Decision #97/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to benefits beyond June 17, 2020. A file review was held on June 29, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to benefits after June 17, 2020.
The worker is not entitled to benefits after June 17, 2020.
The employer submitted an Employer's Accident Report to the WCB on June 15, 2020, noting the worker had reported an allergic reaction to her eyes and face on the same date. The employer described the worker's report of "…itchy, burning, watery, red, runny, swollen eyes while wearing PPE (personal protective equipment), an ongoing issue since May 6, 2020. I put on my PPE to start work and the reaction starts to my face and eyes particularly." The employer noted their occupational health department had been notified shortly after the worker began to experience a reaction, and alternate forms of PPE and actions were attempted. It was noted that occupational health had suggested the worker may "…need to be accommodated to a role that does not require PPE."
On June 23, 2020, the WCB contacted the worker to discuss the claim. The worker confirmed that she had only been required to wear PPE for short durations prior to May 6, 2020, not on a full-time basis. The worker stated that her eyes would become a little itchy during those short periods of time, but it would pass. The worker advised that approximately 30 to 60 minutes into her shift on May 6, 2020, her eyes began to feel itchy and burning, and she reported her symptoms to her manager. The worker further confirmed that she would wear a mask at work with goggles, with the mask fitting underneath the goggles, and that they had tried two different masks and two different goggles since she experienced the eye difficulties. The worker provided the WCB with the dates she sought medical attention and the time she missed from work related to those symptoms.
On June 24, 2020, the WCB spoke with the employer's occupational health nurse, who advised he had not seen the worker but had been working with the worker's managers to come up with a solution for the difficulties the worker had been experiencing with her eyes. The nurse advised the WCB that due to the COVID-19 pandemic, universal PPE was required to be worn at their worksite effective May 6, 2020. On that date, the nurse was told the worker was having a reaction to the mask she was wearing, with itchy, puffy, and sore red eyes. After that, they tried different masks and the worker was trying allergy medications, consisting of eye drops and anti-histamines. On May 21, 2020, they tried a different mask and eye protection combination, with no change. On June 3, 2020, they recommended the worker seek further medical attention due to her ongoing difficulties.
The WCB requested and received copies of various medical reports. A May 6, 2020 Doctor First Report from the worker's family physician noted the worker described eye discomfort and watery eyes at work. The physician recorded the worker's complaints of burning and watery eyes when wearing a face shield and after sanitizer use. The physician reported findings on examination of reactive pupils in both eyes, mild congested conjunctiva, and slightly watery eyes, and recommended eye drops and a change in the type of sanitizer the worker used. The family physician queried a diagnosis of allergic conjunctivitis. At follow-up appointment on May 8, 2020, the family physician referred the worker to an optometrist.
On May 11, 2020, the worker was seen by the optometrist, who recorded the worker had sore, red eyes, with swollen eyelids and extreme itch. The optometrist diagnosed allergic dermatitis and conjunctivitis, and recommended that options be explored at work to avoid possible allergens, including cleaning products.
On May 20, 2020, the worker attended a local walk-in clinic complaining of irritated eyes and swelling around her eyes, with itchiness and periorbital swelling. The treating physician noted ocular and periocular inflammation and swelling, worsening over the past two weeks with mask and google use. The physician diagnosed her with an ocular allergy, and recommended anti-histamine medication and eye drops and that the worker see an optometrist. The physician also recommended the worker stay off work on May 21, 2020, and follow-up with the occupational health nurse regarding a possible PPE allergy as soon as possible.
On May 26, 2020, the worker was seen in follow-up by another optometrist at the same eye clinic as she had previously attended. The optometrist noted the worker's earlier symptoms of redness, itchiness and swelling were not improving. The optometrist found the worker had lid edema and conjunctival engorgement, and prescribed an eye ointment. At a follow-up appointment with the first optometrist on June 3, 2020, the optometrist recommended the worker discontinue use of the eye ointment, and noted she was likely having an allergic reaction to a component of the PPE.
On June 2, 2020, the worker attended the walk-in clinic again, describing red, burning eyes secondary to PPE use, and was diagnosed with bilateral conjunctivitis. The walk-in clinic physician recommended steroid drops, and that the worker remain off work. In a further report on June 7, 2020, another physician at the walk-in clinic noted the worker continued to experience difficulties with her eyes.
