WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

Transcription

1 2004 ONWSIAT 861 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 579/04 [1] This appeal was heard in Windsor on April 1, 2004, by Tribunal Vice-Chair R. Nairn. THE APPEAL PROCEEDINGS [2] The worker appeals the decision of Appeals Resolution Officer T. McDonald dated October 30, That decision concluded that the evidence did not establish a relationship between the worker s psoriasis and headaches and his occupational chemical exposure. [3] The worker participated in the hearing by means of a teleconference from his home in British Columbia. He was represented at the hearing by Mr. Peter Giudice, a consultant who appeared in person. The accident employer is no longer in business. THE RECORD [4] The material in the Case Record prepared by the Office of the Vice-Chair Registrar (Exhibit #1) was considered. In addition, I considered: Exhibit #2: Addendum No. 1 dated September 4, 2003; Exhibit #3: Addendum No. 2 dated September 30, 2003; Exhibit #4: A letter dated October 6, 2003, from the Office of the Vice-Chair Registrar. [5] Oral evidence was heard from the worker. Submissions were made by Mr. Giudice. THE ISSUES [6] The issue to be determined in this case is whether the worker s skin condition can be causally related to chemical exposure in his employment. [7] At the commencement of the hearing, Mr. Giudice confirmed that the worker would not be pursuing the issue of entitlement for his headaches. THE REASONS (i) Background [8] The following background information is, generally speaking, not contested and I have relied on it in reaching my decision: In approximately 1997, the worker contacted the WSIB (the Board ) to request that a claim be established to recognize a skin condition that he claimed was related to chemical exposure in the course of his employment.

2 Page: 2 Decision No. 579/04 The Board conducted an investigation and the file was reviewed by Dr. H. Kabir, the Board s Senior Occupational Hygienist. In Memo #25 dated January 20, 2000, Dr. Kabir indicated in part: Unfortunately, the claimant only recalls the names of various solvents used [by his employer] between 1983 and These solvents are not implicated as allergens for contact dermatitis. They can, however, aggravate an underlying dermatitis In my assessment based on other printing ink making and paint making processes described above, there is a good possibility that the claimant has had significant exposure to various organic solvents. These solvents, e.g. toluene, xylene, methyl ethyl ketone, perchloroethylene, isopropyl alcohol, varsol, etc which are irritants can also cause central nervous system (CNS) depressions causing headaches, light-headedness and dizziness without long-term health effects. In Memo #27 dated March 8, 2000, Dr. I. Taraschuk of the Board advised: Claims is inquiring about skin conditions and headaches. Please see Dr. Kiesch s letter dated Oct. 15, This gentleman s skin condition first began in It would appear the gentleman s skin condition appeared before he started work. As for the headaches, I am having some difficulty finding the medical reports. Please bring the reports concerning the headaches to my attention. Upon further review, Dr. Taraschuk indicated in Memo #29, dated August 1, 2000: I agree with Dr. Ongley s August 6, 1997, report that the gentleman was exposed to irritants. I also agree with the doctor that they could irritate his psoriasis. There is not sufficient medical details on file for me to state irritants aggravated his psoriasis and there is not sufficient details to state that they did not. Claims may wish to conclude he had a major pre-existing condition which might have been aggravated by irritants and the irritation ceased by late 1997, as per Dr. Ongley s Nov 7, 1998, report. I have no reason to suspect his headaches are work related with the information that is on file. In light of the above, the worker s claims regarding his headaches and dermatitis was denied. The worker objected and the matter was considered by an Appeals Resolution Officer. In a decision dated October 30, 2002, the Appeals Resolution Officer denied the worker s appeal and, with respect to the dermatitis, concluded: I am not satisfied it has in fact been established that the worker s occupational exposure to chemicals either caused his skin condition to develop, or was a significant factor in aggravating or maintaining or enhancing his skin condition. With regards to the worker s headaches, the Appeals Resolution Officer advised: (ii) The limited evidence, which is essentially the worker s statement, does not establish a relationship between the worker s headaches (from 1994 to date) and the chemical exposure between 1974 and I accept it is likely [the worker] experienced headaches, light headedness and/or dizziness on direct chemical exposure, but a long term health effect would not be expected, and in fact, has not been established on the evidence. Medical evidence [9] The medical evidence on file includes the following:

