APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER:
20230090
OBJECTING PARTY:
employer
REPRESENTED by:
EMPLOYER REPRESENTATIVE
RESPONDENT:
worker, not participating
REPRESENTED by:
WORKER REPRESENTATIVE
HEARING:
HEARING IN WRITING
HEARD by:
l. diaz, appeals resolution officer
JULY 25, 2023
ISSUE
The employer objects to the following:
The Adjudicator’s January 13, 2022 decision which concluded the worker had met the six-month deadline to claim for benefits under the Workplace Safety and Insurance Act, the ‘Act’.
The Adjudicator’s February 20, 2020 decision which granted initial entitlement under the claim to bilateral hand irritant contact dermatitis related to the worker’s occupational exposures.
BACKGROUND
This claim was registered with the Workplace Safety and Insurance Board in May 2019 upon receipt of the Worker’s Report of Injury/Disease form. The worker claimed their irritant contact dermatitis was related to work on the Kuka assembly plant line. While working on the Kuka line, the worker advised they wore Kevlar gloves while handling parts with grease. The worker was 42 years old at the time of their claim for benefits and had been with their employer since 2016.
The worker’s physician submitted a Health Professional’s Report on May 7, 2019, which noted the diagnosis of ‘undiagnosed hand contact dermatitis vs. psoriasis vs. severe eczema’. Effective July 2019, the company physician recommended restrictions in relation to the worker’s bilateral hand condition, and the worker was assigned inspection duties. However, later in the year, the worker began handling parts which they dipped into Rosewater. The worker’s hands came into contact with Rosewater which resulted in a flare-up of the worker’s condition. The file information confirms the worker ceased working on November 15, 2019 due to their bilateral hand skin condition.
The worker was subsequently referred to XXX, following which the occupational diagnoses of work-related irritant contact dermatitis of the fingers, likely from a frictional component, and contact sensitization to formaldehyde and formaldehyde releasing preservatives used in oils and coolants/metalworking fluids were confirmed.
Adjudicator’s February 20, 2020 decision
Further to the February 20, 2020 decision, the Adjudicator granted entitlement to irritant contact dermatitis on the basis the worker’s occupational exposures significantly contributed to the development of their condition.
The employer’s representative objected to the decision which granted initial entitlement. In their initial December 13, 2021 decision, the employer argued the worker had breached section 22 of the Act, and Policy 15-01-03, as they had not claimed for benefits within the requisite period of time, and there was no evidence of any exceptional circumstances for granting an extension. In addition, the employer’s representative also maintained there was insufficient evidence of an occupational disease or an injuring process that advanced the development of any objective occupational disease.
Adjudicator’s January 13, 2022 decision
In response to the employer representative’s submission, the Adjudicator concluded in a January 13, 2022 decision that the worker had indeed claimed for benefits within the requisite deadline, noting that the worker’s injury was a disablement claim and that the six-month deadline begins from the date the worker reports the disablement as work-related.
The employer’s objection was then referred to the Appeals Services Division for further review. The file was returned to the operating area by an ARO, who indicated that clinical notes from walk-in clinics the worker visited from 2017 until 2019 needed to be obtained prior to proceeding with the substantive issue.
The file information confirms the Adjudicator requested medical information from various walk-in clinics the worker reportedly attended during this period of time. However, medical information received to file pertained to non-work-related medical issues.
The Adjudicator then reconsidered their original decisions in subsequent September 26, 2022 and February 15, 2023 decisions, and upheld the previous February 20, 2022 and January 13, 2022 decisions.
Employer’s position
The employer’s representative submitted a February 27, 2023 Appeals Readiness Form and an attached submission which reiterated their prior arguments of December 13, 2021.
AUTHORITY
Workplace Safety and Insurance Act (the ‘Act’)
Section 2 (1)
Section 22 (1)
Section 15
Section 119
Operational Policy Manual documents: Published
11-01-02 Decision Making October 12, 2004
11-01-03 Merits and Justice October 12, 2004
15-01-03 Worker’s Requirement to Claim and Consent April 9, 2021
ANALYSIS
1. Worker’s claim for benefits within 6 months
I find the evidence supports the worker has met the requisite deadline to claim for benefits under the Act. In arriving at this decision, I had regard for the employer representative’s submission, the relevant file information, and the applicable legislation and policy.
Section 22 (1) of the Act, records the following with respect to a worker’s requirement to claim for benefits:
Claim for benefits, worker
22 (1) A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease.
Policy 15-01-03, Workers’ Requirement to Claim and Consent specifies the following with respect to a worker’s obligations:
As soon as possible after an injury, workers must file a claim for benefits. They must also consent to disclose their functional abilities information, which is provided by the treating health professional.
