NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

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1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim No.(s): [X] Oral Hearing, November 9, 2009, Halifax, NS [X] Date of Decision: January 19, 2010 Decision: The appeal of the 0February 26, 2009 Board Hearing Officer decision is allowed in part, according to the reasons of Appeal Commissioner David Pearson.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker filed an occupational disease claim form with the Board in He sought compensation for lung disease which he related to occupational exposure to asbestos. The Worker underwent investigations to determine the extent of disease. On the basis of those assessments, the Board assessed the Worker with a 30 percent lung impairment, effective November 22, 2007, the date of his pulmonary testing. The impairment rating was based on a recommendation from Dr. Michael. The Worker appealed this decision to a Hearing Officer, seeking an earlier effective date. The Hearing Officer issued a decision in which Dr. Michael was asked to provide another opinion addressing the degree of impairment due to asbestos exposure, as opposed to that related to smoking. Dr. Michael provided a subsequent report in which confirmed the global 30 percent rating, but indicated that 20 percent of that rating pertained to impairment caused by non-occupational factors including smoking. He said that only 10 percent of the Worker s 30 percent global lung impairment pertained to his occupational asbestos exposure. Following receipt of Dr. Michael s second report, the Adjudicator issued a new decision on December 4, 2008, in which the 30 percent impairment was maintained. On appeal, the Hearing Officer reduced the compensable impairment rating to 10 percent, accepting Dr. Michael s second opinion. The Hearing Officer also confirmed the benefit calculation as well as the effective date of the award. The Worker appealed the Hearing Officer s decision to the Tribunal. The Tribunal appeal proceeded by oral hearing in Halifax on November 9, In advance of the hearing, the Worker s Adviser provided additional medical evidence in the form of an April 20, 2009 medical-legal report from Dr. Graeme Rocker, together with the Worker s Adviser s letter of request. The Worker testified at the hearing. His representative provided oral submissions. I wrote the Board post-hearing to allow it to address an argument raised by the Worker s Adviser at the hearing. I received submissions from the Board on November 19, The Worker s Adviser provided submissions in reply on November 30, ISSUES AND OUTCOME: This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 1. Did the Hearing Officer have jurisdiction to address the adequacy of the Worker s PMI rating? (a) if the answer to question 1 is yes, is the Worker entitled to a higher PMI rating than 10 percent for his asbestos-related lung impairment? Yes, the Hearing Officer had jurisdiction to address the PMI rating issue. On the merits, the Worker is not entitled to a higher PMI rating for respiratory impairment than 10 percent. 2. Is the Worker entitled to an earlier effective date for his lung impairment? Yes, the effective date should be back-dated to July 26, Should the Worker s overpayment be recovered? No, the overpayment should not be recovered, now, or in future. ANALYSIS: The Workers Compensation Act, S.N.S , c.10, as amended (the Act ) applies to this appeal. Section 187 of the Act requires me to give the Worker the benefit of the doubt, which means that if the disputed possibilities are evenly balanced on an issue of compensation, then the issue will be resolved in the Worker s favour. PMI Rating The PMI issue in this appeal is unique. The Worker s Adviser says that the Hearing Officer had no jurisdiction to address the correctness of the 30 percent PMI rating, as the Worker did not raise it in his Notice of Appeal to the Hearing Officer. He said that the Worker effectively narrowed the issues the Hearing Officer had jurisdiction to deal with by specifying that he only wanted to contest issues relating to the effective date and earnings basis of the award. The Adviser said that because no other participant raised the PMI issue on appeal, the Hearing Officer had no authority to address it on appeal. The Workers Adviser seeks the restoration of the 30 percent PMI rating, or, in the alternative, a rating between 10 and 30 percent, based on the opinion of Dr. Rocker. The Board responded to the invitation for submissions. It said that the question came down to the real merits and justice of a particular case, coupled with the Board s authority

