SUMMARY DECISION NO. 966/00 Permanent impairment [NEL] (rating schedule) (AMA Guides) (respiratory impairment). The Board granted the worker entitlement for pleural plaques resulting from exposure to asbestos. The worker appealed a decision of the Appeals Resolution Officer denying a NEL award for permanent impairment. The Board denied a NEL award on the basis of spirometry tests that showed normal lung volumes and air flows. The Vice-Chair noted that the AMA Guides for respiratory impairment, on which NEL awards are based, include a number of factors to aid in evaluating impairment, such as dyspnea, cough and sputum production, wheezing and physiologic tests (including spirometry). The AMA Guides do not rely on spirometry tests alone. Other matters, such as difficulty breathing and coughing, both of which have been reported by the worker, are also taken into account. The worker was entitled to be assessed for a NEL award. The appeal was allowed. [5 pages] DECIDED BY: Flanagan DATE: 30/08/2000 ACT: WCA BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual, Documents No. 04-04-05, 05-06-03
2000 ONWSIAT 2459 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 966/00 [1] This appeal was heard in Toronto on April 18, 2000 by Tribunal Vice-Chair W.F. Flanagan. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of the Appeals Resolution Officer dated January 28, 1998. That decision concluded that the worker was not entitled to a NEL assessment. [3] The worker appeared and was represented by K. Mitchell. The accident employer is no longer in business. THE RECORD [4] The material in the Case Record prepared by the Tribunal Counsel Office (Exhibit #1) was considered. In addition, a letter from the worker's representative dated August 25, 1999 (Exhibit #2); Addendum No. 1 to the Case Record (Exhibit #3); a letter to the worker's representative dated November 24, 1999 (Exhibit #4) were considered. [5] Oral evidence was heard from the worker. The worker s representative made submissions. THE ISSUES [6] The worker is seeking entitlement to a NEL assessment for his pleural plaques condition. In a decision dated November 20, 1996, the Board accepted entitlement to benefits for this condition on the grounds that the worker was exposed to asbestos while working between 1967 and 1990. But in the Appeals Resolution Officer s decision dated January 28, 1998, the Board denied entitlement to a NEL assessment on the grounds that there was no evidence of a permanent impairment. The issue for the Tribunal to determine is whether the worker is entitled to a NEL assessment for this condition. [7] On January 1, 1998, the Workplace Safety and Insurance Act (WSI Act) took effect. This legislation amends portions of the Workers Compensation Act, which continues to apply to injuries that occurred before January 1, 1998. All references to the Act in this decision mean the Workers Compensation Act as it read on December 31, 1997, unless otherwise indicated. THE REASONS (i) The worker s testimony [8] The worker, 66 years old, testified that he first came to Canada in 1951. He first worked at a food terminal for a few years, then in construction, and then as an upholsterer at a mattress factory, a job he performed for 23.5 years with the same employer. He was laid off in 1990 due
Page: 2 Decision No. 966/00 to the recession. While laid off, he suffered a non-compensable motor vehicle accident on October 4, 1990, when he injured his lower back. Since this accident he has been unable to work. [9] The worker first noticed shortness of breath and a burning in his chest in August 1993, when he sought treatment for this condition. His doctor told him that he had asbestos in his lungs. His symptoms have remained constant since 1993, neither improving nor growing worse. He denied any chest burning or shortness of breath prior to 1993. He noted that when he goes for a short walk, he notices shortness of breath. He has a bad back, so he is unable to do much. Sometimes he will cough for about 5-10 minutes. He notices the chest burning most when he is not busy. The shortness of breath will come and go, lasting about 10-15 minutes. He started smoking in 1951 but stopped in 1999. He smoked about a pack or less a day. Prior to 1993, he was more active notwithstanding his back condition. But he is more limited now. A housekeeper helps with the household work. [10] He noted that after his father s death in 1978, he suffered from anxiety attacks, but he was cured of this problem by 1991-92 due to psychological treatment. (ii) The medical evidence [11] The Doctor's First Report dated September 12, 1993, completed by Dr. J. Lefkowitz, family doctor, notes that the worker had complained of chest pain beginning on August 23, 1993. He diagnosed the worker with pleural plaques related to asbestos exposure. [12] A report completed by Dr. A. Born, surgeon, dated August 26, 1993, notes the worker s complaints of stabbing chest pain. He reviewed x-rays that indicated a pleural-based lesion. He arranged for a CT scan. [13] A discharge report from the hospital, completed by Dr. Born dated September 9, 1993, notes that the worker was admitted for a CT scan. The scan revealed multiple bilateral pleural plaques mostly along the posterior costal surface. He adds that the lungs and thorax were clear and there were no lung nodules. He concludes that this condition is most compatible with asbestos related pleural disease without evidence of lung or pleural involvement. [14] An imaging report dated December 2, 1993 of the worker s chest notes little change when compared to the June 1, 1992 film (this June 1, 1992 report is not on file). The report notes pleural plaques mostly on the left side and no pleural effusion. An imaging report dated April 15, 1994, again notes little change from the December 2, 1993 study. There is evidence of plural thickening and a suggestion of pulmonary hyperinflation. [15] A report dated May 17, 1995, completed by Dr. Lefkowitz, notes that the worker is suffering from asbestosis related to his workplace exposure. [16] Board physician, Dr. Sahay, examined the worker s file and in a memorandum to file dated December 3, 1996, he notes that the spirometry dated November 3, 1996 records FVC at 95%. Based on this result, Dr. Sahay concludes that there is no permanent impairment.
