Decision #110/07 - Type: Workers Compensation

Preamble

This is an appeal by the worker of Workers Compensation Board (“WCB”) Review Office Order No. 100/2007 holding that his permanent restrictions were appropriate and that the occupational goal in National Occupational Classification 7452, Materials Handler, was appropriate.

In November 2000, the worker suffered a compensable injury that was diagnosed as occupational asthma and reactive airways dysfunction syndrome (“RADS”) which left him with permanent restrictions. As he was unable to return to his regular employment he underwent vocational rehabilitation which resulted in the development of an Individualized Written Rehabilitation Plan (“IWRP”) with the occupational goal of National Occupational Classification (“NOC”) 7452, Materials Handler. In April 2005 the IWRP came to an end and the worker was deemed capable of employment within NOC 7452. The worker disagreed and took the position that neither the permanent restrictions nor the NOC were appropriate. Review Office upheld primary adjudication’s decision on February 9, 2007.

The worker appealed to the Appeal Commission and a hearing was held on June 26, 2007. The worker appeared and provided evidence. He was represented by a worker advisor. No one appeared on the employer’s behalf.

Issue

Whether or not the permanent restrictions are appropriate; and

Whether or not the occupational goal of working within National Occupational Classification 7452, Materials Handler, is appropriate.

Decision

That the permanent restrictions are not appropriate; and

That the occupational goal of working within National Occupational Classification 7452, Materials Hander, is not appropriate.

Background

Reasons

Introduction

This appeal deals with two interconnected issues – the appropriateness of the worker’s permanent restrictions and of NOC 7452. In weighing the evidence before us, the panel finds that the permanent restrictions imposed on the worker are not appropriate as they are too narrow and do not fully encompass the nature of the compensable injury. Given this finding, the majority also finds that NOC 7452 is not appropriate as it does not adequately respect his need for increased permanent restrictions.

Background

On November 16, 2000, the worker suffered a lung reaction to vapours he was exposed to at work in a bakery which was diagnosed as occupational asthma and RADS.

RADS is an asthma-like illness that is triggered after exposure to irritants. The irritants that trigger the worker’s RADS are recorded in several medical reports:

  • An April 18, 2001 report from an internal medicine consultant to the WCB notes that the worker’s RADS was triggered by flour and flour additives such as yeast as well as cleaning material such as Regain. The internal medicine consultant recommended that the worker avoid exposure to various flours, as well as cleaning agents on a permanent basis;

  • A September 5, 2001 report from the worker’s treating physician states that the worker’s medical condition gets worse when exposed to high temperatures, humidity and some air pollutants at the bakery;

  • A January 31, 2002 report from the internal medicine consultant to the WCB notes that the worker complained of breathing difficulties in very cold air;

  • A February 27, 2002 report from the internal medicine consultant to the WCB notes that testing revealed that the worker suffered from mild hyperinflation and air trapping and severe bronchial hyper-reactivity. Based on this testing, he recommended an impairment rating of 14.6% as well as avoidance of bakery environments on a permanent basis;

  • A March 12, 2002 memorandum from an occupational disease unit adjudicator records a discussion with the internal medicine consultant to the WCB. The internal medicine consultant noted his concerns with the worker’s severe bronchial hyper-reactivity and the fact that even if the worker was removed from the workplace, his condition would not subside but could be controlled;

  • An April 23, 2002 report from an occupational health doctor notes that the worker reported his asthma to be symptomatic at work in the bakery as well as when he is exposed to a large amount of dust outside of work;

  • An April 24, 2003 report from the internal medicine consultant to the WCB notes that the worker reported breathing difficulties with exposure to cold air or dusty environments;

  • A September 29, 2003 report from the internal medicine consultant to the WCB notes that the worker’s condition had improved considerably in relation to 2002 especially as regards the airway disease and bronchial hyper-reactivity. Based on testing done at that time, he recommended an impairment rating of 4.8%;

  • A March 21, 2005 report from an endocrinology and metabolism specialist reported that the worker had allergies to flour, yeast, propane fumes from the oven and dust;

  • An April 4, 2006 report from a respiratory specialist noted that the worker was relatively asymptomatic as long as he was not working in an environment that provoked his asthma. “This in the past has included working in a bakery or working in dusty, excessively hot or excessively cold environments”;

  • A June 26, 2006 memorandum from the internal medicine consultant to the WCB reviewed the worker’s permanent restrictions. He noted:

“As far as allergic reactions go, he was found mildly sensitive to dust mites, poplar and willow pollen, tobacco, alfalfa, clover pollen, ragweed and elder pollen. The test with bakery dust was negative. However, he was found slightly positive to wheat, cashew, orange, barley, rye, strawberry, lobster and pea, as well as to corn. An asthmatic could react with respiratory symptoms temporarily if exposed to extremes of cold wind and perhaps humidity. Inhaling irritant substances such as ammonia fumes, smoke may cause temporary respiratory symptoms.

