Workplace Health, Safety & Compensation Review Division

Transcription

1 Wkplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: Lloyd Piercey Review Commissioner The Review Proceedings 1. The hearing of the review application was held at the Mount Peyton Hotel in Grand Falls- Winds, NL on September 17, The wker was present at the hearing and represented himself. 2. Neither the employer n the Commission attended participated in the hearing process. Introduction 3. On May 12, 2012 the wker submitted a Fm 6S, Wker s Rept-Occupational Disease. Further infmation confirmed he had been diagnosed with asbestosis, resulting from years of exposure while employed as a Plumber/Pipefitter with a mining company. The claim was accepted by the Commission. 4. On October 26, 2012 the wker received a Permanent Functional Impairment (PFI) assessment and the Medical Consultant reviewing the file recommended a PFI rating of 27.5%. On November 21, 2012 the Pensions Adjudicat advised the wker of the award. 5. On January 7, 2013 the wker submitted a Request f Internal Review of the November 21, 2012 decision. The wker subsequently provided crespondence from his family physician dated January 7, 2013 and a copy of a CT scan of his abdomen and pelvis that was completed on March 14, On January 31, 2013, the Internal Review Specialist rendered a decision that upheld the November 21, 2012 decision by the Pensions Adjudicat. 7. It is the January 31, 2013 decision by the Internal Review Specialist that is befe the Review Division. 1

2 Issue 8. The wker is asking that I find the Commission erred in finding he is entitled to a 27.5% PFI award relating to his diagnosis of asbestosis. He is seeking a full lump sum benefit. Outcome 9. I find that the decision does not meet the requirements of the Act, and Section 60 in particular, in providing reasons which suppt the conclusion that a 27.5% PFI rating is applicable. The decision and the suppting medical opinion are not transparent on this point. The 27.5% figure is within the applicable range, but the range f this impairment is broad. Neither the Medical Consultant n the Internal Review Specialist, in his decision dated January 31, 2013, explain how the particular PFI rating of 27.5% was selected from within the applicable range of 26-50%. The decision of January 31, 2013 is overturned and the claim is referred back to the Commission f a new decision. Legislation and Policy 10. The jurisdiction of a Review Commissioner is outlined in the Wkplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28 which state, in part: Review by review commissioner 26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accdance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (a) (a.1) (b) (c) (d) (e) compensation benefits; rehabilitation and return to wk services and benefits; an employer's assessment; the assignment of an employer to a particular class group; an employer's merit demerit rating; and the obligations of an employer and a wker under Part VI. (2) An der decision of a review commissioner is final and conclusive and is not open to question review in a court of law and proceedings by befe a review commissioner shall not be restrained by injunction, prohibition other process proceedings in a court of law be removable by certiari otherwise in a court of law. Review commissioner bound by policy 26.1 A review commissioner shall be bound by this Act, the regulations and policy. 2

3 Application to a review commissioner 28(1) A wker, dependent an employer, either personally through an agent acting on their behalf with written consent, may apply to the chief review commissioner f the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission. (2) A review commissioner shall not review a decision under subsection (1) except in accdance with subsection 26(1). (4) A review commissioner to which a matter has been referred f review shall (a) (b) notify the person seeking the review and the commission of the time and place set f the review; and review the decision of the commission and determine whether it was in accdance with this Act, the regulations and policy. (4.1) Where a review commissioner determines that the decision of the commission was in accdance with this Act, the regulations and policy, he she shall confirm the decision of the commission. (4.2) Where a review commissioner determines that the decision of the commission was not in accdance with this Act, the regulations and policy, he she shall identify how the decision of the commission was contrary to this Act, regulations and policy, specify the contravened provision, set aside the decision of the commission and (a) (b) make a decision which is in accdance with this Act, regulations and policy; where it is appropriate to have a new decision from the commission, refer the matter to the commission f a new decision with without direction on an appropriate remedy. 11. Other relevant sections considered are Sections 19(1) and 73(1) of the Act, along with Policy EN-01: Permanent Functional Impairment. Relevant Submissions and Positions 12. The wker submits that his condition warrants a greater PFI award than the 27.5% given to him on November 21, 2012, as a result of the October 26, 2012 PFI assessment. 3

