Decision #166/08 - Type: Workers Compensation

Preamble

In August 2000, the worker filed a claim with the Workers Compensation Board (“WCB”) with respect to symptoms he claimed resulted from exposure to irritants in the workplace since 1993. The WCB established two claims: an inhalation claim (Claim No. 9304 4688) and a dermatitis claim (Claim No. 9304 4689). The inhalation claim was denied by primary adjudication and Review Office as they were unable to relate the worker’s symptoms of headaches, nausea, fatigue and chest pain to his work environment. The claim for the dermatitis condition was accepted and the worker was provided vocational rehabilitation benefits. The worker is presently appealing the WCB’s decision to deny his inhalation claim as well as several WCB decisions related to his vocational rehabilitation planning. A hearing was held on November 6, 2008, to consider the worker’s appeal.

At the hearing, the worker withdrew the following issue: Whether or not the worker’s pre-accident gross weekly wage should be adjusted.

Issue

Issues and Decisions:

Dermatitis Claim:

1. Whether or not National Occupational Classification code (NOC 6411) sales representatives (wholesale trade) non-technical, is an appropriate vocational rehabilitation goal.

Decision: Based on the worker’s changed circumstances, National Occupational Classification code (NOC 6411) sales representatives (wholesale trade) non-technical is not an appropriate goal.

2. Whether or not the WCB should support National Occupational Classification code (NOC 4112) lawyers and Quebec notaries, as a vocational rehabilitation goal.

Decision: That the WCB should support National Occupational Classification code (NOC 4112) lawyers and Quebec notaries, as a vocational rehabilitation goal.

3. Whether or not it is appropriate to implement a post-accident deemed earning capacity effective January 22, 2007.

Decision: That it is appropriate to implement a post-accident deemed earning capacity of minimum wage on a full time basis, effective January 22, 2007, until commencement of law school in September, 2008.

4. Whether or not the worker is entitled to wage loss benefits from May 9, 1997, to October 25, 1999, in relation to his dermatitis claim.

Decision: The WCB is instructed to adjudicate the worker’s entitlement to wage loss benefits from May 1997 to October 1999 in the context of both his dermatitis and inhalation claims given that his inhalation claim is now considered an accepted claim.

Inhalation Claim:

5. Whether or not the claim is acceptable.

Decision: That the claim is acceptable.

Decision

Decision: Unanimous

Background

On August 16, 2000, the worker filed a claim with the WCB for symptoms that started around 1993 during his employment activities as an auto paint technician. The worker explained that he would work six to eight months and would experience headaches, rashes and lack of energy. He would then go on unemployment for a few months and would start to feel better again. The worker stated he was in denial that his work environment was causing his difficulties.

A WCB adjudicator spoke with the worker on August 17, 2000, to gather additional information. The worker stated the following:

  • he had been working in the autobody industry since he was 16 years of age;
  • about seven years ago he started to experience headaches and mood swings;
  • between 1993 and 1994 he developed two large pieces of scar tissue on his back. He related it to his exposure to paint fumes and solvent in the autobody industry;
  • the worker indicated that his symptoms of headaches, mood swings, etc. would increase in severity and intensity with increased exposure at work and would subside when he removed himself from the workforce.
  • the worker provided details of his employment history from 1993 to 2000 and periods where he went on unemployment to “clean out system”.

On October 4, 2000, the accident employer advised the WCB that the worker was employed with their company from October 25, 1999, to April 14, 2000, as an auto body refinish technician. His duties included sanding, masking, priming and painting vehicles. The employer noted that when the worker entered their employment, the worker had been aware of his condition and asked if he could try work again as he was feeling better. The employer felt that the worker’s illness did not occur while in their employ and that the company should not be charged for the incident.

The file contains a number of medical reports and laboratory test results dating between 1997 and 2000 pertaining to the worker’s medical treatment. In a June 3, 1997 report, an occupational health physician indicated that he saw the worker on May 20, 1997. The worker reported a history of being tired and having headaches at the end of his workday for the past 3 or 4 years. He reported a decrease in motivation, light headedness, chest congestion, throat irritation, loss of sense of taste and smell and swelling in his neck. The worker reported that his symptoms resolved when he was away from painting. At the time of the assessment, the worker had not painted for two weeks and was starting to feel much better. The occupational health physician reported that many of the worker’s symptoms were consistent with the known effects of solvent exposure. He recommended that the worker limit his exposures to solvents as much as practical and to work with proper respiratory protective equipment should he return to working with solvents. On May 25, 2000, the occupational health physician reported to the family physician that the worker’s headaches, at least, may be related to his occupational exposures to solvents.

On December 9, 1999, a dermatologist and cutaneous surgeon reported that the worker gave a six year history of increased asymptomatic, occasionally pruritic, 1.5 cm. red brown dermal nodules on the torso. The specialist agreed that these were probably hypotrophic scars. He stated, however, since the worker had no history of trauma, a differential diagnosis of a granulomatous process should be considered. In a further report dated September 5, 2000, the specialist indicated that two skin biopsies were performed on April 27, 2000. The worker returned on May 9, 2000, as many more lesions had developed. The one skin biopsy showed an interface dermatitis with a perivascular lymphocytic infiltrate while the other was compatible with a mature scar.

