Decision #01/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to full wage loss benefits after December 11, 2015 and is not entitled to further vocational rehabilitation assistance. A hearing was held on November 5, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to full wage loss benefits after December 11, 2015; and
Whether or not the worker is entitled to further vocational rehabilitation assistance.
That the worker is not entitled to full wage loss benefits after December 11, 2015; and
That the worker is not entitled to further vocational rehabilitation assistance.
The worker, a bricklayer, filed a Worker's Accident Report with the WCB on September 24, 2003 indicating that he had dermatitis from "allergies due to exposure to cement" and was "allergic to chromemates (sic)," that "doctors have told me to leave the business" and that he was "looking for retraining." On November 4, 2003, a WCB medical consultant reviewed the worker's claim and opined that the worker had "…occupationally-related contact dermatitis" from chromate in the cement and that "he should permanently avoid exposure to cement and any other material containing chromate."
By letter dated November 28, 2003, the worker was advised of his permanent restrictions. The worker was offered and agreed to a vocational rehabilitation program, and wage loss benefits were provided. A vocational rehabilitation plan for the occupational goal of NOC (National Occupational Classification) 1471 - Shipper/Receiver was identified and started on April 12, 2004, with a scheduled end date of September 24, 2004. The starting salary identified with the NOC was $367.00 per week.
On May 7, 2004, the worker advised the WCB that he was accepting a position at a sports club, within his restrictions, starting May 10, 2004. On September 24, 2004, a WCB case management representative advised the worker that his wage loss benefits would be calculated based on the implementation of a deemed earning capacity of $367.00. Information was subsequently gathered on a regular basis with respect to the worker's actual income which was compared to his deemed earning capacity and used in the calculation and payment of ongoing partial wage loss benefits.
On September 12, 2007, the worker advised the WCB that his hands had been really good and no medical treatment was required for them. The worker continued to receive partial wage loss benefits until 2010 based on a deemed earning capacity. In October 2010, the WCB having made several attempts to contact the worker in 2010 to verify his work earnings, without success, the worker's partial wage loss benefits were suspended.
On January 11, 2016, the worker's spouse contacted the WCB to advise that the worker had recently suffered a stroke which she believed was related to his compensable injury. The worker's spouse further advised that the worker had returned to working as a bricklayer and his hands had become symptomatic again, requiring treatment with prescription steroids to help with the symptoms.
On February 5, 2016, the worker and his spouse met with the worker's WCB case manager. The worker and his spouse advised the WCB that the worker's dermatitis returned shortly after he started working at the sports club. The worker saw a specialist who determined it was likely caused by chemicals used while cleaning. The worker continued working and taking medication to help with the symptoms. In 2011, he accepted a position with a bricklaying company. The worker indicated that he tried to avoid the chromates while performing his job duties but his hands seemed to get worse over time. He sought medical treatment in December 2015, and was prescribed more steroids and antibiotics. He was supposed to go back to work after Christmas, but his hands were still too bad and he needed to rest them prior to returning to his bricklaying position. While resting, the worker had suffered a stroke.
The WCB case manager noted that she questioned the worker about not remaining in contact with the WCB. The worker advised that he knew he would not be entitled to wage loss benefits for the last four years due to his earnings during that period of time. He further advised that he did not realize what his permanent restrictions meant, and how coverage and vocational rehabilitation worked. The worker and his spouse further advised the WCB that they were seeking to have the worker's partial wage loss benefits reinstated as the worker was without income now, and might not be able to return to work.
On April 12, 2016, the worker's spouse advised the WCB that the worker remained off work and may have suffered a second stroke. On May 3, 2016, the WCB's Compensation Services advised the worker that his partial wage loss benefits were reinstated as of December 11, 2015. Compensation Services advised the worker that his earning capacity had been indexed to the amount of $547.37 per week for the occupation of Shipper/Receiver. Compensation Services further advised that full wage loss benefits would not be considered as the worker had demonstrated the capacity to earn the equivalent of a Shipper/Receiver when he worked for the sports club and had demonstrated he could earn more that his pre-accident income when working in his last employment for the past five or more years.