From the objective evidence we have on file and a letter from [the respiratory specialist] dated April 4, 2006, it appears that he is doing well with the use of medications. It is recognized that temporary relapse of symptoms can occur with exposure as noted above, but it would be impossible to avoid each and every irritant in the environment totally.

In summary, the restrictions provided before, (bakery environment) should be avoided permanently, but it will be impossible to avoid all the irritants that are present in the home or work environment.”

Given the nature of the worker’s compensable injury, he was considered permanently restricted from working in a bakery environment. He was therefore referred to vocational rehabilitation in 2002 with the aim of finding alternate employment.

In determining an appropriate NOC, the employment specialist was told that the only permanent restrictions accepted by the WCB were flour dust and chemicals, especially Regain. While the WCB accepted that the worker might legitimately have complications with his breathing when exposed to other environmental elements (i.e. cold, heat, dust and other irritants) it considered that these other irritants were “non-compensable”. For preventive purposes he was to have an inhaler when exposed to these non-compensable elements.

Various employment options were considered by vocational rehabilitation services, including formal education, but were ultimately discarded for a variety of non-compensable reasons which are not relevant to the present appeal. Suffice it to say that in August 2004 the WCB decided to proceed with an occupational goal of NOC 7452, Materials Handler. This decision was made in part on the grounds that the worker was capable of controlling his breathing difficulties now that he was no longer exposed to the bakery environment, he had sufficient transferable skills to find employment within this NOC, and that this NOC was cost effective.

An Earning Capacity Analysis (“ECA”) for this NOC was done on October 5, 2004 which noted the following:

  • The job of a Materials hander includes handling, moving, loading and unloading materials by hand or by using a variety of material handling equipment. Most jobs are found in transportation, storage and moving companies as well as manufacturing and processing companies and retail and wholesale warehouses. Examples of jobs include bin filler, conveyor console operator, freight handler, lumber piler, railway car loader, storage worker, warehouseman, coal handler, forklift truck operator, furniture mover, stockpiler and truck loader.

  • Job duties are done either manually or with equipment. Manual handlers load, unload and move products and materials by hand or using basic material handling equipment, move household appliances and furniture onto and off moving trucks or vans, as well as other activities such as counting, weighing, sorting, packing and unpacking. Equipment operators operate winches and other loading devices to load and unload materials onto and off trucks, railway cars and loading docks of warehouses and industrial establishments, operate industrial trucks, tractors, loaders and other equipment to transport materials to and from transportation vehicles and loading docks and to store and retrieve materials in warehouses, connect hoses or pipes and operate equipment to load and unload petroleum, chemical or other products into or from tank cars, tank trucks or storage tanks, operate equipment to dump materials such as coal, ore and grain into or remove materials from railways cars, trucks or other vehicles, operate conveyors and equipment to transfer grain or other materials from transportation vehicles to elevators, bins or other storage areas and may do other activities such as opening containers and crates, filling warehouse orders, assisting in taking inventory and weighing and checking materials.

  • The work can be performed in both climate controlled and uncontrolled buildings and outside.

  • The largest concentration of material handlers are employed in Manufacturing (31%), followed by Wholesale Trade (22%), Transportation and Warehousing (21%) and Retail Trade (11%).

  • The employment specialist stated that there was a viable job market in this field based on 5 employment indicators that the WCB uses in assessing job market viability.

Given this data, an IWRP with this occupational goal was drafted as it was felt that there was a large enough market so that the worker would not have to work in an environment where he would be exposed to flour dust and Regain. The end date of the IWRP was scheduled for April 2, 2005.

By late 2004 the worker began searching for employment. In February 2005 he had a two week job placement to gain some work experience as a materials handler. The placement did not go well. It only lasted two days because of perceived behavioural issues and his complaints about smoke and dust in the workplace. He then found a materials handler job at another company but only lasted 2.5 hours due to back pain. He also stated that he noticed when working there his eyes were watering and his nose started running. He told his case manager this was not a good environment for him and questioned how the WCB could expect him to work as a materials handler.

On April 2, 2005 the worker’s IRWP came to an end. As a result he was deemed capable of earning the average salary for a materials handler and he was paid partial wage loss benefits.

Subsequent to that date, the worker continued to seek employment as a materials handler though he expressed his concerns to the WCB about his ability to work in certain environments and about his competitiveness in securing employment given his compensable injury.

