Decision #02/08 - Type: Workers Compensation
Preamble
A hearing was held at the Appeal Commission on December 6, 2007 at the request of employer’s advocate. Following the hearing, the panel met and rendered its final decision.Issue
Whether or not the employer is entitled to cost relief.Decision
That the employer is not entitled to cost relief.Decision: Unanimous
Background
The worker filed a claim with the Workers Compensation Board (“WCB”) for sore and itchy hands which started on February 23, 2004. The worker attributed her condition to the use of goat’s milk while performing her work duties as a healthcare aide. On May 14, 2004, the attending dermatologist diagnosed the worker’s condition as allergic contact dermatitis.
In a report from a second dermatologist dated September 20, 2004, the dermatologist reported that the worker had problems with her skin on a daily basis for at least 7 to 8 months while at work. Her skin condition got better on weekends and almost completely cleared while she was on holidays. He noted that the worker had problems with her hands, on and off, for 10 years. She had no history of infantile eczema, asthma or allergies. The specialist’s assessment of the worker’s condition was irritant contact vs. an allergic contact.
When speaking with a WCB adjudicator on November 4, 2004, the worker indicated that she has had problems with her hands from years ago when her employer used Sunlight soap. The employer then switched to Dove soap and her condition cleared up. She was fine until February 23, 2004 when her employer changed to Goat’s milk soap and her hands started to weep and swell. The worker noted that she has undergone allergy testing and tested positive to a few substances.
In a letter dated February 4, 2005, the worker was advised that her claim for compensation had been accepted and that she would be paid wage loss benefits and medical expenses associated with the claim. The letter stated, in part, “Further testing was completed by your specialist with chemicals that you are exposed to frequently at work. You tested positive to one of the hand cleansers. I have confirmed that you did use this particular cleanser regularly at work. Since you stopped using this cleanser, your hands have significantly improved.”
File records show that the worker has permanent restrictions to avoid exposure to Euxyl K400, Butylphenformaldehyde and DM hydantoin.
In March 2007, the employer’s advocate requested that the employer be granted cost relief on the basis that the worker’s pre-existing predisposition to allergens caused her condition. The advocate noted that the employer made significant changes to provide the worker with a sterile work environment and since the worker was still having difficulties, one could assume that there were non-work allergens at play.
On March 21, 2007, the employer was advised by Rehabilitation and Compensation Services that it was not entitled to cost relief as there was no medical documentation to support that the worker had a pre-existing disposition for allergens. The letter stated, “…despite the efforts made by the employer to change the work stations to eliminate the exposure to the allergens, the medical literature states that once an individual has developed allergies, they become more sensitive to other substances. Therefore, there may be allergens in the work place not yet identified as allergens.”
On July 5, 2007, the employer’s advocate asked Review Office to review the adjudicator’s decision to deny the employer cost relief. The advocate outlined the position that there were many non-compensable contributing factors in both the development and perpetuation of the worker’s dermatitis. He said it was impossible to know for sure whether it was a work-related irritant or a home based irritant that caused the worker’s dermatitis. The advocate indicated that the substances that the worker should avoid on a permanent basis (i.e. Euxyl K400, Butylphenformaldehyde and DM hydantoin) are substances that are contained in many products. He said the worker indicated on numerous occasions that she was using both Softsoap and Jergens soap at home for several years. He referred to ingredient identification sheets for both products and said that Jergens contained DM hydantoin and Softsoap contained both DM hydantoin and formaldehyde. Based on this information, there was no way to determine that these soaps used by the worker at home were not the cause of her dermatitis and allergies. He noted that repeated exposure to an irritant over time will cause the actual allergy. This repeated exposure away from the workplace more definitely caused or at least contributed in a major way, to her allergies.
In further support of his position that the employer was entitled to cost relief, the advocate noted that the worker admitted in a meeting on January 23, 2007 that ‘at home the allergens are everywhere’. He stated that on May 2, 2006, a WCB healthcare advisor stated the diagnosis was allergic dermatitis of hands and arms secondary to contact at the workplace. The advocate felt the healthcare advisor made this opinion without being aware at the time that the worker was having regular contact with the offending substances at home. The advocate referred to a medical report from the treating dermatologist dated September 20, 2004 which indicated that the worker had a problem with her hands on and off for ten years.
On July 13, 2007, Review Office indicated that WCB policy 31.05.10 stated, in part, that an employer is eligible for cost relief where a claim was either caused by a pre-existing condition or was significantly prolonged by a pre-existing condition. As it was unable to make either finding after its review of the file evidence, Review Office confirmed that the employer was not entitled to cost relief. On July 25, 2007, the advocate disagreed with Review Office’s decision and appealed to the Appeal Commission. A hearing was then arranged.
Reasons
The issue before the panel in this matter was whether or not the employer was entitled to cost relief.
Cost relief is governed by WCB Policy 31.05.10 (“the Policy”)
The Policy provides that cost relief is available to eligible employers in a number of circumstances including “where the claim is either caused by a pre-existing condition or is significantly prolonged by the pre-existing condition”. The particular criterion, if found, would provide the employer with 50% cost relief.
It was the employer’s position that it is entitled to cost relief because the worker’s compensable injury was both caused by a pre-existing condition and significantly prolonged by that condition.
