WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090081
OBJECTION BY: Estate of worker
WORKER: Estate of worker
EMPLOYER: Not participating
HEARING DATE: July 15, 2009
ATTENDEES:
Worker Representative: Yes
Witness: Worker’s son
ISSUES
On behalf of the worker’s estate the worker representative objects to the January 16, 2008 claims adjudicator decision concluding the Chronic Obstructive Pulmonary Disorder (COPD) and Silicosis conditions were not implicated in the cause of death. The worker representative also objects to the January 16, 2008 decision confirming the denial of entitlement for fibrosing alveolitis.
HOW THE ISSUES ARISE
The claim was established in 1974 to consider possible entitlement for respiratory symptoms resulting from workplace exposures while employed in the mining industry. Silicosis was accepted and a 15% pension assessed. The record confirms that while the worker also suffered from idiopathic pulmonary fibrosis (IPF) the silicosis was considered relatively mild. Following the worker’s death March 4, 1985 at age 72 his widow submitted a claim for survivor benefits. Based on the conclusion the cause of death was not directly related to the compensable condition this request was denied. The September 29, 1997 appeals decision confirmed this decision.
The worker representative pursued the appeal at WSIAT. An April 4, 2007 hearing was adjourned with the Panel directing the WSIB consider entitlement for pulmonary fibrosis and COPD. The operations division extended entitlement to include COPD and increased the pension award to 25% from November 13, 1974. The operations division also concluded the fibrosing alveolitis (or idiopathic pulmonary fibrosis) was the dominant cause of terminal respiratory failure with this condition being non-occupational in origin.
AUTHORITY
Workplace Safety and Insurance Act – s.2(1) – “Definition - Occupational Disease”
11-01-01 – Adjudicative Process (Five Point Check, Proof of Accident)
11-01-02 – Decision Making (Weighing Evidence, Natural Justice)
11-01-03 - Merits and Justice
18-05-03 - NEL - Assessing Permanent Impairment
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence and submissions.
Submissions and Testimony
The worker representative supplied a number of documents which he noted were previously provided but he was unable to identify in the claim file. These documents include x-ray reports forwarded by the WSIB to the Tribunal and the clinical records from the family doctor previously requested by the WSIB. For reference purposes the representative also provided copies of relevant sections of the AMA guides. The representative also submitted an October 21, 2008 OHCOW report.
The worker representative suggests the fibrosing alveolitis is related to the employment. The representative suggests even if fibrosis is not accepted as compensable the accepted conditions were causal factors in the worker’s death. The representative also suggests the COPD when compounded with silicosis would merit an award greater than the 25% pension. The representative suggests the operations division used COPD as a surrogate for the pension award and based on the relevant AMA guides this resulted in a reduced pension. The representative also suggests based on the most recent PFTs prior to the worker’s passing the award would be appropriately categorized as a class 3 impairment and therefore merit an award between 30 and 45%. The representative suggests the higher the quantum of the award the more probable the compensable condition was an immediate factor in the cause of death. Finally, the representative suggests the WSIB medical consultant’s analysis of the evidence provides little rationale as to why alveolitis would not be compensable and suggests the medical reports provided subsequent to this opinion address this deficiency.
The witness confirmed the worker’s symptoms began in the 1960’s, the worker attended a specialist regularly in the 1970’s, and passed away in 1984. The witness reported prior to his passing the worker suffered from significant breathing problems and was on oxygen for the two years prior to his death. The witness confirmed the worker suffered a stroke prior to his passing and also had significant breathing problems. The witness confirmed the worker’s condition progressed over time.
Analysis
There are effectively three issues. The first is entitlement for fibrosing alveolitis / idiopathic pulmonary fibrosis. The second is the pension quantum (with or without the acceptance of the fibrosis condition). The third is entitlement for survivors benefits based on the compensable impairment being accepted as a significant contributing factor in the cause of death.
a) Entitlement for Fibrosing Alveolitis / Idiopathic Pulmonary Fibrosis (IPF)
The worker representative has argued for IPF entitlement as a result of workplace exposures while working in the mining industry. Previous operations division reviews have addressed the IPF as a co-existing non-compensable condition rather than a result of workplace exposures. The worker representative suggests this diagnosis in fact arises from workplace exposures and has provided submissions in support of this argument.