3 Page: 3 Decision No. 579/04 In a report dated August 22, 1985, Dr. M. Belcon (clinical immunology and allergy) noted: For the last two years he has noticed an itching, crusting, oozing eruption in his arms and legs, mainly involving the extensor surface and pretibial regions. It has been there chronically, although there are times when it is worse than at other times. He is not sure of any precipitating or aggravating factors. He works with [the employer] a chemical manufacturing plant and has been doing that since September of Prior to this time he worked at a paint factory from 1974 to 1977, working with similar chemicals. He notices that when he is exposed to the sun that these skin eruptions are much less severe. The working diagnosis is apparently eczema. There is no previous history of eczema in childhood. In his report of August 22, 1995, Dr. Belcon advised: Differential Diagnosis 1. Lichen simplex chronicus. 2. Chronic eczematous dermatitis, contact with irritant. 3. Keratodermia ablennorrhagicum, often seen in Reiter s Syndrome. 4. Psoriasis. 5. Other causes of papullosquamous eruptions. Assessment I believe that this man s problem is due to an eczematous dermatitis compounded by a lichen simplex chronicus due to repeated, chronic itching. In her report of October 13, 1995, Dr. Ongley noted: I saw him initially on February 8 th, He presented at that time with a 15-year history of psoriasis He had a recent flare in his psoriasis which he attributed to stress in his life at that time, which I suspect is related to his claim. He has also noted in the past worsening of his skin in relation to handling solvents at work. Certainly stress and contact trauma to the skin are both well-recognized factors in aggravating psoriasis. His psoriasis is currently severe enough that it is quite disabling and hopefully the current treatment program will allow him to return to a more normal pattern of living. In her report of September 6, 1997, Dr. Ongley noted: The materials that he was exposed to in the past are all irritants. It is entirely possible that they may have played a role in bringing out his skin problems at that period in time. As I mentioned previously, flares of psoriasis are frequently triggered by exposure to traumatic damage to the skin of which irritant chemicals can certainly fill this role. By history, his skin has flared with contact with these materials. Not having seen him at that time, I cannot be any more specific in the roles of these agents in his skin problem. Certainly the problem will be ongoing even in the absence of exposure to those as psoriasis not only can be aggravated by external factors, bur also does show endogenous fluctuations. In a report dated October 15, 1998, Dr. R. Diesch (family physician) noted: His jobs and work may have aggravate his skin condition at times, but were never found to be the cause of it.

4 Page: 4 Decision No. 579/04 In a report dated November 7, 1998, Dr. R. Ongley (dermatology) advised: Psoriasis is a lifelong tendency and is therefore something that does recur throughout one s life. It is frequently aggravated by stress and trauma to the skin and is likely to be an ongoing problem for him in varying degrees of severity. It is difficult to relate the onset of this specifically to those materials that he used. All of these are irritants and it is entirely possible that they may well have played a role in bringing out his skin problems at that period of time. It is well know that flares of psoriasis are frequently triggered by traumatic damage to the skin and irritant chemicals can certainly do this. By history, his skin has flared in contact with these materials over the years, which would suggest that they have played a part. (iii) Relevant law and policy [10] In accordance with section 126 of the Workplace Safety and Insurance Act, 1997, the WSIB has identified the following policy as applicable in this case: Policy Package #1 Revision #5 Initial Entitlement Policy Package #21 Revision #5 Dermatitis/Skin Diseases Policy Package #107 Revision #5 Aggravation Basis or SIEF Policy Package #300 Revision #5 Decision Making (iv) The worker s testimony [11] The worker confirmed suggestions in the claim materials that he had visited a dermatologist, Dr. Diesch, in approximately 1969 with regards to a skin condition. He remembered being about 12 years old at the time and his mother taking in to the doctor for treatment of some dry, crusty patches on his forearms. He was provided with some cream which he applied. The worker never considered himself to have a pre-existing condition because he only had a few of these dry and patchy spots. [12] The worker confirmed that he began with the accident employer in approximately 1983 and could not recall having any problems with his skin at that time. [13] In essence, the employer was involved in the manufacturing of various types of ink. For the most past, he operated a roller mill which purpose was to grind ink into its proper viscosity. His duties required him to dump the ink into his machine (the ink having a consistency of mud or paste) following which it would pass through a number of rollers and eventually drip into a tub. [14] According to the worker, he wore a standard uniform consisting of a long-sleeved shirt, pants, safety shoes and safety glasses. The sleeves would be rolled up to keep them from getting caught in the rollers. Employees were not permitted to wear rubber gloves because of a similar concern of them being caught in the machinery. [15] The worker testified that his hands were often immersed in a variety of solvents that were used to clean the rollers. Rags would be dipped in the solvent and then applied to the rollers after each run of ink was completed. On occasion, he also had to use solvents to clean up inks