The worker and her representative also appeared at the hearing of this appeal. It was their position that there was no medical evidence supporting a finding of a pre-existing condition. The worker’s representative also pointed out that the issue on this appeal was not one of claim acceptability and that the employer’s arguments in support of its appeal to obtain cost relief seemed to confuse the two issues.
There is no dispute that the worker’s skin problems constituted a compensable injury which occurred on or about February 23, 2004 upon exposure to goat’s milk soap. It was the employer’s position, however, that there was a non-work related causal component to the worker’s condition. The employer stated that the worker was using substances to which she was allergic, at home.
Specifically, it was the employer’s position that the ingredients to which the worker was allergic were contained in Softsoap and Jergen’s, both of which the worker admitted to using at home.
In support of this position, the employer relied on notes of a meeting held on July 21, 2006 between the worker, a WCB representative and the employer.
Those notes record a number of questions posed to the worker and her responses. In response to the first question: “when did the hand problems first start” the worker replied that they started February 23, 2004 with the change of soap to goat’s milk.”
The worker was asked whether with the change to SoftSoap for her personal use there had been an improvement. She indicated there had been. She was asked how long she used SoftSoap at home and replied that she had been using it for maybe two years. She also indicated that her condition always improved at home and that she had never had a problem when home.
Later in the meeting the notes indicate the worker was again asked whether she had any problems at home to which she replied “no” her hands always improved at home with SoftSoap. She also stated in that meeting that she had mentioned Jergen’s before but that was because she used it a long time ago and she had got mixed up. She stated it was SoftSoap which she used and not Jergen’s.
The employer also relied in its submission on a report from one of the worker’s treating physicians dated September 20, 2004. In that report the physician indicated that the worker advised she had a problem with her skin for at least seven to eight months daily, certainly while she was at work. She reported that her skin was better on weekends and almost completely clear while she was on holidays. The physician also indicated that the worker reported she had had a problem with her hands on and off for ten years. She had no history of infantile eczema or asthma or allergies.
It was the employer’s position that the physician’s reference to the worker having had problems with her hands on and off for ten years indicated a potential pre-existing condition or non-work related cause of the development of her allergy. The employer also argued that the earlier exposures created a “pre-dysfunction” to the final exposure in February 2004 which equated to a pre-existing condition.
The worker’s position at the appeal hearing was that there was no evidence that home activities contributed to her allergy or condition. Indeed, it was her position that all of the medical evidence pointed to the fact that when the worker was not at work, her condition improved or even resolved. The worker testified that the reference in the medical report of September 20, 2004 to her reporting having had problems on and off for ten years referred to her telling the physician about problems she had had earlier with use of Sunlight soap in the workplace. She testified that she had not had any other problems until the contact with goat’s milk soap in February of 2004.
Analysis
After hearing submissions from both parties and reviewing all of the evidence on file, the panel has determined that the employer is not entitled to cost relief.
We find there is no evidence to support the employer’s position that the worker’s compensable injury was either caused by a pre-existing condition or was significantly prolonged by a pre-existing condition.
Indeed, the medical evidence specifically rules out any pre-existing allergy problem. For example, in a medical opinion dated March 20, 2007 the WCB medical consultant confirmed that after reviewing the file in great detail, his conclusion was that there was no definite history of pre-existing allergy problem.
Even the medical report which the employer relies on dated September 20, 2004 in which the physician reported that the worker indicated she had had a problem with her hands on and off for ten years, states that “She had no history of infantile eczema or asthma or allergies”. That physician’s assessment was a finding of an irritant contact rather than an allergic contact and that same report confirmed that the worker advised that her skin was better on weekends and almost completely clear while she was on holidays.
This last observation was stated repeatedly by a number of different physicians who treated the worker starting in 2004. As an example, in a report dated July 7, 2006 the worker’s treating physician stated “She finds that when she has a holiday from work, within four days the eruption will resolve but when she goes back to work she finds the eruption still returns.”
With respect to the employer’s reliance on the notes of the meeting on July 21, 2006 where the worker confirmed that she did use SoftSoap at home, we find that there is nothing in this evidence which would support an argument that the worker’s claim was either caused or prolonged by a pre-existing condition. Of specific note is the fact that during the same time period that the worker reported using SoftSoap all of the medical evidence on file confirms that the worker’s condition improved when she was away from work.
Although the employer argued in support of its position that the worker had non-occupational exposure to the substances which irritated her, we note there was no evidence as to the amount of such exposure, particularly relative to the amount of exposure which was work related.
With respect to the employer’s submission that the reference in the September 20, 2004 medical report to the worker having had problems on and off for ten years was significant, we note that there is no evidence of medical visits or reports regarding treatment during that period other than for the one incident regarding the problem with Sunlight soap at work which was an isolated incident.
For all of the above reasons, therefore, we find that the totality of the evidence does not establish, on a balance of probabilities, that the worker’s accepted claim was either caused or significantly prolonged by a pre-existing condition within the meaning of the Policy. The employer is not, therefore, eligible for cost relief.
In making this finding, the panel recognizes that the employer has made many efforts to accommodate the worker’s condition. In denying this appeal we are not, in any way, finding fault with the actions of the employer.
Panel Members
S. Walsh, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Kosc
S. Walsh - Presiding Officer
Signed at Winnipeg this 10th day of January, 2008