APPEALS RESOLUTION OFFICER DECISION
decision number:
20220143
OBJECTING PARTY:
employer
REPRESENTED by:
employer representative
RESPONDENT:
worker (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
l. mansueti, appeals resolution officer
november 8, 2022
ISSUE
The employer objects to the Occupational Disease & Survivor Benefits Program (OD&SBP) Adjudicator decision dated November 29, 2021 denying cost relief under the Second Injury and Enhancement Fund (SIEF).
BACKGROUND
On March 5, 2020, the worker reported experiencing bilateral hand dryness, itchiness, redness and cracking, which they attributed to frequent hand washing at work, the products used to clean medical equipment, and the use of nitrile gloves. They were working as a Registered Nurse (RN) at the time of injury, and had worked with the employer for approximately 2 years.
Entitlement was accepted for irritant contact dermatitis. Loss of earnings (LOE) benefits were approved for March 27, 2020 to April 5, 2020 and April 17, 2020 to April 23, 2020. The worker was determined to have achieved a full recovery by November 29, 2021, with no evidence of a permanent impairment (PI).
On September 2, 2021, the employer representative requested cost relief under the SIEF. The decision letter dated November 29, 2021 communicated SIEF cost relief was not in order. The employer objected to the denial of SIEF cost relief. The reconsideration letter dated August 12, 2022 upheld the decision to deny cost relief under the SIEF. The employer continued to object to the decision letter dated November 29, 2021, and this is now before the Appeals Services Division.
AUTHORITY
Section 98 and 119(1) of the Workplace Safety and Insurance Act (WSIA), 1997, as amended
Operational Policy Manual
Published
11-01-03 Merits and Justice
14-05-03 Second Injury and Enhancement Fund (SIEF)
October 12, 2004
February 20, 2006
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. The employer representative provided a submission for my review and consideration. For the reasons that follow, I find the employer is entitled to 50 per cent SIEF cost relief.
The WSIB’s policy for applying SIEF states in part:
If a prior disability caused or contributed to the compensable accident, or if the period resulting from an accident becomes prolonged or enhanced due to a pre-existing condition, all or part of the compensation and health care costs may be transferred from the accident employer in Schedule 1 to the SIEF.
Both physical and psychological disabilities are included.
In determining cost relief, consideration is given to the medical significance of the pre-existing condition and the severity of the accident.
Severity of Accident
The worker developed dryness and cracking of their hands in keeping with irritant contact dermatitis, which was determined to be associated with frequent hand hygiene and exposure to alcohol-based products at work.
The severity of the accident is evaluated in terms of the accident history and approved definitions. “Severity of Accident” is defined in the SIEF policy as follows:
Minor: expected to cause non-disabling or minor disabling injury
Moderate: expected to cause disabling injury
Major: expected to cause serious disability probable permanent disability
The severity of the accident is assessed in terms of the accident history components, including mechanics, position, and environment. The employer representative did not provide an argument with respect to the severity of the accident. I find the severity of the accident is minor, as frequent hand hygiene and exposure to alcohol-based products, would be expected to cause a non-disabling or minor disabling injury in the average person.
Significance of Pre-existing Condition
The worker was diagnosed with irritant contact dermatitis as per the Health Professional’s Report (Form 8) dated March 6, 2020. The report indicated the worker had a history of atopic dermatitis. The worker was seen at a Dermatology Clinic. They were prescribed topical treatments including Betaderm and Clobetasol. On September 22, 2020, Dr. A. Rouzati, the worker’s family doctor, referred the worker for a dermatology assessment, as they were experiencing persistent flare-ups of hand rash.
Dr. S. Skotnicki, Dermatologist, submitted a report dated January 28, 2021, indicating the worker had been performing modified desk duties since March 2020. The worker attempted to return to patient care in July 2020; however, this caused their hands to break down again.