4 13. The wker submits that the medical evidence suppts his position, particularly the letter from his family doct dated January 7, 2013 and the results of the CT scan perfmed on him on March 14, The Internal Review Specialist, in his decision dated January 31, 2013, submits that the infmation contained in the January 7, 2013 rept from the wker s family physician, and the contents of the March 14, 2011 CT scan, does not contain any new infmation that was not already considered by the Medical Consultant who perfmed the PFI assessment on October 26, The Internal Review Specialist notes that, in this case, the Commission s PFI Rating Schedule could not be used to address issues, relative to the wker s pulmonary function and, consequently, the Medical Consultant had crectly used the American Medical Association s Guides to the Evaluation of Permanent Impairment (AMA Guides) in rating the wker s PFI award. 16. The Internal Review Decision references the Pulmonary Functional Analysis Rept dated June 23, 2010 that indicated the respiraty difficulties the wker was experiencing. He notes the FVC Fced Vital Capacity f an individual with no impairment is 3.58 litres. The wker had 2.07 litre capacity 58% of the nm. Relative to the FEVI Fced Expiraty Volume, the Internal Review Specialist noted that the expected nm is 2.80 litres capacity. He states that the results of testing indicated that the wker demonstrated a 1.54 litre capacity, 55% of the nm. 17. The Internal Review Specialist concluded that the Medical Consultant used Table 5-12 of the AMA Guidelines, a table used to classify impairment and respiraty disders by assessing pulmonary function and exercise test results. The Internal Review Specialist states that he reviewed the wker s test results and compared them to the criteria in the AMA Guidelines, and concluded that the Medical Consultant provided an appropriate rating of 27.5%. 18. The Internal Review Specialist states that the evidence suppted the decision by the Pensions Adjudicat and that she crectly approved the PFI rating, and the appropriate PFI entitlement based on the rating. Analysis 19. It is the position of the wker that his condition and symptoms would merit a larger PFI rating award than the 27.5% he received on November 21, He states that he is seeking the maximum award available under the PFI rating award criteria. 20. It is the position of the Commission that the evidence suppts the 27.5% recommended by the Medical Consultant who perfmed the PFI assessment on October 26, The Commission submits that the Pensions Adjudicat was crect in her decision of November 4

5 21, 2012 and appropriately awarded the wker a 27.5% rating f his respiraty impairment. 21. I note that Policy EN-01, Permanent Functional Impairment, provides a wker who suffers a permanent impairment, as a result of a wk injury, the opptunity to pursue entitlement in the fm of a lump sum payment. 22. A PFI award is intended to reflect the diminishment of the physical functional capacity of the body. There is a recognized process which provides structure to that analysis. The Commission, in its authity under Section 5 of the Act, has adopted Policy EN-01, Permanent Functional Impairment, which is also permitted by Section 73 of the Act, which states, in part: 73.(1) Where, as the result of an injury, a wker is disabled impaired either permanently temparily, totally partially, the commission shall pay in relation to the wker (b) a lump sum award f the permanent impairment as determined by the commission after consideration of a rating schedule; and (2) The maximum and minimum lump sum awards payable under paragraph (1)(b) shall be as prescribed by regulations. (3) The board of directs may f the purpose of paragraph (1)(b) approve a rating schedule which may be considered in calculating the amount of an award f a permanent impairment arising out of an injury. 23. The term impairment is also defined in the Act, as is the term disability. Subsection 2(1) states, in part: 2. (1) In this Act (g.1) "disability" means the loss of earning capacity of a wker as a result of an injury; (l.1) "impairment" means a physical functional abnmality loss, including a disfigurement, as a result of an injury; 24. Under the Act, an injury may produce a disability impairment, and it may produce both. Where the injury has a negative effect on earning capacity, a disability occurs. Where the 5

6 injury causes a physical functional abnmality loss, there is impairment. One may exist without the other. F example, an injury may produce an impairment but not a disability if the injury does not affect an individual s pre-injury employment because of the nature of his her job. 25. Also, the concept of impairment is recognized as a physical functional abnmality loss. It is measuring a specific effect of a compensable injury, not every effect of a compensable injury. It is intended to measure the degree to which the body s functioning is impaired. It is not measured by the degree to which an individual s quality enjoyment of life is affected, the loss of specific pre-injury activities. The two often overlap, but the emphasis is on the degree to which the part, parts, of the body are diminished in function and how this translates into a total body impairment. As the name suggests, the award is a functional impairment award. 26. Policy EN-01, Permanent Functional Impairment provides a Rating Schedule and it also allows reference to the AMA Guidelines. That is the rating schedule which the Commission has adopted under Section 73 of the Act. It is imptant to note that pain, in and of itself, is not a separate rating criteria, but the expected effects of pain associated with a type of injury are already contemplated by the Policy and are incpated into the methodology. Policy EN-01, Permanent Functional Impairment states, in part: A wker who suffers a permanent impairment as a result of a wk-related injury may be entitled to a lump sum payment f Permanent Functional Impairment (P.F.I.). The P.F.I. benefit recognizes noneconomic loss, as opposed to loss of earning capacity, and is based on measurable loss of bodily function. Entitlement is determined by the Commission through consideration of its adopted rating schedule known as the Permanent Functional Impairment Rating Schedule. Where the Permanent Functional Impairment Rating Schedule does not address a certain type of impairment, where it is not precise enough to fully evaluate the extent of an impairment, the Commission may use the American Medical Association (A.M.A.) Guides as a reference. The impairment percentages given in the A.M.A. Guides include allowances f the pain that may occur with the impairment. The existence of pain does not enhance the impairment percentages recommended. No award is given specifically f pain and suffering. (emphasis added) 27. It is also imptant to note that the PFI Rating Schedule is a guide. Many cases will not fit into the Rating Schedule, and it is on these occasions when the examining physician will be required to exercise judgment, relative to the symptoms and signs of impairment demonstrated by the injured wker. A medical finding is entitled to due weight as an expert opinion, and unless the opinion of the physician is outbalanced by evidence of greater weight, is proceeding on a wrong incomplete assumption, the Review Commissioner is not in a position to simply disagree with a medical finding and substitute his her own 6

