NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: [X] Form of Appeal: Oral hearing at Stellarton, NS, on January 19, 2010 WCB Claim No.(s): [X] Date of Decision: January 29, 2010 Decision: The appeal of the June 11, 2009 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner Sandy MacIntosh.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: In 2008, the Worker filed a claim for an occupational disease due to environmental exposures. On March 17, 2009, a Board Adjudicator found that the Worker had an acceptable claim for Industrial Bronchitis. She accepted that the Worker was exposed to industrial irritants from 1978 until However, she also found that impairment was caused by a combination of occupational exposures and smoking. She accepted an opinion from Dr. Michael, pulmonary medicine specialist, that the Worker had a 30 percent permanent impairment under the AMA Guides. She accepted Dr. Michael s opinion that the smoking was responsible for a 15% permanent impairment. She awarded the Worker a 15% permanent impairment benefit effective March 8, On June 11, 2009, a Hearing Officer confirmed the Adjudicator s decision. The Hearing Officer found that the Adjudicator was correct to apportion the permanent medical impairment rating by 50% due to the smoking. This decision addresses the Worker s appeal of the Hearing Officer decision. The Worker s representative argues that the Board decision fails to refer to the apportionment policy (3.9.11R1). As such, he argues that the decisions are in violation of s. 186 of the Workers Compensation Act. He argues that the evidence does not support the duration or amount of smoking as relied upon by Dr. Michael in his opinion. He argues that there is no evidence to support a finding of major under the policy. He notes that Dr. Michael s rated a different worker with a major contribution in Decision AD (March 9, 2009), who had a much heavier smoking history. He argues that an apportionment opinion must be based on sufficient evidence, it cannot just be a guess (Decision AD (March 9, 2009). ISSUE AND OUTCOME: Did the Board properly attribute a 15% permanent medical impairment to smoking? Yes. The decision accords with the evidence and the proper application of the apportionment policy. This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 ANALYSIS: Key Evidence The Worker s spouse testified that they have been married for 35 years. She testified that he was about 19 years old when he started smoking. She testified that she was the heavy smoker in the family, not him. She testified that he quit smoking several times over the years. She testified that most of the time he only smoked 4 to 5 cigarettes a day. He would smoke a lot more at parties, but they rarely went to parties. She testified that she attended Dr. Michael s appointments with the Worker. She told Dr. Michael how often they purchased a package of cigarettes. However, she is the one who smokes most of them. She testified that his smoking has decreased over the few years as the Worker has been sleeping all of the time. Due to this sleeping and his shortness of breath, she talked him into seeing a doctor. The Worker testified that he worked for the Employer from 1978 until March 12, He testified that the chemicals and silica that he worked around were dense enough to be visible in the air. They did not have masks for years, and he did not wear one when they brought them in. He noticed shortness of breath about six years ago. He testified that he started smoking after he left home, around age 18 or 19. He did not smoke much at first. He testified that, on average, he smoked about 8 cigarettes a day, including one or two in the morning. He testified that he is down to about 6 a day. During closing submissions, the Worker interjected that he used to bring 10 cigarettes with him to work, but usually only smoked six of them at work. On March 8, 2008, Shirley Druhan, respiratory therapist, wrote that the Worker had a 25 year smoking history and a mild obstructive lung deficit. On March 26, 2008, the Worker filled out his occupational disease form. He indicated that he was a smoker, but did not fill out the parts of the form where he was to describe his smoking history. On April 14, 2008, the Adjudicator wrote that the Worker told her that he only smokes when he is stressed, and that he had been stressed quite often lately. On April 25, 2008, Dr. Michael, pulmonary disease specialist, examined the Worker. He wrote that the Worker had been involved in making moulds for steel products for 30 years and had been exposed to significant amounts of silica sand. He wrote that the Worker has been a smoker of about one pack of cigarettes every 1 ½ - 2 days since a young boy. He indicated that pulmonary studies were consistent with obstructive lung disease. He directed further investigations. On May 23, 2008, Don Meagher, respiratory therapist, performed a methacholine