On September 27, 2005, the worker told his adjudicator that he worked at a fish store for 6 hours and began to experience lung difficulties because of the cold and the humidity. Before his shift ended he went to the hospital, then to his family doctor and later to his respiratory specialist. On March 21, 2006, the worker called the WCB to report other difficulties he had encountered while working. One job did not work out because he had to work outside and the cold weather affected his asthma. Another job did not work out because he had to punch holes in books and found the paper dust was bothering him. He also had to quit a job after working 4 hours for a manufacturing company that provides coating for steel as the vapours caused his asthma to flare.

At the hearing the worker explained that during these asthma attacks he used his puffer and sought medical treatment. He added however that since approximately 2006 he has decreased his exposure to irritants and increased his physical well-being to the point that his asthma has improved to the point that he has substantially decreased his medication.

Several medical reports on file record the worker’s asthma difficulties in the various materials handling positions:

  • An April 13, 2005 report notes that the worker was experiencing shortness of breath and difficulty breathing in the workplace. His doctor did not believe he was capable of alternate or modified work at that time;

  • An August 3, 2005 report notes that the worker was experiencing dyspnea, productive cough and sputum and that he was not capable of alternate or modified work at that time. The doctor added that the worker was to work in an environment that does not irritate the airways, that is, no dust, mould or chemicals;

  • An October 4, 2006 report notes that the worker was experiencing repetitive flare-ups of lung infections and asthma in the work environment. The doctor did not think the worker was capable of working in that work environment and noted that he was currently looking for a job that he could do.

Worker’s Position

The worker says that the permanent restrictions are not appropriate as they are too narrow and do not take into consideration the other known triggers of his compensable condition. He also says that NOC 7452 is not appropriate as many of the work environments of a material handler cause his compensable asthma to flare.

Analysis

To accept the worker’s appeal we must find that his permanent restrictions and NOC 7452, Materials Handler are inappropriate. Based on the evidence before us, the panel unanimously finds that the permanent restrictions are not appropriate and the majority panel finds that the occupational goal of working within NOC 7452, Materials Handler, is not appropriate.

The Appropriateness of the Permanent Restrictions

In the case before us, the worker suffered a compensable injury which is known as RADS. As stated in the background, RADS is a reactive disorder – it is triggered by a reaction to exposure of airborne irritants. Some reactions can be transitory and others can be more substantial and severe. The type of the reaction can depend on the degree of RADS, the amount of exposure and the irritant. Further, the condition as well as the triggers can vary over time – either positively or negatively.

In the case before us, it appears as though permanent restrictions were limited to flour dust and Regain as it was determined that the worker was unable to work in a work environment where these substances were present no matter what measures he took to avoid them. In other words, these restrictions would preclude a successful participation in those job environments. This same determination was not made with respect to other triggers as it was thought that it would be difficult to avoid them, the reaction to the worker would be temporary in nature, and he should be able to control his reactions with medication.

In reviewing the evidence, we find that this determination was not appropriate.

The medical evidence before us is that the worker’s compensable condition was triggered by several additional irritants that he was exposed to in various work environments that caused a series of reactions which required medical attention and as a result of which the treating physicians recommended that he not work in those environments where those irritants were present. Based on this evidence, we find that the list of irritants which caused such reactions is broader than the last established by the WCB, and should have become part of his permanent restrictions. Examples include the particular solvents used in the galvanized steel plant, full time outdoor work (especially in extreme cold or heat seasons), and other irritants which may be identified from time to time. We also note that this list may change over time; given the nature of RADS and the worker’s evidence as to the improvement in his condition. While we accept that some airborne irritants are difficult to avoid on a daily basis, such as extreme weather conditions, the test that we are applying is that an irritant becomes a compensable restriction when you are exposed to an otherwise transitory irritant on a regular basis as a result of your work duties and your compensable condition becomes inflamed to such a degree as you are unable to work in that work environment.

Given the foregoing, we find that the worker’s permanent restrictions were not appropriate.

Chairperson Martin and Commissioner Malazdrewich

The Appropriateness of NOC 7542

With respect to NOC 7452, Materials Handler, the majority of the panel finds on a balance of probabilities that it was not appropriate given the broader list of irritants that should have been included as permanent restrictions.

Under The Workers Compensation Act (the “Act”) and WCB Policy, vocational rehabilitation is a discretionary benefit. When this discretion is exercised the objective is to assist the worker “achieve a return to sustainable employment”. In choosing that occupation however, the worker’s post-injury physical capacity has to be taken into consideration (as well as his skill and aptitudes and where possible his interests though the latter is not an overriding concern). It is for this reason that vocational rehabilitation services requests the worker’s permanent restrictions when identifying a NOC for the worker.

