Highlights of Noteworthy Decisions

Decision 1301 15
R. McCutcheon - M. Falcone - S. Roth
  • Action (settlement)
  • Pensions (arrears)
  • Pensions (assessment) (respiratory impairment)
  • Subrogation (proceeds of action) (surplus)
  • Pleural plaque

The Board granted the worker entitlement for asbestos-related pleural fibrosis, also known as pleural plaques, with an accident date in 1975. The Board also granted a 10% pension, as of March 2001. In Decision No. 1597/09, the Tribunal granted the worker entitlement for chronic obstructive pulmonary disease, with an accident date in March 1998. The Board granted the worker a 25% NEL award for the COPD.

The worker now appealed a decision of the Appeals Resolution Officer regarding the pension for the pleural plaques and to deduct from the pension a $10,000 settlement that the worker received from Personal Injury Settlement Trust (PIST).
The Board denied a pension prior to March 2001 due to a lack of evidence of decreased total lung capacity (TLC) prior to that time. Pulmonary function testing in 1998 indicated that all of the features of a restrictive defect were met, except for decreased TLC. However, the Panel accepted the opinion of a Tribunal medical assessor that a restrictive ventilator process (asbestos-related lung disease) leads to reduced TLC whereas COPD leads to a high TLC, so that the two conditions may balance each other out, the end result being a normal TLC.
The Panel concluded that the pulmonary function testing in 1998 showed a restrictive defect related to the worker's pleural plaques. The worker was entitled to the 10% pension retroactive to the day of the accident, with an increase to 18% in 1998.
In July 1996, the worker received a settlement of $10,000 from a PIST established by the employer's parent company. The PIST documentation provided seven entitlement categories. The worker's settlement was within Category III for disabling bilateral interstitial lung disease. The Board determined that this settlement was a form of civil recovery, which should have been registered against the claim as a surplus.
The Tribunal does not have jurisdiction under the WSIA over appeals from Board decisions on subrogation and elections. The Panel noted that Tribunal decisions have found that the Tribunal retains jurisdiction over appeals under s. 8(3) of the pre-1985 Act, which requires Board approval of settlements. The Panel found that this principle extends to this appeal, which requires consideration of a surplus under s. 8(4).
The worker submitted that the settlement, under Category III of the PIST for bilateral interstitial lung disease, did not relate to the same condition for which the worker was granted the pension. The Panel reviewed the categories of the PIST and found that the first three categories were inter-related, with the award increasing with the relative severity of the condition. Category I was for bilateral pleural plaques. Category II was for non-disabling bilateral interstitial lung disease. The worker was placed in Category III because Categories I and II encompass non-disabling lung conditions. The Panel was satisfied that the pleural plaques, for which the worker received the pension, was the same injury for which the worker received the payment from the PIST.
Section 8(4) uses mandatory language that any such surplus shall be deducted from future compensation or other benefits. The Board correctly deducted the amount of the PIST from the worker's benefits in this claim.
The appeal was allowed in part.