On October 10, 2000, primary adjudication referred the file to the WCB’s internal medicine consultant to review the reports and provide his opinion regarding the current diagnosis.

In a memo dated October 18, 2000, the WCB internal medicine consultant provided a brief summary of the evidence he considered upon his review of the file material. He noted that the worker used various chemicals which were mostly solvents but there were other chemicals including Styrene Monomer and Dimethyl Ethanolamine which were irritants to the respiratory tract and caused skin rashes. Solvents such as Xylene, Isobutanol or Butyl acetate could also cause irritation to the respiratory tract and central nervous system depression and headaches. It was noted that the symptoms described by the worker included skin lesions which were biopsied and found to be dermatitis and a mature scar and that the treating physician did not find any evidence of collagen vascular disease. He noted the occupational health physician’s opinion that the worker’s headaches were present on and off and may be due to solvent exposure, while another physician speculated as to a psychological source. After considering this file information, the WCB internal medicine consultant stated that the diagnosis was unclear. He stated,

“The skin lesions do not seem to be allergic or irritant to dermatitis. He does not have any respiratory symptoms to indicate problems with Styrene or Dimethyl Ethanolamine. Thus, no definitive diagnosis has been arrived at based on the information available. Since we do not have a specific diagnosis I am unable to relate this to (sic) workplace. However, the chemicals can produce problems as stated above. The physical examination described by various physicians have all been negative and I therefore, suspect he should be able to undertake some work which does not expose him to the chemicals. ”

On December 19, 2000, the WCB internal medicine consultant reviewed additional information that was placed on file since his last review on October 10, 2000. He noted that the occupational health physician attributed the worker’s headaches to solvent intolerance. The consultant opined that this was not an accepted diagnosis. He stated he was unable to establish any diagnosis related to the exposure to paint or to solvent, which might result in occupational asthma. The consultant commented that it was possible that inhalation of volatile solvents could give rise to bizarre skin rashes, but that one could do patch testing to confirm same.

In a letter dated December 27, 2000, the worker was advised that his claim for inhalation was being denied as the adjudicator was unable to relate his symptoms of headaches, nausea, fatigue and chest pain to his work environment. The worker was also advised that the WCB was establishing a new claim for his skin condition which was presently being investigated.

The worker was assessed by an allergy and clinical immunology specialist who performed patch testing on two occasions in March 2001. It was concluded that the worker had contact sensitivity to diisocyanate which he was exposed to in the workplace and also to bisphenol A, which could be responsible for epoxy resin dermatitis. He believed that this type of sensitivity could be responsible for the dermatitis that the worker developed, which was consistent with a contact sensitivity.

Based on the patch test results, the WCB accepted that the worker was sensitive to bisphenol A and hexamethylene diisocyanate which were common chemicals found in various paints, glues and adhesives that were found in the autobody industry. The WCB determined that the worker had permanent restrictions to avoid exposure to bisphenol A and hexamethylene diisocyanate.

On April 30, 2001, the worker was advised that his claim for dermatitis was accepted and that he was entitled to wage loss benefits commencing April 17, 2000. The worker was also advised that his file was being referred to the WCB’s vocational rehabilitation branch for early intervention. The worker was advised that his inhalation claim had been reviewed again by the WCB internal medicine consultant and it was still the WCB’s opinion that there was no causal relationship between his symptoms and exposure in the workplace.

In a letter dated September 25, 2001, the occupational health physician responded to questions that were posed to him by the worker. The physician stated the following:

  • the worker’s skin rash (presently diagnosed as occupational dermatoses) had not changed significantly since 1992. It was likely that this rash was the same as that which predated acceptance of the worker’s 1997 claim;
  • individuals can develop skin conditions following inhalation of compounds to which they have been sensitized. Restrictions to eliminate exposure to these compounds would apply.

A supervisor from the WCB’s occupational health unit wrote to the worker on October 23, 2001. He stated that the opinion expressed by the occupational health physician on September 25, 2001, was purely speculative in nature and that he supported the decision to deny the worker’s inhalation claim.

On December 21, 2001, the worker was advised that the WCB was unable to establish that he was disabled from work prior to April 17, 2000. The adjudicator noted that a WCB medical advisor reviewed the file and was unable to confirm that a relationship existed between isocyanates and his gastrointestinal problems. Although the file reflected the worker’s multiple complaints of symptomatology, findings upon examination were usually limited and indicated a person in no distress. The rash was referred to as asymptomatic. As a result, the adjudicator was unable to establish that the worker was disabled from work prior to April 17, 2000, as a result of his compensable dermatitis condition.

In a submission to Review Office dated March 1, 2002, a worker advisor contended that the worker’s symptoms of headaches, nausea, fatigue, respiratory and gastrointestinal problems should be accepted as an outcome of the inhalation of chemicals the worker was exposed to in the workplace. She also argued that the worker was entitled to loss of wages from May 9, 1997, to October 25, 1999, which was the period he could not work due to his solvent intolerance. In the event the Review Office did not rescind the previous WCB decisions, a Medical Review Panel (“MRP”) was requested.

