Decision #69/04 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on December 8, 2003, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being April 21, 2004.

Issue

Whether or not the worker is eligible for a Permanent Partial Impairment award as a result of a July 21, 1984 right eye injury; and

Whether or not the claimant has work restrictions related to his compensable eye injury that would prevent him from performing his pre-accident employment.

Decision

That the worker is not eligible for a Permanent Partial Impairment award as a result of a July 21, 1984 right eye injury; and

That the claimant has no work restrictions related to his compensable eye injury that would prevent him from performing his pre-accident employment.

Decision: Unanimous

Background

During the course of his employment as a miner on July 21, 1984, a foreign body struck the claimant's right eye. The diagnosis rendered at the time was a right corneal abrasion with 2nd degree conjunctivitis. When the foreign body was removed, a residual rust spot was left at the site of the corneal abrasion. The claim was accepted by the Workers Compensation Board (WCB) and one day of wage loss benefits was paid to the worker.

In a report dated April 1, 1993, an eye specialist reported that the claimant complained of blurring in his right eye since the injury in the mine shaft in 1984. Examination findings revealed uncorrected acuity in the right eye to be 20/400 and 20/20 corrected left. There was diffuse retinal epithelial disruption in the right side with macular pigment disruption. He suspected that the claimant had a traumatic retinopathy on the right side and had been left with poor vision. In a further report dated April 29, 1993, the eye specialist stated that there was little he could offer to improve the claimant's vision on the right side.

The claimant did not seek any medical attention with respect to his right eye condition between July 1984 and April 1993 with the exception of one visit to an emergency facility in September 1992. A report from the emergency facility indicated that the claimant was complaining of a foreign body in his right eye which had occurred on the previous day when he was chipping a cement wall at home. Visual acuity in the right eye was reported to be 20/40. A concrete foreign body was removed from under the claimant's right upper eyelid with partial relief.

In November 1993, the claimant was informed that the WCB could not establish a relationship between his current right eye problem and the 1984 compensable injury.

In January 1994, the case was considered by Review Office following receipt of an appeal from the claimant. The Review Office determined, based on the weight of evidence, that the claimant was not entitled to a permanent partial impairment award for his right eye condition. Review Office stated, in part, that due to the rapid deterioration in the claimant's sight in his right eye between September 1992 and April 1993, it could not correlate it with an injury that occurred in the workplace eight years before.

On May 20, 1994, the case was again considered by Review Office based on new medical evidence, i.e. a report by an optometrist dated September 23, 1985, and from an ophthalmologist dated February 25, 1994. In its decision, Review Office determined that, based on a balance of probabilities, the effects of the traumatic right eye injury of July 21, 1984 produced the reported post-traumatic retinal changes and that should prescription eye glasses be required, the WCB would accept responsibility for the costs up to the maximum that was allowed. Review Office also confirmed that the claimant was not entitled to payment of a permanent impairment award as the medical information did not substantiate that the claimant incurred a visual loss that was rateable in accordance with the WCB's permanent impairment rating schedule.

On June 16, 1994, an Appeal Panel review was held as the claimant was of the opinion that he was entitled to a permanent partial impairment award with respect to his right eye injury. Under Appeal Panel Decision No. 165/94, the Appeal Panel denied the claimant's appeal. The Appeal Panel noted that a WCB medical advisor had said that the claimant's visual acuity in the right eye was 20/400 but this could be corrected to 20/20 [normal] with refraction. Based on all the facts of the case and the Workers Compensation Board Impairment Schedule, the Appeal Panel found there was no impairment.

In September 1994, the claimant submitted a report from an ophthalmologist whom he saw on August 22, 1994 and requested reconsideration from the Chief Appeal Commissioner under Section 60.91 of The Workers Compensation Act (the Act). The examination by the specialist revealed an uncorrected acuity of 20/400 on the right and 20/20- on the left. The ophthalmologist noted that with a myopic correction, the vision on the right could be improved to 20/50+. Reconsideration was granted by the Chief Appeal Commission and an Appeal Panel review was held on November 25, 1994.

Following the review, the Panel referred the claimant to an independent ophthalmologist for another opinion with respect to his right eye acuity. In a subsequent report dated January 18, 1995, the examining ophthalmologist indicated that he had completed his examination of the claimant but was withdrawing from his assessment. The ophthalmologist indicated that the claimant was hostile to him and his staff during the examination which resulted in the claimant being ejected from the building by the police. The ophthalmologist did comment, however, that he would be sending visual fields to the WCB that had been done the day before. He stated, "The interpretation of the visual fields is that both are normal with the exception of the right where there is a decrease in his foveal sensitivity in keeping with the appearance of his retina."

