Highlights of Noteworthy Decisions

Decision 3207 16
R. McCutcheon
  • Apportionment (pensions) (co-existing conditions)
  • Chronic obstructive lung disease
  • Smoking
  • Pensions (AMA Guides) (respiratory impairment)
  • Pensions (arrears)
  • Pensions (assessment) (chronic obstructive lung disease)

The worker worked in a smelter and in the iron ore recovery plant from 1957 to 1989. The Board granted the worker entitlement for chronic obstructive pulmonary disease, with an accident date in November 1985. The Board granted a 25% pension retroactive to December 2006, with an increase to 45% in September 2007, but the pension was reduced due to smoking to 10% for the 2006 pension and to 18% for the 2007 pension. The worker died in October 2010. The worker's estate appealed a decision of the Appeals Resolution Officer regarding the arrears date, the quantum and the apportionment of the pension.

Board Operational Policy Manual, Document No. 18-07-05, on arrears, provides that arrears are calculated for all periods when temporary benefits were not paid. In this case, there was no indication that the worker received any periods of temporary benefits. Document No. 11-01-05, on determining maximal medical recovery, states that the day following the accident may be considered as the date of MMR in circumstances were, due to the nature of the disease, a significant improvement in the worker's recovery may not be expected. That was the situation in this case; there was no significant improvement in the worker's condition after the date of the accident. The Vice-Chair concluded that the worker was entitled to the pension retroactive to November 1985.
The Board uses the AMA Guides to rate respiratory impairment for accidents prior to January 2, 1990. Table 8 sets out the categories and ranges of percentage impairment. There are four categories, each with a range of impairment. An individual may have results that fall into different categories. FVC, FEV1, FEV1/FVC and Dco are considered but FEV1 is considered the most useful measurement.
In November 1985, the worker had FVC within Class 2, FEV1 within Class 3 and FEV1/FVC within Class 3, as well as moderate air flow limitation. There was little clinical information and no evidence of treatment. The worker continued working until 1989. In the circumstances, the Vice-Chair rated the pension at 25% at the highest point of Class 2.
In December 2006, the Vice-Chair found that the worker was entitled to a 45% pension, which is the rating assigned by the Board in September 2007. A careful reading of the medical evidence demonstrated that the worker's condition did not change significantly between December 2006 and September 2007.
In April 2010, the worker's condition deteriorated significantly. The worker was entitled to a 75% pension as of that date.
The Board reduced the worker's pension by 40% due to smoking. It found that the worker had a 15-20 pack-year history or smoking. On the evidence, the Vice-Chair found that the worker smoked half a pack a day from 1947 to 1979. Thus, he had a 16 pack-year history of smoking.
Document No. 16-02-14, on chronic obstructive lung disease in smelter workers, contains a chart regarding the percentage of assessed permanent disability award accepted by the Board. It indicates, 40% for non-smokers, 30% for ex-smokers and 20% for smokers. This chart is confusing and difficult to understand and, apparently, not applied by the Board or the Tribunal. Rather, there is a chart in the Board's COPD binder that is used, although the binder is not Board policy.
Reviewing Tribunal jurisprudence, the Vice-Chair noted decisions regarding whether COPD is divisible between smoking and workplace exposure. The Vice-Chair noted Decision No. 1994/07, which set out cogent reasons for preferring that approach that the condition is not divisible. The Vice-Chair concluded that, as a general principle, apportionment of a pension or NEL award for smoking is not appropriate, although the individual facts of the case must be considered. For example, in Decision No. 484/06, the worker had a 75 pack-year history or smoking, whereas in this case, it was much less.
In the circumstances, the Vice-Chair concluded that the worker's COPD was not caused by separate divisible injuries. The worker was entitled to the pension without reduction.
The appeal was allowed.