The Appeal CommissionThe Workers Compensation Act of Manitoba

Introduction

This case deals with the WCB’s decision to retroactively terminate a worker’s special additional compensation (“SAC”) benefits and implement a deemed earning capacity as a full-time retail sales clerk. However it is also a case about credibility.

As referred to in the preamble, the WCB made credibility findings against the worker on the basis of evidence gathered during its investigation. This panel disagrees with those credibility findings. It finds that no weight can be placed on the investigation given the inconsistencies in that evidence, particularly with respect to the evidence provided by two informants. The panel also finds that the worker’s evidence about his physical capabilities is credible and is consistent with the medical evidence on file that the worker continues to require compensable restrictions that preclude establishing a deemed earning capacity for the worker.

On this basis, the panel would rescind Review Office’s decision to implement a deemed earning capacity and would restore the WCB’s original decision to provide SAC benefits to the worker.

Our reasons follow.

The Worker’s Compensable Injury

As a result of a workplace accident in the 1980s, the worker developed a disease known as reactive airways dysfunction syndrome (“RADS”). RADS is an asthma-like illness that develops after exposure to high levels of an irritating vapour, fume or smoke. In the worker’s case, it developed after exposure to ammonia. RADS does not affect everyone the same way. It is triggered by exposure to various irritants. It can be a lifelong disease but it can also improve or even resolve.

The medical evidence on file indicates that the worker’s RADS has not resolved. It also indicates that the worker continues to require medication to control his RADS and continues to require restrictions that limit exposure to various irritants.

The list of irritants that trigger the worker’s RADS and what the worker can or cannot do is pivotal to this case as they rely heavily on the worker’s self-reporting and therefore his credibility. Indeed, many of the credibility findings made by the WCB deal specifically with whether the worker has in fact been exceeding his self-reported limitations. We find that he has not.

The list of irritants has admittedly been an evolving one. This is due to trial and error – the worker only knows if a chemical irritates him if he is exposed to it and has a reaction. Sometimes he has a reaction and cannot pinpoint what caused it. It is therefore only after some research and further exposure that he is able to definitively clarify it. The irritants that can trigger reactions in the worker are listed in a March 9, 1993 medical report from his family physician:

“anhydrous ammonia (which was the cause of his problems in the first place), diesel (exhaust fumes from vehicles or the liquid fuel itself), 2-4 D fertilizer, ink fumes (from photocopying machines particularly Gestetner copiers), many of the fertilizers used in gardens or lawns, and particularly some of the fertilizers used for destroying weeds on the sides of the roads…Weather can upset [the worker] to quite a degree, particularly severely cold weather or very hot, dry weather…It has been noted in the past that cigarette smoke and field smoke (when burning stubble) upset him. Dust in high concentration, feedlots and dairy farms are definitely a problem for him. He has said that Hydrochloric acid has upset him in the past as well. Other less severe irritants include: oil paint, nail polish, hair sprays, propane gas, some insecticides and certain glues.”

In this same report, the family physician explains that some chemicals and larger concentrations of chemicals are the main problem:

“You can see from the above list that he has quite a range of problems. However, the more noxious chemicals (anhydrous ammonia and intense concentration of diesel fumes) are the big problems. I think the intensity of these needs to be considered. His problems do not occur when he is around these in low concentration. Higher concentrations are the problem.”

A WCB internal specialist consultant later confirmed, after investigation, that photocopying products could be an irritant, and at the hearing the worker added that since this report he has noticed that there are also some perfumes, flowers and household cleaners that tend to affect him. These latter irritants were confirmed at the hearing by the worker’s wife and two daughters who described their daily lives sharing a household with the worker.

The irritants that can trigger the worker’s RADS were listed in a more cursory and general manner by a second physician in 2001 and 2003 as “cold, dry and dusty environments and any kind of fumes (such as gasoline, diesel or solvents)”. This was rectified in 2005 when he clarified:

“…I indicated that one of [his] causes of exacerbation of his asthma (sic) is a dry and dusty environment. By history, he indicates that this refers to a dusty environment with chemical compounds, and not to house dust or dust from lawn work. In addition, he suffers exacerbations from fumes of diesel, diesel products, propane and solvents, but indicates that gasoline does not cause any problem…”

We accept this final list and specifically exclude the initial cursory lists of 2001 and 2003. We find that the cursory list is misleading. Indeed, there is no evidence on file that the worker ever had a reaction to gasoline. To the contrary, it is documented on file that the worker often drove his own car, which is fuelled by gasoline, to attend vocational rehabilitation without reaction.

