Decision #100/20 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A teleconference hearing was held on March 19, 2020 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker filed a Worker Incident Report with the WCB on February 1, 2018 reporting he developed a rash on his hands, back and legs at work on August 1, 2016 that he attributed to “…cleaning up trucks with chemicals.” The worker noted he sought medical treatment at a walk-in clinic in August 2016 and from his family physician who referred him to a dermatologist, seen in October 2017. The worker further advised that he had not worked for the employer since September 2016.
In a February 15, 2018 discussion with the WCB regarding his claim, the worker advised his skin condition started in August 2016 with a rash on his hands, back and legs and had not improved since he left his employment with the employer in September 2016. He noted that he worked for the employer for 6 years, starting in one position and prior to his leaving, was working in the warehouse, doing maintenance work he described as fixing and cleaning trucks and trailers. He described using cleaning products in the course of his work, without gloves and without training on the correct use of the products. When a rash developed, the worker saw a doctor at a walk-in clinic who prescribed creams for the rash, but these did not help, and he then sought further treatment from his family physician. The family physician referred him to a dermatologist who diagnosed him with a chemical reaction, with further testing scheduled for April 2018.
On February 22, 2018, the WCB received a copy of the August 1, 2016 chart note from the walk-in clinic attended by the worker. The clinic physician recorded the worker’s report symptoms of having pink eye in his right eye for four days with itchiness and yellow crusting when he wakes up. The physician diagnosed the worker with conjunctivitis and prescribed a topical antibiotic.
On March 16, 2018, the WCB received a Doctor’s First Report from the worker’s family physician for an appointment on March 21, 2017. The treating physician provided a diagnosis of psoriasis after noting the worker’s reported itchiness and rash on his hands, legs and back “after contact with chemical”.
A report from the worker’s dermatologist was received on April 13, 2018. The dermatologist reported the worker had suffered from contact dermatitis for nearly 2 years and had found some relief from using oral antibiotics. The dermatologist noted daily use of topical steroids had “…less than 40% benefit” and reduced the worker’s ability to sleep and perform activities of daily living. The treating dermatologist advised that with patch testing the worker had a +3/4 reaction to propylene glycol making this substance a significant contactant to the worker.
In early May 2018, the employer provided the WCB with the worker’s job description, photographs of products used by the worker and the Material Safety Data Sheet (MSDS) for each of the products. This information, along with the worker’s file, was reviewed by a WCB medical advisor on May 25, 2018. The WCB medical advisor opined that the worker’s diagnosis was an allergic contact dermatitis to propylene glycol. The advisor noted that “Once a patient is sensitized to an allergen, repeat contact exposure, even to minute quantities, can trigger the development of an allergic contact dermatitis rash” and that propylene glycol was commonly found in a number of products. The WCB medical advisor reviewed the MSDS information provided by the employer for the products used by the worker in the workplace and noted these did not list propylene glycol as an ingredient and as such, the evidence did not support the worker was exposed to propylene glycol at his workplace. On June 13, 2018, the WCB advised the worker his claim was not acceptable as it could not establish workplace exposure to products at the workplace that caused his contact dermatitis.
The worker requested reconsideration of the WCB’s decision to Review Office on July 6, 2018. In his submission, the worker advised that the employer had not disclosed all of the products that he had contact with while he worked there and noted that he had developed a sensitivity to propylene glycol because of his exposure to those products.
On July 31, 2018, Review Office determined the worker’s claim was not acceptable. Review Office relied upon the opinion of the WCB medical advisor and found no evidence to support the worker was exposed to propylene glycol in his workplace.
The worker’s representative submitted further information on specific products the worker was using in the workplace, including the MSDS information for those products, on May 28, 2019 and requested Review Office reconsider the earlier decision. The information included descriptions of products not previously provided by the employer. A WCB medical advisor reviewed this new information and the worker’s file on June 4, 2018 and concluded that one of the products listed did contain propylene glycol and established exposure to that chemical in the workplace. This confirmed the diagnosis of an allergic contact dermatitis to propylene glycol was medically accounted for.
On June 5, 2019, the employer advised Review Office that they did not use that product and that another product was used instead, providing the MSDS for that product. This information was provided to the worker’s representative on June 6, 2019 who responded on June 13, 2019 that the worker stated he did use the product, despite the employer’s reporting that it was not used in the workplace.
Review Office determined again on June 24, 2019 that the worker’s claim was not acceptable. Review Office noted the information provided by the worker’s representative pointed to only one product containing propylene glycol and that the employer denied having that product in the workplace and confirmed the use of another product which did not contain propylene glycol. Review Office was unable to confirm the worker used or was exposed to any product with propylene glycol in the workplace.
The worker’s representative filed an appeal with the Appeal Commission on September 10, 2019. A teleconference hearing was arranged for March 19, 2020.
Following the hearing, the appeal panel requested additional information prior to discussing the case further. On October 7, 2020 after the deadline for receipt of that information passed, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
The Act sets out the definition of an accident in s 1(1) as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured….
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work.
