EI Disabled Workers Winning Workers’ Comp Appeals
How are environmental illness cases faring at Workers’ Compensation hearing these days” Most cases being heard by the Appeals tribunal are being won. The much publicized Trucz case, one of several hundred Camp Hill Hospital cases, which concluded that Environmental Illness (EI) was psychologically induced “has certainly not been the last word for non-Camp Hill cases, and even for many Camp Hill cases,” commented Bill Powroz, workers’ advisor with the Department of Justice, who handles many of these cases.
Of 250 cases from Camp Hill which went before the Tribunal after the Trucz case, the majority were successful. Each case was determined on its own facts. The decisions fell into three main categories. Some claims were dismissed on the same basis as Trucz - that the illness was stress related, not physical, and so not eligible for compensation. Other cases were dismissed for lack of sufficient evidence. But in most cases the finding was that there had been documented exposures to chemicals at work, and that at least some of the symptoms suffered matched symptoms known to be associated with exposure to these chemicals. In these cases, the ruling was that workplace exposures were the cause of illness, so the person was entitled to compensation benefits. The Tribunal has still not determined exactly what benefits each person is entitled to.
While Camp Hill provides the most dramatic example of workplace related environmental illness claims, the Workers’ Compensation Board (WCB) sees a steady flow of individual EI cases from a variety of workplaces. The majority of these cases are being won on appeal. “In the right fact situation, EIS is recognized by the Appeals Tribunal” Powroz explains. “The more precisely a particular chemical can be identified, by air quality studies or blood tests, and the person’s symptoms match the literature on that chemical’s effect, the more likely a person is to win their case.” Unfortunately, most literature on chemical exposures looks at high dose short term exposures, rather than the low dose chronic exposures which often trigger EI.
“If another diagnosis fits the situation, like occupational asthma or chemically induced allergies, which are orthodox diagnoses, with the evidence to back it up, it is easier for decision makers to find in a person’s favor” explains Powroz. The WCB is generally not yet buying the argument that exposure to the combination of a number of low dose chemicals, a “chemical cocktail” at work, triggers illness. But even in some cases where there are not air quality reports, but blood tests show high levels of chemicals which should not be there, individuals are winning compensation.
Meanwhile, the NS Court of Appeals continues to clarify how the WCB should be assessing cases. A November 2000 decision clarified the standard of proof needed to show an injury is work related. The decision Johnstone vs. WCB says that a worker only has to prove to a 50-50 standard, or “as likely as not” that an injury was caused by work. The court also put it in these words, “but for this exposure, would the client have this condition?” This decision should be helpful for anyone applying for workers compensation. It weighs more heavily in favor of the injured worker than standards in the past.
On the negative side, an amendment to the Workers’ Compensation Act passed in April 1999 excludes chronic pain from coverage. In the case of EI patients where myalgia, arthralgia or fibromyalgia are the main symptoms, this amendment will make it more difficult to win compensation cases.