As stated above, the medical evidence is clear that the worker continues to suffer from RADS and that consistent with this diagnosis, the worker cannot fully control random exposures to these many irritants. It is the worker’s position that his RADS has deteriorated over the years but is better controlled due to increased and better medication as well as avoidance of certain environments. Documentary evidence on the file and submitted at the hearing confirm this increase in medication.

The worker has never taken the position that he is totally disabled from all activity. This is abundantly clear from a prior Appeal Commission decision (No. 409/93 dated December 17, 1993). It is not however the worker’s physical capabilities that cause his RADS to react. It’s the noxious environment. It is the reaction to noxious environments that have been problematic for the worker since his workplace accident.

Several medical reports from 2002 to 2005 fully support the worker’s assertions. The worker’s second family physician consistently notes no change in his condition. The independent medical examiner found “severe bronchial hyperreactivity” on testing. He thought that given the worker’s self-report of day to day variability of symptoms “he would have difficulty holding any job”.

The WCB internal specialist consultant took the position in 2002 that the worker’s condition had not changed since the early 1990s. However, in 2003, after reviewing the independent medical examiner’s report and the video surveillance (dealt with below) he changed his opinion. He thought that there was some improvement with respect to exercise-induced bronchospasm, but not with respect to his airway disease. While he thought that the worker was capable of some physical activity he nonetheless reiterated that the worker had restrictions which included avoidance of noxious environments. To be clear, he did not indicate that the worker was capable of full-time work in a retail sales position.

The panel finds that this medical evidence (as well as our later findings regarding the worker’s credibility) supports that the worker continues to suffer from RADS which is triggered by a long list of irritants as described above and continues to require avoidance of random exposures to noxious environments.

The WCB’s Decision to SAC

The worker’s compensable injury prevented him from returning to his regular employment as a truck driver because it would expose him to diesel fuel and fumes, a substance which is highly toxic to the worker and potentially fatal. He was therefore referred for vocational rehabilitation training with the expectation that he would be able to find alternate employment.

The file is replete with evidence that the worker was a more than willing participant in vocational rehabilitation between the years of 1988 and 2000. On one occasion, his own doctor met with the WCB to try and find an appropriate job for the worker as both he and the worker were sure that there must be a job that he could do.

It must be emphasized that the worker underwent more than 10 years of vocational rehabilitation. The file indicates that on all but two of the worker’s experiences, he ended up in the hospital. These hospital visits were precipitated by an unexpected exposure to an irritant. On one occasion it was diesel fuel; on another occasion it was agricultural dust; on another it was ink from an old Gestetner photocopier. Within this context, the file clearly indicates that it was the WCB, and not the worker, that began to be concerned about its ability to guarantee the worker a safe work environment.

A November 2, 1998 memorandum to file prepared by an employment specialist (the “ES”) who had dealt with the worker for many years, states this concern clearly:

“Since [1988] Employment Services and an external provider have assisted [the worker] in obtaining nine different work experiences. In all but two of these work experiences, [the worker] was exposed to a chemical where he became ill and ended up in the hospital, due to his [RADS]. The only reason he did not get ill while participating in the work experience with [an insurance company], was due to the fact that he controlled his own environment. ..Although [the worker] is only 43 years of age, it has become apparent that there are no employment positions within any industry groups, that would guarantee him a totally safe environment in the workplace…Therefore, in my opinion I would consider [the worker] functionally unemployable.” [emphasis added]

This is how the worker came to be granted SAC benefits by the WCB in 2001.

The WCB’s Decision to Terminate SAC Benefits

One year later, the WCB re-visited its decision to provide SAC benefits to the worker. It took the position that the worker had not been truthful about the irritants that triggered his RADS or about his physical abilities. This decision was brought about by an investigation into the worker’s activities. We place no weight on this investigation. The examples below, while not exhaustive, provide the bases for our finding.

