SUMMARY DECISION NO. 1970/99

Transcription

1 SUMMARY DECISION NO. 1970/99 Exposure (dust); Asbestosis; Chronic obstructive lung disease; Permanent impairment [NEL] (degree of impairment) (respiratory impairment); Apportionment (non-economic loss). An iron worker appealed a decision of the Appeals Officer denying a NEL award for permanent impairment resulting from asbestos exposure. The Board granted entitlement for health care benefits resulting from asbestos exposure. The Panel found that there was more than one cause of the worker's condition. The worker was a smoker. He was exposed to dust. He was exposed to asbestos with resulting asbestosis. The Panel was satisfied that the worker had a permanent impairment and that all three of the above factors were important causes of the worker's condition. The Panel assessed the worker's impairment at 60% within class 4 of the AMA Guides for respiratory impairment. The compensable dust exposure and asbestos exposure and the non-compensable smoking were all equally significant factors. The Panel concluded that the worker was entitled to a 40% NEL award being two-thirds of the total impairment. The appeal was allowed. [9 pages] DECIDED BY: Josefo; Tzaferis; Howes DATE: 16/12/99 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: Decision No. 859/89 (1990), 16 W.C.A.T.R. 159 consd; Decision No. 47/91 consd CASES CONSIDERED: Laferrière v. Lawson (1991), 78 D.L.R. (4th) 609 (S.C.C.) refd to

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1970/99 [1] This appeal was heard in Toronto on November 8, 1999 by a Tribunal Panel consisting of : J. Josefo : Vice-Chair, G.K. Howes : Member representative of employers, M. Tzaferis : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Mr. B. Romano, Appeals Officer, dated December 3, That decision concluded that the worker does not have entitlement to a permanent impairment award resulting from asbestos exposure. [3] The worker appeared and was represented by Ms. N. Carlan of the Building Trades Workers Services Union. The accident employers were notified, but chose not to attend or participate in this appeal. THE EVIDENCE [4] The Panel marked the following material as exhibits: the Case Record prepared by the Tribunal Counsel Office, ( TCO ), Exhibit #1, TCO Addendum No.1, Exhibit #2, TCO Addendum No.2, Exhibit #3, TCO Addendum No.3, Exhibit #4, Various letters under cover of TCO correspondence dated September 30, 1999, Exhibit #5, Various medical reports and other correspondence under cover of letter from the worker s representative dated October 22, 1999, Exhibit #6, Appeals Officer s Decision, omitted from the first exhibit, Exhibit #7. [5] The Panel also heard oral evidence from the worker. Submissions were made by Ms. Carlan on his behalf. THE ISSUES [6] The key issue to determine is whether the worker has entitlement for a permanent impairment award resulting from his asbestos exposure. If the Panel concludes that the worker has such exposure and resulting entitlement, Ms. Carlan has asked us to determine, given the amount of time which has

3 Page: 2 Decision No. 1970/99 elapsed and other factors, the degree of impairment of the worker, and the percentage of that impairment which is compensable. [7] The Appeals Officer described the factual background in this matter as follows: The worker was employed as an iron worker since 1970, and noted shortness of breath on exertion sometime in Since there was radiological evidence of asbestos exposure in his lungs, entitlement was allowed for health care benefits only, for an asbestos related condition. No permanent impairment was seen resulting from the asbestos exposure. This is the issue now before me for determination. [8] After a review of the evidence, including findings of the Board s medical consultant, the Appeals Officer concluded as follows: I find the evidence has not shown there is evidence of any pulmonary fibrosis of asbestos and accept the opinion of the Board s chest disease consultant that the worker s respiratory symptoms are not due to respiratory problems caused by asbestos. [9] The worker appeals to the Tribunal. THE REASONS (i) Testimony and submissions [10] The worker testified regarding both his work history as well as regarding his smoking history. He admitted, candidly, that he had been a smoker of about a pack a day of cigarettes for 28 years. He stopped smoking several times in the early 1990 s, and has not purchased a pack of cigarettes for at least 5 years. He does, however, still smoke on occasion. The last time before the hearing was two weeks ago. He stated that he has tried to quit completely for years, but still on rare occasions has a cigarette. [11] Regarding his employment history, the worker performed scaffolding work in England as well as in Canada after arriving here in He initially belonged to the carpenter s union and then, within a few months of coming to Canada, joined the ironworkers union. His work consisted of various tasks on large construction or retrofit projects which involved ironwork, or clean-up duties. He put up false ceilings, and used scaffolding to do so. He participated in gutting work, which included cleaning out from pipes and ceilings the old insulation, which as he stated, contained asbestos. He on a number of occasions found what he described as rotting asbestos, coming apart in his bare hands when he attempted to remove it. [12] Similarly, when performing construction work, the worker would be involved in a project right after the insulating asbestos materials had been sprayed on the ceiling and wall panels. While this was still exposed the worker would be removing garbage and other items, and dismantling his scaffolding. [13] For over 20 years the worker performed the heavy work of steel construction, working in what he described were conditions so dusty, he could barely see his hand in front of his face. The only way to cut the dust in his throat was to consume a cola drink, as nothing else was sharp enough to cut the dust.

