WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100012
OBJECTION BY: Worker
EMPLOYER: Not Participating
REPRESENTATIVES: Worker Representative
ISSUES
The worker representative objected to:
denial of Non Economic Loss (NEL) assessment for permanent aggravation of stasis dermatitis
denial of 100 per cent Future Economic Loss (FEL) award from February 1, 1996 to age 65
HOW THE ISSUES ARISE
The worker was a welder and on January 3, 1995, he slipped on ice on the company’s parking lot and injured his left ankle. He was diagnosed with a left Achilles tendon tear. Treatment was conservative. By the fall of 1995 the worker was found fit for permanent modified work. In May 1996 he was granted a 5 per cent NEL award for the permanent impairment of his left ankle. The worker received temporary benefits to January 6, 2006. A FEL sustainability award from February 1, 2006 to age 65 was granted as the employer offered the worker suitable modified jobs which were within the worker’s permanent left ankle medical restrictions.
As a result of the left ankle injury, the worker was placed in below knee non-walking cast.
On March 31, 1995 when the cast was removed, he had a patch of stasis dermatitis on the left lower leg. The worker suffered from varicose veins and obesity, which were considered pre-disposing factors for stasis dermatitis. The Case Manager concluded this skin condition was triggered by the left ankle injury and treatment for this skin condition was granted for a short term basis (aggravation basis) as it was expected it would clear up with the use of prescription medication(s). The Case Manager concluded this skin condition had not been permanently aggravated by the worker’s left ankle injury.
The Case Manager extended entitlement for a low back condition, with permanent impairment as being related to the left ankle condition. In December 2008, the worker had a NEL re determination and he received an additional 23 per cent NEL award to reflect the low back impairment, which increased the total NEL award to 28 per cent.
The worker representative maintains the application of the cast caused a permanent aggravation of the worker’s skin condition diagnosed as stasis dermatitis as the rash on his left lower leg was not present prior to the injury of January 3, 1995 but became chronic following the removal of the cast. She added the medical information from the worker’s treating physician(s) supported that the aggravation had not ceased. Therefore a NEL assessment for this condition was requested. The case manager did not change the previous decision and a NEL assessment for the stasis dermatitis was denied.
The worker representative also submitted the worker had low back medical restrictions in addition to his left ankle medical restrictions and the modified jobs offered by the employer in 1995/1996 would not be suitable given the worker’s low back medical restrictions. The Case Manager reconsidered the FEL decisions in view of the worker’s additional medical restrictions for his low back condition but determined the suitability of the modified jobs as outlined in the vocational rehabilitation reports on file remained suitable. Consequently, the Case Manager confirmed the granting of a FEL sustainability award from February 1, 1996 to age 65.
The worker representative objected to these decisions and the matter was referred to the Appeals Branch for further consideration.
AUTHORITY
19-04-06 Suitable Employment
18-05-13 FEL Sustainability
RESOLUTION METHOD AND PROCESS
The worker representative submitted a 60 Day Decision Option Form dated December 6, 2009 and agreed to a final Workplace Safety and Insurance Board (WSIB) decision based on a review of the information on file.
ASSESSMENT OF THE EVIDENCE
I reviewed the case record and have taken into account relevant WSIB operational policies. In reaching a decision I considered all the evidence but in particular the following.
Permanent Aggravation of Stasis Dermatitis:
As a result of the work related left ankle injury of January 3, 1995, the worker was placed in below knee non-walking cast. At the end of March of 1995 when the cast was removed, he had a patch of stasis dermatitis on the left lower leg and was prescribed a steroid cream.
In a letter dated March 2, 1997, the family physician indicated he first gave the worker a prescription for the skin condition on March 11, 1996. It was a renewal and so he thought the initial prescription was made by one of his specialists. He saw the worker again for stasis dermatitis on April 15, 1996, July 9, 1996, August 6, 1996, September 3, 1996, October 15, 1996, January 20, 1997 and February 4, 1997. He noted the worker did not have the rash before his injury.
In a report dated February 5, 1997, dermatologist Dr. H. Harris indicated the worker presented with scaly erythematous patches on the left lower leg which was present for about a year and have been responsive to Betnovate Cream. He noted the worker suffered an Achilles tendon tear in January 1995 and was on WSIB benefits since then. Physical examination revealed the presence of venous varicosities in the left leg and swelling with dermatitis of the left lower leg above the ankle. His impression was the stasis dermatitis was aggravated by immobility as a result of his injury, venous insufficiency, and obesity.
In a letter dated June 22, 1998, the family physician indicated the worker continued to require the use of Betnovate 0.1% cream to treat the stasis dermatitis of his left leg, which was the result of his injury as well as venous insufficiency and obesity...Because this condition tends to be chronic, he required the used of this cream for an indefinite period of time.
As outlined in memo dated August 21, 1998, a WSIB occupational medical consultant reviewed the medical reports on file and stated the stasis dermatitis is attributable to worker’s pre-existing non-compensable obesity and varicose veins; the compensable leg injury has resulted in an aggravation of stasis dermatitis...
In a report dated September 9, 2005, Dr. Harris indicated the worker presented with scaly erythematous patches on legs bilaterally. He was grossly overweight but he had improved since diuretics were increased. Dr. Harris diagnosed stasis dermatitis. He explained to the worker that the dilation of the veins cause by varicose veins had led to the reduced functioning of the valves in the veins and consequently blood pooling in the lower areas of the legs causing inflammation...
