The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 24, 2001, at the request of the claimant. The Panel discussed this appeal on July 24, 2001 and September 17, 2001.

Issue

Whether or not responsibility should be accepted for the claimant's right eye difficulties as being related to the September 15, 1998 compensable injury; and

Whether or not responsibility should be accepted for related medical and travel expenses.

Decision

That responsibility should be accepted for the claimant's right eye difficulties as being related to the September 15, 1998 compensable injury; and

That responsibility should be accepted for related medical and travel expenses.

Background

On October 15, 1998, the claimant submitted a claim for compensation benefits relating to a right eye injury that occurred at work on September 15, 1998.

In a letter to his employer dated September 30, 1998, the claimant indicated that he felt a blast to the right side of his face and right eye on September 15, 1998, when a co-worker accidentally sprayed him with a can of Global "Dust Blaster II". The claimant indicated that immediately after the incident he went to the washroom and started to splash water in his right eye for about five minutes and did so again later for another 5 minutes. After reading the label on the can, the claimant learned that it contained some form of cleaning chemical in addition to compressed air. The claimant indicated that his eye continued to be irritated over the coming days and he made an appointment to see an ophthalmologist. Subsequent correspondence indicated that the claimant was claiming for medical expenses related to his right eye condition along with travel expenses to attend various medical appointments.

The claimant attended a hospital for treatment on October 3, 1998. The diagnosis was eye pain NYD (not yet diagnosed). When seen by an ophthalmologist on July 12, 1999, objective findings revealed a normal eye examination and the claimant was instructed to try artificial tears whenever necessary.

In a report of May 19, 2000, a second ophthalmologist reported that the claimant complained of tearing and a foreign body sensation in his right eye since being sprayed with compressed air nearly 2 years ago. The claimant had no relief with Acular or Amadine. Examination findings revealed best corrected vision at 20/20 OU with a myopic astigmatic correction. The claimant had easily revertible upper eyelids and an oily tear film with rapid tear break up time. The rest of the eye exam was unremarkable and there was no corneal or conjunctival pathology noted. The impression was probable tear film dysfunction, secondary to blepharitis and possible mild floppy eyelid syndrome. The claimant was instructed on the use of warm compresses and lid care and was advised to use Genteal drops 4 times a day and tear gel at bedtime. A review was to take place in 2 month's time.

On August 10, 2000, a Workers Compensation Board (WCB) medical advisor was asked to review the case at the request of primary adjudication. The medical advisor provided the opinion that the current diagnosis based on file information was tear film dysfunction secondary to blepharitis and that there was no direct cause-effect relationship between the work injury and the diagnosis. On August 25, 2000 primary adjudication advised the claimant that his current eye difficulties were not related to the initial injury sustained in 1998 and that no responsibility would be accepted for any expenses. The claimant later appealed this decision to Review Office.

Prior to considering the claimant's appeal, Review Office requested and obtained reports from the claimant's treating eye specialists.

In a December 1, 2000 report, the second treating ophthalmologist stated, in part, "It is possible that he (sic) experiencing some dry eye symptoms secondary to the compressed air injury 2 years ago, but he also has blepharitis, which would also contribute to symptoms of dry eye. If he was experiencing any disability due to this workplace injury, it would amount to a 1-2% disability of his visual function due to the dry eye."

In a December 18, 2000 report, a third ophthalmologist reported his examination findings of October 3, 1998. He concluded his report by stating, in part, "In brief, I do not feel he's sustained any permanent damage from his compressed air injury from the dust blower while at work."

In a decision dated December 22, 2000, Review Office determined that no responsibility would be accepted for the claimant's continuing right eye problem or for any related medical or travel expenses. Review Office found that the weight of medical evidence did not support, on a balance of probabilities, that the claimant's continuing right eye problem was a direct result of the workplace event that occurred on September 15, 1998. On April 30, 2001, the claimant appealed Review Office's decision and an oral hearing was arranged.

On July 24, 2001, the Appeal Panel requested that additional information be obtained prior to discussing the case further. Specifically, the Panel requested information from the ophthalmologist who had last treated the claimant on January 18, 2000. The Panel also requested that Workplace Safety and Health be contacted to obtain material data safety sheets on the product called GLOBAL CFC Free - Ozone Safe Dust Blaster II and the chemical called 1,1 Difluoroethane.

On August 21, 2001, the claimant was provided with documents that the Panel obtained from Workplace Safety and Health and a report from the treating ophthalmologist dated August 14, 2001. On September 17, 2001, the Panel met to discuss the case and considered the foregoing reports along with a submission from the claimant dated September 5, 2001.

Reasons

This is the case of a worker who suffered an injury to his eye when a substance used to clean office photocopiers was accidentally sprayed into his eye. A claim was filed with the Workers Compensation Board. The claim was accepted as a "no time loss" compensable injury.

The worker continues to suffer some problems with his right eye. The Board denied any responsibility for his ongoing problems. He appealed that decision to the Review Office, which upheld the adjudicator's decision. It is from that decision that he appealed to this Commission.

Two issues were before the Panel: whether or not the worker's current problems with his right eye are related to the workplace accident of September 15, 1998 and whether or not responsibility should be accepted for related medical and travel expenses.

For the claimant to be successful in his appeal of the first issue, the Panel must determine - on a balance of probabilities - that there is a causal link between his ongoing and current problems and the workplace accident. If the appeal of the first issue is successful, it will follow that he is entitled to those medical and travel benefits covered by the Board.

The Panel concluded that the appeal should succeed.

In coming to this determination, the Panel members reviewed the file; conducted an oral hearing at which the claimant made a presentation; and sought further medical and technical information.

In reviewing the medical evidence, we note that there is no agreement as to whether or not the worker's current problems are causally linked to the accident. However, there is no doubt that his problems arose in the aftermath of the accident. And, there is no doubt that the symptoms have continued since the date of the accident.

We also took note of the material safety data sent to us in response to our queries. The "Material Data Safety Sheet" issued by the distributor contained the following information:

• The product is a flammable gas.
• Inhalation may cause nausea, headache or weakness, or temporary nervous system depression with dizziness, confusion, incoordination, drowsiness or unconsciousness.
• Avoid breathing high concentrations of vapours and avoid liquid contact with skin or eyes.
• In case of eye contact, immediately flush eyes with plenty of water for at least 15 minutes and call a physician.

Data provided by the manufacturer notes that inhalation of high concentrations can cause death. It further notes that contact with the liquid form can cause frostbite. The manufacturer also states that the compound is untested for skin or eye irritation.

Product information for a very similar chemical notes that contact, in its vapour form, can irritate the eyes.

A literature search by an Ophthalmologist found no citations which dealt with the effects of exposure to the eyes by this chemical. Earlier versions of the compound were found to cause mild and transient ocular problems.

Obviously, the state of the scientific assessment of this compound is incomplete. Equally obvious is the fact that the claimant did not suffer any prolonged exposure to the product. Nonetheless, this is clearly not a benign product. And, it is accepted that it will cause some degree of eye irritation.

In concluding our deliberations, we placed weight on the fact that the claimant's symptoms arose in the aftermath of the compensable injury and have continued since that time. In addition, we placed weight on the fact that the compound sprayed into the claimant's eye is not a benign product and is known to cause some degree of eye irritation. Given this, we find that - on a balance of probabilities - the claimant's current problems with his right eye are related to the compensable injury. Thus, he is entitled to the attendant benefits.

Accordingly, the appeal is allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of September, 2001