An Appeal Panel meeting was held on February 7, 1995 to further discuss the appeal. The Panel decided to allow the claimant a final opportunity to obtain the examination report from the ophthalmologist. A deadline of March 17, 1995 was set for the receipt of this information, however, it was never received.

Under Appeal Panel Decision No. 41/95, the Appeal Panel denied the claimant's appeal as it was unable to establish from the weight of evidence, that the claimant had a rateable permanent partial impairment by reason of the July 21, 1984 accident.

Subsequently, the claimant was contending his inability to work due to his 1984 work injury.

In a report dated May 23, 1996, an eye physician and surgeon reported that he had seen the claimant on several occasions since May of 1995. The specialist stated in his report that the claimant had 20/25 vision in his left eye and was able to perform any task where no fine stereo discrimination was required. He also stated that the claimant had functional vision and had a functional visual field and from the working point of view, was not disabled in any way. Based on this information, primary adjudication determined that the claimant was not totally disabled as a result of his 1984 eye injury and that he was not disabled from his pre-accident duties. This decision was upheld in a Review Office decision dated, June 14, 1996.

On October 10, 1996, the WCB received a letter from the claimant's union representative, along with a note from the attending physician. The claimant's left eye was reported to have 20/20 vision and the right eye had 20/400 correctible to 20/50 with glasses. The claimant found that eye glasses aggravated his eye. The physician expressed his view that the claimant should be able to work on jobs which required only one eye vision.

Subsequently, a WCB claims adjudicator wrote to the claimant on October 17, 1996, to advise that it was still the WCB's opinion that he was capable of working at most tasks that did not involve fine stereo discrimination and that he was not disabled from performing his pre-accident duties. On October 23, 1996, the union disagreed with the decision and the case was referred to the Review Office for consideration.

On November 15, 1996, the Review Office agreed with primary adjudication that the claimant did not have any restrictions related to his eye condition which resulted from the July 21, 1984, compensable injury and which prevented him from performing his pre-accident employment. On February 4, 1997, a worker advisor appealed this decision and a non-oral file review was held on February 28, 1997.

Under Appeal Panel Decision No. 60/97, the Appeal Panel determined that the preponderance of evidence did not, on a balance of probabilities, support the claimant's contention that he had work restrictions which prevented him from performing his pre-accident employment. The Appeal Panel based its decision on the following opinion that was expressed by the claimant's eye surgeon in his letter to the WCB dated April 23, 1996.

"As far as Mr. [the claimant's] work capabilities are, he has 20/25 vision in his left eye and is able to perform any task where no fine stereo discrimination is required. I did not advise Mr. [the claimant] to cease working and I did not advise him that his eye injury would make him unable to work. With his vision the way it is, he easily meets the minimal driving requirements of the Province of British Columbia. He has functional vision and has a functional visual field and from the working point-of-view is not disabled in any way. He would benefit from a myopic lens placed in the glass of his right eye, but at present he is not keen to follow this alternative and prefers to go without glasses. Unfortunately this leaves him with significantly diminished vision in his right eye, whereas uncorrected vision is count fingers.

I feel that other than glasses Mr. [the claimant] does not need any further visual rehabilitation. He has functional vision and is capable of working at most tasks that do not involve fine stereo discrimination." (Emphasis ours)

In 2003, the claimant submitted medical reports in support of an application for disability benefits and requested reconsideration of earlier Appeal Panel decisions pursuant to Section 60.91 of the Act.

In a letter to the claimant dated October 28, 2003, the Chief Appeal Commissioner made note of a medical certificate dated June 11, 2003 which stated that the claimant was now blind in his right eye. As this information was new, substantial and material to the decision and did not exist at the time of the earlier decisions, the Chief Appeal Commission granted reconsideration of Appeal Panel Decisions No. 41/95 and 60/97.

On December 8, 2003, an Appeal Panel hearing was held by teleconference at the request of legal counsel, acting on behalf of the claimant. Following the hearing and after discussion of the case, the Appeal Panel determined that the claimant should be assessed by an independent ophthalmologist with respect to this right eye status. The examination by the independent ophthalmologist later took place and his reports were provided to the claimant and his solicitor for comment on March 15, 2004. On April 21, 2004, the Panel met to further discuss the case and considered submissions from legal counsel dated April 16, 2004 and April 19, 2004.

Reasons

The worker in this case suffered a workplace injury in 1984 to his right eye while working as a miner, when a particle struck his eye. He received wage loss benefits for one day, and continued to work in his field. In 1993, he resumed contact with the WCB for right eye difficulties that he was attributing to the 1984 injury.