Page: 3 Decision No. 966/00 [17] Dr. Born s report dated February 20, 1997, notes that recent x-rays reveal some hyperinflation and minimal pleural thickening along the lateral chest wall. There is no active pulmonary disease. Dr. Born s report dated February 24, 1997, diagnosed the worker with bilateral pleural plaques which may reflect remote asbestos exposure. He recommended yearly chest x-rays and spirometry to assess the progress of these lesions. The spirometric testing demonstrates that his lung volumes remain well-preserved. [18] Dr. Sahay s memorandum to file dated April 15, 1997 notes that according to Dr. Born s report dated February 24, 1997, the diagnosis is still pleural plaques. There is no asbestosis and the spirometry is normal. He concludes that there is no evidence of a permanent impairment. [19] Dr. Born s report dated July 12, 1999, notes that the chest x-ray of March 5, 1998 showed no changes when compared to the February 20, 1997 report. The lungs were hyper-inflated and there was minor linear scarring at the right apex and minimal pleural thickening along the lateral chest wall bilaterally. Spirometric testing showed normal lung volumes and normal airflows. The forced vital capacity was 4.12 litres which is 89% predicted normal. He diagnosed the worker with pleural asbestosis and notes that there has been no significant loss of lung function as a result of his pleural asbestosis at this date. He adds that this is a pathologic process most likely related to his asbestosis. There is a risk of mesothelioma, which is a malignant form of pleural cancer. (iii) The reasoning [20] The issue for the Tribunal to determine is whether the worker is entitled to a NEL assessment for his compensable bilateral pleural plaques. The Board has already granted entitlement to benefits for this condition, but has denied entitlement to a NEL assessment on the grounds that there is no evidence of a permanent impairment. Upon a careful review of the evidence, I am satisfied that a NEL assessment is in order in this case. [21] In reaching this conclusion, I have reviewed the Board s Operational Policy Manual, Document No. 04-04-05, that deals with asbestosis, and Document No. 05-06-03 that deals with determining the degree of impairment. This second policy document provides that NEL assessments for permanent impairments are based on the roster physician s report which in turn is based on The American Medical Association Guides to the Evaluation of Permanent Impairment, 3 rd ed. Revised (The American Medical Association, 1990) [ The AMA Guidelines ]. Chapter 5 of the AMA Guidelines deals with the respiratory system. A number of factors are included to aid physicians in their evaluations of respiratory impairment, including the presence of dyspnea (air hunger resulting in laboured or difficult breathing, sometime painful), cough and sputum production, wheezing, and physiologic tests of pulmonary function, including the spirometry test. In other words, the AMA Guidelines do not rely exclusively on spirometry tests when evaluating whether there is a permanent respiratory impairment Matters such as difficulty in breathing and coughing, both of which have been reported by the worker, are also taken into account. The Board has denied entitlement to a NEL assessment on the grounds that the worker s spirometry results are normal, without taking into account the worker s reports of shortness of breath and coughing. I have concluded that a NEL assessment is in order, given that the AMA Guidelines require the assessment of a broader range of factors, and not just the spirometry results.
Page: 4 Decision No. 966/00 [22] I note that Dr. Born s report dated July 12, 1999 indicates that the worker has not suffered any significant loss of lung function as a result of his pleural asbestosis. As a result, the nature of the worker s permanent impairment, if any, does not appear to be very significant. Nonetheless, the worker also reports breathing difficulties, burning in the chest, and some coughing. I found the worker s evidence on this point to be reliable and credible. I accept that the worker has been suffering from these symptoms since he first sought treatment in August 1993. A NEL assessment that takes into consideration the entire range of the worker s symptoms, and not only his spirometry results, may result in a finding of a permanent impairment and a NEL award. Accordingly, I have concluded that a NEL assessment is in order. I thus order the Board to conduct a NEL assessment for the worker. I refer to the Board the quantum, if any, of the NEL award that may result from this assessment. THE DECISION [23] The appeal is allowed. The worker is entitled to a NEL assessment for his pleural plaques condition. I refer to the Board the quantum, if any, of the NEL award that may result from this assessment. DATED: August 30, 2000. SIGNED: W.F. Flanagan