On May 30, 2016, the worker requested that Review Office reconsider Compensation Services' decision. The worker further requested that Review Office at least consider partial wage loss for the time period from 2011 to 2015. The worker noted that he did not understand he could never go back to the masonry industry and felt he was being penalized for working. The worker further indicated that a new claim was started for him in 2011 from his employer due to his dermatitis, but he did not pursue this claim. He said he did not understand he was not supposed to be working as a supervisor and his employer provided him with modified duties after his hands got bad. The worker also noted other medical conditions that he was dealing with that he related to his compensable injury. On June 1, 2016, Review Office returned the worker's file to Compensation Services for further investigation related to the other medical conditions noted in the worker's appeal.
On July 21, 2016, Compensation Services advised the worker that they had determined he was aware the WCB would not support a return to his previous position as a bricklayer. Compensation Services had also determined that the worker had recovered from his allergic reaction after he ceased working for the accident employer in 2003, and confirmed in 2007 that his hands were good and further treatment was not required. As such, the worker was not entitled to any further medical aid or wage loss benefits, other than partial wage loss benefits after December 11, 2015.
On November 4, 2016, the worker's representative requested that Review Office reconsider Compensation Services' decision and that consideration be given to payment of full wage loss benefits on the worker's earnings from this claim. The representative noted that the worker did not understand he was permanently restricted from working as a bricklayer and would not have returned to masonry work after his 2011 injury had he known he might be suspended from ever receiving wage loss benefits as a result. The worker's representative submitted that the worker was no longer able to work in the construction industry or in gainful employment. On December 12, 2016, Review Office returned the worker's file to Compensation Services for further investigation.
Compensation Services gathered information from the worker's treating healthcare providers, including his gastroenterologist, rheumatologist, family physician and pharmacist, and reviewed photographs of the worker's hands provided by the worker's representative. All of the information gathered and the worker's file was reviewed by a WCB medical consultant. In an opinion dated July 20, 2017, the WCB medical consultant opined that the worker had been diagnosed with "…allergic contact dermatitis to potassium dichromate (chromate) in 1993 and 2003." The medical consultant further opined that the natural history of an allergic contact dermatitis is described by resolution of the clinical manifestation following sustained avoidance of the specific allergen, often after treatment with a topical steroid cream, and recurrence following re-exposure to the specific allergen. The medical consultant opined that this was borne out in the worker's case, where clinical manifestations of the worker's "…chromate-induced bilateral hand allergic contact dermatitis did materially resolve when he stopped working with/handling cement products containing chromate, only to recur upon repeat contact with the same products."
With respect to the worker's diagnosis of a stroke, the WCB medical consultant opined that the worker's medical history of dyslipidemia and cigarette smoking were the dominant medical risk factors that likely contributed to the worker's January 3, 2016 cryptogenic stroke, and the medical information on file did not demonstrate a causal relationship between the worker's use of steroids and his stroke. The WCB medical consultant stated that she had spoken with the worker's treating gastroenterologist on June 19, 2017, and the gastroenterologist had advised that the worker's ulcerative colitis "…was not secondary to the use of corticosteroid medication (topical or systemic)."
By letter dated August 16, 2017, Compensation Services determined that the worker was not entitled to wage loss or medical expenses with respect to his stroke or ulcerative colitis. Compensation Services noted the diagnosis of a cryptogenic stroke. Compensation Services found that the presence of other risk factors likely contributed to the stroke and the stroke was not caused by the use of steroids. Compensation Services also determined that the worker's ulcerative colitis was not caused by the 2003 condition of contact dermatitis or by the use of steroid medication. Compensation Services further determined that the worker's contact dermatitis completely resolved following treatment and avoidance of chromates in the year or years following the 2003 claim, and that any symptoms or requirement for medication would not be related to his claim.
