Decision
DECISION NUMBER: 20230035
OBJECTING PARTY: WORKER
REPRESENTED by: WORKER REPRESENTATIVE
RESPONDENT: EMPLOYER
REPRESENTED by: SELF (NOT PARTICIPATING)
HEARING: HEARING IN WRITING – JANUARY 12, 2023
HEARD by: C. DA CUNHA, APPEALS RESOLUTION OFFICER
ISSUE
The worker objects to the September 24, 2021 decision of the Non-Economic Loss (NEL) Specialist. This decision:
- Rated the asbestosis permanent impairment (PI) at the 15% NEL award level, based on the American Medical Association’s Guides to the Evaluation of PI, third edition (AMA Guides).
In the February 25, 2022 Appeal Readiness Form, the worker representative also requested a change in the date of maximum medical recovery (MMR) from August 10, 2021 to April 19, 2021. The Occupational Disease & Survivor Benefits Program (ODSBP) Adjudicator determined the date of MMR in a decision dated September 10, 2021. The Operating Area did not refer the September 10, 2021 decision, nor the issue of the date of MMR, to the Appeals Services Division for consideration. Therefore, I have no jurisdiction to address it and shall make no finding of fact regarding it in this decision. The worker is free to pursue the matter with the Operating Area, if they wish.
BACKGROUND
On June 26, 2020, the worker underwent a chest radiograph. The objective investigation confirmed the presence of asbestos-related pleural plaques and scarring at the lung bases. The worker was 83 years of age at the time, having worked from 1966 to 1996, mainly as a Plumber/Pipefitter.
Dr. S. Shama, WSIB Occupational Medicine Consultant, reviewed the medical evidence on August 19, 2021. After doing so, Dr. Sharma stated that the medical evidence confirmed a diagnosis of mild asbestosis, associated with the worker’s occupational exposures as a Plumber/Pipefitter.
Furthermore, Dr. Sharma opined that the worker reached MMR on August 10, 2021.
On September 10, 2021, the ODSBP Adjudicator granted initial entitlement to asbestosis, finding that the worker reached MMR on August 10, 2021, with a PI evident. Consequently, the ODSBP Adjudicator referred the case file for a NEL award determination for the asbestosis PI.
The NEL Clinical Specialist’s Decisions: On September 21, 2021, the NEL Clinical Specialist conducted the NEL evaluation. After doing so, the NEL Clinical Specialist rated the worker’s respiratory PI at the 15% NEL award level, based on the AMA Guides.
The NEL Clinical Specialist reconsidered and upheld the original decision on March 18, 2022.
The Worker’s Position: The worker representative argues that, on April 21, 2021, Dr. K. Safka, Respirologist, established the predicted baseline value for the worker’s diffusing capacity for carbon monoxide (DCO) at the 26.12 level. However, Table 6 of Chapter 5 of the AMA Guides establishes a predicted DCO baseline value of 31.9 for a man who is 74 years of age and 181 centimetres (cm) tall, which is the worker’s height. While the worker was 84 years of age on April 21, 2021, the AMA Guides do not provide predicted DCO values for men over the age of 74, and the WSIB does not have any instructions for men with a respiratory impairment over that age. Therefore, as per Table 6 of Chapter 5 of the AMA Guides, the WSIB should accept 31.9 as the predicted DCO baseline value in the worker’s case.
As the worker’s DCO result on the April 21, 2021 was 19.49, the WSIB should accept that, on April 21, 2021, the worker’s DCO result was 61% of the predicted value within Table 6 of Chapter 5 of the AMA Guides (i.e. 19.49 / 31.9). As per Table 8 of Chapter 5 of the AMA Guides, a DCO result of 61% translates to a 25% impairment within Class 2, Mild Impairment of the Whole Person. Therefore, the NEL award should be increased to the 25% NEL award level.
AUTHORITY
Operational Policy Manual
Published
18-05-03: Determining the Degree of PI
November 3, 2014
The AMA Guides
ANALYSIS
I have carefully considered all of the available information and relevant operational policies in reaching this decision. Having done so, I find that:
- The NEL evaluation correctly rated the worker’s respiratory PI at the 15% level, based on Table 8 of Chapter 5 of the AMA Guides. Therefore, entitlement to an increase in the NEL award is not in order.
