'It is discrimination': Sick worker wins groundbreaking case against WSIB
Landmark ruling could set a precedent for people exposed to the same chemical in different workplaces
It's been nearly a decade since he stepped into a printing plant, but Mitch LaPrade still remembers the distinct smell — a smell so strong it saturated his clothes, his hair, even his skin.
"It was a heavy smell of ink, lots of ink — you might call it a tar smell," says LaPrade, who lives in Long Sault, Ont. "I'd have to come home through the garage, take off my clothes and go straight in the shower. The clothes stayed in the garage."
In 1986, LaPrade took a job as a pre-press technologist, preparing printing plates. With only a high school diploma in hand, this job was his ticket to a trade certification and a steady paycheque.
But then he started to have difficulty breathing. And then in 2005 came his diagnosis: chronic lymphocytic leukemia (CLL).
At 44, he was given 15 years to live.
LaPrade says he was flabbergasted and immediately started asking questions.
"My wife and I were always trying to figure out, where do you get that? We didn't even know what leukemia was."
Then his doctor raised flags about benzene, a chemical in the solvents he'd used to clean the presses. It was a known carcinogen, but LaPrade says he'd never been provided with protective gear like gloves or masks. Once he realized the chemical could be behind his illness, he purchased his own mask to wear, often putting up with laughter from coworkers and managers.
In 2006, LaPrade decided to submit a workers compensation claim to Ontario's Workplace Safety and Insurance Board (WSIB). What ensued was an 11-year battle that he and his wife fought to prove his cancer originated in the workplace.
Although he was ultimately successful in landing a victory that could change how other sick workers are compensated, LaPrade might not have had to fight for those benefits had he been a firefighter. Firefighters who are diagnosed with the same cancer are covered under a policy known as a presumptive regulation, an automatic acknowledgement that their workplace made them sick.
Denial after denial: 'Inadequate evidence'
LaPrade's case file includes air quality assessments confirming he'd had "significant" exposure to benzene, possibly reaching "moderate to high" levels.
Still adjudicators would not accept more than a dozen medical studies submitted by him and his team, making the link between cancer and benzene. WSIB responses repeatedly stated that "exposure to benzene and other products would not have caused the chronic lymphocytic leukemia … " and that the scientific evidence was "inconclusive."
But, in 2007, while case managers were rejecting LaPrade's claim, the Ontario government broadened its Workplace Safety and Insurance Act to include special firefighter protections. The new regulation states that, if firefighters served at least 10 years before being diagnosed with certain types of cancer or leukemia — including CLL — their disease is presumed to have been caused by their work.
Dr. Brian Gibson, a public health professor at the University of Toronto, was one of the doctors who submitted reports in support of LaPrade's case. He questions whether there is an inconsistent standard — the studies deemed inconclusive by WSIB in LaPrade's case had been accepted as scientific evidence for the firefighter policy.
In LaPrade's case, the WSIB argued that firefighters are exposed to a lot of other toxins on the job.
"But if you actually take a look at it," Gibson told CBC in an interview, "the only one of those chemicals that would cause the increased risk of chronic lymphocytic leukemia was benzene."
In a statement provided to CBC News, the WSIB also said that firefighters are compensated based on their diagnosis and their length of service — not based on their exposure to chemicals like benzene.
Last month, the Ontario government announced it would review which cancers are considered work related and how compensation is distributed. In an email statement to CBC, the Minister of Labour's office said the review will include all forms of compensation, including industry specific regulations like the firefighter policy.
"The minister is constantly looking at ways to improve operations and ways of ensuring that the system works properly for workers and their families," the statement says.
LaPrade says he feels like he was held to a double standard.
"It is discrimination," he says. "They single out different occupations. That's the response from them. You're not in that occupation so we cannot treat you as a firefighter."
375,000 workers exposed to benzene
Jim Brophy, a University of Windsor adjunct professor, has studied occupational disease for more than two decades and his work led to the development of the firefighters' regulation.
He says he supports the firefighter coverage but has always been frustrated that the policy never was expanded to protect other exposed workers.
I mean that's ludicrous. Benzene-exposed populations don't get more or less risk because of their job title- Jim Brophy , occupational disease expert
"I mean that's ludicrous. Benzene-exposed populations don't get more or less risk because of their job title," Brophy said.
"We know from study after study, for instance, that refinery workers are exposed on a daily basis. We know auto mechanics are exposed. We know people working in the rubber industry are exposed. And we know autoworkers in the plastics industry that make most of the components of our cars now are exposed."
An estimated 375,000 Canadian workers are currently exposed to benzene, according to CAREX, a carcinogen surveillance program.
The WSIB told CBC that it has received 66 claims related to benzene and leukemia since 2006. Eleven of these claims have been approved, none under the firefighter policy.
The Board could not specify how many claims were specific to chronic lymphocytic leukemia, but Statistics Canada data shows that since 2005, at least 21,800 Canadians have been diagnosed with the disease.
Most firefighter claims rubber stamped within months
Jeri Ottley worked as a WSIB advocate for the food manufacturing industry before becoming an occupational health and safety chair for the Fire Fighters Association of Ontario. He says the battle that workers go through to link leukemia to benzene exposure is unnecessary.
"We have to count tombstones before we get any action out of WSIB," he said.
"You should not have to prove it scientifically," he says of LaPrade's case. "If he worked around benzene and it's been proven, well that's a given."
Ottley says most of the claims he has worked on for firefighters have been approved as long as the firefighter has fulfilled the minimum service requirements and there are no other contributing factors to the disease.
In his experience, decisions are generally granted within two to three months.
"If it's a rubber stamp, and no one's arguing the specifics, it's quick," he says.
'Now somebody believes us'
LaPrade fought his case through to the highest level of Ontario's worker's compensation system. Last November, the Workplace Safety and Insurance Appeals Tribunal ruled in his favour, declaring that his exposure to benzene made a "significant contribution" to his cancer.
"All this fighting that we've done has paid off," says LaPrade, "because now somebody believes us."
His lawyer, Bernadette Clement, says his case could have far-reaching impact for other at-risk workers who can now use the publicly available Tribunal decision as new evidence to support their own cases.
This case is about bringing awareness to people. If they get this kind of diagnosis they should be thinking about the work that they did and whether there was a connection- Bernadette Clement, lawyer
"This case is about bringing awareness to people," says Clement, executive director of the Roy McMurtry Legal Clinic in Cornwall, Ontario. "If they get this kind of diagnosis they should be thinking about the work that they did and whether there was a connection."
The Tribunal approved LaPrade's claim last November, but he and his wife are still waiting for the WSIB to evaluate how much money he will receive in compensation.
At 57 years old with a terminal disease, LaPrade knows he's running out of time. He hasn't worked in years and he and his wife have put their family home on the market because he isn't well enough to keep it up. For his remaining time his main focus is helping other sick workers get their cases re-evaluated.
"I'm not the first and I won't be the last," he says. "But hopefully this will wake something up in that industry.''