As noted by the representative the issue was specifically addressed by a WSIB chest consultant and the October 2008 OHCOW report. I agree with the representative’s characterization of both opinions as essentially literature reviews considering possible causes of IPF. The WSIB chest consultant noted much research has been focussed on the cause of IPF and after referencing a number of studies suggested the IPF was not occupational in origin. The OHCOW report also reviewed a number of studies and concluded there is a growing body of research suggesting an occupational exposure component to IPF. This report noted the work history would have resulted in extensive exposure to metal dust and silica as supported by acceptance of silicosis. The report suggested the evidence points more and more towards workplace exposures as a factor in IPF and concluded there is no longer any significant publication disagreeing with the findings supporting a link between IPF and workplace exposures.
In assessing the medical opinions and the available evidence regarding IPF entitlement I consider it necessary for the evidence to establish a causal relationship between the workplace exposures and the development of this condition. As IPF is not a disease identified in either schedule 3 or 4 of the Act I interpret the burden of proof to require the evidence establish the condition both occurs in the course of and arises out of the employment for entitlement to be accepted. In this instance I do not consider this test met. My primary concern with the evidence is that while various studies have suggested a possible relationship between IPF and the environment the current evidence does not in my view either identify specific environmental exposures as causal factors (and to which the worker was exposed) or establish any base line for the level of exposure which would be required to establish such a relationship. In the absence of such evidence I do not find the literature review to establish general environmental factors (and more particularly specific work related exposures) are a demonstrated causal factor in the development of IPF.
While it is evident research is ongoing as to the causes of IPF the record suggests this condition has historically been identified as resulting from unknown aetiology. In the absence of a presumption of entitlement or objective research addressing the specific relationship to the worker’s employment exposure I do not consider the evidence to establish the workplace exposure was a significant causal factor for the IPF. I therefore accept the WSIB chest consultant opinion this condition would most appropriately be considered idiopathic in origin.
While future research may establish such a relationship; and it is certainly possible such a relationship may exist; I am unable to conclude the available evidence demonstrates such a relationship is probable. On balance I am unable to conclude the evidence establishes workplace exposures were a significant contributing factor in the development and progression of the IPF. For these reasons I do not find entitlement in order for fibrosing alveolitis / idiopathic pulmonary fibrosis.
b) Pension Quantum
The worker representative raised a number of concerns regarding the pension quantum. The first was that the award does not reflect the severity of the impairment should IPF entitlement be accepted. As I have not accepted IPF as a compensable condition an additional pension award based on this condition is therefore not in order.
In addition to the presenting impairment the representative also identified a number of concerns with the pension assessment process. These include basing the award on the 1974 PFT’s, the ability to differentiate between the impairment resulting from compensable and non-compensable respiratory conditions, the limitations on the award with the indication the assessment recognizing COPD would also account for the silicosis condition, and the appropriate award calculation using the relevant sections of the AMA guides. The representative suggests that when relying on PFTs it is necessary to rely on the most recent testing. The representative notes while the 1984 testing showed FVC results remained at a Category 2 level the FEV results were now Class 3 and at minimum the award would then be 30% and in the representative’s view would merit an award of 30-40%.
I note the chest consultant recommended a 25% pension award incorporating both the COPD and silicosis conditions dating from November 13, 1974. While the consultant did not specify the reasons for basing the assessment on the November 1974 PFT, I consider the reason self-evident in that this was the first PFT on file. While I note the representative has suggested the 1984 testing would be an appropriate test upon which to base the award I do not consider it appropriate to use 1984 test results to set a pension award dating to 1974. Rather, I find it reasonable to establish the initial pension award based on the 1974 testing and use the 1984 testing as an appropriate date to review the pension quantum should this reporting demonstrate deterioration in the compensable condition. I therefore accept the use of the 1974 test results in establishing the initial pension award.