7 personal opinion. The Review Commissioner is reviewing whether the Commission followed the Act, regulations, and policies, but cannot make purely medical findings of his own as part of this process. 28. I observe that the WHSCC Claim Notes dated October 26, 2012 indicate that the Pensions Adjudicat wrote to the Commission s Medical Consultant noting There are PFT s on file f June 23, Please review the PFT s and advise if the wker has a PFI rating in relation to his respiraty impairment. 29. The WHSCC Claim Notes dated October 26, 2012 indicate that the Medical Consultant responded and stated: Looking at the PFTs currently available on file, while reflecting both a restrictive deficit (FVC 58% of expected f gender, age and height) and FEV1 of 55% of expected, indicate a respiraty impairment in the better range of Class 3 impairment, accding to table 5-12 on page 107 of the AMA Guides to the Evaluation of Permanent Impairment, fifth edition. An appropriate PFI rating f this man s respiraty impairment is 27.5% at this time. 30. I have reviewed the Pulmonary Functional Analysis Rept dated June 23, 2010 and note that it indicates readings that are compatible with the results acknowledged by the Medical Consultant, relative to his PFI rating recommendation as stated in the WHSCC Claim Notes dated October 26, I have also perfmed a comparative review of the Pulmonary Functional Analysis Rept results, and the criteria set out in the AMA Guides, Table 5-12, which is used by the Medical Consultant to arrive at his recommendation of a respiraty impairment of 27.5%. I note that the Medical Consultant stated that the wker s impairment was in the better range of Class III impairment as indicated in the AMA Guides, Table In my review of the Class III, Table 5-12, I note that the table provides f an impairment rating which ranges between 26-50% of the whole person. One of the measurements it uses is Fced Vital Capacity (FVC) readings, and Class III cresponds with FVC results that are greater than 51% and less than 59% of nmal. F this wker, the test results indicated a FVC reading of 58%. 33. The table also uses Fced Expiraty Volume (FEV) findings as a measurement. Relative to the FEVI findings, Class III would apply to test results of greater than 41% but less than 59% of nmal. The Pulmonary Functional Analysis results of June 23, 2010 indicated that the wker demonstrated a reading of 55% of nmal capacity. Again, this would indicate that the wker would fall into the Class III Impairment categy. 34. In my review of the test results demonstrated by the wker, while I agree the percentages place the wker in the better range of Class III impairment, as noted by the Medical Consultant in the WHSCC Claim Notes dated October 26, 2012, I cannot find any rationale f the conclusion that An appropriate PFI rating f this man s respiraty impairment is 27.5% at this time. The range in Class III is considerable, and I cannot determine how it 7