Compensation Services noted that as previously stated, they would continue to consider partial wage loss replacement based on the earning capacity of a shipper/receiver. Compensation Services noted the worker's earnings during the period from October 2010 to December 11, 2015 were greater than his pre-accident earnings, and as such, he was not entitled to partial wage loss benefits during that period. Compensation Services found that as of December 11, 2015, the worker stopped working due to a non-compensable medical condition, and as he had no earnings at that time, his partial long-term wage loss replacement had been reinstated.
On September 8, 2017, the worker's representative requested that Review Office reconsider Compensation Services' decision. His representative asked that the worker be provided with full wage loss benefits after December 11, 2015 as the worker did not understand that he was restricted from ever returning to masonry work and that he would not be entitled to be fully compensated should he go back to work in the industry and re-injure himself.
On October 3, 2017, Review Office determined that the worker was not entitled to full wage loss benefits effective December 11, 2015. Review Office found that the worker stopped work on December 11, 2015, reporting a recurrence of his hand dermatitis, and also sought treatment for other medical conditions. Review Office determined that the worker was entitled to partial wage loss benefits as of that date based upon his deemed earning capacity under NOC 1471 from his prior vocational rehabilitation plan, subject to indexing. Review Office also concluded that there was no entitlement to full wage loss benefits as the worker remained employable in NOC 1471.
Review Office further determined that the worker was not entitled to a new vocational rehabilitation plan or re-training as a labour market continued to exist for NOC 1471 and this remained appropriate considering the compensable restrictions. Review Office also determined that there was no entitlement to full wage loss benefits for the worker's loss of earning capacity for his other medical conditions, as benefits are not payable due to conditions which are not related to a claim.
On February 4, 2019, the worker's representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
Subsection 39(2) of the Act provides that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.
Pursuant to subsection 27(20) of the Act, the WCB may provide academic, vocational and rehabilitative assistance to injured workers. Subsection 27(20) reads as follows:
Academic, vocational and rehabilitative assistance
27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker
(a) could, in the opinion of the board, experience a long-term loss of earning capacity;
(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or
(c) requires assistance in the activities of daily living.
WCB Board Policy 43.00, Vocational Rehabilitation (the "VR Policy"), explains the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker under subsection 27(20) of the Act. The VR Policy states that: "The goal of vocational rehabilitation is to help the worker to achieve a return to sustainable employment in an occupation which reasonably takes into consideration the worker's post-injury physical capacity, skills, aptitudes and, where possible, interests." The VR Policy further states that: "The WCB will help the worker as much as possible to be as employable as she or he was before the injury or illness. Once this is done and when necessary, the WCB will provide reasonable assistance to the worker so that she or he actually returns to work. However, services may not always continue until the worker actually returns to work."
WCB Policy 188.8.131.52, Post Accident Earnings - Deemed Earning Capacity (the "Deeming Policy") describes when a worker will be deemed capable of earning an amount that he or she is not actually earning, and how the deemed earning capacity will be determined. Where deemed earning capacity is used, wage loss benefits will be paid as if the worker were actually earning the deemed amount.
The worker was represented by his spouse, who made a submission on his behalf. The worker's spouse and the worker responded to questions from the panel.
The worker's position was that he is entitled to full wage loss benefits after December 11, 2015 and to further vocational rehabilitation assistance as a result of his 2003 compensable injury.
The worker's representative noted that the worker was a bricklayer by trade. She submitted that he excelled at bricklaying, but was really unable to perform any other work. He had limited education and no other training. She submitted that the worker had a lot of issues with his hands due to a severe allergy to mortar, dating back to 1991. She submitted that the worker was stubborn, and would manage his condition by taking steroids, using hand creams and going off work for short periods of time without pay to allow his hands to recover.
The worker's representative submitted that in 2003, the worker's hands were becoming very badly infected and he finally filed this claim with the WCB. She submitted that he was offered vocational rehabilitation, but he never really went and little or no vocational rehabilitation assistance or services were provided to him. The worker's representative stated that the worker did not understand that he would never be able to return to work in the masonry industry, and that this was never clarified. She stated that she was the one who wrote the letter to the WCB's Occupational Disease Unit at her husband's request, responding to the Unit's letter dated November 28, 2003. She explained that neither she nor her husband were ever of the impression that he would have permanent restrictions such that he would never be able to go back to the only profession he knew.
