WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 361/07

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 361/07 BEFORE: S. Peckover: Vice-Chair HEARING: April 16, 2007 at Toronto Written DATE OF DECISION: June 8, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1501 DECISION(S) UNDER APPEAL: WSIB ARO decision dated August 23, 2004 APPEARANCES: For the worker: For the employer: R. Hamilton, Consultant and D. Wilkin, Lawyer None (Not Participating)

2 Decision No. 361/07 REASONS (i) The Issue [1] The worker objects to the quantum of his non-economic loss (NEL) award being offset due to his smoking history. (ii) Introduction [2] The worker, a 74-year-old retired miner, was diagnosed with chronic obstructive pulmonary disease (COPD) in Since he had worked in the mines from 1957 to 1999, he attributed the development of the disease to his 42 years of exposure to silica dust and other particulate. The Board allowed the claim, and established an accident date of September 16, [3] Board Respirology Consultant Dr. Muir reviewed the worker s x-rays on August 7, 2003, and opined that the worker had COPD with emphysema and possibly early fibrosing alveolitis. He recommended that the worker s degree of permanent impairment be set at 35% as of September 16, As the medical information on file indicated that the worker had smoked two packs of cigarettes a day for 50 years, Dr. Muir suggested that the worker s NEL award be offset. Based on this opinion, the Claims Adjudicator calculated that the worker had a smoking history of 100 pack years, and 42 years of exposure to respirable dust. Using a table which estimated the average lung function lost from smoking compared to dust exposure, she calculated that the percentage of the worker s total impairment which could be related to occupational exposure was 30%. The worker was informed of this finding in a decision letter dated August 12, [4] In a conversation on August 25, 2003, recorded in Board Memo No. 14, the worker advised the Claims Adjudicator that the smoking history was incorrect, and gave her a detailed breakdown. The Claims Adjudicator indicated that, even if she accepted the revised numbers, the worker s smoking pack years would be 55, and the percentage of impairment resulting from his exposure to work-related respiratory dust would remain the same. [5] At the Appeals Branch level, in a decision dated August 23, 2004, the ARO reviewed the medical evidence and partly allowed the claim, as follows: What I can say is that it is my understanding the Act provides the WSIB with the authority to develop policy and practice. As pointed out in Mr. Wilken s submission the WSIB does have a policy relating to Chronic Obstructive Lung Disease also known as Chronic Obstructive Pulmonary Disease (COPD). The policy relates to the development of this condition in smelter workers. This policy records that when determining the percentage of permanent impairment a worker s smoking history is to be taken into consideration. It is true that the smelter worker policy became effective some twenty years ago. However it does not appear that since that time the link between smoking and COPD has been disproven. Staff at the WSIB undertook an extensive literature search relating to the development of COPD due to exposure to respirable dust. The research culminated in a document entitled Adjudicative Advice Document relating to Chronic Obstructive Pulmonary Disease dated April [sic] In this document it is noted that smoking is a major cause

3 Page: 2 Decision No. 361/07 of COPD in men and women. The document records that smoking causes an estimated 80% to 90% of COPD in the US. The document also records 10 to 15 percent of smokers develop COPD. The document also records the following with respect to the combined effects of work related dust exposure and smoking: The estimated average lung impairment due to COPD over time for groups of workers exposed only to dust may not be significant or measurable. However, impairment may become significant when the exposure is combined with individual susceptibilities and the effects of ageing [sic] and cigarette smoking. Also I note Dr. Muir provided responses to questions asked from the then Workers Compensation Appeals Tribunal. The responses were part of a medical discussion paper prepared for the tribunal [sic] by Dr. Holness with Dr. Muir providing supplemental information. One of the questions asked by the tribunal [sic] was as follows. Is it possible to apportion the degree of severity of COPD and exposure to dust or cigarette smoking? The response was as follows. Yes. What is required is an estimate of duration and concentration of dust exposure on the one hand and, if possible, the duration and intensity of smoking on the other. In addition it is my understanding that lung function declines slowly with age even in healthy non-smokers and in the absence of COPD. Smoking accelerates lung function decline. When a worker stops smoking the lung function continues to decline but not at the accelerated rate as when the person was smoking. Rather it declines at the normal rate associated with ageing. Therefore in conclusion I accept that offsetting the worker s permanent impairment award in relation to his smoking history is within policy and practice and is in keeping with medical literature. I am inclined to accept the worker s information as told to his claims adjudicator noting he has given a detailed breakdown of his smoking history. In so doing this means that based on the table the contribution of the worker s respiratory dust exposure to his COPD is increased from 30 to 40 percent (42 years of dust exposure rounded up to 45 and 55 pack year smoking history). As the worker s permanent partial disability award was determined to be 35% he is entitled to 40 percent of it versus the 30% he was granted. This means his NEL award is to be increased from 10.5 percent to 14 percent. [6] The worker appeals from this decision. (iii) The Representative s Submissions [7] Mr. Wilkin, on behalf of the worker, made lengthy submissions which dealt in detail with the following six general points: 1. No statutory provision or policy explicitly directs or authorizes apportionment in the worker s case.