On October 6, 2020, the WCB spoke with the employer, who confirmed the worker was currently not working as they were unable to accommodate her in a position where she did not have to wear PPE/masks. The employer advised they had attempted to accommodate the worker in two different positions, but the first position required wearing PPE/masks for approximately 45 minutes, which the worker could not tolerate, and the second fell through as there was an outbreak at the facility and PPE/mask use became mandatory. The employer subsequently confirmed they attempted to accommodate the worker in the first position on July 20, 2020, where the worker only worked one shift, and in the second position starting August 20, 2020, where the worker worked two shifts.
On November 10, 2020, the worker's WCB adjudicator placed a memorandum to file, setting out the details of the worker's claim, including the onset of the worker's eye difficulties due to the PPE/masks worn at work, and noted that the wearing of masks was mandatory due to the COVID-19 pandemic effective May 6, 2020. The WCB adjudicator further noted the worker had a previous WCB claim and had been on a graduated return to work when she began experiencing the eye difficulties. The adjudicator noted that due to ongoing issues with her back, the worker had been in receipt of benefits from another disability insurance provider since May 11, 2020. The adjudicator therefore concluded that there was no loss of time or loss of earning capacity in relation to the worker's eye difficulties, and no entitlement to WCB wage loss benefits after May 9, 2020.
By letter dated November 12, 2020, the WCB advised the worker that her claim had been accepted for the difficulties she had experienced with her eyes, being a reaction to a component of the surgical masks. The WCB noted they were unable to pay wage loss benefits beyond May 8, 2020, as the worker was in receipt of full disability benefits through the other insurance provider since May 11, 2020, and they were unable to establish she experienced a loss of earning capacity related to her eyes and the masks worn at work beyond May 8, 2020.
On June 17, 2021, the worker's union representative requested that Review Office reconsider the WCB's decision that the worker was not entitled to wage loss benefits beyond May 8, 2020. The representative noted the worker continued to experience difficulties with her eyes and a loss of earning capacity as a result of her compensable injury, as the employer could not provide an accommodated position that did not require the worker to wear masks. On June 21, 2021, Review Office returned the worker's file to the WCB's Compensation Services for further investigation/review.
On July 7, 2021, the WCB contacted the employer to gather further information regarding the worker's time loss. The employer confirmed their attempts to accommodate the worker in other positions, noting the worker had trialed a position August 20 and 21, 2020, but the employer was unable to accommodate the worker due to a change in public health orders requiring mandatory masking, and she had been off work since August 22, 2020.
On August 17, 2021, the worker's union representative provided the WCB with a copy of an August 13, 2021 letter they had received from the worker's disability insurance provider outlining their perspective that the worker should have been in receipt of wage loss benefits from the WCB, and requested that the WCB consider those arguments in rendering a decision on the worker's entitlement to benefits.
On October 5, 2021, the WCB adjudicator placed a further memorandum to file detailing her discussions with the employer and the worker's disability insurance provider regarding the worker's time loss. On October 6, 2021, the WCB contacted the worker to discuss her claim further. The worker confirmed her eye difficulties started when she was required to wear medical masks and/or goggles, and that different types of masks had been trialed but she reacted to all of them. The worker further confirmed she attempted to return to work in accommodated positions, but due to the change in public health orders making medical masks mandatory, she had not returned to work. The WCB advised the worker they would be covering her time loss from work during her graduated return to work from May 9 to June 20, 2020, but could not cover any time loss after that date as the worker had advised she had recovered from her eye difficulties on that date. On October 14, 2021, the WCB sent a decision letter to the worker advising she was entitled to wage loss benefits to June 17, 2020, but was not entitled to wage loss benefits beyond June 17, 2020 as she had advised on June 20, 2020 that she had recovered from her eye difficulties.
On January 13, 2022, the worker's union representative requested that Review Office reconsider the WCB's decision. The representative argued the worker was entitled to further benefits as she continued to have a loss of earning capacity which was related, in part, to her compensable eye condition. The representative asked that Review Office also consider the perspective of the worker's disability insurance company that the worker suffered from irritant contact dermatitis, an occupational disease, which was made symptomatic when she was required to wear the PPE/masks. On February 24, 2022, the employer's representative provided a submission in support of the WCB's decision.