She noted that the worker was told in the vocational rehabilitation process that he could work as a shipper/receiver, but that he was concerned at the time that he could not do that type of work. She said that in the interim, the worker found a job at a club which he used to frequent, but he did not really know what he was getting into. The worker's representative indicated that the work situation at the club deteriorated over time, which included that he would not always be paid, and he eventually left the club and returned to doing masonry work.
The worker's representative stated that the worker called her from his current worksite in December 2015 to say that his hands were infected again and he could not do the work anymore. The worker returned home, but was unable to see his physician and obtain further medication, as his physician was away. For the next couple of weeks, the worker was not feeling well, and kept getting headaches, then on January 3, 2016 he suffered a stroke.
The worker's representative submitted that it took the worker three months to recover from the stroke and 18 months to completely recover from the recurrence of his compensable dermatitis injury and for his hands to return to normal. The representative noted that the worker was only paid partial wage loss benefits for this period of time and was not offered rehabilitation assistance, with full wage loss, while he was recovering from his December 2015 recurrence. The representative submitted that the worker should be entitled to a minimum of 18 months of full wage loss benefits while his hands were recovering.
The worker's representative further submitted that the worker was being penalized for returning to work in the masonry field, even though he was unable to perform any other work. She submitted that the worker was asking for help and was seeking vocational rehabilitation assistance or services. She stated that the worker had spent four years at home since December 2015, during which time he was ready and able to work. She submitted that he was willing and able to go for vocational rehabilitation training every day, and could have been working if he had been provided with some vocational rehabilitation assistance.
The employer did not participate in the appeal.
Issue 1. Whether or not the worker is entitled to full wage loss benefits after December 11, 2015.
For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker is entitled to full wage loss benefits as of December 11, 2015. The panel is unable to make that finding, for the reasons that follow.
Based on our review of the information, as documented on file and as presented at the hearing, the panel is unable to find that the worker's contact dermatitis condition as at December 11, 2015 or other medical condition at that time was causally related to the worker's September 2003 claim.
The panel is satisfied that the evidence on file supports that the worker's contact dermatitis had resolved while he was working at the sports club. The panel recognizes that the worker's representative submitted at the hearing that the worker had issues with his hands and was exposed to chromates in his work at the sports club, but finds that such an assertion is not supported by the contemporaneous evidence on file. The panel places weight on the worker's advice to the WCB on September 12, 2007, as documented on file, that his hands had been really good and no medical treatment was required for them.
The panel also places weight on the WCB medical advisor's July 20, 2017 opinion that the natural history of an allergic contact dermatitis is "i) resolution of the clinical manifestations of the dermatitis following sustained avoidance of the specific allergen, often after treatment with a topical steroid cream and ii) recurrence of the clinical manifestations of the dermatitis following re-exposure to the specific allergen."
The panel notes that information on file shows that the worker had permanent restrictions to avoid exposure to cement and any other material containing chromate. The panel is satisfied that the worker understood that he had such restrictions and that they were of a permanent nature. In arriving at that conclusion, the panel notes that there are numerous medical reports on file indicating that the worker should not be performing work involving chromates, including the July 4, 2003 report of the worker's treating dermatologist stating that the worker "will not be able to continue his line of work much longer…He has no alternative but to leave his work."
The panel also notes the undated letter from the worker responding to the November 28, 2003 letter from the WCB Occupational Disease Unit, in which the worker indicated that his "dermatitis prevents me from performing at my job adequately" and that he has not worked since October 8 and has "no intentions of returning, as my condition is extremely painful and I can no longer tolerate the pains in my hands." The worker goes on to state that he would most definitely participate in a Vocational Rehabilitation program, and "I will not be returning to bricklaying, as I can no longer tolerate the cement etc…."