On April 19, 2002, Review Office determined that the worker did not suffer a total loss of earning capacity due to his dermatitis condition such that he could not have performed gainful employment between May of 1997 and October of 1999. Review Office noted that since the worker’ s claim for inhalation had not been accepted, it did not have any comment to make on whether or not the worker was prevented from working due to inhalation issues during the disputed time period. Review Office felt, however, that the worker’s inhalation claim was eligible to go to an independent MRP based on the difference of medical opinion between the specialist in dermatology and the opinion expressed by the WCB’s internal medicine consultant.

An MRP took place on October 16, 2002, and the MRP findings are contained in a report dated December 30, 2002. Although an allergist was scheduled to be present at the MRP, she was unable to attend on the date of the examination due to an unexpected event. The MRP made, inter alia, the following findings:

  • During his employment as an auto body painter, the worker complained of a large number of symptoms, including headaches, digestive problems, swollen and irritated throat, numbness of his hands, rashes on various portions of his body, generalized fatigue, tinnitus and breathing attacks. The skin condition, which the worker said was not particularly uncomfortable, was attributable to exposure to products used in painting automobiles. With regard to the other symptoms complained of, the relationship was temporal. There was no proof that the symptoms were caused by toxic effects due to exposure to paints and solvents.
  • The panel agreed that the symptoms complained of by the worker could be caused by exposure to paints and solvents, but two of three panelists could find no conclusive evidence of a relationship between workplace exposure and symptoms, other than temporal.
  • One panelist believed that testing had not been complete and there remained an element of doubt in his mind. However, on the basis of information available to the MRP, he believed on a balance of probabilities that the worker did not have occupationally induced asthma.
  • The panel agreed that the worker was now disabled from working in a work environment where he would be exposed to body shop paints and solvents. This, despite the fact that the panel could find no objective medical evidence that the worker was adversely affected by his exposure.
  • The panel felt that the worker was not disabled from working in any other way, except that he not be exposed to volatile substances.
  • The panel agreed that the worker was disabled from working as a painter between May 9, 1997, and October 25, 1999, because of his strong belief, based on his understanding of the toxic potential of exposure to paints and solvents, that he had become sensitized to chemicals in the work place.

On April 4, 2003, Review Office determined that the worker’s inhalation claim was not acceptable and that there was no entitlement to wage loss benefits from May 9, 1997, to October 25, 1999. Review Office stated that it accepted the MRP’s report and commentary. It stated that the whole of the evidence did not support the worker’s contention that he had an inhalation or sensitivity claim caused by his work related exposure to paints and solvents. The only evidence found by the MRP was a temporal one and Review Office indicated that it did not accept this as being causal from the workplace. It followed that the worker would not be entitled to benefits as the condition which may or may not have disabled him during that time was not recognized as a compensable injury.

On June 18, 2007, the worker asked Review Office to reconsider its decision of April 4, 2003. Attached with the submission was a letter dated January 11, 2007, from the dermatology and cutaneous surgeon who treated the worker in 1999. He stated,

“Today he is bringing to my attention a letter written by WCB in 2002 which states he is being refused wage loss benefits because the lesions were classified as asymptomatic. This is indeed what was written in my letter to his family doctor at that time in 1999. However close reading of my letter states the lesions are usually asymptomatic but can be pruritic. At the same time he was experiencing headaches respiratory problems and hive like lesions that prompted me to start histamine on that very first visit. Therefore I believe that the word asymptomatic has been taken out of context and used punitively against him.”

It was the worker’s position that he was entitled to at least partial wage loss benefits between May 9, 1997, to October 25, 1999, as the WCB had already recognized that his dermatitis condition was an occupational disease dating back to 1993 and that it arose from the workplace.

On August 9, 2007, Review Office determined there was no loss of earnings as a result of occupational dermatitis between May 9, 1997, and October 25, 1999. Review Office noted that on May 20, 1997, the worker did not report any skin symptoms nor were any noted by the occupational health physician. The worker reported a 3 or 4 year history of being tired, having headaches, etc., all of which had improved when away from painting. It was significant to Review Office that the occupational health physician recommended that the worker wear proper protective equipment and placed no other restriction on his work activities.

Review Office noted that the MRP reviewed both claims and addressed the dermatitis etiology as related to use of solvents at work and offered opinions in direct response to questions pertaining to the worker’s ability to work between May 9, 1997, and October 25, 1999. The panel opined that the worker’s disability was based on his own belief about his disability rather than any evidence of a medically diagnosable disease during that period of time.

On June 13, 2008, the worker appealed Review Office’s decision of April 4, 2003, denying the inhalation claim and wage loss benefits to the Appeal Commission. He indicated that Review Office failed in its responsibilities to uphold the rules found under The Workers Compensation Act (the “Act”). Subsections 4(4), 4(5), 1(12), 39(1) and WCB policy 44.20, Occupational Disease Part 1, 2 and 3 were referenced by the worker.

