WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 27/13

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 27/13 BEFORE: S. Ryan : Vice-Chair M. P. Trudeau : Member Representative of Employers J. A. Crocker : Member Representative of Workers HEARING: November 19, 2014 at Sudbury Oral DATE OF DECISION: December 11, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2685 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) M. Evans decision dated November 3, 2010 APPEARANCES: For the worker: For the employer: Interpreter: C. Langevin, Office of the Worker Adviser (OWA) Did not participate Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 27/13 REASONS (i) Introduction [1] The worker appeals the Appeals Resolution Officer (ARO) decision dated November 3, 2010, which denied him ongoing entitlement for Porphyria Cutanea Tarda (PCT), a skin condition involving painful blisters, and benefits from March 11, (ii) The issue [2] The Tribunal must decide whether the worker has ongoing entitlement for PCT including a recurrence in March These issues arise out of a claim established with an accident date of June 25, (iii) Background and testimony of the worker (a) History to June 25, 2008 [3] The worker was born in [4] At the hearing, the worker testified that prior to June 25, 2008, he had no problems with his skin or any history of blisters. He stated that he was in good health. [5] The worker acknowledged references in the case materials that suggested he had an alcohol addiction problem. He recalled suffering from alcohol abuse 30 years ago for which he received treatment at a rehabilitation facility in Pennsylvania, USA. The treatment was covered by the Ontario Hospital Insurance Plan (OHIP). He testified that since that time, his consumption of alcohol was moderate until In 2007, he was told by a prospective employer (henceforth contract employer ) that he would be hired if he received treatment for his alcohol problem and if he separated from his then girlfriend who apparently also abused alcohol. The worker stated that he underwent treatment at a John Howard s Society for about one week and separated from his girlfriend. He was then hired by the accident employer (an employment agency) and dispatched to the contract employer. [6] In an Employer s Report of Injury/Disease (Form 7) dated July 2, 2008, it was noted that the worker was hired on January 29, [7] The worker testified that he worked at the contract employer as a machine operator and was responsible for moving materials around and running a crushing machine. He recalled that a few months prior to June 25, 2008, he was offered a job to mix chemicals. He stated that the contract employer was ordered by a government agency not to mix the chemicals during the daytime because too many people could be exposed. He accepted the job which consisted of 12 hour shifts from 7:00 p.m. to 7:00 a.m. [8] On June 10, 2008, the worker sought medical attention at a Walk-In Clinic. The ensuing report indicated that he presented with a history of hands swelling/blistering. [9] We questioned the worker about this report. He could not recall attending the Walk-In Clinic on June 10, 2008 or seeing the attending physician, Dr. A. Kuchtaruk. He could not recall suffering any swelling or blistering in his hands prior to June 25, 2008.

3 Page: 2 Decision No. 27/13 (b) History from June 25, 2008 [10] On June 25, 2008, the worker sought medical attention for swelling and blisters on his face, forearms and hands. He attended the Walk-In Clinic and was seen by Dr. L. Vanderbeck, a family doctor. In a report of that date, Dr. Vanderbeck advised that the worker presented with bulla 1 cm x 1 cm dorsum hand. He queried nickel exposure and made arrangements for the worker to be seen by a specialist. [11] In a Worker s Report of Injury/Disease (Form 6) dated July 17, 2008, the worker advised: My job was to mix two types of nickel compounds, one bag Clydeck [sic] residue to 4 or 5 buckets of O.D. Con outside using loaders and excavator. The Clydeck [sic] residue would blow into the air, w[h]ich would get on my hands and land on my body from the head down. I noticed little bubbles starting on my hand and noticed [sores]. By morning it was full blow[n]. Reported it to the company I was doing the job for. [12] Meanwhile, on June 27, 2008, the incident was investigated by the Ministry of Labour (MOL) who noted that the worker suffered irritation to his skin as a result of exposure to nickel dust. The investigator noted that the worker was not wearing gloves while operating machines. He noted: Avoid working conditions for non-direct contact isn t good. Dust is an issue irritating his skin. [13] A Material Safety Data Sheet (MSDS) on Clydach residue obtained by the Board indicates that skin contact can cause an allergic skin rash in previously sensitized individuals. [14] At the hearing, the worker essentially confirmed the information he provided on the Form 7. He advised that the Clydach was a powder that came in bags weighing about three tons each. He used a knife to open the tops of the bags. The worker testified that he wore gloves and a face mask with a charcoal filter. However, he did not wear gloves while operating the loader. It was from the loader that he poured the Clydach residue. With the loader, he slowly poured the Clydach over the O.D. con to minimize airborne particles. [15] The worker testified that on June 25, 2008, it was misty. He recalled that at some point during his shift it started to lightly rain. At a lunch break, he noticed bubbles on his hands. He did not initially notice markings elsewhere on his body. However, there may have been, but he would not be able to see them without a mirror. Toward the end of his shift in the morning, he noticed that the blisters on his hands had progressed. He stated that he later noticed markings on the tops of his ears and along the bridge of his nose at and above the location of the face mask extending to his cheeks. The worker confirmed that he reported his symptoms to a foreman who recommended that he seek medical attention. [16] The worker confirmed that he sought medical attention and did not return to work for several months because of the blisters. [17] In Health Professional s Report (Form 8) dated July 17, 2008, Dr. Vanderbeck advised that the worker was 100% Disabled by widespread chemical burns of skin. [18] In a report addressed to the Board dated July 31, 2008, a registered nurse described the worker s symptoms and treatment. [The worker] presented on June 26, 2008 with large blisters to bilateral hands which did lead to cellulitis. Treatment initiated by myself was a topical antibiotic cream, Fusidic Acid cream 2% sparingly bid for 14 days. Consequently, [the worker] was unable to