A claim must be filed within six months of an injury or, in the case of an occupational disease, within six months of the worker learning of the disease. The WSIB may extend the six-month deadline, or waive the dual requirement altogether if in the WSIB's opinion it is just to do so.
Disablements
In disablement claims (conditions that emerge gradually over time), the six-month deadline begins from the date the worker reports the disablement as work-related. This can be reported to the employer, health professional, or the WSIB.
As is noted by the employer in their submission, and as is confirmed in the file evidence, the worker attended the employer’s first aid department on March 5, 2019 for a bilateral hand condition, and advised that their symptoms began two years earlier. The worker also confirmed in their Worker’s Report of Injury/Disease that their date of injury was in fact February 1, 2017. The XXX reports also confirm the worker reported developing symptoms approximately six months after their employment began, i.e. late 2016, and that they initially sought medical attention at a walk-in clinic in April/May 2017.
Despite the Adjudicator attempting to retrieve clinical notes from the walk-in clinics, unfortunately, only medical information unrelated to the worker’s condition was received to file. As a result, I have therefore rendered a decision on this issue based upon the existing file information.
Although the employer contends in their submission that the worker did not claim for benefits within six months of originally seeking medical attention in April/May 2017, the Act and Policy 15-01-03 cited above, clearly indicate that for occupational diseases and conditions that emerge gradually over time (disablement claims), the six-month deadline to claim for benefits begins from the date the worker reports the disablement as work-related.
The file medical evidence confirms that although clinical notes were submitted to file as early as December 13, 2018 and January 17, 2019, it remained unclear as to the source/cause of the worker’s dermatitis. In these earlier clinical notes, neither the worker nor their physician attribute the worker’s condition to their occupational exposures. It is not until the visit of March 28, 2019 that these clinical notes document the worker believes their bilateral hand condition is related to their occupational exposures. There is no indication in the medical evidence or the remaining file record that the worker was aware that their irritant contact dermatitis was occupationally related until late March 2019.
The worker’s physician then submitted their Health Professional’s Report on May 7, 2019, and the worker submitted their Worker’s Report of Injury/Disease on May 27, 2019. I find the submission of the May 27, 2019 Worker’s Report of Injury/Disease claiming for benefits is well within the six months of the worker learning of their disease, which I find occurred on March 28, 2019, date the physician documented the worker believed their condition was work-related.
Having regard for the above information, I therefore conclude the worker has met the requisite deadline to claim for benefits under the Act.
2. Entitlement to bilateral irritant contact dermatitis
I find the worker was appropriately granted entitlement to bilateral irritant contact dermatitis under the claim. In arriving at this decision, I had regard for the arguments presented, the relevant file information, and the applicable legislation and policies.
Occupational disease claims are adjudicated under Section 2(1) and Section 15 of the Act and by Regulations 3 and 4 of the Act. If the disease for which the worker is claiming entitlement to benefits is not listed in the Schedules and a relevant policy has not been developed, initial entitlement is determined based on the merits and justice of the individual claim.
For entitlement to be granted under Policy 11-01-03, Merits and Justice, it must be shown that it is more probable than not that the circumstances of a worker’s employment and exposure history significantly contributed to the development of the condition being claimed. A significant or material contributing factor is one of considerable effect or importance.
The employer’s representative contended there was insufficient objective evidence confirming the worker’s hand issues were actually an occupational disease. They indicated that although YYY’s hospital identified possible dermatitis, there was insufficient objective evidence to support this was the condition the worker had for more than two years, or if they did, that it was caused by work exposures. The employer indicated that the worker’s symptoms continued even when removed from the offending areas and substances for months, supporting that it was a non-work related cause. The employer’s representative indicated that the conclusions by the health professionals were pure speculation, which at best was equivalent to a 50/50 chance, which does not amount to a significant contributing factor. As a result, the employer’s representative contended that initial entitlement for occupationally related irritant contact dermatitis should not have been accepted.
In order to determine whether the worker’s condition was occupationally related, I had regard for all file medical reports, though I note the XXX reports provided comprehensive summaries of the worker’s history, condition, and treatment. The March 19, 2020 YYY’s report by Dr. DeKoven, Dermatologist, confirms the following employment history and occupational exposures:
(Worker) has worked as a production team member (unionized) for (employer) since February 2016. Prior to work for (employer), he worked at (former employer) for 13 years with no skin issues. His work status is full-time and he typically works an 8-hour shift with occasional overtime.
Upon hiring, (the worker) worked in the Stock Department operating a forklift with no issues with his skin in this job (no gloves worn in this position). After lay-off about a year later, he was bumped to the production line (Kuka Department) where he worked from January to June 2017, on the chassis and undercarriage of vehicles dropping engines into vehicles.
He noted grease exposure on his Kevlar gloves form handling washer coated in oil. The gloves were described as being made of rubber with a Kevlar interior. These were changed several times throughout the shift.
