A mechanic in Alberta who suffered an inhalation injury has won an appeal against the Workers’ Compensation Board (WCB) decision on his economic loss payment (ELP).
The Dispute Resolution and Decision Review Body (DRDRB) had previously determined that the ELP should be based on the earnings of an order desk clerk at a tire shop—a position he claimed was unsuitable due to his condition.
The worker, whose name has been withheld, was exposed to a caustic substance while employed as a heavy-duty mechanic, resulting in permanent work restrictions. The WCB initially set his deemed earning capacity based on a clerical position at a tire shop, despite the worker’s concerns about potential exposure to irritants that could exacerbate his occupational asthma.
During the appeals process, evidence highlighted that tire shops typically have an environment intertwined with mechanical services, posing a risk of exposure to respiratory irritants.
“The dispute arises because the worker argued that irritants or sensitizers are likely to be found in the environment and the worker’s occupational asthma would be triggered in this physical environment,” the decision noted.
The worker’s representative argued for a return to the original vocational plan and suggested a bank teller position as a more appropriate estimate for the worker’s ELP. The worker attended the last medical assessment with a specialist in 2019, and further testing was recommended to identify specific irritants—a step not yet taken.
“We recognize that both the representative and the worker requested the panel direct the WCB to use the estimated earnings of a bank teller to determine the worker’s entitlement,” the Appeals Commission for Alberta Workers’ Compensation said, acknowledging the physical unsuitability of the tire shop environment for the worker given his medical restrictions.
The commission concluded that the tire shop position could not be considered suitable employment due to the potential for exposure to harmful irritants and reversed the DRDRB’s decision.
“If the worker successfully obtained work in a tire shop, it would be necessary to conduct an occupational hygiene assessment to ensure the environment was safe and that the air quality did not pose a risk,” it said. “We find this is a circumstance of employment that makes it unlikely that the employer would choose to hire the worker in a competitive hiring process.”
It returned the issue to the WCB for further adjudication and to identify the worker’s earning capacity in a suitable position.
For more information, see Decision No.: 2024-0133, 2024 CanLII 31249 (AB WCAC).
