The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") regarding his entitlement to the costs associated with supplemental oxygen after October 31, 2013 and an independent living allowance beyond December 2013. A hearing was held on February 11, 2016 to consider the worker's appeals.

Issue

Whether or not responsibility should be accepted for costs associated with supplemental oxygen after October 31, 2013; and

Whether or not the worker is entitled to an independent living allowance beyond December 2013.

Decision

That responsibility should not be accepted for costs associated with supplemental oxygen after October 31, 2013; and

That the worker is not entitled to an independent living allowance beyond December 2013.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB related to the development of pleural plaques secondary to asbestos exposure while working in the construction field.

In January 2007, a WCB rehabilitation specialist assessed the worker to determine whether he qualified for an independent living allowance ("ILA") given the nature of his respiratory condition. Based on this assessment, it was determined that the worker met the WCB's policy criteria for a "severely injured worker" and he was provided with an ILA which was reviewed annually and continued from 2007 to 2013.

In a memo to file dated October 3, 2007, the WCB rehabilitation specialist also noted that the worker was using oxygen intermittently for his breathing difficulties, and that the treating physician had advised that these difficulties were related to his past asbestos exposure. Based on the rehabilitation specialist's recommendation, costs associated with the worker's oxygen use were approved by the case manager.

In April 2013, the worker was seen at the WCB's offices for an assessment regarding entitlement to a Permanent Partial Impairment ("PPI") award. During the interview portion of the examination, the worker stated that he was becoming increasingly short of breath and that it was worse since the last examination at the WCB in 2008. The worker stated that he was able to walk around the house but used supplemental oxygen most of the time and at night.

On June 28, 2013, a WCB medical advisor reviewed the file and stated:

The degree of pulmonary impairment determined to date is not medically accounted for in relation to pleural plaque that has been identified on imaging studies. Rather, [the worker's] pulmonary impairment is accounted for on the basis of a restrictive lung disease. The basis of [the worker's] restrictive lung disease is unknown. In the absence of interstitial fibrosis on chest CT scans of April 27, 2005 and most recently February 22, 2010, the criteria has not been met to establish a probable diagnosis of asbestosis.

In a memo to file dated July 3, 2013, the WCB medical advisor who had seen the worker for the PPI assessment, having reviewed the results of pulmonary function studies performed on April 24, 2013 and having also reviewed the file with the WCB senior medical examiner, stated:

The current position of WCB Healthcare is that pleural plaques without asbestosis do not typically result in impairment of pulmonary function.

[The worker] has been diagnosed as having pleural plaques. None of the medical reports on file have referred to a diagnosis of asbestosis. Further to same, the criteria required to arrive at the later [sic] diagnosis include interstitial fibrosis on chest imaging studies.

The medical information on file does not substantiate the presence of asbestosis.

On this basis, there is no rateable PPI in regards to the pleural plaques and the pulmonary function studies cannot be explained on the basis of the presence of pleural plaque.

Following consultation with a further WCB medical advisor on August 7, 2013, the WCB confirmed to the worker by letter dated September 17, 2013 that it would no longer cover the costs associated with oxygen. The letter stated:

Your file was recently reviewed by a WCB Medical Consultant. Chest x-rays and chest CT scans have provided radiological evidence of benign bilateral pleural plaques and rounded atelectasis. Both of these conditions may be related to asbestos exposure, but are considered to be benign markers of asbestos exposure and do not result in significant pulmonary impairment. Chest CT scans have not demonstrated fibrotic changes in the lung tissues. The WCB Medical Consultant indicated the use of oxygen is unrelated to asbestos related benign pleural plaques.

As the use of oxygen is unrelated to your compensable injury, WCB is unable to continue covering the cost of the oxygen. We will cover the cost of the oxygen for the months of September and October 2013 inclusive and final.

On October 9, 2013, the worker's family physician stated that the worker had ongoing extensive calcified pleural plaques since 2007 from asbestos exposure at work. The last chest x-ray done on September 27, 2013 still showed the same "extensive calcified pleural plaques." The worker had chronic lung disease related to his work related asbestos exposure, was on home oxygen and needed to stay on it.