In the case before us, vocational rehabilitation services did request the worker’s permanent restrictions and was provided with them. These restrictions, as stated above, were not appropriate as they were too narrow. Unfortunately there is no evidence on file as to whether NOC 7542 would still have been considered a viable option had the expanded list of permanent restrictions been known. That is the crux of the determination that is before us. That determination is not an easy one given that there is not more precise data on the exact number of employment opportunities within the sub-groups of that NOC that would respect his expanded permanent restrictions.

The evidence is however that NOC 7452 does have jobs in uncontrolled environments. The evidence is also that a large part of the NOC is in manufacturing where there is an increased risk of exposure to airborne irritants. Further, at least 3 of the 7 types of jobs an equipment operator do appear to be inappropriate for the worker given his permanent restrictions. Once again, it is difficult to tell exactly how many jobs that represents. In reviewing the worker’s job experiences as a materials handler in some of these environments – namely manufacturing, industry and retail trade – as well as the medical reports surrounding these work experiences, it appears that the worker’s compensable condition was adversely affected to the point that he was unable to cope and his treating physicians recommended he not continue to work in such environments.

Based on this evidence, the majority finds that NOC 7542, Materials Handler was not an appropriate NOC for the worker. To be clear, the panel has not made any findings with respect to wage loss entitlement; that is an issue to be adjudicated by the WCB.

Accordingly, the worker’s appeal is allowed on both issues.

Panel Members

L. Martin, Presiding Officer
A. Finkel, Commissioner
B. Malazdrewich, Commissioner

Recording Secretary, B. Kosc

L. Martin - Presiding Officer

Signed at Winnipeg this 21st day of August, 2007

Commissioner's Dissent

Commissioner Finkel’s dissent:

I agree with my panel colleagues with respect to the first issue, and find that the permanent restrictions were not appropriate. I adopt the reasoning provided in support of that conclusion. My dissent relates to the second issue, being the appropriateness of NOC 7452, Materials Handler, for the worker.

As noted in the background of this decision and in the majority reasons, the Materials Handler NOC was selected for the worker as a “fall back” position, after vocational rehabilitation efforts aimed at re-education and retraining for higher paying occupations eventually failed because the impact of a number of personal issues faced by the worker. This particular NOC was selected because it met a variety of job market and job demand criteria generally used by the WCB’s employment specialists. It also had the advantage of not requiring additional job training, thus allowing the worker to initiate job search activities immediately, with the support of the WCB. The salary ranges for these jobs would not provide full wage loss recovery for the worker (and in fact the starting wages were only slightly above minimum wage); it was certainly a downward move for the worker, who was not happy about the prospect of taking this type of job, but there was a commitment made by WCB to continue to provide partial wage loss benefits or a “top up.”

The evidence notes that the worker did attempt seven positions within this NOC, but was unable to sustain these positions, for varying reasons. The common element of these difficulties related to his occupational asthma condition. In these positions, he was variously exposed to work conditions that were too cold or too hot and humid, or to fumes or dust that triggered his asthma condition. As a consequence of these failed return to work attempts, the worker asserts that the NOC Code was inappropriate.

Analysis

This is a very narrow issue in that it deals only with the appropriateness of the NOC code. Although there was some evidence before the panel as to the nature or quality or extent of the job searches undertaken or not undertaken by the worker throughout this period of time (and the potential issue of mitigation), these issues are not before this panel, and do not form part of this decision. The evidence regarding his job searches is, however, relevant for the purpose of determining the appropriateness of the occupational goal of NOC 7452.

Where a worker has had a series of failed job attempts in a particular NOC code, it is tempting to look at those actual attempts and the actual failures (as suggested by the worker’s advocate), and ascribe a “failure” to the assigned NOC code. I believe that this is the wrong approach, and is in fact inconsistent with how the vocational rehabilitation process works and should work.

To my mind, the test in this case should focus first on the worker’s permanent compensable medical restrictions and his general ongoing functional capacity as a consequence of those restrictions. This provides a baseline against which we can assess any potential occupational code for its appropriateness. This second assessment involves an analysis of the specific occupational code, and in particular examines whether there are sufficient job positions within that NOC code with sufficient job demand that can accommodate the worker and his medical restrictions.