4 Page: 3 Decision No. 361/07 2. General common law principles regarding apportionment do not allow for apportionment of damages based on cause or pathology, but only apportionment of funding based on fault. Recoverable damages are reduced or apportioned in proportion to the plaintiff s contributory negligence or relative degree of fault in causing an injury. 3. The proper translation of these principles into the no-fault workers compensation system is that full benefits are payable whenever occupation is a significant contributing factor in the development of a disease. The statute does make provision for the apportionment of funding between employers and third party tortfeasors. 4. Apportionment (i.e., reduction) of benefits in the worker s case cannot be justified by the argument that COPD is a cumulative condition and thus in some sense divisible. 5. Apportionment (i.e., reduction) of benefits in the worker s case cannot be justified by reference to but for reasoning. 6. In the worker s case, smoking falls within the nexus of occupational health and employer liability, so that apportionment would be inappropriate even if the effects of smoking could be severed from occupational dust exposure. [8] Mr. Wilkins concluded by submitting that the Panel should follow Decision No. 865/92R4 in rejecting the apportionment of benefits in this case, both as a matter of general legal principle and based on the evidence contained in the existing record. [9] Alternatively, if the apportionment or reduction of benefits could not be ruled out based on general principles and the current record, then the hearing of the claim should be extended into another phase with the appointment of a Tribunal Medical Assessor and the opportunity to present expert medical and scientific evidence in response. (iv) Analysis and Conclusions [10] Since the worker was injured on September 16, 2002, the Workplace Safety and Insurance Act, 1997 ( WSIA ) applies to the appeal. All statutory references in this decision are to the WSIA, as amended, unless otherwise stated. [11] The applicable Board Operational Policy Manual (OPM) Document is Document No , entitled Chronic Obstructive Lung Disease, Sulphur Dioxide and Particulates Exposure (Smelter Workers). The relevant portions read as follows: Policy Chronic Obstructive Lung Disease (COLD) in smelter workers is accepted as an industrial disease under sections 1(1)(n) and 122 of the Act as peculiar to and characteristic of exposure to Sulphur Dioxide (SO 2 ) and particulates. Benefits