The worker was represented in the hearing by a worker advisor, who made submissions on behalf of the worker. The worker provided testimony in answer to questions posed by the worker advisor and by members of the appeal panel.
The worker advisor outlined the worker’s position that the evidence supports that the diagnosis of allergic contact dermatitis is related to the worker’s employment and therefore the claim should be accepted as an occupational disease.
The worker advisor advised that the worker’s skin condition arose after he began a new position with the employer in a vehicle maintenance role that required him to use products supplied by the employer for cleaning. The worker did not use gloves for these tasks as they were not provided to him and he did not have specific training regarding the safe use of chemicals and products in the workplace. The worker developed a reaction to a specific ingredient in the cleaning products, subsequently determined through allergy patch testing as propylene glycol. The worker’s reaction to this chemical ingredient, found in the hand cleaner that he used daily, made his skin even more susceptible to irritation by other cleaning products used in the workplace.
The worker, in answer to questions from members of the panel, described his job duties and the physical workspace. When asked about the statements provided on behalf of the employer to the WCB regarding his job duties and the products used in the course of those duties, the worker stated that the information was incorrect, although provided by his direct supervisor. The worker maintained that he used a variety of cleaning products in the course of his vehicle maintenance work, and that the hand cleaner he used daily, in his direct work area, was the hand cleaner that contains propylene glycol. The worker described this product and its packaging to the panel with detail, and acknowledged that the other hand cleaner, that the employer referenced, was used in other areas of the building.
The worker also explained to the panel that although he had a childhood history of allergies, he had not noted any allergic reactions in the ten years prior to this reaction in 2016.
The worker advisor relied upon the opinion of the WCB internal medicine consultant in allergy and clinical immunology, dated May 25, 2018, setting out that "Once a patient is sensitized to an allergen, repeat contact exposure, even to minute quantities, can trigger the development of an allergic contact dermatitis rash".
The worker’s position, in sum, is that based on the worker’s evidence, the allergy testing findings and the opinion of the WCB internal medicine consultant, the panel should find that there is a clear relationship between the worker's injury of allergic contact dermatitis and his exposure to the allergen, propylene glycol in the course of his employment. Therefore, the claim should be accepted.
The employer did not participate in the hearing.
To find that the claim is acceptable, the panel must determine that the worker was injured as a result of an accident as defined by the Act. In this case, the panel considered whether the injury claimed arose out of and in the course of the worker’s employment. As outlined in the reasons that follow, the panel was able to make such a finding.
Generally, a worker’s injury can be said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment. While workers are on the employer’s premises, they are subject to all the environmental hazards associated with the employment and are entitled to compensation for accidents arising out of the employment premises.
The worker testified and confirmed on questioning by panel members that he used the hand cleaner containing propylene glycol in the course of his work in the maintenance area. He advised that he began working in that position in spring of 2016 and noted that this was a different physical workspace than he had worked in the previous years with the employer. The worker was able to describe the product packaging and labeling to the panel. He stated unequivocally that this hand cleaner was supplied in his work area by the employer and that the employer’s assertion that it did not use that cleaner was incorrect. The worker agreed that the other cleaner, not containing propylene glycol was used, but in an entirely different area of the building where he worked.
In the May 28, 2019 submission to the Review Office, the worker advocate provided MSDS information for the hand cleaner and other products the worker claimed he used in the workplace. This information confirms the presence of propylene glycol in the hand cleaner the worker claimed he used.
The panel noted that on June 5, 2019 a representative of the employer provided information to the WCB indicating that a different hand cleaner was used in the workplace and provided the MSDS information confirming that cleaner did not contain propylene glycol. After the hearing, the panel sought confirmation from the employer as to all cleaning products purchased in 2016 for use in the maintenance area where the worker was stationed during that time. Despite numerous requests, the employer did not provide that information in advance of the deadline set by the panel.
A WCB medical advisor reviewed the file in its entirety on June 4, 2019 and stated that the medical reporting on file
“...substantiates a diagnosis of an allergic contact dermatitis to propylene glycol. Upon review of the newly submitted MSDS sheets, it is noted that the...original formula hand cleaner product contains propylene glycol. The use of the aforementioned ...original formula hand cleaner product establishes exposure to propylene glycol in the work environment. Therefore, the diagnosis of an allergic contact dermatitis to propylene glycol is likely medically accounted for by a workplace exposure to the ...original formula hand cleaner product.”
The panel noted the worker’s evidence with regard to use of the hand cleaner containing propylene glycol is contradicted by the statements given on behalf of the employer to the WCB but accepts the worker’s statements as to the products he used regularly in the course of undertaking his work duties, noting that his oral evidence is in this regard was consistent with that provided in the claim file documents.
The panel also accepts the medical opinion of the WCB medical advisor that the diagnosis of allergic contact dermatitis to propylene glycol is “likely medically accounted for by a workplace exposure to the [brand] original formula hand cleaner product.”
On a balance of probabilities, the panel is satisfied that the worker’s allergic contact dermatitis arose out of and in the course of his exposure to propylene glycol in the workplace. Therefore, the claim is acceptable. The appeal is allowed.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of October, 2020