As noted in the background, the two issues before this panel were also dealt with by the WCB between 1993 and 1997. Ultimately, decisions were made by previous Appeal Commission panels on these issues. Decisions 165/94 and 41/95 stated that the claimant did not have a rateable permanent partial impairment (PPI). Decision 60/97 stated that the worker did not have compensable work restrictions precluding him from performing his pre-accident employment as a miner. Recently, the claimant was granted a reconsideration by the Chief Appeal Commissioner - an opportunity for a new hearing before the Appeal Commission on these two issues - based on the presentation of new and substantial evidence, as allowed under s. 60.91 of the Act.

The claimant has brought forward two issues for our consideration. The first deals with whether or not he was entitled to a PPI award for his eye injury. The second issue deals with whether or not he has any compensable workplace restrictions (causally related to the 1984 workplace accident) that preclude him from working as a miner that would thus entitle him to benefits.

1. Permanent Partial Impairment award

The WCB has a detailed listing of medical conditions or impairments, with accompanying tables, that describe percentages of "total disability" that are associated with various injuries suffered by workers. These lists have been incorporated into WCB Policy 44.90.10.02, which was passed by the Board of Directors of the WCB. The Appeal Commission is bound, by The Workers Compensation Act, to apply this policy in considering whether or not the claimant is entitled to a PPI award.

Dealing with eye injuries, we note that WCB Policy allows for a PPI to be paid for impairment of vision. Partial visual loss (short-sightedness), is based on the corrected eyesight of a worker (with prescription lenses), and not the uncorrected eyesight. In other words, a worker's level of permanent impairment assumes that the injured worker can and will wear glasses. The table adopted by the WCB indicates that a PPI award is payable if the corrected level is 20/40 or worse. Other eye conditions are listed as well: if they are diagnosed and are found to be permanent and causally related to a workplace accident, they too will lead to an impairment award. One condition in particular, scotomata, is mentioned in the file, and allows for a PPI award of up to 16%, depending on location and extent.

For the claimant's appeal to succeed on this issue, we would have to find, first, that the claimant has a compensable medical condition in his right eye - a condition which is causally related to the workplace injury. If we make this finding, we would then have to find that this medical condition has led to a "rateable impairment" for his current eye condition as defined by WCB Policy 44.90.10.02.

After a thorough review of the medical evidence on the file and obtained after the hearing, the submissions made by the claimant and his advocate at the hearing and subsequent to the hearing, we have been unable to reach either of these conclusions. We have placed particular weight on the following evidence:
  • The claimant's original injury in 1984 resulted in a one day wage loss. An eye exam one year later, in September 1985, noted that the claimant's best uncorrected vision was 20/400 in the right eye, and 20/30 corrected, with myopia and astigmatism noted.
  • The claimant did not seek any further medical attention for his eye from 1984 to 1992.
  • The claimant continued to work as a miner in this time frame.
  • In September 1992, the claimant sought medical attention, with right eye complaints that he attributed to a concrete chip which flew into his eye, while doing a home project. This chip was removed, and this was the time frame in which the claimant re-established contact with the WCB.
  • Medical reports from 1993 to 1999 are quite variable in terms of the assessment of the claimant's right eye condition. These vary with respect to the actual findings, the diagnoses, the causes of the problems, and the degree of disability or impairment associated with those findings.
  • All the medical assessments show that the uncorrected vision of the claimant's right eye is well above the "PPI threshold," while the corrected levels in the right eye during that time frame flirt both above and below the rateable PPI threshold of 20/40. Specialists report corrected vision of:
    • 20/20-20/25 in April 1993,
    • 20/30 in September 1994,
    • 20/50 in September 1994, June 1995, and April 1996
    • 20/25 in June 1996
    • 20/100 on November 24, 1997
    • 20/50 on December 22, 1998
  • A number of other conditions were also introduced or discarded during this period of time. These included scotomata (a blind spot in the visual field, which is a potentially rateable impairment), and amblyopia (a reduction or dimness of vision without an apparent pathological condition of the eye).
  • Ophthalmologists during this period suggested that the claimant's uncorrected vision was correctable with glasses, with no one finding or suggesting that the claimant could not wear glasses. The claimant, however, declined to wear glasses, and stopped working.
  • In 2003, the claimant's physician provided a medical certificate in support of his application for CPP disability benefits. The certificate indicated that the claimant was "blind" in his right eye. This was the first indication of a major deterioration of the claimant's right eye condition from that seen earlier. As noted earlier, this evidence was substantially different than the medical evidence that had been available to this file earlier, triggering this reconsideration. "
  • As we did not have a clear diagnosis of the claimant's eye condition or what had caused this apparent deterioration, we chose to have the claimant examined by an independent medical examiner (IME) specializing in ophthalmology, in British Columbia. The IME was provided with extensive medical documentation from the file, and a list of questions. The IME had the opportunity to examine the claimant, and also arranged for the claimant to be seen by a retinal specialist. We received a report dated March 3, 2004, which was shared with the claimant and his advocate for their comments.
  • We have reviewed this report, and considered the advocate's comments, as well as the evidence on file. We have chosen to place particular weight on the IME's extensive review of the medical reports on file, and his conclusions, in reaching our conclusions. We note the following comments:
    • The best correctable vision in the right eye is 20/50 during the IME exam.
    • In assessing what are described as "somewhat inconsistent" eye tests performed over the years, the IME notes the particular expertise of a "glaucoma specialist with special interest in interpretation of visual field testing. A fair amount of weight should be put on his opinion that the visual field is essentially normal."
    • "[The claimant] has become more near sighted since the initial report from the optometrist in 1985. This could be related to the development of cataract."
    • The second specialist found "atrophy in the right eye with no obvious macular pathology on his examination." The IME comments that "his peripallary atrophy could be either something that he was born with or that developed as he became more myopic, and this involves both eyes. This has nothing to do with his decreased vision."
    • The second specialist also ruled out any sign of choroidal rupture, which is usually traumatic in origin, or any evidence of pigment disruption.
    • The claimant does not have central scotoma.
    • The IME concludes that the visual difficulty is most likely due to amblyopia (defined in Taber's Cyclopedic Dictionary as "a reduction or dimness of vision without an apparent pathological condition of the eye"); the claimant's right eye can be corrected to 20/50; the claimant has myopia, and there is no medical reason why the claimant cannot wear glasses; the claimant also has a cataract in the right eye which would allow the claimant's right eye vision to be improved to 20/30 if the cataract were to be removed.
    • The IME also notes that "[claimant]'s current right eye problem was not caused by his 1984 workplace accident."
After careful consideration of all the evidence, we find that the claimant's current right eye difficulties are not causally related, on a balance of probabilities, to the 1984 workplace incident. We adopt the IME's review of the claimant's current medical condition and his assessment of the diagnoses and the etiologies that might lead to those medical conditions. Our conclusions are also supported by the relatively minor workplace accident in 1984, the minimal time loss, the first diagnosis of a corneal abrasion, and the many years without medical treatment for the right eye, until 1992.