Vocational Rehabilitation Activities:

On June 25, 2001, a Vocational Rehabilitation Consultant (“VRC”) indicated that the worker was willing to participate in vocational rehabilitation (“VR”) activity and that he wanted to attend law school. The worker reported that he had excellent computer skills which could also be a possible occupational path he would like to explore. Arrangements were made for the worker to attend a career planning workshop and vocational testing.

The worker attended classes to complete his G.E.D. and then began university courses.

On May 1, 2002, the VRC documented that the worker had three choices for an occupational goal. His first choice was National Occupational Classification (“NOC”) 4112, Lawyers and Quebec Notaries, his second choice was NOC 4155, Probation and Parole Officers and related occupations which would require a degree in Criminology, and his third choice was NOC 1233, Insurance Adjusters and Claims Examiner. After considering the costs and demands of the law program, the VRC considered that a law degree would not be a reasonably required, cost effective vocational rehabilitation option. The VRC memo states: “The most obvious difference between the vocational rehabilitation programs the WCB is willing to support and the law degree is the length of time, the chances of acceptance into the program and the ability to maintain a 3.0 to 3.5 g.p.a. (grade point average)” Discussions the VRC had with the Faculty of Law indicated that to be admitted to the program, an applicant would likely require a grade point average in the 3.0 to 3.5 range. The VRC memo also reflected that a Bachelor of Arts degree could be structured to allow flexibility in extending a course load over 12 months instead of 8. This would allow for peer tutoring and ensure success in the program. The law degree would not allow this flexibility as the program was structured and outlined over 8 months.

On May 29, 2002, the VRC advised the worker that the WCB was unable to commit to the occupational goal of a law degree but were prepared to support him in an Arts Degree, majoring in Criminology, under the occupational goal of NOC 4155, Probation and Parole Officers and related occupations. An Individualized Written Rehabilitation Plan (“IWRP”) was developed for NOC 4155 as an occupational goal on July 8, 2002. The IWRP was not signed by the worker. An earning capacity analysis for NOC 4155 is also on file dated June 20, 2002.

On November 5, 2002, the worker advised his VRC that once he completed his criminology degree, he was going to pursue a law degree on his own as he was skeptical that he would have a positive future with a general arts degree.

A Vocational Rehabilitation Plan Amendment dated May 13, 2003, extended the completion date for the worker’s Criminology degree to August 31, 2005. The worker agreed with the amendment but refused to sign the document.

On December 8, 2003, the worker advised a WCB VRC that he was 80% sure he would get accepted in the Faculty of Law. The VRC advised the worker that the time frames of the original IWRP focusing on completing the Criminology Degree would be upheld and at the end of the time frame from that plan, the deem would be implemented. The VRC advised the worker that at the end of that time frame, he could pursue the law degree on his own.

In November 2004, the worker advised the WCB that he disagreed with the IWRP and that he wanted the WCB to support him in a different university program. The WCB then completed a second Earnings Capacity Analysis (ECA) for NOC 4155 and found that there was, in fact, a poor labour market for this type of work making this VR plan untenable. It was decided that worker should continue with his present Criminology degree while an alternate VR plan was established.

On March 1, 2005, a WCB case manager provided the worker with reasons why the WCB was unable to grant his request for a program of institutional retraining as a lawyer. The reasons outlined included the following:

  • When the original IWRP was established, the labour market information indicated that market opportunities for a parole officer were fair and there was an expectation it would continue to be so. The criminology degree program was entered into in good faith;
  • The admission requirements for the law program presented variables such as g.p.a. and LSAT scores and there was no guarantee the worker would have met these requirements;
  • The worker’s current grade point standing was achieved, in part, by extensive tutoring that the WCB provided;
  • Cost effectiveness – a law degree is an extended program with no guarantee of employment upon graduation;
  • Information from Manitoba Job Futures indicates that opportunities for employment as a lawyer are expected to be limited in the period 2004-2008;
  • While there may not be an abundance of employment opportunities as a parole officer, the degree obtained will open employment doors that would otherwise be closed to the worker.

In a letter March 31, 2005, the WCB case manager confirmed to the worker that since there were limited opportunities for employment as a Probation or Parole Officer, the WCB would be exploring other options/occupations, which would allow him to utilize the skills and abilities developed while in the his course of institutional retraining.

In January 2006, an IWRP was developed for the worker based on NOC 4164, Social Policy Researchers, Consultants and Program Officers. The worker subsequently advised the WCB that he wanted to register for a Bachelor of Social Work (“BSW”) degree which would be a minimum requirement for NOC 4164.

A new IRWP was developed for the worker under NOC 4164 with the completion date of August 11, 2008. Option A of the plan was a second Bachelor of Arts degree concurrent with a work experience and option B of the plan was Completion of 4th year pre-masters level for Sociology followed by a one year work experience.

The worker advised the WCB that he did not get accepted into the Sociology pre-master’s program or to the School of Social Work. On June 28, 2006, the VRC indicated that the WCB was proceeding with option A of the IWRP pertaining to NOC 4164.

On July 11, 2006, the worker told his VRC that he was not willing to participate in a work experience as part of the IWRP and did not want to attend university to obtain an Arts degree major in Sociology. He was starting a self-employment venture and was training an individual to paint cars. The worker indicated he expected his benefits to be reduced but he needed to return to work to make money.