4 Page: 3 Decision No. 1970/99 [14] At that time no one knew to wear masks, and the worker did not wear one. Thus, he breathed in the asbestos and other materials, including dust, to which he was exposed for the 20 plus years he performed construction. [15] After 1990, however, the worker noted that he was having difficulty breathing. This progressed and he ceased work in Since then the worker s health has, as he described, deteriorated. He has been hospitalized for breathing and heart problems on various occasions over the last few years, and is followed by cardiologists as well as respirologists. [16] The worker acknowledged receipt of $29, for a subrogated class action, commenced in the State of Texas, with respect to asbestos exposure. As the Board noted, as a settlement was made, the defendants in that litigation made no admission of liability. [17] Ms. Carlan submitted the issue was that of causation. What cause, or causes, has led to the worker s respiratory distress? She admitted that the fact the worker was a smoker was a contributing factor. She also submitted that the worker s over 20 year exposure to dust as well as to asbestos were also contributing factors, and were thus compensable. It was Ms. Carlan s submission that the worker has in fact these 3 sources of his difficulties: Obstructive lung disease caused equally by: 1. smoking, 2. long-term dust exposure, and Restrictive lung disease caused by: 3. asbestosis. [18] Thus, it was submitted that these multiple causes have jointly led to the worker s condition, which Ms. Carlan submits has led to the worker suffering a 70% total disability. The two compensable factors, asbestosis and dust exposure, are responsible for a significant part of the worker s condition. (ii) Discussion of the Medical Evidence [19] The Panel reviewed the medical evidence with Ms. Carlan. As noted by the Appeals Officer, radiological evidence of asbestos exposure in the lungs justified entitlement for health care benefits, though the asbestos condition was not seen as causing a permanent impairment. There is no dispute, however, that the worker had exposure to asbestos sufficient to justify entitlement, at least to health care benefits. [20] The Board s medical consultants have considered the worker s condition over the years. In his report to Claims of June 8, 1992, Dr. P. Carr concluded as follows: This worker does have evidence of asbestos exposure in the way of bilateral pleural plaques seen on the CT scan. I would agree with Claims, that there would not appear to be any evidence of a permanent impairment, however, due to asbestos exposure. This worker does, however, only have a 46% diffusing capacity and I do not think we can say

5 Page: 4 Decision No. 1970/99 for sure that this is related solely to his emphysema. I am, therefore, going to refer this file to Dr. Woolf. [21] Dr. Woolf, a Chest Disease Consultant, reported to Dr. Carr on June 15, 1992 as follows: There are pleural plaques due to asbestos exposure but these are not causing significant restriction. Emphysema is due to cigarette smoking causing obstruction to airflow and low diffusing capacity. In the absence of any evidence of pulmonary fibrosis on the CT scan, it is very unlikely that the low diffusing capacity is due to asbestosis of the lungs. It is unlikely that this man s respiratory symptoms are due to respiratory problems due to exposure to asbestos. [22] Yet, several other specialists in respiratory conditions also followed the worker. Dr. David C.F. Muir reported to Dr. Wong, another of the worker s treating physicians, as follows on July 13, 1992 after examining the worker, reviewing his x-rays, and reviewing his work and smoking consumption history: The question of compensation is complex here. Clearly his main disorder is obstructive airways disease with emphysema. However as you well know there is increasing evidence that pleural thickening, even relatively small amounts, does result in some reduction in spirometric values. [The worker] represents a case where I think there would be a case for some form of partial compensation in the sense that a proportion of his obstructive airways disease can be attributed to asbestos effects even though the dominant cause is cigarette smoking. However I have been totally unsuccessful in persuading anybody that proportional compensation has any merits (emphasis added). [23] Thus, even in 1992, Dr. Carr for the Board was uncertain if the worker s asbestos exposure was compensable, though he deferred to Dr. Woolf; and Dr. Muir believed that some type of proportional compensation would be justified, for reasons noted above. [24] In a report of September 9, 1993 Dr. Jaan O. Roos, a specialist in respiratory diseases, examined the worker to determine if he were disabled from employment in his own occupation or totally disabled from any employment. The report was to the worker s union for pension purposes. After reviewing the previous diagnoses for the worker, which he noted included asbestosis bilaterally in the inferior lung fields and smoking-induced emphysema, the doctor interpreted the findings as follows: I think that [the worker] has functionally severe, largely irreversible obstructive disease, most probably emphysema, as well as functionally mild restrictive interstitial disease which is consistent with pulmonary parenchymal asbestosis. He also has pleural thickening consistent with long-term asbestos dust inhalation, which in itself is not likely to have affected function. Although the respiratory functional limitation is largely obstructive in nature, I suspect that a restrictive element also exists and that this has prevented him from developing hyperinflation. It is uncertain to what degree such a combination might affect symptoms, but is likely to be significant and may be cumulative. The pattern has been seen from time to time in other workers with similar diagnoses. [He] is totally disabled from all work. [25] Dr. Woolf reviewed Dr. Muir s report as well as reports from Dr. Wong, which will be discussed below. Dr. Woolf did not change his conclusions previously noted following his review of these differing conclusions. Dr. Roland Wong in his report of January 8, 1993 was affiliated with the Occupational Health clinics for Ontario Workers Inc. Following a review of the worker s pulmonary function tests,