5 Page: 4 Decision No. 361/07 Permanent Disability Smoking history is taken into consideration when establishing the percentage relationship to permanent disability (P.D.). The percentage of disability accepted by the Board is: Smoking History Non-Smoker Ex-Smoker Smoker Percentage of Assessed Permanent Disability Award Accepted By the Board 40% 30% 20% [12] I note that this scenario is more than amply dealt with in Decision No. 865/92R4. The Vice Chair in that decision conducted an extensive analysis, incorporating the Athey 1 decision and its principles. While he accepted, in principle, that the Board had the authority to apportion or pay a reduced permanent award to reflect distinct non-compensable injuries, as indicated in OPM Document No , he was not persuaded on the evidence before him that such apportionment was appropriate where the injury was COPD. In his opinion, in circumstances such as those in the case before him, where there are essentially two co-existing factors causing simultaneous and indistinguishable injury to the worker s lungs, attribution is neither possible nor, given the nature of the impairment, fair. He continued as follows: [46] As I have determined in my earlier interim decisions, two co-existent factors, one compensable, one non-compensable, have jointly caused trauma to a single organ. As I interpret the medical evidence cited in those decisions, each of the factors has aggravated and worsened the impact of the other in the overall physical impairment. The evidence also indicated: 1) that the interaction between smoking and exposure to dust in a nickel mine is not fully understood, 2) that both can cause significant decrements, and 3) that the effects cannot be distinguished from each other. [47] There appears to be no dispute that both cigarette smoking and exposure to dust are significant contributing factors in the development of COPD. [48] As I understand it, that means that, had the worker never been exposed to dust in his employment, it is unlikely that cigarette smoking alone would have brought the worker to the degree of impairment he reached when he sought a pension in His exposure to dust likely accelerated the impairment process, causing the worker to reach a point where his physical or functional abnormality or loss impaired his earning capacity at a much earlier point in time. This is not a situation, then, where a portion of the abnormality can be identified as being caused by the smoking, with the dust exposure creating a separate, identifiable disability. Rather, the worker s disability in 1977 resulted from both exposures, working together. [49] The Claim [sic] Adjudicator s position seems to be that, because cigarette smoking caused this dust-exposed worker to reach this point of impairment earlier, there should be apportionment of liability. However, this would appear to be contrary to the thin skull principle, which stipulates that a defendant takes a plaintiff as he/she finds the plaintiff. In this case, the worker was a cigarette smoker and was by virtue of that fact causing damage to his lungs. However, because of the nature of his employment, that damage was greatly accelerated, resulting in a person who was severely disabled by the age of 1 Athey v. Leonati [1996] 3 S.C.R. 458

6 Page: 5 Decision No. 361/ There is no evidence that the worker had a measurable pre-existing disability, or a pre-existing condition that, while not measurable, created a pre-existing disability, either of which might authorise a reduction in a pension award under Board policy # and the common law and statutory provisions that authorise that policy. [54] In my view, apportionment of impairment of earning capacity between two causes does not fairly and accurately reflect the extent of the contribution of each of the injuring processes that caused injury here. It is probable that the worker would not have such a significant impairment at age 46 as a result of either of these factors singly. Because of the interaction of these two causal factors, he had a substantial impairment of earning capacity. [57] The evidence does not establish that worker [sic] has two distinct disabilities caused by two separate causal factors. He has a single injury causing an impairment of earning capacity in the form of chronic obstruction of his lungs. I think it instructive to note that the example used by the Supreme Court in the Athey decision of a divisible injury was an injury to the plaintiff s foot versus an injury to the plaintiff s arm. Apportionment of a disc herniation was considered to be neither possible nor appropriate. While the Court s judgement [sic] does acknowledge attribution of liability for divisible injuries, it seems to imply that for this to occur there must be clear evidence that the prior injury (the original position ) was present and measurable, or that the subsequent injuring process was so distinct as to be something that could have no causal impact on the plaintiff s or worker s original position. [13] Applying this analysis to the case before me, I find that the worker s smoking and his exposure to silica dust each were significant contributing factors to the worker s COPD. It is not possible to segregate them, or to determine which had the greater impact on the development of his illness. The worker developed shortness of breath in the 1970s, but was able to continue working until his retirement in 1999, although he indicated that from the mid-1980s and on, his condition deteriorated. It was approximately three years after his retirement that he was diagnosed with COPD. [14] The Vice-Chair in Decision No. 865/92R4 then dealt with the issue of a pre-existing condition or pre-existing disability, or, to use Athey s terminology, the crumbling skull principle. He had the following to say: [60] It appears that the [Athey] Court s overriding concern was that the thin skull principle be honoured. I think that, in the context of a pre-existing condition, what the Court meant by that statement was that a defendant should not be responsible for any loss that was evident prior to the defendant s negligent act. This is sometimes referred to as the crumbling skull rule. At paragraph 35, the Court comments: The so-called crumbling skull rule simply recognizes that the pre-existing condition was inherent in the plaintiff s original position. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage. [61] That principle is entirely consistent, in my view, with the Board s policy of apportionment generally (Doc. No ), which only reduces a worker s entitlement to a permanent award by reference to a condition that had a measurable impact on the