4 4 to pay compensation only in respect of workplace injuries. The Board cited Tribunal Decision AD (July 29, NSWCAT) for the authority that compensation cannot be paid other than in accordance with the Act, policies and regulations. In that case, a worker was provided compensation for an osteoarthritic condition on the basis that it was thought to relate to a compensable injury, when later evidence attributed the osteoarthritis to a non-compensable injury. The Board terminated the benefit on the basis of the new evidence, after giving the Worker notice of its intention. The Board did not attempt to recover the overpayment resulting from 20 years of compensation previously paid. The Worker s representative argued that the Board had no authority to revoke or terminate an award previously made, even if it were made in error. The Tribunal decided that [c]ontinued payment of a benefit awarded in error, and not arising from employment, is not authorized by the Act. The Worker s Adviser says that in the cited case, there was new evidence which allowed the Board to reconsider its previous decision. He said that there is no new evidence to allow the Board to reconsider in the current appeal, and that the rationale for Decision does not apply. The Adviser noted that the Adjudicator considered both of Dr. Michael s reports in maintaining the 30 percent rating, and that absent an appeal on that issue, this would become a final decision on the PMI rating matter. I do not agree with the Worker s Adviser that the issues on appeal are necessarily limited to the issues raised by the appellant in the Notice of Appeal. Such an approach is contrary to the liberal and generous interpretation that we generally apply in workers compensation appeals. It also holds an appellant (typically an injured worker) to a high standard to clearly outline in the Notice of Appeal the matters which are contested for fear of being unable to address them later. I am also disinclined to let the matter fall to the reasoning raised by the Board, from Decision , noted above. The present case is not about whether a condition is compensable or not; rather, both non-compensable elements and compensable elements are at play, and it is an adjudication issue as to where the dividing line is drawn. I also disagree that the PMI question became a final decision when it was not explicitly cited for review on appeal. In my view, the conflict comes down to notice, not exceeding jurisdiction. Clearly, the Worker s PMI rating was part of the appealed decision. In fact, it was the primary issue addressed in that decision. Also, there is no argument made that the Adjudicator s decision was not properly appealed to the Hearing Officer within statutory time limits. The conflict arose when the Hearing Officer, on his own initiative, decided in the first decision

5 5 that the appeal was premature because the non-compensable component had not been assessed by Dr. Michael. In the second Hearing Officer decision, the Hearing Officer overturned the Adjudicator s decision as to the PMI rating, and reduced it from 30 percent to 10 percent. In neither case was the PMI rating explicitly placed in issue by way of the Worker s Notice of Appeal. Rather than exceeding jurisdiction, the Hearing Officer raised an additional issue which came directly from the appealed decision. While not raised by the appellant, the Hearing Officer was not precluded from addressing it, provided that notice of that intention was given to the Worker. In that way, the fact that the issue would be dealt with would not come as a surprise, and the Worker would have been given an opportunity to make submissions on it before a decision was made. In the first Hearing Officer decision, the matter was returned to Dr. Michael for another opinion. The Adjudicator addressed the rating again, and maintained the 30 percent award. It seems to me that it should have come to no surprise to the Worker [and his Adviser] that the Hearing Officer would deal with that issue when it was appealed to him. The Hearing Officer did not explicitly indicate an intention to address this issue in addition to those identified in the Notice of Appeal. In that way, it might be seen as a failure to follow the rules of natural justice. As a practical matter, however, even if there were a breach of the rules of natural justice before the Hearing Officer, any error would have been corrected as the matter moved up the appeal chain to the Tribunal. The Worker certainly had a full opportunity to address the issue at the Tribunal level. Thus, I find that if there were any problems with natural justice issues, they have been corrected on appeal. To summarize, I do not find the Hearing Officer s consideration of the PMI rating issue to be beyond his jurisdiction, as it was part of the original decision. At worst, the failure to give notice that this issue was being dealt with was a breach of the rules of natural justice, but any such breach has subsequently been corrected on appeal. On the merits of the PMI rating issue, the Worker s Adviser says that Dr. Rocker s medicallegal report provides evidence that the Worker s smoking history, and the resulting impairment, is less than was considered by the Board. As such, it is argued that the Worker s PMI rating should be higher than the 10 percent awarded. Dr. Rocker said that smoking usually manifests as a degree of airflow obstruction, and that there was some mild evidence of this on pulmonary testing, this is not the predominant feature.... He added that the Worker s normal diffusing capacity is in someway support for a lesser degree of injury to the lung from cigarette smoking. Notwithstanding his comments about the smoking impact, Dr. Rocker appeared to be of the view that there was little evidence of asbestos-related change in the Worker s lungs.