The worker was advised on July 25, 2006, that a post-accident deemed earning capacity was being implemented as of July 19, 2006, because of his lack of participation in NOC 4164 and his failure to mitigate.

On August 22, 2006, a WCB case manager documented, “The course originally intended for the worker in option “A” would not be available to him as the participants in the Masters program are given priority access to these courses. The worker was told he did not have the GPA standing necessary to attain enrollment in the M.A. program. In light of the fact that neither of the options in the IWRP are now viable we (WCB) have to reinstate full wage loss and develop a new IWRP.”

Another IWRP was developed for the worker based on NOC 6411, Sales (non-technical). On October 17, 2006, the worker advised the VRC that he would not be seeking employment in NOC 6411. He later advised his VRC that he tried sales before and did not consider himself a professional sales person, as documented in a WCB memorandum dated November 7, 2006.

On January 12, 2007, a WCB case manager informed the worker that since his VR plan would be completed effective January 19, 2007, his benefits would be deemed based on the starting wage for NOC 6411 of $414.00 per week.

The worker began a business enterprise which involved small cosmetic/autobody repairs with the use of water-based paints.

On May 18, 2007, the WCB case manager advised the worker that the business plan he submitted was considered by the WCB and its consultants but determined not to be viable. This decision was again confirmed to the worker on July 18, 2007.

The worker, on March 4, 2008, advised the WCB that he was granted an entrance interview with the university’s Faculty of Law. He stated that he continued to work and earned income through his autobody repair business.

On April 24, 2008, the worker appealed a number of decisions made on his claim to Review Office. On May 29, 2008, Review Office determined the following:

  • That NOC 6411, sales representative (wholesale trade) non-technical, was an appropriate vocational rehabilitation goal. After considering the totality of evidence, Review Office noted that while the plan was not the one preferred by the worker, it was consistent with the WCB’s policies and objectives and it established a level of employability for the worker.

  • That it was appropriate to implement a post-accident deemed earning capacity as of January 22, 2008. Review Office noted that the worker’s 2007 net business income, from his part-time, part-year activities is $16,095; this averaged $309.52 per week. It would be reasonable to conclude that full time employment activities could be at least equal to the deem of $414.00 per week. Review Office also felt that the worker’s current skill set made him employable and capable of earning at least the deem amount of $414.00, within NOC 6411 and likely several other vocational options.

  • That the WCB should not support NOC 4112, lawyers and Quebec notaries, as a vocational rehabilitation goal. Review Office noted that the worker was told early on that his goal of becoming a lawyer was going to be considered but that it was unlikely to be supported. It stated that vocational rehabilitation was at the WCB’s discretion and that the worker’s stated motivations for a university degree were given greater consideration than the overriding principles of policy 43.00. It then became necessary to develop a reasonable course of action so to bring the plan into closer alignment with the requirements of policy 43.00. The WCB developed a suitable plan which had been implemented and completed.

Review Office stated that the WCB was not obligated to provide the worker with the plan of his choice and did not find any compelling reasons to change the decisions made by primary adjudication to develop an alternate plan and to pursue the plan desired by the worker. The undergraduate degree he received with the WCB’s support would assist him towards pursuing his personal goals independent of the WCB.

  • The worker’s pre-accident gross weekly wage should be adjusted. Review Office stated in part that in August 2003, a WCB payment specialist removed the lowest periods of earnings, the number of weeks used was incorrect, ie. 18 weeks was used when 19.2 weeks should have been used. The difference was significant:

$15,203.56 / 18 weeks = $844.64 per week (incorrect)

$15,203.56 / 19.2 weeks = $791.85 per week (correct)

These adjustments resulted in the worker being overpaid. Under WCB policy, 35.40.50, Overpayments of Benefits, this overpayment would not be collected from the worker.

On June 13, 2008, the worker appealed Review Office’s decision of May 29, 2008, to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 40(1) of the Act defines loss of earning capacity as the difference between the worker’s net average earnings before the accident and the net average amount that the board determines the worker is capable of earning after the accident.

WCB Board Policy 44.80.30.20 (the “Deeming Policy”) deals with “Post Accident Earnings - Deemed Earning Capacity”. Loss of earning capacity is the difference between a worker’s average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where deemed earning capacity is used, it means that wage loss benefits will be paid as if the worker were actually earning the deemed amount.

Pursuant to subsection 27(20) of The Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) provides:

Academic, vocational and rehabilitative assistance

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

WCB Policy 43.00, Vocational Rehabilitation (the “VR Policy”) explains the goals and describes the terms and conditions of academic, vocational and rehabilitative assistance available to a worker under subsection 27(20). The VR Policy states that: “Vocational rehabilitation is intended to help a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work-related injury or illness.” The stated goal of vocational rehabilitation is: “to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and, where possible, interests.”

Analysis

There are five issues before the panel. Each issue will be addressed in order.

1. Whether or not National Occupational Classification code (NOC 6411) sales representatives (wholesale trade) non-technical, is an appropriate vocational rehabilitation goal.

