Decision #59/12 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") regarding his entitlement to wage loss benefits and medication costs related to his compensation claim. A hearing was held on April 16, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits; and

Whether or not responsibility should be accepted for the worker's medications.

Decision

That the worker is not entitled to wage loss benefits; and

That responsibility should not be accepted for the worker's medications.

Decision: Unanimous

Background

The worker filed a claim in 2010 with the WCB for respiratory difficulties that he attributed to his years of employment as a carpenter. His claim for compensation was accepted by the WCB in 2011 based on the identification of "pleural plaques" related to a compensable diagnosis of interstitial asbestosis. File records also indicate that the worker has non-compensable chronic asthma, chronic obstructive pulmonary disease and bronchiectasis. In 2004, the worker suffered from a heart attack that he attributed to his asbestosis-related condition.

On May 21, 2011, the worker wrote the WCB to ascertain whether he was eligible for wage loss benefits during the period of time (approximately four years) that he was away from work due to his asbestos related condition and whether the WCB would pay for certain medication costs. The worker stated: "…if I did not have asbestosis I would not be on these medications."

On August 8, 2011, the WCB case manager referred the file to the WCB's healthcare branch to obtain an opinion as to whether the medications taken by the worker were in relation to his compensable claim. On August 8, 2011, a WCB medical advisor stated:

"…With regard to the [cardiovascular medications], as noted in the PPI examination notes on file and dated January 27, 2011 these medications are related to the claimant's history of myocardial infarction which took place in 2004. As such they are not related to the asbestosis related disease.

With regard to the use of [respiratory medications] the claimant does have a history of chronic obstructive pulmonary disease/asthma/bronchiectasis and there is a previous opinion on file from [WCB's internal medical consultant] in relation to claim [number] that addresses the claimant's respiratory status at that time. It is recommended that an opinion be obtained from [a second WCB medical advisor] with regard to the claimant's past and current lung disease and whether or not the [respiratory medications], are related to the current claim."

In a letter to the WCB dated August 9, 2011, the worker asked the WCB to pay for other medications such as Prednisone and Warfarin.

On September 19, 2011, the second WCB medical advisor reviewed the file and stated:

"…[the worker] has a past medical history of treated asthma, bilateral benign pleural plaques and he is also an ex-cigarette smoker (1/2 pack per day for 20 years)…

[The worker's] respiratory condition has been treated with [respiratory medications]. In general, these medications are used to treat asthma and/or chronic obstructive pulmonary disease. In so far as asbestosis is concerned, there has been no specific treatment known to be effective in treating this disease and the respiratory medications reported above are unrelated to asbestosis. Management of asbestosis includes: avoidance of further asbestosis exposure, and supportive care with an emphasis on smoking cessation, pneumococcal and influenza vaccinations, prompt treatment of respiratory infections, and supplemental oxygen when there is resting hypoxemia (low oxygen) or exercise-induced oxygen desaturation (low oxygen)."

In a decision dated October 11, 2011, it was confirmed to the worker that the WCB would not approve any medication costs based on the opinions that were outlined by the two WCB medical advisors dated August 8, 2011 and September 19, 2011. The worker was also advised that the WCB would not reimburse him for any lost wages during the three and a half and four years prior to his claim, as the acceptance date of his asbestosis condition was identified as February 9, 2010, and therefore there was no loss of earning capacity due to his asbestosis.

On December 20, 2011, the claim was considered by Review Office based on an appeal submitted by the worker. Review Office determined that no responsibility should be accepted for the worker's medication costs as there was no evidence to support that they were related to his asbestos-related condition. Review Office noted that the worker's treating physician diagnosed him with asthma under his 2003 claim and that the same physician diagnosed the worker with chronic asthma in February 2010. Review Office accepted the opinions on file from the WCB medical advisors that the medications prescribed to the worker were for his history of myocardial infarction and asthma and that there was no specific treatment known to be effective in treating asbestosis.

Review Office also determined that the worker was not entitled to wage loss benefits. Review Office referred to subsection 1(12) of The Workers Compensation Act and stated:

"Latency period is the time from exposure until symptoms related to the exposure appear. The latency period between an initial asbestos exposure and the development of most asbestos-related disease can be 20 years or longer. The worker's condition was identified through diagnostic testing in 2010. There is no medical evidence of the condition prior to 2010. The WCB is unable to provide wage loss benefits for any period of time prior to the deemed date of accident."

On February 1, 2012, the worker appealed Review Office's decisions to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 1(12) provides that 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 WCB, is deemed to be the day of the accident. Subsection 27(1) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the injury.

Worker's Position

The worker was self-represented. He advised the panel that he does not believe that he has ever had asthma but rather that his asbestosis caused his medical problems including his cardiac condition and myocardial infarction in 2004. He said that his problems in 2001 which led to his early retirement that year were related to his asbestosis.

The worker acknowledged that the asbestosis had not been diagnosed until 2010. He said this was due to inappropriate testing. He noted the CT scan performed in 2002 differed from the 2010 scan which identified his asbestosis. He submitted that had the 2010 type scan been performed in 2001, it would have confirmed his asbestosis.