4 Page: 3 Decision No. 27/13 work related to his condition. Client did follow up on July 10 th, 2008 with slight improvement to hands but Fusidic Acid 2% cream was continued as signs of cellulitis persisted and [the worker] did remain unable to return to work. Another follow up did take place July 24 th, 2008 and at this time there was improvement noted to bilateral hands. [The worker] also did inform us at this time that it was suggested to him to have a chest x-ray performed to ensure there was no infection present to the lungs. [19] In a clinical note dated August 21, 2008, Dr. Vanderbeck advised, chemical burn healing. He queried whether the worker could return to work. In a clinical note dated September 11, 2008, Dr. Vanderbeck advised that the worker s chemical burn [was] healing well. [20] On August 26, 2008, Dr. C. Smith, Board Medical Consultant, reviewed the information in the claim file and noted that the worker was handling a mixture of metal oxides including designated substances under Ontario Ministry of Labour (MOL) regulations. He opined that the acute chemical skin burns with secondary infection were compatible with the worker s exposure. He recommended that the MOL be notified. [21] The Board granted the worker initial entitlement and loss of earnings (LOE) benefits for his lost time from work. [22] On August 26, 2008, a MOL investigator spoke to the contract employer about the worker s exposure to Clydach residue. The investigator noted that the worker was not trained in the handling of the product. The MOL investigator noted that the employer reported: No other workers have had any reaction to conducting this type of work, as well this type of work has gone on for some time without incident. [23] In a report addressed to the Board dated September 10, 2008, Dr. Vanderbeck advised that he was not the worker s family doctor and that he first saw the worker on June 25, Dr. Vanderbeck advised: he presented with a combination of large, bullous lesions involving his face and primarily the dorsum of both hands as well as large areas of a vivid red macular rash covering regions of his face and hands that were not frankly blistered. [The worker] has informed me that since his experience these chemicals have been removed from the workplace completely and he is no longer required to be exposed to them. [24] Dr. Vanderbeck advised that the worker returned to the clinic on July 17, 2008, with blistered sections of his hands and face that were becoming secondarily infected by bacteria. He advised that by September, the worker s facial lesions were almost gone, but that his hand lesions persisted. Dr. Vanderbeck recommended that the worker avoid exposure to toxic materials. [25] In a Functional Abilities Form for Timely Return to Work (FAF) dated October 24, 2008, another physician 1 at the Walk-In Clinic advised that the worker was capable of returning to full-time hours without limitations. However, the same report recommended office work for two weeks to be followed by a reassessment. [26] On October 27, 2008, the worker returned to work to modified duties working in an office. He recalled that his duties consisted of shredding paper. 1 The name of the physician is illegible.