The worker was then referred to an Occupational Disease Specialty Program. On February 8, 2021, Dr. S. Skotnicki completed a comprehensive assessment via virtual appointment. The report indicated the worker reported wearing gloves for more than 2 hours during a shift for a minimum of 5 minutes at one time up to a maximum of 30 to 45 minutes, depending on the task. The worker indicated they used skin cleansers, hand sanitizers and alcohol wipes to clean equipment at work. The report stated the worker’s skin problem commenced in January 2020, and progressed with increasing severity. The symptoms included dry skin, fissuring, and pitting of the nails. The worker reported some improvement on days off with eventual flaring of the skin problem upon returning to work. Fissuring of the hands was to the point bandages needed to be worn. In March 2020, the worker began modified duties and their hands improved. Upon attempting to return to regular duties in July 2020, the dermatitis returned, and they were put back on modified administrative duties. The report indicated the worker’s past medical history consisted of allergies, atopy, and environmental allergens. There was no previous history of eczema. Upon examination, the worker described having mild dryness on dorsum of hands and in finger webs. No fissures were evident. Dr. Skotnicki diagnosed the worker with occupational hand dermatitis. Patch testing was to be arranged to rule out the presence of an allergic component.
I. Kudla, Occupational Hygienist (OH) at the Occupational Dermatology Stream, submitted a report dated February 8, 2021 regarding the worker’s occupational exposures. The report indicated the worker’s regular duties consisted of providing direct patient care. Their primary exposure was wet work from frequent hand washing, hand sanitizing and glove use, as well as from specific tasks such as assisting patients with toileting and using wipes containing bleach and chlorhexidine to clean medical equipment. The worker was noted to be performing modified duties that did not involve direct patient care; however, they continued to experience an exacerbation of their skin problem (primarily redness). Patch testing was recommended.
On March 8, 2021, the worker returned to the Occupational Disease Specialty Program, post-patch testing for a follow-up. The results of the patch test yielded negative results. The diagnosis was confirmed to be irritant contact dermatitis. The treatment plan consisted of EUCRISA® twice daily as a preventative treatment for hand dermatitis regardless of the state of their skin. They were advised to continue to use 3M Avaguard™ D hand sanitizer, and use Betaderm or Clobetasol cream at night for any flares. Dr. Skotnicki recommended the worker commence a gradual return to clinical care on a trial basis.
As documented in memorandum xx dated November 29, 2021, the worker indicated the recommended treatment was successful in resolving their condition. The worker indicated they continued to use EUCRISA® as a preventative measure, but had not experienced any ongoing symptoms of irritant contact dermatitis. They advised they resumed their full regular duties and hours in June 2021. It was noted the worker secured employment with a new employer in September 2021. The worker indicated they recently learned they have environmental allergies, such as hay-fever and grass, and endorsed having a history of asthma. The worker advised they have a family history of eczema and rosacea; however, they do not have these conditions.
Operational policy 14-05-03 states that in order to ascertain whether SIEF cost relief is in order, a prior disability or a pre-existing condition must be identified and the evidence must show that the prior disability or pre-existing condition either caused or contributed to the work-accident, or prolonged or enhanced the work-related disability.
The first question to be determined is whether the worker has a prior disability or pre-existing condition. The employer representative indicated the worker informed the employer they had eczema and bit their cuticles, which they admitted added to their skin condition. Reference was made to the Form 8 dated March 6, 2020 that indicated the worker had a history of atopic dermatitis. It is the position of the employer representative that a person with a history of allergic reactions is considered atopic, thus has a genetic pre-disposition or tendency to developing allergies. Given this predisposition, the employer representative is of the view SIEF cost relief is in order.
Operational policy 14-05-03 indicates a pre-accident disability is defined as a condition which has produced periods of disability in the past requiring treatment and disrupting employment. A pre-existing condition is defined as an underlying or asymptomatic condition which only becomes manifest post-accident.