The panel recognizes that the worker's representative indicated at the hearing that she had prepared that letter, but notes that she also confirmed she gave it to the worker to read and he signed it. The panel does not accept the representative's submission at the hearing that they did not understand or agree that the worker would be permanently restricted from returning to bricklaying work. The panel notes the representative stated that she was unwell and did not attend doctors' appointment or meetings with the WCB with the worker at that time. In response to a question at the hearing, the worker himself indicated that he did not remember what he understood at that time.
The worker's representative has also argued that the worker's stroke was causally related to his use of steroid medications to treat his contact dermatitis. The panel is unable to accept that argument. In this regard, the panel places weight on the May 13, 2016 report from the treating neurologist, who categorized the worker's stroke as being "cryptogenic," or of unknown or indeterminate origin. The panel is further unable to identify documentation on file from the worker's treating physicians indicating that the worker's January 3, 2016 stroke was causally related to steroid use.
While there was also reference in the file to a condition of ulcerative colitis as being possibly connected to the worker's compensable chromate allergy or contact dermatitis, medical reports on file indicate that these conditions were not related. The worker's representative further confirmed at the hearing that they were of the view that there was no issue with respect to colitis, that they did not believe that the worker ever had colitis and that any issues relating to colitis had resolved.
Based on the foregoing, the panel is unable to find that the worker's contact dermatitis or other medical conditions as at December 11, 2015, were causally related to his 2003 compensable injury. The panel therefore finds, on a balance of probabilities, that the worker is not entitled to full wage loss benefits as of December 11, 2015.
The panel notes that the worker continued to receive partial wage loss benefits up to the age of 65 based on his deemed earning capacity under NOC 1471.
The worker's appeal on this issue is dismissed.
Issue 2. Whether or not the worker is entitled to further vocational rehabilitation assistance.
For the appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker is entitled to additional vocational rehabilitation services, including retraining. The panel is unable to make that finding, for the reasons that follow.
Based on our review of all of the information which is before us, the panel is satisfied that the Individualized Written Rehabilitation Plan from 2003 was appropriate and prepared in accordance with the VR Policy. Information on file shows that the plan was prepared taking into account the worker's personal characteristics, including his education level, skills and work history. The panel notes that the assessed skills which the worker possessed included, in particular, his extensive experience as a class five driver as well as a worksite fork lift operator and made note of his interest in working as a fork lift operator. The worker acknowledged at the hearing that he signed the IWRP, although he said he did not remember it specifically, and his representative acknowledged that he obviously signed it.
Evidence on file further indicates that the worker participated in the vocational rehabilitation program, including preparing a draft resume and attending a job search workshop.
Approximately one month after the start of the plan, the worker chose, however, to work for the sports club. The panel notes that his work duties at the club were within his restrictions, and by the scheduled end date of the IWRP, the worker was being paid more at the sports club than the identified starting salary for the NOC. The evidence shows that the worker continued working at the sports club for approximately five years, until 2009, following which he went back to working in the masonry industry. The worker was paid partial wage loss benefits throughout the time he worked at the sports club.
The worker subsequently chose to leave the sports club and return to working in the masonry industry. The panel acknowledges that the worker indicated that he moved into a supervisory position during that time, and that he attempted to avoid contact with chromates. The panel is satisfied, however, based on the evidence, that the worker was aware that his work at that time was outside his restrictions. The panel further notes that the evidence indicates that he continued to work in that industry for approximately five years, up to December 11, 2015, during which time he was earning more than he had been earning at his pre-injury work.
Based on our review of the information before us, the panel is satisfied that the vocational rehabilitation plan for NOC 1471 remains appropriate based on the worker's compensable restrictions and skills and that there continues to be an appropriate labour market for NOC 1471. The panel notes that information provided at the hearing, together with the submission of the worker's representative indicated that the worker was not totally disabled and was ready and willing to return to work. The worker further acknowledged at the hearing that he would be able to operate a forklift, as contemplated in the vocational rehabilitation plan. The information indicated, however, that the worker had made little if any effort to apply for or obtain work.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker is not entitled to additional vocational rehabilitation services or assistance.
The worker's appeal on this issue is dismissed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
D. Neal, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of January, 2020