In a decision dated October 22, 2013, the worker was advised that the WCB was unable to continue covering his ILA expense. Based on the WCB medical advisor's comments dated August 7, 2013, the WCB stated: "As you do not meet the criteria for a severely injured worker because the need for oxygen is not related to your compensable condition, we are unable to continue covering the ILA. As such, the ILA will be covered until December 2013, inclusive and final."

On September 26, 2013, the worker appealed the WCB's decision that his use of oxygen was unrelated to his asbestos. The worker stated:

A chest x-ray done on August 21, 2012 states that "Extensive pleural thickening and calcification consistent with previous asbestos exposure is seen."

…I recently had a chest x-ray on September 11, 2013...The x-ray shows severe scarring and damage to my lungs. I am in need of and require oxygen 24 hours a day. I cannot be without extra oxygen. Asbestosis is the result of this pulmonary impairment and need.

Since my own doctor...and a WCB doctor have both confirmed in the past that I do indeed have asbestos, I disagree with your decision to cancel my funding. If in the past years WCB has agreed that I indeed do require oxygen because of asbestosis, I do not understand why or how you believe that I suddenly have no need for it...

The decision made regarding the cancellation of my oxygen funding is unfair.

In a decision dated November 20, 2013, Review Office confirmed that coverage should not be provided for costs associated with supplemental oxygen beyond October 31, 2013. Review Office accepted that the diagnosed condition in relation to the worker's employment exposure was bilateral benign pleural plaques, which was supported by clinical investigations and imaging studies. Although the worker had a demonstrated pulmonary impairment, which was confirmed through testing, the degree of pulmonary impairment, which required supplemental oxygen, was not medically accounted for in relation to pleural plaques. Therefore, the supplemental oxygen was not required in relation to the compensable condition.

On July 1, 2015, the worker appealed the WCB's decision to deny responsibility for an ILA beyond December 2013.

On September 3, 2015, Review Office confirmed that there was no entitlement to an ILA beyond December 2013. Review Office stated that the WCB medical opinions dated June 28, 2013 and July 3, 2013 were key to the worker's appeal. Without the presence of a medical diagnosis which would be substantial enough to cause his functional problems and be considered as related to his compensable injury, Review Office was unable to substantiate that any entitlement to an ILA existed within the scope of the policy in effect when the original decision was made.

Review Office concluded that based on the nature of his injury, his functionality and restrictions, the worker did not meet the classification of a "severely injured worker" under the WCB policy and was not entitled to an ILA beyond the initial six month period.

In October and December 2015, the worker appealed Review Office's decisions dated November 20, 2013 and September 3, 2015 to the Appeal Commission, and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations, and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 27(1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 27(20) of the Act provides that the WCB may make expenditures to provide academic or vocational training, or rehabilitative or other assistance to a worker, including expenditures for assistance in the activities of daily living where, as a result of an accident, the worker requires such assistance.

Worker's Position

The worker was self-represented, and was assisted at the hearing by his son and daughter-in-law.

The worker's position was that his need for supplemental oxygen and his need for an ILA are related to his exposure to asbestos in the workplace. He said that he was definitely exposed to asbestos in 1966, and specifically referred to two major projects which he worked on at that time. He noted that they did not know then what asbestos could do. No precautions were taken, and no training or protection was provided to the workers.

It was submitted that x-ray and CT scan reports over the years, including two x-ray reports from 2015 which the worker submitted in advance of the hearing, have always said that his condition is asbestos-related or consistent with asbestos exposure. It was submitted that it just seems to be a play on words here all the time, with this reference to asbestosis and pleural plaques. The facts are that he has been exposed to asbestos, has a lung capacity of 10% or next to nothing, and requires oxygen.

It was submitted that the WCB was satisfied at one point that he should be paid for the cost of his oxygen and should be provided with an ILA. They seemed to be happy with the doctors' reports then. They paid for oxygen and the ILA for several years. Then suddenly, in 2013, they cut him off.