7 Page: 6 Decision No. 361/07 injured worker before his compensable injury. Subject to that proviso, any loss after the compensable injury is, under the Board s policy, considered to be attributable to the compensable injury. [62] In the present case, there is no evidence that the worker had a measurable preexisting condition or a pre-existing disability when he was subjected to the exposure that gave rise to his compensable injury. The evidence is that he started smoking two or three years prior to the commencement of his exposure to dust. [15] Again, that analysis is relevant to the case before me. The worker began smoking in 1948, smoking one pack a week of self-rolled cigarettes. He began to work in the uranium mining industry in 1953, some five years later. From 1960 to 1980, he smoked one pack of cigarettes per day. From 1980 to 1994 (at which point he stopped smoking), he smoked two packs per day. There is no evidence in the file that, prior to commencing his work with the accident employer, with its concomitant exposure to silica dust, the worker had any pre-existing condition or disability with respect to his lungs. [16] The Vice-Chair in Decision No. 865/92R4 then dealt with the issue of the s. 126 requirement for the Tribunal to apply Board policy. He found that the merits and justice policy, OPM Document No , would govern in any event: [70] I am also persuaded, on the facts of this case, that apportionment would not be consistent with the merits and justice of the case, and that Board policy would govern, even if policy were also applicable. As I have noted above, although cigarette smoking and occupational dust were each contributing factors in the worker s impairment, the extent and nature of the worker s exposure to dust was remarkably high, in Dr. Muir s words. In my view, it could well have initiated the process that led to the worker s COPD and severe disablement at an early age. [73] I think it worth noting that, according to the Board s Adjudicative Advice Binder on COPD (p. 32), 10-15% of cigarette smokers develop COPD, which of course means that 85 90% do not. [74] The worker s first symptoms of COPD were present in 1965 which was about eight years after the worker left the sinter plant. He was severely disabled within another twelve years. In my opinion, his dust exposure has to be seen as having primary responsibility for the worker s symptoms at those times. [75] I am not persuaded that there is sufficient evidence to permit making an attribution of a portion of responsibility to cigarette smoking in the present case. In my view, noting the principles in the Athey decision, the Board s broad policy on apportionment of pensions, and the particular facts of this case, there is insufficient justification for apportioning the worker s entitlement to permanent benefits. [76] On the basis of the merits and justice of the case, I would therefore, not apportion the worker s pension, even if I were persuaded that the applicable Board policy might normally provide for this. That being the case, section 126 of the WSIA need not be addressed in this case. [17] In the case before me, I note that the worker, born in 1932, began working in an uranium mine in 1957, and continued to do so until He therefore was subject to respirable silica dust exposure for 42 years. While there was little data available on concentrations of silica dust in the area over this time period, Occupational Hygienist Dr. Kabir stated in his Exposure

8 Page: 7 Decision No. 361/07 Assessment Report dated June 3, 2003 that the worker s exposure between 1957 and 1999 could range from a low value of about 4 mg/m 3 years to a high value of 195 mg/m 3. However, he felt that the low end of the range was inappropriate, given the wide variability of the dust count data and lack of correlation between the PPCC counts and the gravimetric respirable dust count data available. He opined that values somewhere in the middle would likely give a reasonable estimate. [18] Based on this opinion, the Board accepted that the worker had sufficient exposure to silica dust for entitlement to flow. Indeed, the Claims Adjudicator accepted that the worker s dust exposure was significant. [19] In summary, the worker has a single injury in the form of chronic obstruction of his lungs, which is indivisible, and cannot be apportioned between the two significant contributing factors of exposure to silica dust and cigarette smoking. There is no evidence that the worker s smoking, which amounted to one pack a week of self-rolled cigarettes beginning five years prior to his employment with the accident employer, had caused any pre-existing condition or disability to which the crumbling skull principle would apply. Further, the merits and justice indicate that there is insufficient justification for apportioning the worker s entitlement to permanent benefits, on the facts of this case. [20] It follows that the worker is entitled to his full 35% NEL award, without apportionment as a result of his smoking history.

9 Page: 8 Decision No. 361/07 DISPOSITION [21] The appeal is allowed. The worker is entitled to the full 35% NEL award, with no offset for smoking. DATED: June 8, 2007 SIGNED: S. Peckover

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