6 6 He said there was minimal evidence of injury to lung tissue from asbestosis, and that the only asbestos effects were the appearance of pleural plaques. Dr. Rocker also thought some of the Worker s lung impairment was due to his weight. He noted the diffuse fatty infiltration of the liver and the relatively low expiratory reserve volume on pulmonary testing as evidence of this effect. It is clear from Dr. Rocker s report that he does not agree with the Worker that the entire 30 percent impairment is due to asbestos. He found it hard to support that statement, saying that the presence of pleural plaques does not usually merit a 30% rating as set out in Dr. Michael s comprehensive rating.... Dr. Rocker thought it a reasonable compromise to continue the Worker s 10 percent rating and not try to recover any past amounts provided in good faith. While there is some conflict in the opinion evidence about the impact of smoking on the Worker s lung impairment, there is only one opinion apportioning it in terms of contribution. Dr. Rocker does not provide an opinion as to an alternate rate. In addition, Dr. Rocker adds in another non-compensable contribution to respiratory output, that being the Worker s weight. Dr. Michael did not consider this impact. All in all, I do not find sufficient evidence to displace Dr. Michael s opinion as to the relative contribution from compensable and non-compensable factors. I accept Dr. Michael s opinion in that regard, and uphold the Hearing Officer s decision that the Worker is not entitled to a higher PMI rating at the present time for his asbestos exposures than 10 percent. The Worker s appeal on this issue is denied. Effective Date The Board s initial decision set the effective date of the Worker s permanent impairment at November 22, This was the date of pulmonary testing and chest x-rays that qualified the Worker for compensation. Shortly after that decision, the Adjudicator noted the Worker s request for an earlier effective date, and agreed to change the date to January 3, 2007, the date of an earlier (and almost identical) pulmonary test. The Hearing Officer upheld the January 3, 2007 date, indicating that it was the date of Dr. Rocker s report which lead to the Worker seeing Dr. Michael for testing. The Worker wants a date earlier than January 3, 2007, saying that the asbestos exposures occurred during the period between 1968 and While not explicitly stated, it appears the Worker wants the effective date of his impairment to coincide with the dates of exposure.

7 7 In the case of occupational diseases, the date of permanent impairment is also the date of injury for purposes of compensation. Section 12 of the Act says that the date of injury for occupational diseases is the earlier of the date the Worker experiences a loss of earnings, permanent impairment, or death due to that condition. In the present case, the Worker stopped working in 1986, but there is no evidence to indicate that the reason for this was due to asbestos exposure. The Worker has not passed away. Thus, the only measure of when the injury occurred is the date of permanent impairment. The date of permanent impairment is set on the basis of evidence of when the impairment first arose. Often, the date coincides with a medical report or examination which first identifies the problem. The date, however, does not need to coincide with the actual date of a medical report, if the contents of the report indicate that the impairment preceded its creation. [Martell v. Nova Scotia (Workers Compensation Appeals Tribunal), 2007 NSCA 107] Exposure to asbestos fiber does not immediately result in changes in the lungs or in loss of respiratory function. Those changes usually take many years to develop. After the exposure period ended in 1986, there is no evidence of the Worker having lung problems or investigation for many years. In fact, the first evidence dates from 2006, 20 years after his exposures stopped. The Worker saw Dr. Graeme Rocker, respirologist, in November 2006 and January There were chest x-rays done in November 2006, and Dr. Rocker referred to earlier x-rays done in June (2006?), both of which were said to show mild bilateral pleural thickening without any definite evidence of asbestos involvement of the lung tissue (asbestosis). There were some linear scars evident on the x-rays, but Dr. Rocker thought these were secondary to the Worker s weight. In November 2006, Dr. Rocker recorded that the Worker does not regard himself as unwell in any particular way... and that he has never had any problems with his lungs, just 1 episode of bronchitis in At the time of the assessment, the Worker complained of a band-like sensation around his lower costal margin which has been there for a few months. The first pulmonary function tests on file were done in January These documented a moderate obstructive pattern with associated gas trapping. Dr. Rocker reassured the Worker on January 3, 2007 that there was no evidence of asbestosis or of malignancy on the recent CT scan. He noted a slight reduction in the FEV -1/FVC ratio, but gas diffusion was entirely normal, and the Worker did not report feeling breathless. Dr. Rocker recommended reassessment in two years.