4 4 challenge on the Worker. He wrote that the Worker did not have a smoking history. On June 3, 2008, Dr. Michael stated that a current CT scan revealed no evidence of silicosis at this time. He stated that the methacholine challenge was positive, a finding consistent with bronchitis. He stated that the Worker has a significant smoking history, but his workplace exposures were significant as well. He felt that the Worker should apply for WCB benefits. On September 22, 2008, Dr. Forbes, the Worker s family physician, referred the Worker to Dr. Patil for various muscular-skeletal complaints. He noted that the Worker has ongoing respiratory symptoms and unfortunately he smokes. In the fall of 2008, Dr. Acres, Board physician, reviewed the Worker s claim file. He noted that the Worker s occupational exposure history was scanty, the smoking history significant and the lungs minimally abnormal. He recommended a getting an opinion from a second pulmonary disease specialist. He also recommended investigating whether other employees of the same workplace had accepted lung claims. On October 30, 2008, the Adjudicator called the Worker who informed her that there were three other worker with accepted respiratory claims. The Worker told her he would not go to another specialist, instead he would go to the press. On February 12, 2009, Mary Ann Forsyth, respiratory therapist, wrote that the Worker had a 35 year smoking history. On February 12, 2009, Dr. Michael examined the Worker. He wrote that the Worker continues to smoke 4-5 cigarettes per day. He indicated that while the Worker has nodules in his lungs, the diagnostic testing does not reveal silicosis. He reviewed the Worker s records to recommend a permanent medical impairment rating. He noted that the PFT from 2008 revealed a greater impairment than that in February 2009, but he recommended basing the Worker s impairment on the 2008 results. Dr. Michael stated that there was evidence of occupational lung disease. The Worker had a component of asthmatic bronchitis. The Worker s smoking habit contributed to the impairment. He indicated that the Worker has a 30% permanent impairment under the AMA Guides. He wrote that the smoking was responsible for a permanent impairment of 15%. He therefore recommended rating the Worker with a compensable 15% permanent medical impairment. On March 30, 2009, R.B., the Employer s Plant Engineer and Human Resources Manager, wrote that at work it was well known that he [the Worker] was a heavy smoker. At the hearing, the Worker filed a December 10, 2009, CT scan. The radiologist indicated

5 5 that there were some findings which could reflect very mild silicosis. Application of law to key evidence I agree with the Worker s representative in so far as he argues that s. 186 of the Workers Compensation Act requires all Board decisions to follow Board policy. However, it is not necessary for all decisions to specifically reference the policies that are applying - s. 186 merely requires that the decisions be in accordance with the rules. In many cases it is appropriate to avoid excessive discussions of policy as that can lead to decisions that are overly legalistic. Under policy R2, the Board is directed to investigate then make a determination regarding apportionment. The policy directs that where a permanent impairment is due in part due to non-compensable reasons, the Board first determines a worker s global permanent impairment, then assigns a permanent impairment rating from the noncompensable factor and subtracts it from the global rating. Where this is not possible, a second method is used, involving assigning the non-compensable factor a category of minor, major, or severe. In this case, the primary method was used - Dr. Michael assessed the Worker s global impairment (30%), assessed the impairment from smoking (15%) then subtracted the 15% from the 30% to get the 15% rating for workplace exposures. On the face of it, the use of Dr. Michael s opinion in determining apportionment is in compliance with policy R1. Where the primary method is used, the secondary method of assigning smoking a category of minor, major or severe is not used. This brings me to an assessment as to whether there is a sufficient evidence base for Dr. Michael s opinion that smoking resulted in a 15% permanent medical impairment. His opinion appears based on his understanding that the Worker smoked about one pack of cigarettes every 1 ½ to 2 days since he was a young boy. Assessing smoking history can be difficult. Clearly, as the Worker is still smoking with his respiratory impairment, he has an addiction. At the hearing, the Worker had an observable nicotine stain on his finger. I am uncertain as to the intensity of smoking habit required to cause such staining. There is a lot of conflicting evidence regarding the Worker s smoking history. It appears that he has given different histories at different times. Before me he testified that he used to smoke about 8 cigarettes a day, but he is now down to about 6 a day. Eight a day is about a pack every three days. He testified that of the 8 he used to smoke, 6 were at work, while 1 to 2 were in the morning before work. To accept that he was only smoking 8 a day, I would have to accept that he smoked none in the

6 6 evening. I do not accept that. Interestingly enough, the Worker s spouse testified that he only smoked 4 to 5 cigarettes a day on average. In addition to the Worker s smoking habit, the Worker s spouse has testified that she was a heavier smoker than the Worker. It appears that the Worker had significant exposure to second hand smoke. Also, I note that the Employer has indicated that the Worker was known as a heavy smoker. On the Worker s evidence, he has a 38 year smoking history. Dr. Michael s opinion was based on it being a couple of years longer. I am not convinced that this difference would be material to his opinion. Overall, I find it more likely than not that the Worker s smoking history was not materially different than as it was understood by Dr. Michael when he gave his opinion. I accept his opinion that smoking likely resulted in a 15% permanent medical impairment. On application of policy R1, I find that the Worker has been properly found to have a 15% permanent medical impairment rating for occupational exposures. I note that the most current CT scan does provide some evidence of very mild silicosis. This does not impact apportionment as global impairment is rated on pulmonary function testing, not diagnosis. However, it may impact some compensation issues in the future. CONCLUSION: The appeal is denied. After apportionment, the Board properly assessed the Worker with a 15% permanent medical impairment. th DATED AT HALIFAX, NOVA SCOTIA, THIS 29 DAY OF JANUARY, Sandy MacIntosh Appeal Commissioner

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