The worker indicated that he was seeking wage loss benefits from the date of his early retirement to age 65, and coverage for his cardiac condition.

With respect to the second issue, the worker submitted that the medications for his breathing were required due to his asbestosis and that he did not have asthma. He also said that his cardiac condition was due to his asbestosis, so that the cardiac medications were due to the asbestosis and should be covered by the WCB.

The worker described his work duties. He said there were no safety precautions at his worksites regarding the handling or exposure to asbestos.

Employer's Position

The Manager and Safety Co-ordinator attended the hearing on behalf of the employer. The manager provided information about the worker's duties and the projects that the worker was employed at. He also confirmed that the employer had employees who were exposed to asbestos. He referred to possible exposures to wood dust.

Analysis

Issue 1: Whether the worker is entitled to wage loss benefits?

For the worker's appeal to be successful, the panel must find that the worker's compensable asbestosis caused or contributed to his loss of earning capacity between March 31, 2001 the date he retired from his employment, and March 7, 2005, the date he reached 65 years of age.

The panel was not able to find that the worker's asbestosis caused or contributed to his loss of earning capacity during the noted period.

The worker' position was that he took early retirement in March 2001 due to the effects of his asbestosis. He acknowledged that the asbestosis had not been diagnosed until 2010 but said this was due to inappropriate testing. He said that if the type of CT scan that was performed in 2010 had been performed in 2001, it would have confirmed the existence of his asbestosis in 2001.

After consideration of all the evidence, we do not agree with the worker's position. We find that the worker's asbestosis was first diagnosed in 2010 by a CT scan and that the date of accident has properly been identified as February 2010 in accordance with subsection 1(12) of the Act.

Regarding the worker's assertion that he had asbestosis in 2001, the medical evidence does not support his position. In reaching this decision, we rely upon the March 6, 2003 report of the treating specialist. In this report the specialist noted that on March 3, 2003 he phoned the worker to obtain further occupational history. He noted that the worker advised him that he had worked with asbestos powder in 1967 while working in Saskatchewan. The specialist was aware of the worker's contact with asbestos but concluded that "I have not found any evidence of asbestos related pleural or pulmonary disease."

We also note that the treating specialist ordered a CT scan of the worker's chest which was performed on August 16, 2002. The CT scan did not identify any asbestos-related condition. As well an x-ray was performed on January 29, 2007 which noted "No acute pulmonary or pleural process is seen."

The worker's asbestosis is first seen on a CT scan in January 2010. In a February 2010 letter, the treating specialist wrote to the worker's family physician and advised that a CT scan of the worker's chest was ordered and indicates evidence of asbestos related pleural pulmonary disease. The treating specialist then wrote to the WCB and advised that the worker had a CT scan which indicates evidence of asbestos related pleural pulmonary disease.

The panel notes that for many occupational diseases such as asbestosis, there is often a long lag between exposure and the eventual appearance of symptoms or findings that show the first appearance of the condition. Subsection 1(12) confirms that the date of the accident should be established at that time, when the diagnosis or impairment is first established or when the loss of earning capacity can be established. While we acknowledge that the worker's exposure to asbestos took place many years before the diagnosis was identified, we are not able to find evidence that it caused him to retire in 2001.

We note that commencing in 2001, the worker had complaints related to his lung function, but find that these complaints have been attributed to the worker's asthma which was diagnosed by the treating specialist. At the hearing, the worker asserted that he does not have asthma as he had never suffered an asthma attack and that his lung condition was due to asbestos exposure. We do not accept this assertion based on the medical information on file and note that the worker's treating specialist has diagnosed the worker with and treated the worker for asthma. The worker's 2003 claim, which deals with his asthma, is not before the panel.

The worker's appeal of this issue is dismissed.

The worker advised that he suffered a heart attack in 2004. He attributes his exposure to asbestos for this condition. We note that no claim has been established for the worker's cardiac condition as a sequela to his exposure to asbestos. It is available for the worker to consult with the Worker Advisor Office or other advocacy service and/or to pursue such a claim. We are not able to address this issue.

Issue 2: Whether responsibility should be accepted for the worker's medications.

For the worker's appeal to be successful, the panel must find that the medications used by the worker are required as a consequence of his compensable asbestosis. We are not able to make this finding.

The evidence establishes, on a balance of probabilities, that the worker's medications are prescribed for his asthma condition and his cardiac condition. The evidence does not support his view that the medications are for treatment of his compensable asbestosis. In making this decision, the panel relies upon the following medical reports:

  • March 6, 2003 report of treating specialist notes an assessment of chronic asthma with some atopic features. This diagnosis was confirmed in a February 2010 report from the treating specialist.
  • August 8, 2011 opinion of the WCB medical advisor that the cardiovascular medications are related to the worker's history of myocardial infarction which took place in 2004.
  • September 19, 2011 opinion of a second WCB medical advisor that the respiratory medications are used to treat asthma and/or chronic obstructive pulmonary disease. The medical advisor noted that there has been no special treatment known to be effective in treating this asbestosis and that the noted drugs are related to asbestosis.

The panel notes that the worker was prescribed medications and puffers specific to asthma and as well the worker's evidence that these medications had been effective over the years.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of May, 2012

Back