The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel review was held on April 1, 1999, at the request of the claimant's daughter.

Issue

Whether the deemed date of accident should be August 3, 1994.

Decision

That the deemed date of accident should be August 3, 1994.

Background

In June 1995, the claimant submitted an application for compensation benefits in relation to asbestos exposure related to employment activities as a miner. Following investigation by primary adjudication, the claim was accepted as Workers Compensation Board (WCB) responsibility.

On March 10, 1997, the claimant was examined by a WCB internal medicine consultant regarding a possible permanent partial impairment award. Following examination and review of pulmonary functions tests, chest x-rays, laboratory investigations, etc., the claimant was assessed a permanent impairment award of 1.4% as a result of his asbestos exposure.

On September 16, 1997, primary adjudication asked the WCB's internal medicine consultant to review the chest x-rays taken in January 1990, and provide an opinion as to whether this was the first sign of an asbestos related condition. The consultant responded to the adjudicator's request in a memorandum, dated October 16, 1997, and stated, in part, the following:

"The question regarding the x-ray done in January of 1990, being the earliest evidence of pleural plaques, is highly speculative. The x-ray notes a tiny linear scar in the right base, but from the CT it would be evident that the major involvement is of the left lung. It should be pointed out that reading of the x-rays is not an exact science and is subjected to many technical and reader variables. The films of January 1990, in my opinion, cannot be accepted as evidence of pleural plaques."

On April 7, 1998, primary adjudication advised the claimant that he was entitled to a 1.4% PPI award and that the effective date of accident was confirmed as June 24, 1992, being the first corroborative evidence of asbestos related pleural plaques. Primary adjudication noted the WCB internal medicine consultant's opinion that a chest x-ray dated January 1990, did not show evidence of asbestos related pleural plaques. It was also stipulated that the claimant's file would be adjudicated in accordance with the Workers Compensation Act (the Act) that came into effect on January 1, 1992.

On July 22, 1998, Review Office acknowledged receipt of an appeal from the claimant dated, July 12, 1998. In his submission, the claimant requested reconsideration of the adjudicator's decision of April 7, 1998, that the effective date of accident was June 24, 1992.

The Review Office, on July 31, 1998, determined that the deemed date of accident should be August 3, 1994. The Review Office stated when determining a deemed date of accident, the WCB relied on medical evidence to determine when the actual impairment or loss of earnings commenced. The Review Office noted there was one x-ray from 1990 that was highly speculative in the opinion of the WCB's consultant internal medicine. In his opinion, this x-ray could not be accepted as evidence of pleural plaques. The pleural changes in fact were first noted on an x-ray, dated August 1994 and a CT scan of the chest done on November 27, 1995, later confirmed the presence of the pleural plaques. The Review Office concluded that the actual effective date should be August 3, 1994, based on the x-ray taken on that date rather than June 24, 1992. In the opinion of Review Office, there was no evidence to support the claimant's request to deem the date of accident as January 1990.

In early February 1999, the Appeal Commission received an appeal from the claimant's daughter with respect to the Review Office's decision of July 31, 1998. A non-oral file review was then arranged. The Appeal Panel took into consideration all file documentation including an additional submission received from the claimant's daughter, dated March 15, 1999.

Reasons

The claimant had a chest x-ray on August 3rd, 1994. The findings disclosed in part:

"Focal pleural thickening or pleural plaque is noted laterally in the left mid-zone. Although somewhat nonspecific, the overall appearance is suggestive of asbestos related pleural and parenchymal disease."

A later CT scan confirmed the presence of bilateral pleural plaques which were compatible with asbestos exposure.

Section 1(12) of the Act states that in those cases where an impairment is caused by an occupational disease, then the date on which the impairment began is deemed to be the date of accident. The first evidence of any disease came about as a result of the August 3rd, 1994, x-ray. In accordance with the provisions of the Act, this date is the deemed date of the accident.

Panel Members

R. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 14th day of May, 1999