Decision #89/09 - Type: Workers Compensation
Preamble
The worker has two claims filed with the Workers Compensation Board (the “WCB”) which relate to separate incidents of occupational exposure to irritants. The first claim was filed in June 2006 and was accepted by the WCB, while the second was filed in May 2007. The worker is appealing a decision made by Review Office which determined that his 2007 claim for inhalation was not acceptable. In addition to the worker’s appeal, the accident employer is appealing the decision made by Review Office that the worker was entitled to wage loss benefits from June 17, 2006 to July 6, 2006 in respect of his 2006 claim. A hearing was held on July 22, 2009 to consider both appeals.Issue
Employer Appeal – 2006 Claim:
Whether or not the worker is entitled to wage loss benefits from June 17, 2006, to July 6, 2006.
Worker Appeal – 2007 Claim:
Whether or not the claim is acceptable.
Decision
Employer Appeal – 2006 Claim: Appeal denied
That the worker is entitled to wage loss benefits from June 17, 2006, to July 6, 2006.
Worker Appeal – 2007 Claim: Appeal allowed
That the claim is acceptable.
Decision: Unanimous
Background
2006 Claim
On June 19, 2006 the worker filed an “inhalation” claim with the WCB. He stated that on June 15, 2006, a sales representative came to demonstrate a new metal spray paint. After being exposed to the paint the worker had difficulty breathing and felt very dizzy. He was transported to a hospital for treatment. The worker said the new paint was an oil-based product that contained a higher level of epoxy. He was given a shot for allergies at the hospital and was placed on a respirator. The worker said he was suffering from constant pains to the top part of his head and periodic sensations of nausea and feelings of trepidation.
A hospital emergency report confirmed that the worker’s entrance complaints on June 15, 2006 were for breathing difficulties and dizziness. The diagnosis rendered was paint fume inhalation.
Regular periodic medical reports were submitted to the WCB by the treating physician. On June 19, 2006, the worker was reported to be experiencing symptoms of confusion and headache three hours after being discharged from the hospital. On June 20, 2006, the physician noted that all lab tests were normal showing no evidence of liver or renal damage but that the worker still complained of being confused and having difficulty concentrating. On June 26, 2006, the worker was still experiencing some mental problems secondary to the exposure. On July 6, 2006, the treating physician noted that the worker was doing physically well but he was not authorizing a return to work until there was a guarantee that the worker would not receive a secondary exposure to the initial chemical mixture.
Material safety data sheets (“MSDS”) were provided to the WCB for products that were used in the paint booth on June 15, 2006. It was determined that the worker was exposed to BASF paint for approximately 1.5 hours.
On July 24, 2006, the worker returned to work. Unfortunately, some roofing repairs were being performed at the workplace at that time and the worker complained that the tar fumes were causing him difficulties. A separate WCB claim has been filed by the worker in respect of this workplace exposure. Because of the tar fumes, the worker discontinued working on July 29, 2006 and remained off work until August 9, 2006.
On August 10, 2006, the treating physician reported that the worker was not functioning 100% at work. The worker experienced a headache while at work, he still felt confused and had lost some confidence. Examination revealed scalp tenderness.
The file was reviewed by a WCB internal medicine consultant on August 24, 2006. He stated that the product used on June 15, 2006 contained three substances. One of the substances could cause a respiratory problem including irritation of the nose and symptoms suggestive of bronchial asthma. The other substance can cause irritation of the eyes, throat and nose as well as dizziness and light-headedness. The consultant confirmed that the worker’s symptoms of dizziness and shortness of breath would be consistent with exposure to this product. Given that the worker’s vital signs at the hospital were stable except for a raised respiratory rate, this suggested that his exposure was minor.
On September 6, 2006, the worker was advised by the WCB that he was only entitled to wage loss benefits for June 16, 2006 related to fume exposure but he was not entitled to further benefits beyond that date as the WCB could not establish that his ongoing symptoms were work related. The adjudicator noted that those directly involved in the spraying and others observing the process did not wear protective masks and did not report any effects. One co-worker could smell the product after the spraying and was developing a headache but did not indicate any other symptoms.
