WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 788/07I

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 788/07I BEFORE: B. Kalvin : Vice-Chair M. Christie : Member Representative of Employers M. Ferrari : Member Representative of Workers HEARING: April 4, 2007 at Toronto Oral DATE OF DECISION: April 17, 2007 NEUTRAL CITATION: 2007 ONWSIAT 1029 DECISION(S) UNDER APPEAL: WSIB ARO Decision dated April 27, 2005 APPEARANCES: For the worker: For the employer: Interpreter: W. Johnston, Consultant The employer did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 788/07I REASONS [1] These are the reasons for an interim decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by a worker from a decision of the Workplace Safety and Insurance Board (the Board ). In that decision the Board ruled that the worker is not entitled to Loss of Earnings ( LOE ) benefits from April 1, 2003 to June 24, (i) Background [2] The background to this appeal is as follows. The worker is 44 years old. In June or July 1999, she began working as a machine operator for a company which manufactures plastic products. The worker operated a machine which produced polyethylene bags. [3] In May 2001, the worker experienced the gradual onset of a skin condition which was subsequently diagnosed as dermatitis. It was eventually determined that the worker had both irritant and allergic contact dermatitis which was caused by exposure to nickel and cobalt in the workplace. It was also determined that the worker s exposure to these substances aggravated her pre-existing psoriasis and eczema. Accordingly, the worker was granted entitlement to benefits for these conditions. [4] The worker s skin condition meant that she was unable to continue with her job. She explored the possibility of doing office work for her employer, but apparently no such work was available. The worker quit her job with the plastics manufacturer on April 12, [5] The Board paid the worker LOE benefits from the date she quit her job, that is, April 12, 2002, until April 4, [6] In April 2003, there were communications between the worker and the Board about the worker s entitlement to Labour Market Re-entry ( LMR ) services. An LMR assessment was done in June 2003, which identified that the worker would be suited to employment as a paralegal, social services worker, and occupations in education and religion. The LMR assessment recommended that the worker be provided with training to enable her to gain employment in those fields. [7] The worker did not agree with the recommendations of the LMR assessment. She indicated to the LMR assessor that she preferred to be retrained as an applied kinesiologist which is a form of alternative therapy involving the use of a brain gym. The LMR assessor was of the view that the worker s preferred career choice was not practical and therefore would not recommend applied kinesiologist as suitable employment for which the worker should receive Board-sponsored training. The LMR assessment reads, in part, as follows: I informed [the worker] that, as she explained the training, she would not be considered a kinesiologist (NOC ) according to the criteria set in the HRDC NOC Career Handbook but she would be considered an practitioner [sic] of alternative medicine (NOC 323). [The worker] strongly feels that her qualifications, once she finishes training through the International School of Kinesiology, will make her a far more useful practitioner of health services than any course taken through a traditional university and she did not appear to have her training categorized as anything other that Kinesiology.

3 Page: 2 Decision No. 788/07I She said that she was applying for a license (that included liability insurance) so that she would be able to bill insurance companies that offer extended medical health coverage. [The worker] expressed assurance that she would be able to obtain this licence using her present training in Rain Drop Therapy but would be able to expand her billing opportunities to include applied kinesiology, once the training finished. If she were to take some courses through Georgian College in nutrition and reflexology combined with the diploma from the International School of Kinesiology, [the worker] believed that she would be highly employable with health clubs, gyms, Children s Aid Society, Boards of Education and colleges. Unfortunately, [the worker] was not able to supply any information at the meeting to substantiate her assertions nor had I been able to independently find any information using other resources. I can not support the worker s preference in occupations without any indication of what her employment prospects would be after investing the resources of WSIB in a plan. [8] The worker elected not to participate in the LMR program which was recommended by the LMR service provider. Instead, in April 2003, she started her own alternative therapy business. That business did not succeed and by the end of 2003, if not earlier, it ceased operations. The Board terminated the worker s LOE benefits as of April 1, The Board indicated to the worker that it does not pay LOE benefits to workers who elect to become selfemployed. [9] In 2004, the worker contacted the Board about the possibility of having her LMR services reinstated. The Board agreed to provide the worker with LMR services and accordingly, in June 2004, reinstated her LOE benefits while an LMR plan was devised. From June 28, 2004 to May 27, 2005, the worker was in an LMR program designed to qualify her in the field of wellness and health promotions. As part of her LMR program, the worker attended a course at Centennial College. It appears that the worker successfully completed the LMR program, which included a work placement. [10] In 2004, the worker was diagnosed with lung disease diagnosed as hypersensitivity pneumonitis. The worker initiated a claim for benefits for this condition on the ground that it was caused by the work she had done in the plastics factory. The worker subsequently withdrew this claim. [11] The worker also claimed benefits for a psychological disorder. She claimed that she developed a psychological condition as a reaction to her compensable dermatitis. In June or October 2005, (there is conflicting information about the precise date), the worker was granted entitlement to benefits for a psychological condition. She currently receives LOE benefits for that condition. (ii) Issue [12] The issue to be decided on this appeal is that which was ruled upon by a Board Appeals Resolution Officer ( ARO ) on April 27, 2005, namely, whether the worker is entitled to LOE benefits for the period April 1, 2003 to June 24, The ARO ruled that the worker was not entitled to benefits during that time because she was offered LMR services in which she elected not to participate. The ARO concluded:

4 Page: 3 Decision No. 788/07I I am therefore satisfied that based on the available evidence, the worker was not totally disabled nor was she available to participate in an LMR program, she is therefore not entitled to full LOE benefits between April 1, 2003 to June 24, [13] The ARO noted that when, in June 2004, the worker indicated a willingness to participate in LMR again, LOE benefits were restored. Accordingly, the question to be resolved in this appeal is this: Is the worker entitled to LOE benefits from April 1, 2003 to June 24, 2004? (iii) Reasons for Interim Decision [14] At the hearing of this appeal, the worker s representative asked that this appeal be held in abeyance pending the resolution of two issues at the Board which, he says, have a direct impact on the issue stated above. [15] The first issue involves the worker s entitlement to benefits for her lung disease. Mr. Johnston indicated that the worker has decided to pursue entitlement to benefits for her lung condition. Mr. Johnston indicated that although this issue was initially withdrawn at the Board level, the worker s condition has since deteriorated and he now believes that he has the evidence to substantiate a causal link between the worker s lung disease and her work at the plastics factory. Further, Mr. Johnston submitted that the worker s lung condition has a direct bearing on the issue currently under appeal, in that he intends to argue that the worker was totally disabled during the period in question and therefore could not have participated in the LMR program which was offered. Mr. Johnston submits that the worker s lung condition, which was diagnosed in 2004, is compensable and contributed to the worker s total disability during the period at issue on this appeal. [16] The second issue involves the worker s entitlement to benefits for a psychological condition. As noted, in 2005, the worker was granted entitlement to benefits for this condition as a sequela of her compensable dermatitis. Mr. Johnston indicated that the worker takes issue with the date at which entitlement to benefits for this condition was granted. In particular, Mr. Johnston submitted that the worker s entitlement to benefits for her psychological condition should have been backdated to Mr. Johnston indicated that the worker intends to appeal the Claims Adjudicator s decision with respect to the date at which the worker became entitled to benefits for her psychological condition to the Board s internal Appeals Branch. Mr. Johnston submits that the worker s psychological condition, in addition to her lung condition, contributed to her overall total disability during the period at issue on this appeal. Accordingly, Mr. Johnston submits that the two issues currently being pursued by the worker at the Board have a direct impact on the question of whether the worker is entitled to LOE benefits from April 1, 2003 to June 24, 2004, and he asks that this appeal be held in abeyance pending the resolution of these issues at the Board. [17] The Panel has, with some reluctance, agreed to allow the worker s request. We say with some reluctance, because we note that this case has been placed in inactive status once before. Nevertheless, we are persuaded that the issues which the worker is pursuing at the Board may have a bearing on the question to be resolved on this appeal, and accordingly, we have granted the worker s request to have her appeal made inactive.

5 Page: 4 Decision No. 788/07I DISPOSITION [18] The worker s appeal will be made inactive. [19] The worker is to notify the Tribunal once her entitlement to benefits for a lung condition, as well as a psychological condition have been finally determined by the Board. Upon receiving such notice from the worker, this appeal will be made active again. If the worker intends to appeal the Board s final determinations with respect to her entitlement to benefits for a lung condition or a psychological condition, then those appeals may be combined with the current appeal, upon receipt of the proper appeal notices. DATED: April 17, 2007 SIGNED: B. Kalvin, M. Christie, M. Ferrari