- Chronic obstructive lung disease
- Exposure (silica)
- Hypertension
- Loss of earnings {LOE} (eligibility) (impairment)
- Consequences of injury (secondary condition)
- Dependency benefits (survivor)
The worker's estate appealed the following issues: a) initial entitlement to benefits for Chronic Obstructive Pulmonary Disease (COPD); b) initial entitlement to benefits for pulmonary hypertension and cor pulmonale on a secondary basis; c) entitlement to Loss of Earnings (LOE) benefits from July 31, 2012, or, in the alternative, from September 26, 2014; and, d) entitlement to survivor's benefits.
The appeal was allowed.The Board decision-maker relied on a WSIB Adjudicative Advice document entitled "Chronic Obstructive Pulmonary Disease." Specifically, the decision found that the worker did not have occupational exposure which met the "threshold for respirable dust and fumes of 2 mg/m³ for 25 years or a cumulative exposure of 50 mg/m³-years." The Panel referenced Decision No. 911/14, which observed that the COPD Binder defines "adjudicative advice" and how it differs from WSIB policy: "...it does not direct the adjudicator in the decision-making process or offer fixed criteria or set guidelines to be applied in decision-making." The Panel in Decision No. 2066/18 concluded: "[t]his variability supports the use of the 40 mg/m³ exposure level as a guideline to consider the context of the individual circumstances of the case, rather than a rigid minimum requirement." In the present appeal, the Panel found that the worker's occupational exposures to silica and other particulates made a significant contribution to COPD, despite the worker's non-compensable smoking history, both cigarette and cigar. The Panel found that the same duties which exposed the worker to airborne dust containing asbestos also exposed him to silica dust. The worker had a "cumulative dose estimate" of 22.5mg/m³. In the Panel's view, even though the worker's exposure to airborne dust did not reach 40mg/m³ over the course of his career with the accident employer, it was not de minimus, and likely made a significant contribution to the development of COPD. It followed that the medical conditions which were secondary to the COPD were also compensable. Entitlement to benefits for pulmonary hypertension and cor pulmonale was granted.The evidence indicated that the worker stopped working on July 31, 2012 as a result of his obstructive respiratory difficulties. The loss of earnings in relation to his respiratory condition were compensable. Entitlement to full LOE benefits from July 31, 2012 was granted. In addition, the Medical Certificate of Death identified the worker's immediate cause of death as "cardiorespiratory arrest due to advanced COPD." Because this Panel had found that the COPD, pulmonary hypertension and cor pulmonale conditions were compensable, the worker's survivors were entitled to benefits in accordance with section 48 of the WSIA and OPM Document No. 20-01-02.