at 3.3%. However, due to chronic rhinitis and poor exercise tolerance, the PPI rating was likely overestimated. It was then determined that a PPI was not warranted at this time.

On November 12, 2002, a non-oral file review was held at the Appeal Commission based on an appeal from the claimant's worker advisor. The worker advisor presented information in support of the position that the worker was entitled to a permanent partial disability award based on the examination of February 17, 2000.

Following discussion of the case, the Appeal Panel requested clarification from the WCB's healthcare branch concerning the opinions that had been expressed regarding the claimant's permanent partial disability rating. On January 7, 2003, all interested parties were provided with information that the Panel obtained from the WCB's healthcare branch and were asked to provide comment. On January 21, 2003, the Panel met to render its decision on the issue under appeal.

Reasons

As the background notes indicate, a WCB internal medicine consultant examined the claimant on February 17th, 2000 for the purpose of determining a possible impairment of the claimant's respiratory system caused by pleural plaque as a result of exposure to asbestos in the course of his work. On April 27th, 2000, the consultant recorded the following findings in an addendum to his examination notes of February 17th:

"Based on the above information, and applying the WCB's Impairment Schedule, the rating is calculated as 6.8%.

However, this figures (sic) needs correction for the symptoms that are due to chronic rhinitis and poor performance due to being unfit. The corrected value is 2.7%.

The rating is mainly because of the reduced flow at lower lung volumes, which is not due to the pleural plaque produced by the asbestos. This is thought to be due to his previous smoking. The calculation overestimates the impairment rating.

He should be reviewed in two years time. An earlier review could be arranged if clinical status dictates. He should avoid exposure to asbestos permanently."

After considering the foregoing comments both the Adjudicator and Review Office came to the same conclusion that the consultant was "unable to provide a definitive answer as to whether or not the claimant's difficulty was directly related to an exposure to asbestos". In light of this determination, the claimant was therefore not entitled to a permanent impairment award.

Following a thorough review of the file, it became apparent to us that the medical information with respect to the claimant's potential impairment rating may possibly have confused the previous levels of adjudication when it came to arriving at their decisions. Accordingly, we requested the WCB's internal medicine consultant to clarify his April 27th, 2000 addendum, especially with respect to the last four paragraphs, which we have quoted above.

In response to our query, the internal medicine consultant replied, in part, as follows:

"The addendum of April 27 outlines the results of the investigations and calculation of the impairment rating based on the Board's method. Thus, after correcting for rhinitis only, the rating is 6.8. After correcting for rhinitis and deconditioning, the rating is 3.18. Lastly, after correcting for the lack of arterial blood gases, the rating is 2.69 corrected to 2.7%. Thus, the impairment rating for the compensable injury, i.e. pleural plaque is 2.7%. (Emphasis ours)

Based on this clarifying information, we find that the claimant is entitled to a permanent partial disability award. We accept and confirm the WCB's internal medicine consultant's impairment rating of 2.7% for the claimant's compensable pleural plaque injury. Accordingly, the claimant's appeal is hereby allowed.

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 7th day of February, 2002

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