The NEL award is intended to compensate workers for the effects of the PI other than those associated with a wage loss, health care costs, and rehabilitation costs. The award is payable whether the worker suffers any wage loss as a result of the injury.
To rate PIs, the WSIB uses the prescribed rating schedule and all relevant medical reports on file. The prescribed rating schedule is the AMA Guides.
Respiratory PIs are rated using Table 8 in Chapter 5 of the AMA Guides. This prescribed rating schedule states that the the DCO result is primarily of value for persons with restrictive lung disease. Entitlement in this case is for restrictive asbestosis. Therefore, the DCO value nearest to the date of MMR is the appropriate measure to use in determining the worker’s respiratory impairment in this specific case.
When the worker underwent the April 21, 2021 spirometry test, they were 84 years of age and 181 cm tall. Based on these facts, Dr. Safka established the worker’s specific predicted normal single breath DCO at the 26.12 level.
Dr. Safka then conducted the spirometry test, which resulted in a DCO value at the 19.49 level, which is 75% of the predicted DCO at the 26.12 level.
There is no dispute that these figures are correct.
A 75% DCO value for restrictive asbestosis falls within Class 2, Mild Impairment of the Whole Person, on Table 8 of Chapter 5 of the AMA Guides. That category assigns a whole person impairment from 10% to 25% for respective DCO values from 79% to 60%. As the worker’s April 21, 2021 DCO value was 75% of the predicted DCO value, I find that the NEL Clinical Specialist fairly and appropriately rated the worker’s asbestosis respiratory PI at the 15% level within Class 2 on Table 8 of Chapter 5 of the AMA Guides.
While I respectfully acknowledge the worker representative’s arguments regarding Table 6 of Chapter 5 of the AMA Guides, I do not find them to be persuasive from an adjudicative perspective, for the following reasons:
The AMA Guides clearly state that the PI rating for the respiratory system is to be rated using Table 8 of Chapter 5 of the AMA Guides. That is what occurred in this specific case.
Table 6 of Chapter 5 of the AMA Guides is not used to rate a PI for the respiratory system.
Table 6 of Chapter 5 of the AMA Guides provides predicted DCO values for men aged 18 to 74 and with heights from 146 cm to 194 cm. It does not provide predicted DCO values for men over 74 years of age. Therefore, it cannot be fairly and appropriately used in this specific case because the worker was 84 years of age on April 21, 2021. Using predicted DCO values for a man 10 years their junior would produce, on a balance of probabilities, distorted and incorrect results.
Chapter 5 of the AMA Guides states that Tables 6 (i.e. men) and 7 (i.e. women) provide predicted “normal” values for DCO. However, it also confirms that a laboratory that performs the DCO, under conditions or with procedures that are different from the American Thoracic Society recommendations, should either develop and verify its own prediction equations or use an accepted and verified equation that is appropriate to its needs. In other words, the AMA Guides does not exclude the use of predicted DCO values, which are outside the scope of Tables 6, provided by laboratories that use accepted and verified equations, appropriate to the specific needs presented, in order to rate a restrictive respiratory PI. This is what occurred in this specific case noting that the worker is 84 year of age and Table 6 only provides DCO values for individuals up to 74 years of age.
Neither the worker nor their representative have provided any evidence or argument to show that Dr. Safka’s findings, in relation to a person who is 84 years of age and stands 181 cm tall, are incorrect.
The facts and circumstances on record lead me to find that the WSIB fairly and appropriately rated the worker’s restrictive asbestosis PI at the 15% NEL level. Therefore, there is no entitlement to an increase in the award.
CONCLUSION
I find that:
- The non-economic loss evaluation correctly rated the worker’s asbestosis respiratory permanent impairment at the 15% level, based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, third edition.
The worker’s objection is, therefore, denied.
DATED January 12, 2023.
C. da Cunha
Appeals Resolution Officer Appeals Services Division