I do not accept the worker’s habit of biting their cuticles is a pre-accident disability or a pre-existing condition for which SIEF cost relief can be considered. With respect to atopic dermatitis or eczema, the Form 8 dated March 6, 2020 indicates the worker had pre-existing atopic dermatitis. It is noted the worker informed Dr. Skotnicki they did not have a prior history of eczema but a history of atopy, as per the report dated February 2, 2021. The worker advised the OD&SBP Adjudicator they did not have a history of eczema, but a family history of eczema and rosacea. The worker confirmed they had a history of asthma and environmental allergies. While the worker reportedly informed the employer they had a history of eczema, this is not consistent with what they reported to Dr. Skotnicki and the OD&SBP Adjudicator. I am unable to confirm the worker has a history of eczema as there is contradictory evidence confirming the presence of this condition. I find, however, there is sufficient evidence to support the worker has pre-existing atopy (a genetic tendency to develop allergic diseases), evidenced by the Form 8 dated March 6, 2020 and Dr. Skotnicki’s February 2, 2021 report, which confirm the worker was atopic. This finding is further supported by the worker’s own admission they had a personal history of environmental allergies, including asthma and hay-fever.
The next question to be determined is whether the worker’s pre-existing atopy either caused or contributed to the work-accident, or prolonged or enhanced the work-related disability. The employer representative referenced two Workplace Safety and Insurance Appeals Tribunal (WSIAT) decisions, Decision No. 1094/06 and Decision No. 141/17, to support their position for SIEF cost relief. I have rendered this decision based on the merits and justice of this particular case in accordance with operational policy 11-01-03, which states every decision shall be based on the facts and circumstances of the case, the relevant WSIB policies, and the relevant provisions of WSIA. While I am not bound by any WSIAT decision, I may consider the findings reached in these decisions as it may relate to the case before me.
WSIAT Decision No. 1094/06 involves a worker who had an allergic reaction to handling processed meat containing garlic. The Vice-Chair determined the worker was an “atopic” individual or one who had a genetic pre-disposition or tendency to develop allergies. WSIAT Decision No. 141/17 involves a worker who received entitlement to benefits for contact dermatitis, and had a history of atopy. The decision referenced the WSIAT Medical Discussion Paper entitled “Allergic Contact Dermatitis versus Irritant Contact Dermatitis,” by Dr. Skotnicki, last revised in November 2014, which states, in part:
Patients who have an “atopic diathesis” which means a genetic predisposition to develop one or all of the following: hay-fever, asthma and atopic eczema, are more susceptible to irritants on the skin, airway and mucosal surfaces (eyes, nose, mouth)…. If you don’t have this genetic predisposition in your personal or family history, you are less likely to get irritated by these exposures.
The aforementioned WSIAT decisions involve workers who have a history of atopy. In both cases, the Vice-Chair indicated the very nature of being an atopic individual made them more likely to have developed an allergic reaction. This pre-disposition was characterized as a pre-existing condition for SIEF purposes because it led to the worker experiencing more serious consequences than one would have normally expected from the work they performed and workplace exposures.
I accept the worker’s atopic pre-disposition is a pre-existing condition that more likely than not contributed to development of the work-related irritant contact dermatitis. The evidence supports the worker was more vulnerable for developing a condition or disability of greater severity than a worker without that pre-disposition would be expected to develop. It is noted the employer representative did not provide any arguments with respect to the medical significance of the pre-existing condition. Based on the information before me, I find the worker’s atopic pre-disposition rendered them slightly more liable to develop a disability of greater severity than a normal or average person. While it is difficult to assess the exact contribution of the worker’s atopic pre-disposition, I am satisfied they were at least somewhat more susceptible to develop occupational irritant contact dermatitis given their pre-existing condition. Therefore, I would characterize the medical significance of the pre-existing condition as minor. Based on the foregoing, an accident of minor severity combined with a minor pre-existing condition, warrants 50 per cent SIEF cost relief.
CONCLUSION
I conclude the employer is entitled to 50 per cent cost relief under the SIEF.
The employer’s objection is allowed.
Adjustments are to be made to the employer’s experience rating based on the experiencing rating program they participate in, retroactively to the date of accident.
DATED November 8, 2022
L. Mansueti
Appeals Resolution Officer
Appeals Services Division