8 is that the wker was assigned a 27.5% rating, which is almost at the very bottom of the range established in the Guidelines. 35. Table 5-12 Impairment Classification of Respiraty Disders from the AMA Guides, Fifth Edition, which was used by the Medical Consultant to assign the 27.5% rating, indicates that Class III has a variance of 26%-50% Impairment of the whole person. The file documentation indicates that the wker has demonstrated Fced Vital Capacity (FVC) of 58% and Fced Expiraty Volume FEV, of 55%. When I compare these percentages with the indicats in Table 5-12, I agree they would be in the upper range of function f the purposes of Class III criteria, but not at the very upper limit of the range, and this is especially so with respect to the FEV readings. However, the 27.5% PFI rating assigned by the Medical Consultant is near the very bottom of the lower range of the Impairment of the whole person (26%-50%). F reference purposes, I note that Table 5-12 Impairment Classification f Respiraty Disders from the AMA Guides, Fifth Edition provides the following: Pulmonary Function Test Class 1 0% Impairment of the Whole Person FVC Measured FVC > lower limit of nmal (see Tables 5-2b and 5-3b) and FEVı Measured FEVı > lower limit of nmal (see Tables 5-4b and 5-5b) and FEVı/FVC FEVı/FVC > lower limit of nmal and Dco Dco > lower limit of nmal (see Tables 5-6b and 5-7b) Vo max VoMax > 25 ml/(kgmin) > 7.1 METS Class 2 10%-25% impairment of the Whole Person > 60% of predicted and < lower limit of nmal >60% of predicted and <lower limit of nmal >60% of predicted and < lower limit of nmal > 20 and < 25 ml/(kg-min) METS Class 3 26%-50% Impairment of the While Person > 51% and < 59% of predicted > 41% and <59% of predicted > 41% of < 59% of predicted < 15 and < 20 ml/(kgmin) 4.3 to < 5.7 METS Class 4 51%-100% Impairment of the Whole Person < 50% of predicted < 40% of predicted < 40% of predicted < 15mL/(kg-min) Or < 1.05L/min < 4.3 METS 36. I acknowledge that, at times, in recommending a PFI rating, the impairment and assessment results do not fit neatly in specific categies and the Medical Consultant will sometimes have to exercise judgment. A Review Commissioner does not have the expertise to substitute a medical finding f that of a medical professional. An exercise of medical judgment, unless it is based on an irrational view of the facts, faulty factual assumptions, is entitled to due weight in the process. Also, a medical opinion may be outweighed by a balance of other evidence, but that is not the case here. While I accept that the Commission made no err in accepting the Medical Consultant s interpretation of the findings, considering the applicable section of the Guidelines, I cannot determine how it is that the Commission settled on the overall rating it did, within the range established by the Guidelines. Again, there is considerable range within Class III and, f all I can determine, the assigned rating may be crect. However, the Commission s decision, which relies on the Medical Consultant s opinion is not transparent on this point, so I am not left in the position to determine how the value was selected. This is a defect in the decision making process which I find must be remedied by way of remittal f further reasons on the final selection. 8

9 37. I would note that Section 60 of the Act requires that the rationale f the decision be fully explained. A wker is reasonably entitled to expect an explanation of why the final outcome was selected by the Commission. While I may surmise certain things from the recd and the opinion, I am not a medical expert, and I find that the acceptance of 27.5% rating - versus some other percentage in the lower end of the range - is not apparent from the decision. 38. I reference the following as appropriate in this case: Jacobs v. Wkplace Health, Safety and Compensation Commission (Nfld.) et al. [2001] Nfld. & P.E.I.R. Uned. 10 (NFTD); [35] From this then the Review Commissioner must consider all the relevant evidence placed befe him her, and must be satisfied that in reaching its determination, the Commission had available to it, and at least considered such relevant evidence. [36] The applicant is entitled to a decision which carefully considers all the relevant evidence. If the Court is satisfied that clear evidence suppting the position of the wker was not identified and addressed, the decision is liable f remission and to be re-weighed on the merits below. (emphasis mine) 39. Therefe, while I find that the matter must be remitted to the Commission on this basis, I would make the following two findings f the recd. 40. The wker argued that the decision was increct and he felt that he should be entitled to the full lump sum available, which is a 100% PFI rating. I do not accept the wker s argument in this regard, because the Commission must base its decision on the Act, regulations, and policies. The Act and policies do not demonstrate that the wker s condition meets the criteria f a 100% PFI award. The wker s findings do appear to be consistent with a Class III impairment within the Guidelines, which sets out a range between 26-50%. I cannot conclude that the Commission was in err f not awarding a 100% PFI when the Commission s ratings schedule and criteria do not call f such a rating. 41. Also, I note that I have reviewed the January 7, 2013 rept from the wker s family physician, and the contents of the CT Scan perfmed on the wker on March 14, 2011, two documents submitted by the wker with his Request f Review, and I find they do not add anything new that was not available to the Commission at the time of the October 26, 2012 PFI assessment. My direction in this case is limited to referring the matter back to the Commission to provide reasons on the final value selected, and confirmation that the value is representative of the medical findings. Whatever the final decision may be, I do accept that the overall range of 26-50% is applicable to this claim. 9

10 Decision 42. I find that the decision does not meet the requirements of the Act, and Section 60 in particular, in providing reasons which suppt the conclusion that a 27.5% PFI rating is applicable. The decision and the suppting medical opinion are not transparent on this point. The 27.5% figure is within the applicable range, but the range f this impairment is broad. Neither the Medical Consultant n the Internal Review Specialist, in his decision dated January 31, 2013, explain how the particular PFI rating of 27.5% was selected from within the applicable range of 26-50%. The decision of January 31, 2013 is overturned and the claim is referred back to the Commission f a new decision. Referred Back to WHSCC Lloyd Piercey Review Commissioner October 20, 2014 Date 10