As outlined earlier, the goal of vocational rehabilitation is to help workers achieve a return to sustainable employment in an occupation. The VR Policy outlines specific guidance in establishing an Individualized Written Rehabilitation Plan (“IWRP”) and provides, in part, as follows:

5. The WCB will reasonably ensure that the plan is based on a realistic goal. A realistic goal is one which is within the worker’s physical, intellectual, vocational, and emotional capacities. In helping a worker establish a goal, the WCB will apply knowledge of the worker’s vocational profile, medical aspects of the worker’s condition, the worker’s interaction with the environment and the effort and persistence the worker demonstrates in the face of obstacles.

At the hearing, the worker submitted that NOC 6411 was never an occupation which he wanted or for which he was suited. He noted that the reason why he was placed in this NOC was that he had provided the WCB with a self-employment business proposal (a business specializing in environmentally friendly cosmetic autobody repairs) and while the WCB was assessing the merits of the business proposal, he was told that they had to assign an occupational goal for him. NOC 6411 was chosen as it was somehow thought to reflect the business plan (which the worker said it does not) and it had a lower deem (which would result in more wage loss benefits being paid to the worker). At no time did the worker indicate an interest in sales, nor did he have any transferable skills in that regard. In fact, the worker’s evidence was that in 1997, he did try to make a living at sales, and this endeavor failed miserably. He stated that he does not have the kind of personality required for sales. He has skills to be able to market his abilities as an autobody painter, but not to engage in sales generally. The worker also questioned how he could make use of his WCB supported criminology degree in a career in sales, and noted that his education has no relevance to a sales job. He stated “it just doesn’t go. It doesn’t fit. It’s a horrible fit.” The worker submitted that what has occurred with his case is that his IWRP put him on a track, and once “you’re heading in one direction, you can’t get off of that point to go in a different direction.” He commented that his IWRP went off track due to the WCB’s error in assessing the job market for parole officers, and now he is left with a Bachelor of Arts degree which does not make him employable in any particular occupation. The WCB’s response was then to simply slot him in NOC 6411 without any regard to the training he has already received, and his own personal aptitudes and interests.

A review of the WCB file disclosed that from the outset, the worker expressed a desire to be supported in pursuing a law degree. The WCB gave consideration to his request, but determined that it was not a viable goal, particularly given the highly competitive admission process for law school and the associated risk to the WCB in investing in a program where acceptance into the faculty could not be reasonably guaranteed. The May 1, 2002, VRC memo reflects that the worker was then supported in his second choice, which was NOC 4155, parole/probation officer, and a degree in criminology. As things unfolded, however, it appears that the labour market for parole officers changed and the outlook for employment was poor.

In March 2005, the WCB gave further consideration to whether the worker should be supported in becoming trained as a lawyer, but many of the same concerns were present, the primary one being the difficulty in being accepted into the Faculty of Law. The panel notes that in our opinion, the WCB’s concerns about whether a law degree was a realistic goal for the worker were legitimate at the time and it was appropriate for the WCB to decline to support the worker in this occupation. It is only with the benefit of hindsight that we come to our different conclusion.

At the hearing, the worker advised the panel that in fact, he has been accepted into law school and he started taking first year courses in September 2008. The panel notes that it is to the credit of the worker that he has become admitted to law school and he has shown extraordinary persistence in overcoming numerous hurdles to realize his goal of becoming a lawyer.

Based on the worker’s changed circumstances at time of hearing, the panel finds that NOC 6411 is no longer an appropriate vocational rehabilitation goal. In the past, the primary concern was whether NOC 4112 lawyers and Quebec notaries was a realistic goal, given the admission standards. Now that the barrier of acceptance into the faculty is removed, it would be appropriate to support NOC 4112. The WCB’s concerns about whether the worker could handle the workload have also been addressed as the worker has been admitted to law school on a half-time basis. Pursuing this occupational goal makes use of the WCB supported education the worker received in achieving his Bachelor of Arts degree. Although the worker has been involved in vocational rehabilitation for several years now, the panel does not view his retraining to be complete, as he was never established in an occupation which maximized his earning potential. The average income associated with NOC 6411 sales representative would not restore the worker to his pre-accident earnings and the WCB would be required to continue to top-up the worker’s income. There is little doubt that this particular occupational goal, if accessed, would restore this young, pre-accident high wage earner to another high wage earning position.

When reviewing the cost of supporting the worker in pursuing a law degree, there does not appear to be a significant difference between the cost of supporting the worker in law school and the cost of retraining in NOC 6411 sales. In a WCB memo dated January 5, 2005, the discounted financial implication report (“FIR”) for NOC 4112 is calculated to be $245,635.69. In a memo dated September 15, 2005, the discounted FIR for NOC 6411 is estimated to be approximately $240,000. Thus it would appear that the 2005 FIR discounted costs for NOC 6411 and 4112 were relatively comparable, with both being in the $240,000 range.

In the panel’s opinion, NOC 4112 will satisfy the overall requirement to eliminate the worker’s loss of earning capacity in a way that NOC 6411 could not. Also, NOC 4112 better takes into consideration the worker’s post-injury physical capacity, skills, aptitudes and interests, as addressed in the VR Policy.