On March 9, 2022, Review Office determined that the worker was not entitled to benefits beyond June 17, 2020. Review Office noted the WCB accepted the worker's claim as an allergic reaction to wearing PPE, not the allergy in and of itself, which would be considered a pre-existing condition. Review Office found that based on the worker's own reporting, she was no longer symptomatic after June 17, 2020, and after that date, the reason she required restrictions of not wearing PPE/masks was preventative and based solely on her pre-existing condition. Review Office agreed with the employer's representative that if the worker had returned to work, attempted another form of PPE and experienced a flare-up of her eye condition, she could have filed a new WCB claim.
On March 28, 2022, the worker's union representative appealed the Review Office decision to the Appeal Commission and a file review was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies of the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.
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.
Subsection 4(2) provides that 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 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."
Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.
WCB Policy 184.108.40.206, Pre-existing Conditions (the "Policy"), addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. The purpose of the Policy is stated, in part, as follows:
The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.
With respect to wage loss eligibility, the Policy states, in part, that:
When a worker has:
1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and
2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and
3) the pre-existing condition is not a compensable condition, the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.
The following definitions are set out in the Policy:
Pre-existing condition: A pre-existing condition is a medical condition that existed prior to the compensable injury.
Aggravation: The temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.
Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.
The worker was represented by a union representative, who provided a written submission.
The worker's representative noted that they were appealing the Review Office decision at the request of the disability insurer provider whose position, as set out in their August 13, 2021 letter, was that the worker "is entitled to further WCB benefits as she was experiencing the effects of an occupational disease, described as irritant contact dermatitis, the manifestation of which was predominantly attributable to her use of PPE in the workplace."
The worker's representative noted that in support of its position, the disability insurance provider had explained in their August 13, 2021 letter that:
…the reaction to the PPE caused by exposure in the workplace is operating in concert with the pre-existing underlying irritant contact dermatitis resulting in the [worker's] loss of earning capacity. While it is true that the removal of the PPE resolves the irritant response and the member recovers, the mandatory requirement to use PPE remains, effectively exacerbating the condition and causing further injury. WCB's policy indicates that where, on a balance of probabilities the compensable injury in concert with the pre-existing condition continues to cause the ongoing loss of earning capacity, WCB would continue to pay the wage loss benefits.
WCB is applying a narrow and literal interpretation of the language of subsection 4(2) to limit the wage loss recovery. It argues that once the PPE is removed, the worker recovers. Her injury from the PPE no longer causes a loss of earning capacity. To the extent that the injury does not result in a loss of earning capacity, no wage loss benefits are payable.
Our concern is that the [worker] cannot logically return to work as she would continue to become re-injured and the cycle would be repeated and possibly worsen. Put another way, the [worker] will continue to sustain an "accident" each time she dons the PPE, which she is required to do on a day-to-day basis as a requirement of her job. Each time she does, she will experience the irritant contact dermatitis effectively becoming re-injured.
We urge a purposeful interpretation of the legislation as it defies common sense to deny coverage as the result of such a finding presumes that the member is continually expected to return to work effectively triggering a further accident resulting in the re-injury of the [worker]. The cause of her illness results from the workplace requirement to wear PPE. This does not change for so long as she is required to wear PPE, her loss of earning capacity continues.
The employer was represented by an advocate, who provided a written submission. The employer's position was that they agreed with the WCB's decision to end benefit entitlement and were opposed to payment of any further wage loss benefits on this claim.
The employer's advocate submitted that the claim was essentially accepted for the worker's allergic reaction to the PPE used for Covid-related reasons, and the evidence indicates her acute symptoms had subsided by June 17, 2020. It was submitted that when the WCB accepts a claim for an allergic reaction to a substance or item in the workplace, the Act indicates that coverage should only be provided for the acute period of time the worker experiences symptoms and/or disability after exposure. Once the symptoms or reaction subsides, there is no longer a disability and therefore no longer eligibility for WCB benefits. If the worker suffers an injury in the future, they can submit a future claim and have it adjudicated on its merits.