Dealing firstly with the worker’s medical restrictions, the worker suffers from RADS, as a consequence of his employment in a bakery. As noted in our decision for the first issue, the worker’s condition can be exacerbated by a number of environmental exposures, including flour dust, certain chemicals, and extreme temperatures and humidity. As well, the nature of the condition is such that the worker may discover, from time to time, other environmental irritants that he finds to be noxious.

Having said that, the medical evidence is clear that the worker is far from being totally disabled by this condition. Evidence on file and at the hearing suggests that the worker’s condition has improved substantially since he was first diagnosed with this condition. A WCB respiratory specialist notes in April 2006 that the worker’s condition has been managed more and more successfully over time with medications. This evidence was corroborated at the hearing, where the worker noted quite a substantial improvement in his condition, to the point where he was using a puffer perhaps two to three times a month, and a bit more during transition seasons or hot or humid weather. He also had, with the concurrence of his respiratory specialist, reduced the daily asthma medications that he had been on. The worker’s evidence also suggested that he has quite broad ranging function, both inside his home and outdoors in most seasons. He only runs into difficulties in “dust storms” or when near freshly mown lawns, he can generally be outside all day, and only has difficulties in extreme temperatures, above 30˚C and below -25˚C. Although “dust” is mentioned and argued by the worker’s advocate as a potential irritant, it appears from my review of the medical evidence that it was flour dust (which was present in his bakery environment) and not regular dust which is the actual irritant. This is supported by his ability to be outdoors for considerable lengths of time in spring, summer, and fall, without medical consequences with some adjustments of his medications during spring.

This evidence supports the conclusions noted in the WCB respiratory specialist’s file review of April 4, 2006 which indicated that the worker was doing well with the use of medications. It was recognized a temporary relapse of symptoms can occur with exposure but it would be impossible to avoid each and every irritant in the environment totally.

The worker nonetheless has permanent medical restrictions because of the potential exposure to irritants known to cause him difficulties, and these must be respected in the selection of an appropriate occupational goal.

In this particular case, NOC 7452, Materials Handler was selected by the WCB’s vocational rehabilitation program for the worker. As noted by the employment specialist’s report, this is a very large category that covers all types of warehousing positions, both inside and out, and has within it both controlled and uncontrolled premises (in terms of air quality, temperature, and humidity). This occupation met all WCB criteria as to size of market in Winnipeg and job opportunities, and scored a “5 out of 5” as an in-demand job category. I note the worker advisor’s comments that the Manitoba Job Futures Outlook defined prospects in this NOC as limited. However, I note that job forecasting speaks to whether this particular sector will grow, stay stable, or decline in the future (presumably based on economic trends and other factors), and does not deal specifically to the availability of jobs or the size of the market at the time the worker was connected to this particular occupational goal.

The challenge in this case is determining whether there were sufficient positions within this code that respected his medical restrictions. The worker argues that his seven failed job opportunities suggests that NOC 7452 did not have any safe jobs for him, they were seasonal in any event, there was little demand for this position in reality, and thus NOC 7452 was inappropriate.

My review of the employment specialist’s Earning Capacity Analysis dated October 5, 2004 suggests otherwise. She notes that “the occupational profile for a Material hander include handling, moving, loading and unloading materials by hand or by using a variety of material handling equipment. They are employed by transportation, storage and moving companies and by a variety of manufacturing and processing companies and retail and wholesale warehouses.” Within this category, the issue ultimately turns on the number of “controlled environments” (which for the purposes of this case refers to appropriate air quality and temperature controls) and “uncontrolled” environments (which would include outdoor work that does not accommodate extreme cold/hot weather conditions or exposures to noxious irritants).

While the memo does not provide a breakdown of jobs by air quality or in-or-outdoor positions, it is clear from this list that many of these jobs would fall into the “uncontrolled” category, most likely those jobs that deal with manufacturing processes or outdoor material handling work. It is also clear that many of the jobs would be controlled; Winnipeg has a substantial number of light industrial plants and warehouses, as well as retail and wholesale warehouses which would involve the handling of packaged goods in a temperature and air quality-controlled environment.

While the worker’s job attempts and search efforts were primarily aimed at the first category (such as outdoor work and manufacturing or industrial processes), the worker acknowledged at the hearing his awareness of this second category of jobs, and his ability to perform them. As I noted earlier, the worker’s failed attempts at jobs in the uncontrolled portion of NOC 7452 jobs does not negate the appropriateness of the whole category. There is no evidence to support a shortage of jobs in a “controlled” environment nor is there evidence of the worker’s inability to successfully seek and maintain employment in that portion of NOC 7452. Therefore, I find, on a balance of probabilities, that there is an established job market in this occupational code, and as such, I would deny the worker’s appeal on this second issue.

A. Finkel
Commissioner

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