5 Page: 4 Decision No. 27/13 [27] In a FAF dated November 6, 2008, Dr. Vanderbeck advised that the worker was capable of returning to work without restrictions. [28] The worker testified that in late 2008 the lesions on his face and ears had cleared. He advised, however, that he continued to have some small lesions on his hands. He stated he covered them with bandages and wore gloves whenever possible. [29] On December 22, 2008, the worker was laid off due to a lack of work. [30] In a report dated February 6, 2009, Dr. L. Giroux, dermatologist, advised: This man, when I observed him walking in the doorway, had a dark hue to his skin and excess hair growth on his cheeks. Right away, I suspected porphyria, late onset type. He then showed me pictures of his hands when they were at their worst during June He attributed this to a chemical burn. He had very discrete, round shaped erosions and blisters on his hands. These have healed at present and when I examine the dorsum of his hands, they have healed with milia, white firm papules within the scars. He also describes excessive skin sensitivity, where he just hits himself, he gets an erosion. In the past, he has had a problem with alcoholism and he says now he consume[s] two to three drinks per day. All of these findings are consistent with porphyria. [31] Dr. Giroux ordered porphyria screening tests and opined that the cause of his condition was probably the alcohol. However, she felt that it could also have been caused by hemochromatosis (excess iron in the body). [32] On February 11, 2009, the worker underwent blood testing. The ensuing report indicated a typical pattern of porphyria cutanea tarda. [33] The worker testified that he undergoes treatment for the excess iron in his blood. He stated that initially his treatment consisted of pumping out 600 mls. of blood (and discarding it) twice per month. Currently, he undergoes the same treatment, but only once every three months. [34] In a Worker s Continuity Report (REO6) (undated), the worker advised that he just can t do it [a]nymore because of blistering of the hands and face. He advised that since March he could not even look for work. [35] The worker confirmed that he was not employed at the time of the outbreak in March He stated that he was preparing a garden at the time of the outbreak and was taking his gloves on and off to wash his hands. The worker testified that the lesions on his hands had not completely cleared since June 2008 and that scabs on his hands re-opened. He believes this may have precipitated the outbreak. [36] In a laboratory report dated March 13, 2009, it was noted that the worker tested positive for Hepatitis C in September He was re-tested on March 6, 2009, and was found to have Type 1 Hepatitis C. [37] In a report dated May 2, 2009, Dr. K. S. Gill, internist and hematologist, documented the worker s history of blisters on his face and hands. He advised that the worker s rash had resolved. He noted that the worker had a past history of Hepatitis C, but was not treated for the condition and that the worker s liver function was minimally abnormal. He noted that the

6 Page: 5 Decision No. 27/13 worker was a smoker of one pack per day and consumed alcohol. Dr. Gill confirmed the diagnosis of PCT and noted that it had improved with Chloroquine. [38] In a Health Professional Continuity Report (Form REO8) dated July 15, 2009, Dr. Vanderbeck advised that the worker s same injury was exacerbated in March He diagnosed chemical burn, underlying porphyria. He did not think the worker was capable of working. [39] In a report addressed to the Board dated August 19, 2009, Dr. Vanderbeck acknowledged Dr. Giroux s opinion that the worker suffered from porphyria which the family doctor felt was an underlying condition that was contributing to the worker s overall symptoms. He advised: It is clear, however, that [the worker] did not have any hand lesions of any sort prior to the chemical burn he sustained on June 25, The overall picture then appears to be comparable to those people who have underlying arthritis of the spine which is totally asymptomatic until they sustain a significant injury of some sort following which their symptoms and consequent disability are much increased by the trauma with the underlying condition making their recovery very slow in a similar fashion it is my op[inion] that [the worker] may have had totally asymptomatic porphyria for a long period of time and it might well be asymptomatic to this day were it not for the interjection of the chemical burn sustained at work. [40] The family doctor advised that the worker suffered from serious and disabling chronic skin lesions from the chemical burn that required daily topical care and dressing. [41] In a report dated September 11, 2009, Dr. Gill noted that the worker was referred to him in March 2009 because of the diagnosis of PCT. Dr. Gill advised that the worker reported mixing some chemicals on a wet day and when he woke up the next day he had developed blisters on both hands with some swelling. Dr. Gill advised that the worker had multiple scarred lesions and some new blistering on the dorsum of his hand and some on his face. He advised that the worker would continue to have blood work and Phlebotomy to keep his Ferritin below 50. He agreed with Dr. Vanderbeck that the worker was unemployable. [42] On November 9, 2009, Dr. Smith offered an opinion with respect to the worker s ongoing condition in Memorandum #35. He wrote: PCT is caused by decreased haptic activity of Uroporphyrinogen Decarboxylase (UROD). This decrease is associated with genetic predisposition and certain environmental factors such as the Hepatitis C virus, alcohol ingestion and iron overload We have not identified any significant exposure to agents of interest in the employment which could cause or aggravate PCT. Personal risk factors in this gentleman include alcohol consumption and Hepatitis C positive serology documented from 2005/09/20. Current Hepatitis C RNA is in excess of 15 IU/ML. Virus is Type I Although the August 19, 2009 medical report suggests that the incident of chemical burns accepted in this claim with secondary infection led to expression of the disease or aggravated the underlying risk factors, there would be no scientific rationale for the same. A plausible mechanism would not be apparent to the undersigned. Permanent avoidance of material handling and sunlight would be recommended due to the underlying PCT.