The employer's advocate submitted that the evidence in this case indicates the worker fully recovered from her acute work-related injury, and there is no longer a demonstrated loss of earning capacity. Accordingly, there is no ongoing eligibility for WCB wage loss or other benefits on this claim, and the appeal should be dismissed.
The issue before the panel is whether or not the worker is entitled to benefits after June 17, 2020. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity and/or required medical aid beyond June 17, 2020 as a result of her May 6, 2020 workplace accident. The panel is unable to make that finding, for the reasons that follow.
The worker has an accepted claim for an acute reaction to her face and eyes while wearing PPE or a face mask at work, with a date of injury of May 6, 2020. Based on the evidence that is before us, the panel is unable to accept that the worker's May 6, 2020 injury resulted in more than an irritant contact injury or irritant contact dermatitis which had resolved as of June 17, 2020.
In this regard, the panel is satisfied that there is an absence of evidence that the worker developed an occupational disease or a sensitivity or allergy because of her ongoing exposure to a particular substance at work. This does not appear to have been disputed by the disability insurance provider, who contrasted the worker's injury with allergic dermatitis, noting they understood the latter to be "an allergic reaction or sensitivity which develops as a consequence of workplace exposure and often requires a period of time to resolve."
While there is also a lack of medical evidence indicating the worker either had or did not have a particular pre-existing condition, the panel accepts that the worker had an underlying, pre-existing condition prior to her reaction to the PPE on May 6, 2020. The panel notes that this was consistent with the January 13, 2020 submission by the worker's union representative to Review Office, where the representative noted that "Although [the worker] reported she had no issues with her eyes prior to May 6, 2020, we suggest it is likely she had a pre-existing, undiagnosed, sensitivity, which – when combined with the requirement to wear PPE on a prolonged basis – resulted in her injury." This was also acknowledged by the disability insurance provider, who noted in their August 13, 2021 letter, that the "reaction to the PPE caused by exposure in the workplace is operating in concert with the pre-existing underlying irritant contact dermatitis resulting in the [worker's] loss of earning capacity."
The panel further notes that the worker indicated that she experienced flare-ups when she used PPE or face masks. In her conversation with the adjudicator on June 23, 2020, the worker reported that she had some itchiness previously when masks were worn for short periods of time, but did not have this severe reaction until the wearing of masks became mandatory on May 6, 2020. Information on file also indicates that the worker experienced flare-ups on occasions after that date where she was required to wear a mask at work for any length of time.
In her conversation with the WCB adjudicator on June 23, 2020, the worker reported that the itchiness had gone away around June 20, 2020, and it was confirmed that her symptoms had resolved by that date. In the circumstances, while the panel accepts that the worker's exposure to the PPE on May 6, 2020 resulted in an aggravation of the pre-existing condition, we are unable to find that the evidence supports that such exposure resulted in an enhancement of her condition or ongoing issues relating to her May 6, 2020 injury after June 20, 2020.
The panel acknowledges the disability insurance provider's position that while the removal of the PPE resolved the irritant response and the worker recovered, the mandatory requirement to use PPE remained, effectively exacerbating the condition and causing further injury. The disability insurance provider has argued that the worker is entitled to wage loss benefits because of the inter-relationship of the recurring compensable injury to the pre-existing condition, and urged a purposeful interpretation of the legislation, "which provides for compensation to a worker whose symptoms are triggered by the workplace."
The panel is unable to find that such an interpretation is consistent with the wording or intent of the Act or the Policy. The wording of subsection 4(2) of the Act specifically provides that 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. As indicated above, the panel is satisfied that the evidence shows the worker suffered an acute injury due to her use of the PPE, from which she had recovered, and is unable to find that she suffered a loss of earning capacity or required medical aid benefits after that date as a result of her compensable injury.
Similarly, the panel is unable to find that the Policy can be interpreted to mean or intend that the worker continues to be entitled to benefits after she has recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity.
In conclusion, the panel is of the view that it would be contrary to the express wording and intent of the Act and Policy to provide wage loss or medical aid benefits to a worker who no longer remains injured or symptomatic as a result of their workplace exposure.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not have a loss of earning capacity or require medical aid beyond June 17, 2020 as a result of her May 6, 2020 workplace accident. The panel therefore finds that the worker is not entitled to benefits after June 17, 2020.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 26th day of August, 2022