The panel notes that the VR Policy also provides:

14. The WCB will be flexible in its management of the plan and reasonably respond to change. The WCB will monitor the plan to determine if the plan is progressing as anticipated. Where this is not the case, adjustments will be made in consultation with the worker and the service providers involved in the worker’s rehabilitation. The WCB will evaluate the plan at the attainment of identified outcomes in the plan.

To the worker’s credit, his perseverance has secured him a spot in law school. This was a relatively unforeseen outcome in the vocational rehabilitation process. Now that it has happened, it is appropriate to amend the plan to allow the worker to become fully re-trained in an occupation which it appears will well suit his personal characteristics and current level of education and which had been contemplated but discounted due to “risk” issues during the VR process. In our view, the vocational rehabilitation plan was not yet completed as the worker was never properly established in a new occupation. For these reasons, the panel finds that NOC 6411 is not an appropriate vocational rehabilitation goal.

2. Whether or not the WCB should support National Occupational Classification code (NOC 4112) lawyers and Quebec notaries, as a vocational rehabilitation goal.

As a corollary to the finding that NOC 6411 (sales) is not an appropriate vocational rehabilitation goal, the panel finds that the WCB should support NOC 4112 as a vocational rehabilitation goal, for the same reasoning as set out above.

3. Whether or not it is appropriate to implement a post-accident deemed earning capacity effective January 22, 2007.

At the hearing, the worker candidly admitted that he was capable of earning at least minimum wage, so long as it did not involve working in an autobody shop. The panel is of the view that it was appropriate to implement a post-accident earning capacity equivalent to full time work at minimum wage, effective January 22, 2007. The worker had completed his Bachelor of Arts degree in April 2005, and by January 2007, there were no further vocational rehabilitation activities being explored by the WCB. Even though the worker was not at that time provided with a vocational goal which was suitable for him, the WCB considered the vocational rehabilitation to be complete and no other options were being discussed by the worker and the WCB. The panel finds that implementation of a post-accident deemed earning capacity at that time was appropriate, however we would base the earning capacity on minimum wage on a full time basis, as opposed to NOC 6411, which was never a suitable occupational goal for the worker.

It appears that although the WCB had discontinued its involvement in the worker’s vocational rehabilitation, the worker continued, even without direct WCB support, to pursue his goal of becoming a lawyer. In 2007 and 2008, the worker continued to take steps to gain entry into law school, including admission tests (that respected his disabilities), legal challenges and interviews, which finally led to the commencement of his studies in September 2008.

As noted earlier in this decision, the panel does not view the worker’s vocational rehabilitation training to be complete, as he was never established in a suitable occupation which maximized his earning potential. The panel is therefore of the opinion that as of September 2008, the worker should be reinstated into full wage loss benefits during the time that he is occupied with his law studies. The evidence given by the worker at the hearing disclosed that he has been, and continues to be, involved in his self-employment autobody repair venture. The panel notes that the earnings realized by the worker through this self-employment venture or other sources should be deducted from the worker’s wage loss benefits in the usual manner.

4. Whether or not the worker is entitled to wage loss benefits from May 9, 1997, to October 25, 1999, in relation to his dermatitis claim.

The question of whether the worker is entitled to wage loss benefits from May 1997 to October 1999 in relation to his dermatitis claim is better considered by the WCB in context of both dermatitis and inhalation claims and the nature of the restrictions that are ultimately imposed with respect to both conditions. In view of our finding regarding the acceptability of the inhalation claim (below), the panel refers this issue back to the WCB to adjudicate in conjunction with Claim No. 9304 4688.

5. Whether or not the January 1, 1993, inhalation claim (Claim No. 9304 4688) is acceptable.

The worker has an accepted dermatitis claim for contact sensitivity to the chemicals hexamethylene diisocyanate (“HDI”) and bisphenol A (“BPA”). Although the worker has complained of a number of symptoms, including headaches, digestive problems, swollen and irritated throat, numbness of his hands, rashes on various portions of his body, generalized fatigue, tinnitus and breathing attacks, only the rashes have been accepted by the WCB as a compensable condition. At the hearing, the worker submitted that his reaction to workplace chemicals was not limited to only the skin rashes. He noted that there are two entry points for chemicals: inhalation and skin absorption. The worker stated that both are applicable to his case and have caused a wide range of symptoms beyond simply the contact dermatitis. He described the other conditions as follows:

  • There were a number of episodes when he experienced extreme shortness of breath which was so severe that he had to go to the hospital because he could not breathe. After he removed himself from the workplace environment, his breathing would clear up in a week.
  • He also described having severe headaches and irritability. The headaches would generally be gone by the next morning.
  • He developed hives, which were different from the rash. The hives started early on when he first started working in the autobody field. He had never had hives before, but then all of a sudden they would develop. He would feel a burning come on, and then the hives would appear and within an hour, they would be gone. The hives still occurred up to a year after leaving the accident employer. In the time since he has left the autobody industry, he has noticed that he no longer develops regular hive attacks.
  • Through the 1990’s, the worker experienced a twitching in his body which was most noticeable when he was lying in bed. Later on, he developed numbness in his fingers (pinkie and ring fingers) and in his toes. He advised that the doctors who performed nerve conduction tests related this condition to leaning on tables with his elbows, but he argued that since he has been out of the environment, he has not experienced any further problems with these central nervous system issues.
  • The digestive problems, which involved severe abdominal bloating, were thought by the worker to relate to the BPA. He noted that although he continues to have some bloating issues, he said that the symptoms were much more severe when he was in the industry. When he is out of that environment, the bloating tapers off, although it does not completely resolve. The worker attributed the continuing abdominal symptoms to the ingestion of small amounts of BPA in everyday products.
  • The worker noted that he does have tinnitus, which he relates to a separate claim for noise exposure.