7 Page: 6 Decision No. 27/13 [43] In a report addressed to the Board dated May 8, 2010, Dr. Gill advised: The patient has Porphyria cutanea tarda and I have been following him. He does have evidence of Iron Overload and he is on Phlebotomies. His rash seem[s] to in fact have started fairly suddenly after he was exposed to a chemical at work. Porphyria cutanea tarda is obviously a genetic condition of impaired metabolism and condition can be precipitated by alcohol and other chemical[s] and it is entirely possible that his condition was brought upon by exposure to the chemical at work. Nevertheless, since then his condition has persisted and his investigations confirmed this disorder. He is on appropriate treatment to keep his Iron under control. Majority of patients in fact do have Iron Overload. [44] In a report dated February 15, 2012, Dr. S. Somerville, physician at the Occupational Health Clinics for Ontario Workers Inc. (OHCOW) reviewed the MSDS on Clydach which contained nickel, calcium sulfate, aluminum oxide, lead oxide and arsenic trioxide. He noted that Clydach was known to cause severe skin irritation. Dr. Somerville wrote: [The worker] denied a family history of porphyria or other blood disorders. He did admit to past prolonged and excessive use of alcohol. He has been advised to abstain from any further alcohol use. He also stated he has tested positive for Hepatitis C but is not currently receiving treatment for this as his condition is stable. In examining the dorsum of his hands, small irregular flat red lesions were still present. His ears and face seem to have healed entirely. He said his skin on his hands and face are still sensitive, particularly to light and irritating chemicals, including dish soap and greases. He tries to limit his skin exposure to any noxious substances. [45] Dr. Somerville opined that the worker s condition was asymptomatic until it was triggered by the chemical burn that happened at his workplace. [46] In an article submitted to the Case Record by the Tribunal s Medical Liaison Office (MLO) entitled, Porphyria Cutanea Tarda the author notes that approximately 80% of PCT cases are acquired whereas only 20% are familial. The common acquired form occurs in individuals whose UROD DNA sequences are normal, but who have other genetically determined susceptibilities to inhibition of UROD activity. Exposure to polyhalogenated aromatic hydrocarbon hepatotoxins, environmental or infectious agents including ethanol intake, estrogen therapies, hemochromatosis genes and hepatitis in the presence of co-existing conditions are among the contributory factors. The author notes that excess iron enhances formation of toxic oxygen species increases oxidative stress and apparently facilitating porphyrinogenesis. [47] The worker testified that currently he does not experience acute outbreaks on his skin. His last outbreak occurred in the spring of He explained that he knows how to prevent outbreaks. During the summer months, he keeps his hands covered. In the winter months, he wears warms gloves and tries to avoid the cold otherwise his hands freeze-up instantly. [48] The worker testified that he has not returned to any employment since December He is in receipt of Canada Pension Plan (CPP) disability benefits and Ontario Disability Support Program (ODSP) benefits. He stated that he receives these benefits because of his ongoing blistering. [49] The worker testified that he continues to smoke about one pack of cigarettes per day. He began smoking at age 14. He stated that he only drinks two tall cans of beer per day.