6 Page: 5 Decision No. 1970/99 he requests a reassessment by the Board in view of the worker s deterioration. By the date of his January 27, 1994 report, the doctor was now in private practice. He stated in this report: there is presence of plaque which is consistent with his asbestos exposure in the past. [26] Dr. Deborah Hellyer of the Occupational Health Clinics for Ontario Workers Inc, in her March 10, 1999 report concluded: In summary [the worker] has known asbestos exposure with the development of pleural related asbestos changes. The question of associated asbestosis has not been settled and I would request that the copy of the 1996 CT scan be obtained. [27] On March 17, 1999 Dr. Hellyer writes: Thank you for sending the copy of the CAT scan dated December 17, This indicates the presence of diffuse thickening of the interstitial markings bilaterally predominantly in the mid and lower lungs in addition to the calcified pleural plaques. This confirms the presence of asbestosis. He has the exposure to asbestos and now the interstitial changes confirmed on the CAT scan. [28] It appears that Dr. Woolf did not see this CAT scan. He also did not see the opinion of Dr. Hellyer. [29] As part of his subrogated claim in the United States the worker s records were also examined by a respiratory specialist, chosen or at least concurred in by the Board, in West Virginia. Dr. D. Gaziano opined as follows: It is my opinion that [the worker] has chronic obstructive pulmonary disease and diffuse pleural thickening, both of which are contributing to his moderately severe pulmonary functional impairment. [30] Again, it appears that Dr. Woolf did not see this opinion, as he does not comment on it. Thus, the Panel gives more weight to the opinions cited above, and less weight to Dr. Woolf s opinions, the last of which is dated in 1994, and prior to the latest CAT scan. [31] The Panel accordingly concludes that the weight of medical evidence favours the finding that there can be, as indeed there was in this case, more than one cause of the worker s condition. No doubt that his use of tobacco was an important cause. Indeed, the worker does not dispute that. But, as was opined, that does not explain the whole picture. Moreover, as the asbestos condition progressed, the more recent CAT scan as noted by Dr. Hellyer confirmed the presence of asbestosis. This follows the much earlier opinions of Drs. Muir and Roos, who both concluded that there was likely more than one cause to the worker s condition. (iii) The Dust Exposure [32] The Panel accepts the worker s evidence that he was exposed to much industrial dust, including friable asbestos materials. What, then is the significance of the dust exposure? Tribunal Decision No. 859/89 discusses this issue in the context of a lung condition. That Panel relied upon the expertise of Dr. Holness, whose conclusions the Panel summarized as follows:

7 Page: 6 Decision No. 1970/99 Dr. Holness advised the Panel that none of the studies that she had reviewed tried to distinguish different kinds of dust when conducting their analysis. In her words, dust is dust and the literature did not generally distinguish between the different kinds of dust. [33] Later, at page 15 of the decision after reviewing the importance of dust exposure as a causative factor and difficulty of obtaining a definitive picture regarding this, the Panel again quoted Dr. Holness as follows: This worker had several factors which may have contributed to his risk for the development of COLD [chronic occupational lung disease] including his age, smoking history, sex and work place exposure to dusts and fumes. Studies which have examined workplace exposure to dust and fume and smoking and the risk of COLD or abnormal FEV1 results suggest that smoking is the likely greater risk factor, however, dust exposure may increase the level of abnormality and the added decrement may be clinically important. I think in this instance it is reasonable to conclude that both smoking and occupational exposure to dust and fumes contributed to the development of COLD. [34] That Panel concluded: This disease however has multiple causes and symptoms. This worker was exposed to multiple irritants both in and away from the work place. He chose to smoke and that contributed to his ill health. Like other illnesses which have multiple causes, it is necessary to weigh the work factors in the equation. For example this weighing process is the norm in cases of asymptomatic degenerative processes. In our view the dust exposure contributed in a significant way, [to] this worker problems [35] That Panel also, because of the length of time that case had taken, determined the level of benefits to be paid. The worker s representative in the matter before us has urged us to do the same. [36] Also, regarding the issue of dust exposure, we were referred to an article entitled, Occupational dust exposure and chronic obstructive pulmonary disease. A systematic overview of the evidence. This was authored by Drs. Oxman, Muir, Shannon, Stock, et al. Amongst the notable conclusions, the authors found that dust exposure was equally important as a causative factor of respiratory problems for non-smokers as it was for smokers, and that overall, occupational dust is an important cause of COLD. [37] A subsequent Tribunal Decision No. 47/91, concurred in the analysis regarding dust exposure. [38] We have considered all the evidence on this issue, as well as the emerging medical literature. This Panel agrees that, while the matter is not yet absolutely settled, occupational dust exposure is likely an important causative factor for COLD. We find that the worker in the appeal before us was so exposed, and this has contributed to his overall respiratory condition. (iv) Apportionment [39] Also as noted in Tribunal Decision No. 47/91, apportionment is often the question. In that decision, which involved certain similar facts to the matter before us, the Panel noted the Supreme Court of Canada s decision in Laferriere V. Lawson. This decision notes, scientific findings are not identical to legal findings, and urges decision makers to accept proof as to the causal link on the balance of

8 Page: 7 Decision No. 1970/99 probabilities taking into all the evidence which is before it, factual, statistical and that which the judge is entitled to presume. [40] The Panel also notes the March 24, 1999 follow-up report of Dr. Hellyer, wherein she notes, The percentage of impairment related to each condition would be difficult to assess. [41] Accordingly, it appears to the Panel that little would be served by sending this matter back to the Board for a decision, when in these somewhat unusual circumstances they are unlikely to be in any better position than is the Panel to determine apportionment and benefits. The worker, however, would be worse off if he were obliged to encounter such additional delay in finally resolving this matter. Thus, the Panel will determine the entitlement of the worker, as follows, referring to Chapter 5 (The Respiratory System) of the AMA guidelines for Evaluation of Permanent Impairment for assistance. [42] We consider that the totality of the evidence is compelling that the worker has, due to his respiratory problems, a severe impairment of the whole person. We are guided to this conclusion in part by Dr. Roos report aforesaid, as well as by the other medical evidence and the testimony of the worker. This class 4 level of impairment would attract a range of from %. In the example provided in the guidelines, the worker is older then the appellant before us, had worked for a longer period of time (40 years) in the industry wherein he was exposed to the various toxic substances and smoked for a few more years. That worker received a notional 70% impairment rating. [43] In this matter, the worker is not entitled to a 70% overall impairment rating. He worked in the industry for fewer years (22) then in the example noted above, smoked a little less and was somewhat younger. The Panel thus determines his overall impairment rating due to his respiratory problems, not including his prior conditions for which he receives a permanent disability pension from the Board, at 60%. [44] We conclude, as noted above, that of the three factors contributing to the worker s respiratory condition, the asbestos exposure and the resultant asbestosis which we find he developed, and the exposure to dust are both equally significant factors. These two factors are also compensable. The third factor, cigarette smoking, is we find a factor equal in significance to the other two. It is not however a compensable one. [45] Thus, as the worker has two-thirds of the compensable factors causing a 60% disability, he is entitled to a finding of a permanent impairment award of 40% due to his respiratory problems. We accordingly find that the worker is entitled to a 40% non-economic Loss ( NEL ) award for his respiratory condition. [46] The worker is also entitled to now receive his health care benefits related to respiratory treatment retroactive until December 1, 1996 (the date of the CAT scan) and continuing, as we have determined he is suffering from asbestosis amongst other respiratory conditions.

9 Page: 8 Decision No. 1970/99 THE DECISION [47] The appeal is allowed. For the reasons detailed above, the worker is awarded a 40% NEL for his respiratory condition, in addition to all benefits he currently receives from the Board. We concur that no further benefits are payable towards this NEL award until the amount of the subrogated settlement amount paid to the worker ($29,228.33) has been used up, pursuant to the Board s memo of November 16, 1998 in this regard. [48] The worker is also entitled to health care benefits related to respiratory treatment retroactive to December 1, 1996 and continuing. DATED: December 16, 1999 SIGNED: J. Josefo, G.K. Howes, M. Tzaferis