At the hearing, the worker referred to material safety data sheets (“MSDS”) sheets for HDI which stated that: “exposure to HDI can cause headache, vomiting and nausea, irritability, skin allergy and asthma-like allergy. Future exposure can cause asthma attacks and shortness of breath.”

Based on the MSDS sheets, the symptoms of shortness of breath, severe headaches and irritability which the worker reported he experienced while working in autobody shops are consistent with an allergic reaction to HDI. The symptoms disappeared when he removed himself from that environment, so there is also temporal consistency with the symptoms being work related.

The panel notes that although the WCB has only accepted the worker’s claim for contact dermatitis, the worker’s evidence was that the dermatitis was located on his thighs and his torso, and the chemicals never touched those areas of his body. When painting, he would typically wear a paint suit with a hood, which covered him from head to foot. In later years he would wear a respirator most of the time, but in earlier years, he wore a simple dust mask. Sometimes he wore latex gloves, but those often dissolved with contact with some of the paint thinners.

Given the location of the skin lesions, the panel accepts the worker’s submission that at least some of his symptoms were caused by an allergic reaction to inhalation of HDI. His symptoms of headache, irritability, skin allergy and asthma-like allergy are consistent with those outlined in the MSDS sheets and bear a temporal relationship to his exposure to HDI in the workplace. We therefore accept that the worker has an acceptable inhalation claim, as it relates to those symptoms.

There is medical support for our finding that the specified symptoms are related to workplace inhalation of HDI:

  • A report dated June 3, 1997, from an occupational health physician noted the worker reported symptoms of being tired, headaches, decrease in motivation, lightheadedness at work, congestion, throat irritation, losing sense of taste and smell, and swelling in the neck. His assessment was solvent intolerance and stated: “It is fairly frequent for individuals who have had excessive solvent exposures to gradually become less able to tolerate ongoing exposures. It is likely that this is happening to you. Many of your symptoms are consistent with known effects of solvent exposure.”
  • In a narrative report dated September 5, 2000, the treating family physician states that in his opinion: “headaches most likely are a consequence of workplace chemical exposure. It remains plausible to me that his skin lesions may in fact be connected to chemical exposures at work, although I am unaware of a specific mechanism at the level of molecular biology that would account for this … It is plausible to me that the organic effects on the central nervous system from workplace solvent exposure may in fact be contributing to these symptoms, even if they are somatized. Likewise, I find it plausible that his reported mood symptoms might be multi-factorial in nature and that workplace solvent exposure may be one of those factors.”
  • In a memo to file dated December 19, 2000, by the WCB internal medicine consultant, he notes: “I talked with (pathologist) who is now in the States. He suggested that lymphocytic perivascular and interface dermatitis can be seen with drug eruptions such as thiazide diuretic or antibiotics. Inhalation of volatile solvents could give rise to bizarre skin rashes. In the event that solvents are responsible for these rashes, one could do patch testing to confirm the same.”
  • In a report dated November 19, 2001, the treating dermatologist wrote: “On review of his M.S.D. sheet on Isocyanates, they state sensitized patients experience cutaneous, G.I., neurologic and respiratory (lung function tests will only be abnormal with acute attacks) complaints. Thus I feel the documented inflammatory reaction on his skin and G.I. system could also explain the irritation in his neurological and respiratory systems … In closing, it is my opinion that all of his symptoms and complaints are derived from work related exposure to the chemicals as outlined and that have been documented to show inflammation in this patient.”

The panel also notes that the MRP acknowledged that the symptoms complained of by the worker could be caused by exposure to paints and solvents, but two of three panelists could find no conclusive evidence of a relationship between workplace exposure and symptoms, other than temporal. One panelist retained an element of doubt and felt that the testing was not complete.

In this panel’s opinion, although the evidence is not conclusive, we are satisfied on a balance of probabilities that the worker has an acceptable inhalation claim, as set out above.

With respect to the worker’s complaints regarding abdominal bloating, his evidence was that this was more related to the ingestion of BPA in the course of daily living. As this is not related to the workplace, we do not consider this to be a compensable condition.

Similarly, at the hearing, the worker did not relate his tinnitus to be related to inhalation of solvents at work, and accordingly, we do not consider the tinnitus to be a compensable condition in relations to the claims before us.

For the reasons set out above, we find that the January 1, 1993, inhalation claim is acceptable as it relates to the symptoms of headache, irritability, skin allergy and asthma-like allergy. The worker’s appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 29th day of December, 2008

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