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| Decision No. 484 06 | 30-Nov-2009 | M. Kenny - B. Wheeler - R. Briggs |
| The worker was a labourer who was exposed to asbestos, welding fumes and dust for 40 years. He retired in 1994 at age 62. In 1999, pulmonary function tests showed that the worker had chronic obstructive lung disease. The Board granted entitlement for COPD with an accident date in 1999. A NEL assessment established a 45% rating for the worker’s COPD. The worker was a smoker with a 75 pack year smoking history. The Board determined that 28% of the permanent impairment resulted from workplace exposure and the remainder from smoking and that, accordingly, the worker was entitled to a 13% NEL award. The worker appealed a decision of the Appeals Resolution Officer confirming the accident date and the apportionment of the NEL award. In Decision No. 484/06I, the Panel concluded the accident date should be in 1992. The Board based the apportionment on a formula in its Adjudicative Support binder on COPD. The Panel noted that it was making this decision pursuant to the pre-1997 Act, which has provisions for economic loss and for permanent impairment (physical or functional abnormality or loss). Some Tribunal decisions have apportioned a pension into work-related and non-work-related portions, and paid the pension only for the work-related portion. These decisions have been made in cases where the panels concluded that the non-compensable condition was a separate and measurable source of a portion of the global impairment rating. These decisions have also noted the position of the Board that it has not legal authority to provide benefits relating to consequences that are not causally connected to a work injury. Decision No. 865/92R4 found that two co-existent factors (smoking and workplace dust exposure) jointly caused trauma to a single organ and that the effect of the smoking and dust could not be measured and distinguished from each other. The decision concluded that the worker had a single injury causing an impairment of earning capacity in the form of chronic obstruction to the lungs. In that decision, the pension was not reduced by a portion attributed to smoking. A number of decisions have also followed Decision No. 865/92R4. The Panel disagreed with Decision No. 865/92R4. The Panel found that current medical and scientific evidence indicates that the effect of the injuring process from smoking and dust exposure is separate, independent and additive. They are divisible injuries. The smoking in this case was not a pre-existing condition; the worker started smoking and working at a job with dust exposure at about the same time. A clinical examination of a worker with chronic air flow obstruction from emphysema cannot detect whether any physical abnormality or decrease in lung function is related to occupational dust. Rather, the evidence about whether dust has contributed to the development of the obstruction is derived primarily from epidemiological evidence. The formula set out in the Board’s COPD Adjudicative Advice binder provides a fair and reasonable basis for measuring the relative contribution of the worker’s work-related dust exposure and non-work-related smoking history to the chronic airways obstruction. The Panel noted that the Supreme Court of Canada decision in Athey does not stand for the proposition that a worker must be paid compensation for any impairment affecting the same body part if that impairment develops after a work injury. Rather, Athey is consistent with the principle that loss resulting from one injury should be separated from loss resulting from a different injury in cases where the evidence establishes that those injuries each separately and independently resulted in loss. The Board was correct in limiting NEL compensation to the air flow obstruction resulting from the dust exposure. The award, based on the formula in the Adjudicative Advice binder, was fair and reasonable. The appeal was dismissed. |
| View Full Decision Text 38 Page(s) |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2009 ONWSIAT 2785 |
| Decision No. 484 06 I | 04-Jun-2007 | M. Kenny - J. Robb - R. Briggs |
| The worker was a labourer who was exposed to asbestos, welding fumes and dust for 40 years. He retired in 1994 at age 62. In 1999, pulmonary function tests showed that the worker had chronic obstructive lung disease. The Board granted entitlement for COPD with an accident date in 1999. A NEL assessment established a 45% rating for the worker’s COPD. The worker was a smoker with a 75 pack year smoking history. The Board determined that 28% of the permanent impairment resulted from workplace exposure and the remainder from smoking and that, accordingly, the worker was entitled to a 13% NEL award. The worker appealed a decision of the Appeals Resolution Officer confirming the accident date and the apportionment of the NEL award. The date when a worker suffers a physical or functional abnormality or loss is the date of impairment and, therefore, the date of accident if the impairment results from an occupational disease. A Board Adjudicative Support binder on COPD states that the date of pulmonary function tests is normally required to confirm COPD but that the date of impairment or accident can pre-date the pulmonary function tests if medical reports confirm symptoms and findings compatible with COPD. In this case, there were x-rays in 1992. Those x-rays alone would not have been sufficient to diagnose COPD accurately. The pulmonary function tests in 1999 confirmed that the impairment affecting the worker’s breathing was obstructive, rather that restrictive. However, the Panel was satisfied that the worker was experiencing breathing problems by the early 1990s and that those breathing problems affected his ability to do certain things. The x-rays in 1992 provided evidence of physical abnormality that was consistent with the COPD which was diagnosed in 1999. The Panel concluded that the accident date should be in 1992. The matter of benefits was referred back to the Board. The issue of apportionment of the NEL award was adjourned to obtain a report from a Tribunal medical assessor. |
| View Full Decision Text 10 Page(s) |
| References: | Act Citation Other Case Reference |
| Neutral Citation: | 2007 ONWSIAT 1449 |