The investigation was initiated after an informant (“Informant 1”) called the WCB Special Investigations Unit (“SIU”) in June 2002. Informant 1 told the SIU that the worker had been involved in a business venture with himself and another (‘Informant 2”) between September 2001 and April 2002 dismantling and selling buildings, and that the worker also ran a business operating a portable saw mill and tractor on his own property.

A private investigator (“PI”) was retained by the WCB to investigate further. We place no weight on the PI’s reports or video surveillance:

• The PI’s report contains multiple references to unidentified sources that provided him with information (frequently referred to in the reports as “I’m advised”). The panel heard evidence at the hearing from the worker, his wife and a witness that the PI’s sources were Informants 1 and 2. The witness testified that over the course of several weeks, Informant 2 would come to see him on Friday afternoons and laugh about the information he and Informant 1 were feeding the PI and how they were going to “stick it” to the worker. The video surveillance also contains audio with several voices on it. The worker and his wife say that these are the voices of Informant 1 and 2. While the panel cannot ascertain that they are the voices of Informant 1 and/or 2, there is a strong indication that they are, given the evidence of the witness that the informants were “assisting” the private investigator, and the content of the conversations overheard on videotapes.

The PI’s use of the informants’ information taints his reports and renders them unreliable as the reports are no longer an independent source of information against which the informants’ and worker’s evidence can be compared. It is also unreliable given our finding below that the informants’ evidence is not trustworthy.

• The PI’s reports contain subjective and slanted vocabulary such as the worker’s “associate” or the “work-site”. They also make unnecessary commentary about the worker’s physical prowess. This presentation could potentially taint the reader’s objectivity when reading the report.

• The PI’s reports contain several factual inaccuracies. The worker is noted to be working in what is referred by the private investigator as “hot weather”, which is potentially outside the worker’s restrictions. “Hot weather” for the worker is described by him as more than 35 ˚C. A print-out of Environment Canada’s historical weather for the days of surveillance reveals that the weather never reached that temperature. In fact, a day referred to as “hot” by the investigator was between 10.8˚C and 21.9˚C.

The investigator also refers to the worker sitting in a restaurant with a “no smoking policy” with a friend who was smoking. This statement has been contradicted by both the owner of the restaurant and the friend. The owner of the restaurant has indicated in a letter that the restaurant does have a “no smoking policy” and special ventilation, and the worker’s friend testified at the hearing that he has not smoked since 1981. The panel notes that other evidence on the file confirms that the worker does have a problem with cigarette smoke and that he avoids it.

• The video surveillance does not show the worker exceeding his restrictions. He is seen exposed to gasoline fumes, outdoor air, and sawdust. None of these are known irritants to the worker’s RADS.

He is seen doing some physical activity for relatively short periods of time on an inconsistent basis. To be clear, he is not seen working 8 hours a day 5 days a week.

We also place no weight on the SIU personal interviews of the informants:

• Informant 1’s personal interview lacks credibility. It depicts the worker as a “superman” who can lift 250 pound generators, bears and deer. More importantly, however, it is contradicted by Informant 1’s own court documents, which are part of the SIU investigation materials, as well as Informant 2’s personal interview.

As an example, Informant 1 told SIU that the worker began work on a project in about August 2001. In Informant’s 2 interview, he says it was more like December 2001. Court documents filed by Informant 1 indicate that the worker only started to work on the project in December 2001 but add that very little work was done by the worker; the majority was done when the worker was no longer involved in the project.

• Neither Informant 1 nor Informant 2 provides any evidence that the worker exceeded his restrictions. For example, they allege that the worker worked about 4 hours, 2 to 3 days per week, used his puffer, and worked with tools and in a dusty environment. Further, the court documents filed by Informant 1 indicate that the worker did very little demolition work on the project.

• Informant’s 1 interview contains factual inaccuracies. He says that they were working in very cold weather. He first says -30˚C but then changes it to -35˚C, then -40˚C. A review of Environment Canada’s historical weather conditions reveals that the weather never approached these temperatures.

• There is other evidence on file that the informants’ evidence is not trustworthy.

The SIU interviewed a third person (the “Interviewee”) who directly contradicted the informants’ evidence, provided names of people that would back him up, and warned the SIU about Informant 1 – “I think you should be doing a background check on the guy that’s put the complaint in…And I really, seriously say that…Cause I think there’s something mentally wrong there.” The Interviewee’s evidence was confirmed at the hearing by two witnesses.