The adjudicator noted that when the worker was seen at the hospital for dizziness and difficulty breathing, his mental status was alert, he was oriented and anxious, his vital signs were stable and his chest was clear and his nose and mouth were normal. Four days later, the worker was experiencing malaise and difficulty with concentration and memory however no objective findings were reported. The adjudicator concluded that given the worker’s limited exposure, the lack of similar effects on others and the lack of objective medical findings, it had not been established that his condition was related to his employment. His claim for compensation benefits beyond June 16, 2006 was denied.
On October 12, 2006, the worker provided the WCB with additional information for consideration. On October 17, 2006, the WCB advised the worker that the information provided did not alter the previous decision.
On October 31, 2008, the worker’s lawyer submitted additional information to the WCB which consisted of medical reports dated December 5 and 11, 2006, January 15, 2007 and June 24, 2007 to support that the worker was entitled to compensation benefits beyond June 16, 2006.
In a decision dated November 28, 2008, the worker was notified that no change would be made to the previous WCB decision that he was only entitled to one day of time loss benefits. Following his review of the reports submitted by the neurologist, an occupational health physician, an allergist, MRI results and a Psychological Assessment Report, the adjudicator was unable to establish a relationship between the worker’s ongoing difficulties and his employment. On December 3, 2008, the worker’s lawyer appealed the decision to Review Office.
Prior to considering the worker’s appeal, Review Office spoke with the worker in January and February 2009 to clarify the exact time loss that the worker was requesting.
On February 19, 2009, the employer’s lawyer provided Review Office with a submission outlining the dates that the worker was paid by the employer’s insurance carrier.
On February 26, 2009, Review Office determined that the worker was entitled to wage loss benefits from June 17, 2006 to July 6, 2006. Review Office noted that the worker was doing well at the time of his July 6, 2006 medical examination and determined that as of July 7, 2006, the worker was capable of returning to work. It was noted that although the treating physician recommended that the worker remain off work until he could be guaranteed that he would not receive a secondary exposure to the initial chemical, Review Office found that the decision to have the worker remain off work past July 7, 2006 was not due to the effects of the June 15, 2006 incident.
The employer disagreed that wage loss benefits should be paid from June 17 to July 6, 2006. On March 24, 2009, the employer’s lawyer appealed Review Office’s decision to the Appeal Commission and a hearing was arranged to consider the employer’s appeal.
2007 Claim
The worker filed a claim with the WCB in May 2007 for face and eye burning which he experienced while performing his work duties that involved hand spraying primer paint. The date of accident was May 11, 2007. The worker reported that he was wearing safety eyeglasses at the time.
On May 17, 2007, an employer representative advised the WCB that the worker was spraying sashes with primer paint on May 11, 2007 when he noticed that his eye was swollen. The employer representative also advised that previously, on April 17, 2007, the worker reported a rash on his hands after wearing latex gloves. There was no medical treatment rendered and the worker was advised to try different gloves.
In a Doctor’s First Report dated May 11, 2007, the treating physician assessed the worker with redness and swelling over his left eye and over both cheeks and forehead. There was mild edema and no blisters were evident. The diagnosis rendered was acute allergic reaction.
In a follow up report dated May 22, 2007, the treating physician reported persistent cutaneous eruption affecting the worker’s arms, abdomen and back. On May 31, 2007, the treating physician stated that he failed to note on his initial examination that the worker had cutaneous lesions on his arms. These were red areas of dermatitis which had largely subsided.
Handwritten correspondence from the worker dated May 24, 2007 indicated that a skin rash first appeared on his left hand in early December 2006. He stated that he had been referred to an allergist for treatment.