While I appreciate that given the worker’s passing in March 1985 this conclusion provides for a much more limited review of the pension award I consider it appropriate to review the pension quantum from March 1, 1984.
The representative has suggested the conclusion the COPD award would also incorporate the silicosis award was not appropriate as it was not appropriate to use COPD as a surrogate for silicosis. The representative has suggested that while on the surface the chest consultant’s use of COPD as a surrogate for silicosis was appropriate the doctor used the wrong information to set the pension quantum as the doctor did not use the CO absorption values to assess the silicosis. While in principle I accept this argument as reasonable I would characterize the administrative history of the claim and pension award somewhat differently. I note the 15% silicosis award was assessed in February 1985. This award was assessed under the previous pension assessment process and would not have incorporated the AMA guides. This being said the silicosis award was already established prior to the November 2007 COPD review. Effectively, I interpret the medical opinion in 2007 as recommending an additional 10% award in recognition of the COPD and to therefore incorporate the previous silicosis award thereby resulting in a 25% combined value award. While I recognize the changes in the assessment process and retroactive nature of the COPD entitlement resulted in the rating of these impairments under distinct rating schemes each assessment was in my view consistent with the accepted WSIB practice on the date of the review.
The representative has also suggested the failure to use the CO absorption results when reviewing the pension award in 2007 resulted in the 25% award assessing only the COPD condition and did not account for the silicosis. In reviewing the medical records, the WSIB chest consultant’s recommendation, and the AMA guides I am satisfied the provision of a 25% award was appropriate. The silicosis condition was initially rated as mild under the previous assessment process and the COPD condition was also rated as mild based on the 1974 test results. Given FEV1 of 71% in November 1974 this result would have placed the COPD result at the midrange of the mild category. I note the award resulted in the worker being provided with the maximum award for a mild impairment. Noting both the silicosis and COPD would be categorized as mild I consider a rating at the upper end of the mild rating appropriate and consistent with the evidence on record. Additionally, I would suggest recognition of COPD therefore resulted in an increased pension award to 25% from the 15% assessed solely for silicosis. Effectively, the medical consultant recommended an additional 10% award in recognition of COPD. On reviewing the findings upon which the pension awards were based I accept the 25% pension award dating from 1974 as appropriate. For these reasons, the provision of a 25% pension award from November 1974 is therefore confirmed.
As noted earlier in this decision I do accept the 1985 PFT confirmed deterioration in the respiratory function by 1985. As noted by the WSIB chest consultant, the 1985 test results recorded FVC of 77% of expected and FEV1 of 53% of expected. These findings are however complicated by the presence of the significant non-compensable IPF (as previously concluded) and the worker’s age at the time of this assessment. In themselves, and as suggested by the worker representative, these findings suggest the worker would fall within the midrange of a class 3 impairment and therefore warrant a pension award of between 30 and 45%. My primary concern in this instance is the reason for the deterioration between 1974 and 1984. The medical record suggests at the time of his death the worker was suffering from a significant IPF condition. The medical record also suggests this condition was progressive and the objective findings could be clearly differentiated from the silicosis condition. In fact, I interpret the evidence to suggest the silicosis findings continued to be mild in 1984. I note the treating specialist was initially very supportive of the worker’s entitlement in February 2004 however the October 2004 report noted that if in fact the IPF was confirmed in a previous lung biopsy this diagnosis was established. I interpret this doctor’s reports to confirm the fact the worker was suffering from a significant impairment resulting in total disability but that the primary diagnosis was that of IPF. I note the January 1984 advisory committee recommending a 15% pension award noted slight silicosis with far advanced diffuse interstitial fibrosis compatible with fibrosing alveolitis. I interpret these reports as confirming that by 1984 the IPF condition had progressed significantly while the silicosis remained mild.
In terms of the pension quantum the record therefore confirms a clear progression in the severity of the impairment between 1974 and 1984 which would merit an increase in the pension award by 1984. The primary issue in my view is firstly the probable cause of this deterioration and whether it is possible to apportion the compensable and non-compensable conditions.