We also place no weight on the final findings of the SIU investigation:

• The SIU investigation is incomplete. The file indicates that SIU told the worker they had “spoken to some other people” in addition to Informants 1 and 2 and the Interviewee. The worker confirmed this at the hearing. He testified that a named individual told him he had been contacted by the SIU and had spoken to them at length. The worker asserts that this telephone conversation is not recorded on file and that SIU may have deliberately withheld information that disputed Informant 1 and 2’s evidence. The panel notes that there is no evidence on file of this particular conversation or of any other contacts.

• The totality of the worker’s evidence refutes the allegations made against him in all material respects.

The panel notes that the worker was not provided a meaningful opportunity to respond to the investigation until the hearing. The worker was first approached by SIU to attend an interview without legal counsel present. When it was realised that this was a breach of the worker’s right to legal counsel, a second meeting was set up this time with the worker’s legal counsel. This meeting did not go long, as the worker’s legal counsel advised him to not respond to any questions until the full allegations relied upon by the WCB were provided to him. He told SIU that he “would appreciate receiving” the SIU’s investigation package after which if SIU “still want a…statement from him…arrangements can be made”. The SIU investigator replied “Okay then…I’ll put that together…”. This was not done despite the fact that the worker called on numerous occasions to ask where the investigation was at and when he would receive something.

The worker was provided with an opportunity to fully provide his evidence at the full day hearing. He attended the hearing with a great deal of documentary evidence, including receipts, peace bonds obtained against Informant 1 that had been issued by the Provincial Court, further court documents involving the worker and the informants, photographs, calendars, annotated comments on the SIU investigation, the PI reports and video surveillance, additional medical information, and statements from several witnesses. He and his witnesses also testified at the hearing.

Based on the worker’s and witnesses’ evidence provided at the hearing, the panel has serious concerns about the informants’ evidence and because of this finds that it cannot be relied upon. The panel also finds that this evidence demonstrates that the SIU investigation was not complete and the panel does not rely upon it.

Appropriateness of the Deem

As stated in the preamble, the issue before this panel is whether it was appropriate to implement a post-accident deemed earning capacity, retroactive to December 1, 2001. We find that it was not. There is simply no credible evidence that the worker is capable of full-time work in a retail environment.

The panel was faced with two distinctly different views of the worker and his capabilities and restrictions – the view that was held at the time of his being provided with SAC benefits in 2001 and the later view following surveillance and investigations. It is for this reason that the panel has carefully analysed all the evidence on file to determine which of the two views is accurate.

Based on our analysis above, the panel finds on a balance of probabilities, that the worker’s medical condition and his workplace restrictions remain exactly as they were at the time of the decision to provide SAC benefits in 2001.

The panel has already noted its many concerns with the surveillance and investigation, and we are unable to place any weight on it, especially with respect to the worker’s physical capabilities. Further, the medical evidence on file is uncontradicted that the worker remains, to this day, restricted with respect to exposure to noxious environments. The uncontradicted evidence is also that the worker must be able to control his own environment. There is no evidence that the worker would be able to do this in a retail environment.

Finally, the worker’s evidence is that he is only able to do some activity on a reduced basis and that this depends greatly on his condition. While this evidence relies greatly on the worker’s credibility, the panel finds that there is no basis on which to dispute his credibility. The worker appeared at the hearing with a substantial amount of documentary evidence to support his case and as well, methodically dissected the allegations made against him. Witnesses testified that also supported his case. Given that the worker provided abundant evidence to refute the allegations made against him, and that there is no evidence on file that the worker was capable of full-time employment in a safe work environment, we accept the worker’s evidence.

To be clear, the worker does not and has never disputed that he tries to keep busy by doing some projects for his friends. There is no evidence before us that the worker has ever charged or made any money from these activities. He acknowledges that he entered into a business venture with Informant 1 and 2 whereby he would provide advice and his tools and a small amount of labour in exchange for a share of the profit that could be made on the resale of some barracks. He says that he ran this by the ES he had dealt with for years who told him there was no problem in doing this and that he did not need to report it as income to the WCB as it would be classified as a capital gain.