The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on May 19, 2004, at the worker's request.

Issue

Whether or not the effective date of the worker's permanent partial impairment award has been correctly established.

Decision

That the effective date of the worker's permanent partial impairment award has been correctly established.

Decision: Unanimous

Background

In August 2002, the worker submitted a claim to the Workers Compensation Board (WCB) for a lung condition that he related to his job activities as a pipe fitter which included working with asbestos on steam generators and passenger equipment for approximately 10 years. The worker's employer confirmed the worker's exposure to products containing asbestos.

Medical information was obtained from the family physician along with laboratory investigations which included x-ray results.

On December 19, 2002, the worker was evaluated by the WCB's consultant specializing in internal medicine. Following the examination and after review of additional testing that the worker underwent, the consultant concluded on February 20, 2003, that the worker had pleural plaques as a result of his exposure to asbestos in the workplace and an impairment rating of 2.27% was suggested.

On March 31, 2003, the WCB advised the worker that he was entitled to a 2.27% permanent partial impairment award with respect to his lung condition. He was also advised that the date of accident of June 19, 2002 had been incorrect and that the correct accident date was September 11, 1995, or the date that his tests results identified pleural plaques. In a further WCB letter dated April 3, 2003, the worker was advised that his impairment rating of 2.27% was calculated in accordance with Section 38(2) of The Workers Compensation Act (the Act) which resulted in a one-time payment of $413.40.

In a submission to the WCB dated August 25, 2003, the worker objected to the effective date of his impairment award and provided the WCB with documentation acknowledging that asbestos was present in his lungs in July 1992. Based on this information, the worker felt his impairment award should be re-calculated as a pre 1992 injury.

In a Review Office decision dated November 13, 2003, it was determined that the effective date of the impairment award should not be changed to pre 1992. Review Office was of the opinion that the date of accident should be changed to July 21, 1992 based on the x-ray results which were recently provided by the worker. However, under section 1(12) of the Act, the WCB could not calculate the impairment award as a pre-1992 injury as there was no evidence that could confirm the date on which the impairment or a loss of earnings began in relation to asbestos exposure, prior to that date.

On December 19, 2003, the worker was advised by primary adjudication that based on Review Office's decision, there would be no changes made to the impairment award calculation to reflect the change in date of accident of his claim. In March 2004, the worker disagreed with Review Office's decision and a non-oral file review was arranged.

Reasons

In arriving at our decision we reviewed the full claim file including the written submission of the worker.

In his notice to the Appeal Commission, the worker asked that his impairment award be calculated under the pre-1992 provisions of The Workers Compensation Act. He noted that asbestos was present in his lungs before January 1, 1992 which was confirmed by a July 21, 1992 x-ray report. He also noted that x-rays are only kept for 7 years so he cannot obtain evidence to support his assertion that the impairment began before January 1, 1992.

In a letter to the WCB in August 2003, the worker expressed concern over a change in policy in 1992 and the difficulty in obtaining medical records and x-rays from before 1992.

For the worker to be successful on this appeal, we must find that the worker's impairment began before January 1, 1992. We were not able to come to this conclusion.

Before addressing the merits of the worker's claim, we thought it helpful to look at the change that took place in 1992 which is at the root of the worker's concern. The worker has referred to a change in policy. The change was actually part of a major revision to the Act. The former provisions of the Act which allowed for permanent partial disability awards was repealed and replaced with a new impairment award scheme. This change was effective January 1, 1992, for accidents on or after this date.

There was also a change to the Act dealing with the date of accidents in cases of disease. The Act both before and after January 1, 1992 recognized that industrial/occupational diseases are not conditions that arise immediately. Frequently there are long periods of latency following exposure to a toxic substance before a disease develops. This is particularly true of asbestos exposure and resulting asbestos diseases.

Section 1(12) of the Act currently provides:

1(12) Where an impairment or loss of earnings of a worker is caused by an occupational disease, the day on which the impairment or loss of earnings began, as determined by the board, is deemed to be the day of the accident."

There is no doubt that the worker's employment brought him into contact with products containing asbestos. This is confirmed by the worker's employer. There is also no doubt that the worker's exposure to asbestos took place before January 1, 1992. This too is confirmed by the worker's employer. However, exposure to asbestos is not the same as impairment from asbestos.

We have reviewed all the evidence that is available at this time and find that the earliest evidence of the pleural plaque on the worker's lungs is an x-ray report dated July 21, 1992. The report notes "There is evidence of diffuse pleural plaques throughout both lungs." There are also subsequent reports from September 1995 and July 2002 which confirm the existence of pleural thickening consistent with asbestos exposure. As well, a CT Scan report from July 2002 notes that pleural plaques are present bilaterally and that "The changes are consistent with early asbestosis."

We find that the worker's claim has been properly adjudicated under the current provisions of the Act and that the effective date of the worker's impairment award has been properly set as July 21, 1992. Applying Section 1(12) of the Act we find, based upon the evidence and a balance of probabilities, the worker's impairment began on July 21, 1992. There is no evidence of impairment and no evidence of disablement arising from the worker's condition before January 1, 1992 which would bring this claim under the former provisions of the Act. We must make our decision on the available evidence and are not able to impute an earlier date upon which impairment or disablement occurred. We also note that the worker was retired at the time that he filed his claim and accordingly there is no evidence of a loss of earning capacity which can be used to establish an earlier date of accident.

The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of May, 2004