The worker stated that his lungs have become worse as he gets older and the amount of oxygen he uses has increased. He now requires oxygen 24/7.

In conclusion, the worker said that he needs help. He was told by the WCB that he should definitely have oxygen and an ILA. He had them for a while, then they were taken away. He was only asking for what he used to get, nothing more.

Analysis

Issue 1: Whether or not responsibility should be accepted for costs associated with supplemental oxygen after October 31, 2013.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker's shortness of breath and need for supplemental oxygen after October 2013 were causally related to his compensable injury. The panel is unable to make that finding.

The panel does not question that the worker was exposed to asbestos. The issue is whether there is a causal relationship between the worker's breathing problems and the injury he sustained as a result of that exposure.

It is the panel's understanding that asbestos exposure can lead to a number of different conditions, including pleural plaques, asbestosis, and mesothelioma, each of which can have its own symptoms. The panel has carefully reviewed the medical reports on file, and determined that pleural plaques is the only condition which has been consistently identified as applying to the worker. Based on our review of the medical information on file, we are satisfied that the worker's compensable diagnosis is pleural plaques.

The question here turns to whether this particular condition would give rise to the need for supplemental oxygen.

The panel understands that a condition of pleural plaques (as distinguished from asbestosis) generally does not result in reduced lung function or shortness of breath. In this regard, the panel notes that the worker's file was reviewed by four different WCB medical advisors between June and August, 2013, all of whom concluded that the worker's pulmonary impairment was not medically accounted for based on the pulmonary plaque which had been identified on imaging studies. It was further stated that the medical information on file did not substantiate or meet the criteria for the presence of asbestosis. The panel places great weight on these reports and the opinions of these four WCB medical advisors.

The panel refers in particular to the August 7, 2013 opinion by a WCB medical advisor which specifically addressed the need for oxygen in relation to the compensable injury. The WCB medical advisor stated that the x-rays and CT scans had provided evidence of "benign bilateral pleural plaques and rounded atelectasis", both of which "may be related to asbestos exposure, but are considered to be benign markers of asbestos exposure and do not result in significant pulmonary impairment." The medical advisor went on to conclude that "the use of oxygen is unrelated to asbestos related benign pleural plaques."

The panel also reviewed and considered the two x-ray reports which the worker filed, dated September 15, 2015 and October 29, 2015, respectively. The panel notes, and the worker agreed at the hearing, that the contents of these reports are much the same as what was contained in earlier x-ray reports that were on file. The September report states that there is "Extensive pleural calcification consistent with asbestos exposure again noted." The October report concludes: "Extensive asbestos related pleural disease. No evidence of an acute process."

The panel recognizes that the worker has significant ongoing breathing problems. In light of the medical information currently on file, however, we are unable to find that the worker's breathing difficulties and use of oxygen are related to his exposure to asbestos or his compensable injury. The panel therefore finds, on a balance of probabilities, that the evidence establishes that the worker's ongoing breathing difficulties and need for oxygen are not causally related to his compensable injury.

Accordingly, the panel finds that responsibility should not be accepted for costs associated with supplemental oxygen after October 31, 2013.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to an independent living allowance beyond December 2013.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker was entitled to an ILA beyond December 2013 as a result of his compensable injury. The panel is unable to make that finding.

The panel notes that the worker was originally found to qualify for an ILA based on his shortness of breath or breathing problems. The panel has already found in response to Issue 1 above that the evidence establishes that the worker's ongoing breathing difficulties are not causally related to his compensable injury. That same finding would apply in response to this issue.

The panel notes that when the worker was asked in the course of the hearing whether he was of the view that a finding with respect to the worker's breathing difficulties would also be an answer with respect to Issue 2 regarding the ILA, the answer was yes.

In light of the foregoing, and having identified no other basis upon which the worker would be entitled to an ILA, the panel finds, on a balance of probabilities, that the worker is not entitled to an independent living allowance beyond December 2013.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer

Signed at Winnipeg this 7th day of April, 2016