In a letter dated July 3, 2007, the family physician stated he saw the worker with regard to his stasis dermatitis on November 23, 2000 and December 5, 2000, at which time Eumovate Cream was renewed. He saw the worker again for stasis dermatitis on February 6, 2001, April 8, 2003, August 13, 2003, April 1, 2004, October 8, 2004, November 4, 2005, March 30, 2006 and May 9, 2006 the worker presented with stasis dermatitis. On June 4, 2007 the family physician conducted a detailed examination and among other things, he noted the worker had bilateral ankle swelling as well as bilateral stasis dermatitis. He stated the edema and stasis dermatitis was due to varicose veins, which are primarily treated with compression stockings....
As outlined in memo 98 dated October 22, 2007 a WSIB medical consultant reviewed the medical reports on file and among other things indicated there was no PI for the stasis dermatitis.
As outlined in memo 104 dated October 29, 2008, the medical consultant referenced his previous memo 98 and the family physician’s letter dated July 3, 2007 which stated the worker had bilateral ankle swelling as well as bilateral stasis dermatitis. The edema and stasis dermatitis was due to varicose veins which are primarily treated with compression stockings....
The medical consultant stated a PI could not be assigned to the condition of stasis dermatitis when it is clearly not due to the work-related injury.
Analysis/Decision:
Based on the medical opinions expressed on file, the skin condition stasis dermatitis is primarily caused by varicose veins and obesity. However in this case, the period of immobility following the work related left ankle injury of January 1995 triggered this skin condition. Therefore, entitlement for stasis dermatitis was accepted on an aggravation basis. The question before me is whether there is a permanent aggravation of the stasis dermatitis. Based on the medical information on file, the worker continued to be prescribed medication for stasis dermatitis until June 22, 1998. There is no medical information on file indicating the worker continued to be treated for this condition between June 22, 1998 and November 23, 2000.
In view of the above, I find the aggravation of the stasis dermatitis caused by the work injury of January 1995 ended as of June 22, 1998. The worker’s further flare ups of stasis dermatitis from November 23, 2000 and beyond are related to the worker’s non-work-related conditions of varicose veins and obesity.
Suitability of Modified jobs/D1 FEL award:
The worker’s permanent restrictions for his left ankle were to avoid weight bearing from heel to toe, ladder climbing, stair climbing, repetitive movement on toes, walking on uneven ground and prolonged weight bearing
Based on the medical reports on file, the worker’s treating physicians have not presented any specific work restrictions relating to the worker’s low back condition. I agree with the worker representative’s submission that the worker should abide by permanent standard low back work restrictions which include; avoidance of repetitive trunk movement (bending and twisting), avoidance of prolonged weight bearing such as sitting, standing and walking, avoidance of low level work (stooping, crawling) and avoidance of heavy pushing and pulling.
As outlined in the Vocational Rehabilitation (VR) Report of November 27, 1995, the VR Counsellor personally viewed the modified jobs being offered to the worker. The VR counsellor noted the first station was the Super Structure. This was a large steel structure located at waist height. The worker was responsible for welding small plates onto the surface of the structure. This welding would take place at waist height and could be performed from a seated position or from a standing position if the worker so required. The worker would then move his stool around the circumference of the structure performing welds when necessary. The second station Wing Support Station involved welding plates into channels made within a larger structure. This welding was done at waist height which could be done either sitting or standing. The third station was the Shear Plate Assembly which involved welding at waist height either sitting or standing. The Brake Bracket Station and the Manway and Nozzle Station also involved welding at waist height, which could be performed either sitting or standing. The worker would be provided with assistance.
The VR counsellor noted the work stations were a short walk from the parking lot, change room and lunch room and did not involve extensive walking or walking on uneven ground. There was no ladder or stair climbing.
The worker representative submitted these jobs involved welding at waist level which involved repetitive waist movements such as bending or twisting on welding which was not within standard low back restrictions. She noted the use of stomach and back muscles to support the body for long periods without getting tired during the process of welding would not be in keeping with a low back injury and restrictions. Although the modified jobs allowed the worker to perform welding in an either sitting or standing position, the worker stated that he would sit for four hours at a time. The worker representative indicated this was not within his back restriction of no prolonged sitting. In the alternative, standing for prolonged periods would also be outside of the low back restrictions.
Analysis/Decision:
The worker representative indicated the modified jobs offered violated the worker’s standard low back restrictions because the modified welding jobs involved repetitive trunk movement and prolonged sitting and standing. I note the worker was offered several welding jobs performed at waist level which he could do while sitting or standing. Although there would be bending at the waist if the worker performed the welding job from a standing position, he could change position and perform the welding in a seated position, to avoid repetitive or sustained bending at the waist. Therefore I am not convinced the modified jobs offered violated the standard low back restriction of no repetitive trunk movement. The worker had the ability to weld sitting or standing. There is no evidence to suggest he had to sit or stand for 4 hour intervals. My impression is that he could sit or stand as he required so I am not convinced the modified jobs involved prolonged sitting or standing.
In view of the above, I am satisfied the modified jobs offered by the employer at no wage loss in 1995/1996 did not violate the worker’s low back restrictions of no repetitive truck movement and no prolonged sitting or standing. Therefore the initial FEL decision from February 1, 1996 to age 65 remains unchanged.
CONCLUSION
For reasons outlined above, the aggravation of the stasis dermatitis ended as of June 22, 1998. There is no permanent aggravation of this condition as the primary cause for the continued flare ups of stasis dermatitis is the worker’s non work related conditions.
The FEL sustainability award from February 1, 1996 to age 65 is confirmed as the modified jobs offered by the employer in 1995/1996 remain suitable even with the added work restrictions associated with the worker’s low back condition.
The worker’s objections are denied.
DATED February 11, 2010
F. Pansino
Appeals Resolution Officer
Appeals Branch