Information provided to the WCB revealed that the worker had been assessed by an allergist on March 6, 2007. A report dated March 12, 2007 indicated that the worker had been tested for allergic reaction to spray paint compounds. He had basic skin testing, which was negative. Patch testing was carried out with the implicated chemicals and these patch tests were negative. Further investigations by the allergist resulted in the skin test being negative and a methacholine challenge to check for evidence of airway hyperactivity was also negative. A spirometry did not show evidence of reversible airway disease. The allergist noted that isocyanate-induced asthma could only be identified by an inhalation challenge, which could not be done at the clinic in Winnipeg.
In a memo dated May 22, 2007, the adjudicator stated that he reviewed a compensation claim previously filed by the worker in 1998 for a workplace chemical exposure. The medical information revealed contact dermatitis but there was no indication of any testing or follow up. Information obtained from the employer indicated a reaction to a specific product they were using at that time.
On July 17, 2007, the worker’s lawyer provided the WCB with medical information dated June 4, 2007, June 14, 2007 and December 5, 2006 to support that the worker’s medical condition was the result of chemical exposure at the workplace.
On August 30, 2007, a WCB internal medicine consultant reviewed file information which included reports from Workplace Safety and Health. The consultant indicated that the only diagnosis was eczema rash on the hands and that the cause had not been identified by the allergist. The consultant asked primary adjudication to obtain additional information prior to providing a further opinion.
On September 11, 2007, a WCB adjudicator spoke with the worker. The worker described the medications he took in June 2006 and February 2007. He indicated that he started to develop rashes in December 2006 which were on his head and eyes but stopped above his belt line. He stopped working on May 11, 2007 as he could not take it anymore and had been off work since. He said his rash started to go away in late July or early August. He now had flaky skin. The worker indicated that he had a claim in 1998 for a rash. This was when his problems first started and continued for about 5 to 6 years. He was fine for some years and it resurfaced again in 2006. He noted that his rash continued for years but he never missed time from work. The worker indicated that he did not have hobbies outside of work that involved painting or priming. There had been no change of chemicals at home and no other health concerns.
On October 4, 2007, the WCB internal medicine consultant stated, “Beside Isocyantes there are other products in use that could cause dermatitis such as Acetone and other solvents which are defatting agents and may lead to dermatitis…In summary I suspect dermatitis is on the basis of irritation and defatting rather than allergy to any specific substance.”
In decision dated October 11, 2007, the worker was advised that his 2007 claim for compensation was denied on the following basis:
“After reviewing and weighing the evidence, we acknowledge the difficulties you were experiencing in 1997 and June 2006, as possibly being related to specific irritants at work. However, there were no objective findings at the time to confirm this and these products have since been removed from the workplace. The cause of your recent complications is unclear. Even though the internal specialist commented that there are a number of chemicals at your work, which can cause a rash when in contact with them, I am satisfied that your employer has taken every precaution to avoid putting you at risk in coming in direct contact with any toxic chemicals. It is apparent that proper ventilation and safety equipment (mask, gloves) are provided at work and more environmentally safe paints and other chemicals are being used. Also, there appears to be lack of objective medical information (all test results negative) that would support a link between your recent difficulties and chemicals used in the workplace. Other environmental factors (stress, medication, weather) have been known to contribute to skin conditions. Considering this and the fact that there has been no change in products or duties since June 2006, the WCB is unable to explain the circumstances surrounding the onset of your recent symptoms and time loss commencing in May 2007, to specific irritants found at work. As such, your claim for compensation is not acceptable.”
On December 5, 2007, the worker’s lawyer outlined his view that the worker’s claim should be adjudicated under subsection 4(5) of The Workers Compensation Act (the “Act”). On February 19, 2008, a WCB adjudicator advised he was unable to establish that an accident arose out of the employment or that an accident occurred in the course of employment. As such, he could not apply subsection 4(5) of the Act. At the lawyer’s request, the file was referred to Review Office for consideration.
On March 20, 2008, Review Office determined that the claim for compensation was not acceptable. In reaching its decision, Review Office noted that the worker developed a rash in December 2006 but when he established a claim with the WCB on May 24, 2007, he only reported the May 11, 2007 incident. The worker did not report the rash he developed in December 2006 to his employer. Review Office accepted the WCB consultant’s opinion that the diagnosis may be an irritant dermatitis. It stated however, that if there was a workplace cause for the worker’s condition, then improvement would be expected while being away from the workplace. The worker indicated that his rash did not improve until late July/early August although he stopped working on May 11, 2007.