Firstly, from the reporting on record I consider the evidence to establish the deterioration was principally related to the progression of the IPF. The comments made by the various clinicians in my view supports this conclusion as does the significant change in the FVC value as recorded in the 1984 PFT. I note in reviewing the pension award the WSIB chest consultant indicated that in terms of the COPD and silicosis the impairment resulting from these conditions could not be separated. Based on this view and to the extent that the findings in the 1984 PFT are consistent with the assessment criteria for assessing impairment I also accept it would be inappropriate to attempt to apportion the impairment resulting from the compensable and non-compensable conditions for pension assessment purposes. I therefore accept it is appropriate to base any pension award from March 1, 1984 on the findings from this PFT.
Having regard for the FVC values of 77% and FEV1 of 53% as well as the relevant sections of the AMA guides I would conclude the appropriate pension award from March 1, 1984 would be appropriately categorized as a Class 3 impairment. Given FVC at the upper end of a Class 2 (mild) impairment and FEV1 at the mid range of a Class 3 (moderate) impairment I would consider a rating at the lower end of Class 3 appropriate. I therefore accept the worker would be properly entitled to a 30% award based on the March 1, 1984 PFT results.
c) Survivors Benefits / Implication of the Compensable Impairment in the Cause of Death
Having concluded earlier in this decision that there is no entitlement for IPF and also that for pension purposes it is not appropriate to apportion the impairment resulting from the compensable and non-compensable conditions it is necessary to address the cause of death in 1985.
The worker representative has argued that even if IPF was not accepted, the increased pension award and the inability to apportion the effects of the compensable and non-compensable conditions requires acceptance of the compensable conditions as significant contributing factors in the case of death.
I note the primary cause of death has been identified in the medical records as a pulmonary condition resulting from the effects of the advanced IPF. Both the WSIB medical consultant and the OHCOW physician agreed the proximal cause of death would be clearly associated with the long term effects of IPF.
While I have accepted it is not appropriate to apportion the impairment for pension assessment purposes I consider the reason for this conclusion primarily administrative. By this I mean that I have accepted that to differentiate between the factors contributing to the workers ability to take in and expel air from his lungs between the various conditions influencing this ability would not be appropriate.
However, from the medical reporting on file I am satisfied it would be appropriate to differentiate between the compensable and non-compensable conditions in terms of the effects of the IPF on the lung and pulmonary functions themselves. I note the record indicates the silicosis continued to be classified as mild in 1984 while the IPF was recorded as far advanced. I also note the OHCOW report and WSIB medical consultant clearly agreed the pulmonary condition was typical of and causally connected to the IPF.
Given the relative severity of the non-compensable condition I find the evidence persuasive in suggesting the IPF resulted in the proximal cause of death. As I interpret the medical evidence it was not the limitations in the flow of air itself which resulted in the pulmonary condition but rather the limitations imposed on the transmission of gases through the lung tissue and the affect on blood flow which led to the cause of death. While this was obviously a serious condition the medical opinions and evidence suggest this was directly attributable to the IPF.
Based on the primary cause of death being respiratory failure the representative has suggested a 30-40% pension award for the compensable conditions would reasonably be considered a significant contributing factor in the cause of death.
While I have not disregarded the representative argument that an increased pension award would increase the probability the work related conditions were a significant contributing factor in the cause of death I do not consider there to be a direct link between the pension quantum and this factor. In my view the pension quantum in and of itself is not relevant to the issue. Rather, the significant issue is the relationship between the objective physiological effects of the compensable impairment and the cause of death. In this instance I cannot conclude the compensable conditions were a significant contributing factor in the cause of death. For these reasons I am unable to accept entitlement to survivors benefits is in order.
CONCLUSION
The operations division is directed to process a 30% pension award from December 1, 1983 (3 months prior to the March 1, 1984 PFT).
There is no entitlement for IPF as a compensable condition.
There is no entitlement to survivors benefits as the compensable impairments were not implicated in the cause of death.
The objection is allowed in part.
DATED October 30, 2009
M. Evans
Appeals Resolution Officer
Appeals Branch