8 Page: 7 Decision No. 27/13 (iv) Submissions [50] On behalf of the worker, Ms. Langevin reviewed the history of this case. She reviewed the reporting of treating and examining physicians and emphasized Dr. Vanderbeck s opinion that the incident on June 25, 2008, triggered the worker s underlying PCT and caused the condition to persist. She also emphasized the opinion of Dr. Somerville who came to a similar conclusion. [51] Ms. Langevin asked that the Tribunal grant the worker ongoing entitlement for PCT and recurrence in March (v) Analysis and conclusion [52] The accident date accepted in this case is June 25, Accordingly, the Workplace Safety and Insurance Act (WSIA) applies. [53] Under section 126 of the WSIA, the Board identified Operational Policy Manual (OPM) Document No , In the Course of and Arising out of Recurrences, which states: New accidents If a worker has a new accident (work-related or not), the decision-maker obtains full details of the accident, including names and addresses of witnesses, the injuries sustained, and the health care received. The decision-maker then assesses the significance of the new accident relative to the worker s overall condition, using the following guideline. Insignificant new accident + compatibility + continuity = recurrence An insignificant accident is one involving an ordinary or routine event, such as stooping to fasten a shoe or reaching for something on a shelf. If the accident is insignificant and clinical compatibility and continuity are established, the worker is entitled to benefits for a recurrence of the original injury. Significant new work-related accident = new claim A significant accident is one of some consequence or importance, such as a fall from a ladder. If there is a significant new work-related accident, a new claim is established. A new claim is also established if the worker s latest clinical problem or problems result entirely from a new accident. [54] There is no dispute that the worker suffered an outbreak of symptoms consisting of blisters, rash and swelling over the dorsum of his hands, bridge of his nose and tops of his ears on or about June 25, The Board has accepted that this sudden outbreak was the result of his exposure to Clydach residue a chemical known to cause severe skin irritation and is under regulation by the MOL. He was granted entitlement to LOE benefits from June 26, 2008 to October 27, The Board denied him entitlement for a recurrence in March [55] In determining whether there is a causal relationship between the worker s injury on June 25, 2008 and subsequent condition, we must consider whether, on a balance of probabilities, the worker s exposure to Clydach significantly contributed to his subsequent condition. If the evidence for and against a causal relationship is approximately equal, we must grant the worker entitlement.

9 Page: 8 Decision No. 27/13 [56] We find that the preponderance of evidence before us does not support, on a balance of probabilities, that the worker s exposure to Clydach on June 25, 2008 and subsequent resultant symptoms, significantly contributed to his condition in March 2009 or subsequent and ongoing PCT. [57] We also find, on a balance of probabilities, that the worker s underlying and pre-existing PCT was not permanently aggravated by his exposure on June 25, [58] In reaching these conclusion, we acknowledge the opinions of Drs. Vanderbeck and Somerville who both expressly opine that the chemical burns suffered by the worker on June 25, 2008, triggered an underlying and, up to then, asymptomatic PCT which persisted ever since. We do not accept these medical opinions because, as pointed out by Dr. Smith, neither physician offered a plausible medical explanation for the relationship and neither physician explain or acknowledge the evidence that indicates the worker suffered blisters to his hands prior to the chemical burns on June 25, [59] As noted above, the worker presented to the Walk-In Clinic on June 10, 2008, with symptoms of swelling and blistering in his hands. We recognize that the worker was performing his regular duties mixing chemicals at that time, but we also note that there was no suggestion that his blisters were causally related to his work at that time. [60] We are persuaded by the opinion of Dr. Giroux, a specialist in dermatology. In her report of February 6, 2009, Dr. Giroux, acknowledged the worker s history that he suffered a chemical burn. Despite that knowledge, Dr. Giroux opined that his condition was probably the result of alcohol. She opined that it could also have been caused by hemochromatosis (excess iron in the body). There is no dispute that the worker had excess iron in his blood. The dermatologist did not suggest that the incident on June 25, 2008 triggered or aggravated his PCT or significantly contributed to his ongoing PCT. [61] We are also persuaded by the fact that the worker tested positive for Hepatitis C in September Dr. Smith and the medical article on PCT indicate that Hepatitis C is a risk factor for PCT. [62] In his report of May 8, 2010, Dr. Gill advised that PCT was obviously a genetic condition of impaired metabolism and that the condition could be precipitated by alcohol. It is not disputed that the worker suffered from alcohol abuse. Dr. Gill also advised that it was entirely possible that his condition was brought upon by exposure to the chemical at work. Tribunal decisions have held that a possible relationship between an injury and subsequent condition is not sufficient to establish entitlement. The relationship must be probable. We note that Dr. Gill did not indicate awareness that the worker was diagnosed with Hepatitis C in 2005 or that he experienced an onset of blisters in his hands on June 10, [63] We are persuaded by Dr. Smith who noted that the worker s personal risk factors included alcohol consumption and Hepatitis C. He noted that there was no plausible mechanism in the medical evidence to explain the relationship between the worker s acute exposure to Clydach on June 25, 2008 and ongoing PCT.

10 Page: 9 Decision No. 27/13 DISPOSITION [64] The worker s appeal is denied. DATED: December 11, 2014 SIGNED: S. Ryan, M. P. Trudeau, J. A. Crocker