Review Office indicated that the medical evidence did not support a causal relationship between the worker’s condition and the work environment because the basic skin testing and patch test with the implicated chemical was negative.
Review Office noted that there were no new products introduced to the workplace prior to the worker developing a rash in December 2006. It found that the evidence including the delays in reporting the upper body rash to the employer and the WCB, the negative allergy test results and the length of time it took for the worker’s condition to resolve after leaving the workplace did not support a causal relationship between the worker’s condition and the work environment. In March 2009, the worker’s lawyer appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.
Subsection 4(1) of the Act provides:
4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections. (emphasis added)
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
WCB Policy 44.40.10 (the “Policy”) deals with administration of wage loss benefits. The Policy provides that: “Compensation benefits are payable only where there is medical, or similar, evidence of a disability arising from a compensable incident or condition.” The Policy further provides that: “Wage loss benefits are based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker’s treating healthcare professional.”
Analysis
There are two issues before the panel. We will address each one in order.
1. 2006 Claim – Whether or not the worker is entitled to wage loss benefits from June 17, 2006 to July 6, 2006.
The first issue before the panel is whether or not the worker is entitled to wage loss benefits from June 17, 2006 to July 6, 2006. In order for the employer’s appeal on this issue to be successful, the panel must find that during the relevant time period, there was a lack of evidence which would support continuing disability or loss of earning capacity on the part of the worker. The standard of proof is a balance of probabilities.
The employer submits that when making its decision, the Review Office placed undue weight on the subjective claims of the worker as to ongoing symptomatology. The employer noted that there had been medical testing but nothing was proven as all the results came back normal. There was no indication, other than completely anecdotal, that there was anything beyond a one day effect from the paint fumes.
After reviewing the evidence, the panel is satisfied, on a balance of probabilities, that the medical reports from the worker’s treating physician are sufficient to support continuing disability until July 6, 2006. The report of June 19, 2006 indicates that the worker continued to experience some confusion and headache and that he felt malaise with some difficulty in concentration and memory. The panel accepts that while the worker did not have any physical limitations, his cognitive function may have been impaired. The employer argues that the worker’s complaints of impaired mental function must be weighed against the hospital triage form on the day of exposure, where the worker was noted to be alert, oriented and coherent. The panel notes, however, that the triage form also indicates dizziness and complaints that “head feels like it will explode.” We accept that these types of symptoms could have continued after the date of exposure and could have impaired the worker’s mental abilities, thus preventing him from returning to work in the initial weeks following the incident.
In the panel’s opinion, by July 6, 2006, the worker had sufficiently recovered from the inhalation injury to return to the workplace. This is supported by the treating physician’s report of July 6, 2006, which indicates that the worker could return to modified work, with the restriction that he not be exposed to the chemicals in the same building.
At the hearing, the worker advanced the argument that a longer period of disability was warranted based on the treating physician’s advice that he not return to the workplace until there was a guarantee of no further exposure. While this issue was not identified before the hearing as an issue to be determined, the panel has the authority to address it. The authority for this is found in subsection 11(2) of Regulation 279/91, Appeal Commission Rules of Procedure.
The panel observes that the workplace incident of June 15, 2006 involved a “one-off” situation where the apparent offending chemical was brought into the workplace as a sample by a sales representative. In the circumstances, the panel feels it would be reasonable to expect that the worker could safely return to his pre-accident duties once the effects from his inhalation exposure had resolved. The chemical was not being introduced to the workplace as a regularly used substance and there was no reason to believe that there would be further risk of inhalation exposure to this chemical. Therefore the panel does not accept the argument put forward by the worker.