8 8 Dr. Michael provided two reports, based on his examination of the Worker on November 22, In his first report, Dr. Michael only addressed the x-ray and CT scan done at that time. He did not look at any of the evidence prior to that time. In Dr. Michael s second report in November 2008, he reviewed chest x-ray evidence back to July 26, It showed some very minimal pleural thickening in the lateral borders of both hemi-thoraces. Also, the lung parenchyma revealed a very small linear density in the left lower lung zone... and [t]here was very slight increase in the bronchovascular markings in both lower lung zones. Dr. Michael proceeded to review x-rays from November 15, 2006 and November 22, The former showed slight increased interstitial linear markings in both lower lung zones. He noted the slight abnormality in the lung bases, particularly on the left side, and that this would have to be followed because of the previous asbestos exposure. Dr. Michael went on to say that although there were no CT findings classical of asbestosis, there were pleural plaques present and a suspicious linear density in the lower lung zone as well as an occasional density in the right lower lung zone. He said that these findings would not be completely diagnostic, but that they would be suspicious of possible early asbestos-related change. In my view, there is no evidence to support an impairment existed prior to There are no chest x-rays or pulmonary function tests prior to that time to demonstrate an impairment, and neither is there any evidence, testimonial or otherwise to show that an impairment existed prior to that time. Dr. Michael said the earliest chest x-ray demonstrating some positive findings was dated July 26, In Dr. Rocker s November 15, 2006 report, he cited an x-ray in June, but did not provide any further detail. It may well have been the July 26, 2006 x-ray read by Dr. Michael. In any event, I set that date, July 26, 2006, as the earliest evidence of the Worker s asbestos-related problem. Those investigations lead to the Worker receiving his permanent impairment award. As such, the effective date should go back to July 26, The Worker s appeal is allowed in part in this regard. Overpayment Recovery The Worker s Adviser said that the Board mis-applied the overpayment policies in this instance. He said that the Hearing Officer initially determined that no overpayment would be recovered, but then said that the overpayment would be recovered from future payments. Section 220 of the Act gives the Board the authority to recover overpayments. That section defines an overpayment as...any amount of compensation that the Board determines is

9 9 in excess of that to which the person is entitled.... Board Policy R structures the exercise of the Board s discretion in recovering overpayments. According to the Policy, not every overpayment will be recovered. The Policy lists five criteria to be used in deciding whether a particular overpayment will be recovered. The factors are as follows: Legal - The overpayment recovery must be in accordance with the law. Reasonableness - If, in the opinion of the Board, the workers should have reasonably known that the payment was in excess of what was owed to him/her, the overpayment should be recovered. Time - If, in the opinion of the Board, the discovery of the overpayment exceeds a reasonable time, the overpayment should not be recovered. For the purposes of this Policy, a reasonable time is defined as three years. Cost - If the amount of the overpayment is less than $50.00, the overpayment should not be recovered. Fraud - If it is determined by the Board that the overpayment resulted from fraud or misrepresentation, the overpayment will be recovered not withstanding any other provisions. The Policy also states that the Board will consider the financial impact of the recovery on the worker when determining the means of collection. Once the Board has decided to recover an overpayment, it has the discretion to use whatever means it deems appropriate to recover the overpayment. The Hearing Officer said that the Worker was paid a commuted permanent impairment benefit based on the 30 percent rating. This was not correct. He was paid a lump sum for the retroactive period, but the 30 percent rating was made into a monthly disability benefit. The decision on the PMI rating by the Hearing Officer would have reduced his monthly disability benefit to it being based on a 10 percent rating. I upheld the Hearing Officer s decision on that issue. Thus, the only amount that will be affected by the overpayment decision is the lump sum amount paid for the retroactive period. There was no fraud or misrepresentation here. The Worker believed that his lung problems were due to asbestos exposure and not to smoking. Therefore, it would be difficult to impute knowledge of the fact that he was being an amount to which he was not entitled. The Worker was paid his lump sum with the first adjudicator decision, after Dr. Michael s first opinion. This was prior to any non-compensable cause was identified as a

10 10 possible contributor. There was no error on anyone s part, neither the Board nor the Worker. The Board merely accepted what Dr. Michael said in his report. The Worker agreed. One might infer that the Board was considering the financial impact of the recovery on the Worker when it decided not to seek immediate recovery, but use a deferral of future benefits as the means of achieving repayment. I think the best outcome is that put forward by Dr. Rocker. The Worker stays at the 10 percent rating, any monies paid to him on the 30 percent rating before that decision was overturned should be written off as non-recoverable. The Board should not recover them now or in the future. The Worker s appeal on this issue is allowed. CONCLUSION: The Worker s appeal is allowed in part. The Hearing Officer had the jurisdiction to address the adequacy of the PMI rating. The Worker is not entitled to a PMI rating beyond 10 percent for respiratory impairment due to asbestos exposures. The effective date of that PMI rating should be back-dated to July 26, The Board should not recover any overpayment from its original decision to award a 30 percent PMI rating. TH DATED AT HALIFAX, NOVA SCOTIA, THIS 19 DAY OF JANUARY, David Pearson Appeal Commissioner

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