5 Page: 5 Decision No. 579/04 that had spilled on the floor. The worker estimated it would not be unusual to have to clean the rollers three or four times a day. The worker s skin also came into frequent contact with the ink, either as he used a spatula to feed into the machine or as it splashed while going through the rollers. [16] The worker testified that it was shortly after he began with the accident employer in September 1983, that he first began to notice skin problems. He indicated he began to notice large patches of weeping, flaking skin all over his body. These patches would be located in different areas at different times and he described it as a travelling road show. He estimated that at any given time, approximately 33% of his body would be covered with these patches. [17] The worker left the accident employer in approximately December 1987 and he testified that between 1983 and 1987, there was never a time that his skin was completely clear. In February 1988, the worker began working for another employer installing infrastructure for telecommunication systems. While he never had any exposure to ink or solvents after December 1987, the worker continued to have skin problems. [18] According to the worker, his skin condition deteriorated significantly in 1995 following an incident which led him to have some concerns for his safety and well-being. He indicated that he looked like a leper for approximately six months. Thereafter, with the assistance of his physicians, his skin condition returned to what it had been like when le left the accident employer. [19] The worker testified that he still has symptoms of the skin condition today on various parts of his body. He also feels as if his skin is crawling. The worker confirmed that he had no exposure to paint or other similar products prior to beginning with the accident employer nor was there any similar exposure thereafter. (v) Submissions of the worker s representative [20] Mr. Giudice acknowledged that there was some evidence that the worker had a pre-existing skin condition given that he had sought treatment from a dermatologist in 1969, 1973 and He also noted however, that there was no evidence of the worker having been treated between 1976 and the commencement of his employment in September He submitted this supported the worker s testimony that his skin had been clear at the time he began working. It was Mr. Giudice s position that the evidence suggested the worker had an asymptomatic pre-existing condition when he began with the accident employer in 1983 and therefore there was no limitation on the benefits to which he would be entitled. [21] Mr. Giudice noted that shortly after beginning employment, the worker began to experience problems with his skin and sought treatment almost immediately thereafter. He submitted there was a very strong temporal relationship between the type of work the worker was doing and the onset of his symptoms. Mr. Giudice reviewed a number of the medical reports on file and suggested they support a relationship between the worker s skin condition and his exposure to irritants. In particular, he referred to the August 22, 1985, report from Dr. Belcon which provided a diagnosis of chronic eczematous dermatitis, contact with irritant. Mr. Giudice also noted that the Board s physician, Dr. Taraschuk also supported the theory that the worker s exposure to irritants had aggravated a pre-existing condition.

6 Page: 6 Decision No. 579/04 [22] Mr. Giudice submitted that the stressors which the worker experienced in 1985 resulted in only a minor aggravation of the condition and that after about six months, it returned to its post-employment state. [23] Mr. Giudice submitted there were no other factors, other than employment, which could have caused the worker s condition and, in any event, he noted there was no need to establish the cause, with absolute certainty. In his view, it was more probable than not that the workplace significantly contributed to the onset of the worker s skin condition. (vi) Conclusions [24] After reviewing the material before me, I am satisfied that the balance of evidence supports a finding that the nature of the worker s employment between 1983 and 1987 permanently aggravated a pre-existing non-compensable condition and as such, the worker is entitled to be compensated. In reaching that conclusion, I have taken particular note of the following: While it may not have been particularly severe, there is evidence on file to suggest that the worker did have a skin condition which pre-existed his work with the accident employer. In a report dated October 15, 1998, Dr. Diesch notes that he saw the worker for dermatitis on , , In a subsequent undated report Dr. Diesch indicated that in April 1969, he was treated with 1% hydrocortisone cream for the first time when he was seen for subacute dermatitis on both hands. While the worker may have suffered from a pre-existing dermatitis, I am satisfied that at the time he began with the accident employer in September 1983, his condition was asymptomatic. This finding is supported not only by the worker s testimony but by Dr. Diesch s report of October 15, 1998, which does not record any visits between 1976 and September The worker testified that he began to experience skin symptoms shortly after beginning with the accident employer. This testimony is supported by Dr. Diesch s report of October 15, 1998, which records treatment for dermatitis on October 1, In his report of November 29, 1983, Dr. W. Eagleson noted: This patient developed some itchy lesions beginning on his left leg three months ago and since then they have become more extensive. The patient was wondering if his work which exposes him to printing inks could be a factor. One of the differential diagnoses provided by Dr. Belcon in his report of August 22, 1985, is chronic eczematous dermatitis, contact with irritant. In Memo #25, Dr. Kabir indicated: Unfortunately, the claimant only recalls the names of various solvents used [at the employer] between 1983 and The solvents are not implicated as allergens for contact dermatitis. They can, however, aggravate an underlying dermatitis. Dr. Taraschuk, of the Board, indicated in Memo #29 that Claims may wish to conclude that he had a major pre-existing condition which might have been aggravated by irritants.

7 Page: 7 Decision No. 579/04 [25] As noted by Mr. Giudice, the existence of a pre-existing condition does not disentitle a worker to compensation benefits. When an asymptomatic condition is aggravated by a compensable event, the worker is entitled to compensation benefits until the condition returns to its asymptomatic state. In this case, I am satisfied that while the worker appears to have had a pre-existing dermatitis condition, it was asymptomatic at the time he began working with the accident employer. I am also satisfied that the worker s employment, which brought him into contact with various solvents and inks, contributed significantly to the aggravation of that condition. Given the worker s testimony, it is clear that the condition has never returned to its pre-employment state and therefore it is not unreasonable to conclude that this aggravation has become permanent and that the worker is entitled to be assessed for a permanent disability award. THE DECISION [26] The worker s appeal is allowed. [27] The Board will assess the worker for a permanent disability award in relation to his compensable dermatitis condition. DATED: This 6 th day of May SIGNED: R. Nairn.