It is therefore the panel’s decision that the worker is entitled to wage loss benefits from June 17, 2006 to July 6, 2006. The employer’s appeal is dismissed, and the worker’s request for an extension of wage loss benefits beyond July 6, 2006 is refused.
As an aside, the panel notes that at the hearing, the worker was asked to comment on the reasons for his absence from work in 2006 on the specific dates listed on page 4 of the February 26, 2009 Review Office decision. It would appear that his absences on August 16, August 17, October 5, December 4, and December 11, 2006 all related to medical appointments. While the worker would not be entitled to wage loss benefits for these absences (because there is no evidence to suggest a loss of earning capacity on those dates), there is a possible entitlement to medical aid benefits for this time missed from work which would be dependent on WCB investigation and adjudication of that benefit. We would recommend that the worker follow up with the WCB to investigate this potential entitlement.
2. 2007 Claim – Whether or not claim is acceptable
The second issue before the panel is whether the worker’s claim for cutaneous acute allergic reaction is acceptable. In order for the worker’s appeal to be successful, the panel must find that the worker’s medical condition arose out of and in the course of his employment. We are able to make that finding.
Although the 2007 claim was not submitted by the worker until May, 2007, his evidence was that he had been suffering from a rash since December, 2006. The worker described first developing a rash on his hands in December, 2006. The rash would come and go. The WCB file documents that on April 17, 2007, there was an incident at work where the worker was straining paint when he noticed a rash on both hands. He was advised to stop using latex gloves and try using vinyl gloves. The worker’s evidence was that he continued to work in spite of the recurring rash, but that on May 11, 2007, when he experienced the eye irritation which then developed into a rash from his eyes down to his waist, he could not take it anymore and he stopped working.
In support of his claim, the worker submitted a report from the treating allergist dated October 14, 2008. In the report, the allergist opines that the worker suffers from occupation induced contact dermatitis and that his condition is work related. In his report, the allergist refers to “the Mathias criteria” which are seven objective criteria used to assess the probability of a causal relationship between dermatitis and employment. A “yes” response to 4 of the 7 questions is considered to provide adequate probability for workplace exposure being causative of a contact dermatitis. The Mathias criteria are as follows:
1. Is the clinical appearance consistent with contact dermatitis?
2. Are there workplace exposures to potential cutaneous irritants and allergens?
3. Is the temporal relationship between exposure and onset consistent with contact dermatitis?
4. Is the anatomic distribution of dermatitis consistent with cutaneous exposure during the job task?
5. Are non-occupational exposures excluded as possible causes?
6. Does the dermatitis improve away from work-exposure to the suspected irritant or allergen?
7. Do patch or provocation tests identify a probable causal agent?
The allergist indicated that in the worker’s case, a positive answer can be given to 6 of the 7 criteria, but that the number of potential allergens and lack of standardized reagents precluded identification of the probable causal agent. In other words, all of the criteria except for identification of the actual allergen or irritant were met.
The panel accepts the allergist’s application of the Mathias criteria to the worker’s case and his conclusion that the worker’s contact dermatitis resulted from his employment. In particular, with respect to the third and sixth criteria relating to temporal relationship and improvement after removal from the workplace, the panel makes the specific finding that within approximately three weeks after the worker stopped working on May 11, 2007, the rash had almost resolved. When making its decision, Review Office relied on the worker’s statement that his rash did not improve until late July/early August. In fact, the medical evidence would suggest an earlier recovery. The treating physician’s report of June 5, 2007 indicated that as of that date, there was: “good resolution of symptoms, skin lesions almost clear and eyes ok.” The panel notes that its impression of the worker at the hearing was that he was not a good historian and that his evidence as to dates tended to be imprecise. In the panel’s opinion, the information recorded by the treating physician would tend to be more reliable and we place greater weight on recovery dates noted by the physician. We therefore find that the rash resolved within a matter of weeks of the worker’s absence from the workplace.
For the foregoing reasons, the panel finds that the worker’s 2007 claim for contact dermatitis is acceptable. The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerM. Day, Commissioner
A. Finkel, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 18th day of September, 2009