Sometimes gloves would also become contaminated with metal particles, Band-aids, etc. Workers requested to be able to wear new gloves. His skin problem started when he was working on this job; the skin was irritated from glove use and his condition increased in severity. He went to a walk-in clinic and was treated with various topical creams (6 to 8 week trials). He tried at least 4 to 5 different creams.
From June to August 2017, (the worker) was moved to the rear muffler job with exposure to metal covered in an oil film. He installed the muffler into the chassis of the vehicle. He had to apply a lubricant to the rubber that isolates the muffler from the bottom of the vehicle to dampen vibration; his hands continued to get worse.
From September 2017 to May 2019, he was transferred to the Hoist job. He had to wear Kevlar gloves but had less oil exposure and he was managing fairly well. He notes that most of the contact on his hands was with his palms in the Hoist job. During that time he also performed odd jobs such as rear muffler, brake line, and front hub install.
From May 2019 until July 2019, he alternated between installing the exhaust, brake line, and front hub. ...
In July 2019, the Company physician put him on restrictions and (the worker) went to a different area of the plant. He was assigned to checking tape on the window frame of the doors of cars; he managed here quite well. Later on, door flags were introduced (rubber) which were placed between two steel plates of the door. The plates were large so they had to be dipped in “rosewater”. At that time he was restricted from wearing gloves so he would dip the plates into the Rosewater without wearing gloves. Therefore, his hands would contact the rosewater and his hands took a turn for the worse. This was brought to the attention of the company physician and near the end of July 2019, (the worker) was moved to the front of the plant on a visual inspection job and performing minor repairs (not allowed to wear gloves at this point). He states that he was a “last check person” before the car would go out the door. In this position, he might have to adjust the rear wipers or snap in interior moldings i.e. fixing human error. This job involved touching metal, rubber, plastic, fabric (some days a rear wiper issue, other days something else such as working with the panels inside the vehicle) and his hands reacted.
Dr. DeKoven then documented the worker reported their skin problem occurred in 2017, confirming that about 4-5 months after starting on the Kuka line, they developed chronic break-outs on the hands, mostly on the fingers. However, it was more severe in early 2019. Dr. DeKoven also confirmed the worker had been assessed by Dr. Zanganeh, Allergist, on December 3, 2019, following which it was found the worker had a positive test to latex.
Dr. DeKoven noted the worker had undergone Occupational Dermatology Stream (ODS) assessments by the Occupational Hygienist on January 29, 2020 and February 12, 2020. Patch test reading for February 12, 2020 showed a clear pattern of allergic skin reactions to formaldehyde and formaldehyde releasing preservatives that can be contained in metalworking fluids.
The occupational diagnoses were confirmed as work-related irritant contact dermatitis of the fingers, likely from a frictional component, and contact sensitization to formaldehyde and formaldehyde releasing preservatives that can be used in oils and coolants metalworking fluids. It was unclear whether the sensitization to formaldehyde had clinical significance with respect to their current job. The worker confirmed that all the parts have an oily spray on them and their ingredients were unknown to them. Dr. DeKoven also noted that a relevant non-occupational diagnosis might be endogenous dermatitis. The worker’s restrictions included: 1. No glove use; 2. No appreciable hands-on job tasks; and, 3. No direct or airborne skin exposure to formaldehyde, 2 bromo-2 nitro propane-1, 3-diol, the Bioban set of preservatives and propolis.
Although the employer’s representative argued that there was insufficient objective evidence to confirm the worker’s condition was occupationally related, I must respectfully disagree. Of importance, the evidence does not support the worker had issues with dermatitis until after they commenced working in the Kuka department. The evidence confirms the worker had previously worked for an auto manufacturer without any prior symptoms or concerns.
Furthermore, and more importantly, both specialists who assessed the worker, Dr. Zanganeh, and Dr. DeKoven, provided the opinion that the worker’s dermatitis was related to their occupational exposures. Although the employer’s representative also expressed concern over the fact that the worker continued to be symptomatic after ceasing work, I note that by November 2019, the worker had already become sensitized. I lend significant weight to Dr. DeKoven’s opinion in particular due to their speciality in the field of dermatology. I note there has not been any medical evidence or medical opinion submitted to file which supports the worker’s bilateral hand condition is not related to their occupational exposures.
In summary, having regard for the above factors, I accept the evidence supports the worker’s occupational exposures were a significant contributing factor in the development of their bilateral hand condition. As a result, I therefore conclude the worker was appropriately granted entitlement to irritant contact dermatitis under the claim.
CONCLUSION
I conclude the following:
The worker has met the requisite deadline to claim for benefits under the Act.
The worker was appropriately granted initial entitlement to bilateral irritant contact dermatitis under the claim.
The employer’s objection is therefore denied.
DATED July 25, 2023
L. Diaz
Appeals Resolution Officer
Appeals Services Division