We note, in any event, that even if the current eye condition was compensable, there would not be an entitlement to a PPI award. The corrected vision of the claimant's right eye is currently 20/50, but is constrained from a rating of 20/30 by a non-compensable cataract condition. A rating of 20/30 would have been below the rateable impairment level of 20/40.

Accordingly, we would deny the claimant's appeal with respect to his entitlement to a permanent partial impairment award as a result of his July 21, 1984 right eye injury.

2. Work Restrictions

For the claimant's appeal to succeed on this issue, we would have to find that the claimant has a medical condition that is causally related to his 1984 workplace injury, and that there are compensable work restrictions still in play that prevent him from performing his pre-accident (or equivalent) job as a miner. After a review of all the evidence, we were unable to make these determinations.

Briefly, the advocate's position is that there are both physical and psychological conditions in play which restrict the claimant from returning to work as a miner.

Dealing first with compensable physical restrictions, we heard evidence as to the nature of the claimant's job duties as a miner, and the safety issues that would preclude him from working as a miner, and also reviewed and discussed the medical evidence dealing with the claimant's right eye. We use the same reasoning used in our consideration of the first issue, in determining that the claimant's current right eye difficulties are not, on a balance of probabilities, causally related to his 1984 compensable injury. Therefore, any workplace restrictions that currently arise from his right eye condition are not compensable.

Dealing next with psychological conditions leading to workplace restrictions, we note that psychological conditions can be accepted, either as a stand-alone workplace injury (such as post-traumatic stress disorder and others) or as a compensable sequela of a physical injury. The advocate's position is that the claimant suffers from depression and has attempted suicide on two occasions. This position is supported by a letter from the claimant's attending physician dated April 5, 1999 which attributes these difficulties to the claimant's financial hardship, and to callous treatment by the WCB.

In reviewing the evidence, we find that the psychological conditions are first reported in the 1990s, and there is no medical treatment in the years following the 1984 injury to allow us to conclude that there is a direct connection to the original injury. As to the argument that the claimant's psychological difficulties are related to or a sequela of the physical injuries suffered by the claimant, we note that:
  • We have already concluded that the claimant's right eye workplace injury was short term in nature, and that his right eye difficulties, from 1992 and on, are not related to the 1984 compensable injury.
  • There are a number of other health and personal issues referred to in the file which may be a factor in sourcing his psychological difficulties and impacting on his ability to return to work. As well as his non-compensable right eye difficulties, we also note the claimant has personal issues dealing with a refusal to wear glasses, is not working and is suffering financial hardship. There is, as well, reference to a widespread permanent and incurable neurodermatitis diagnosed in the 1990s, and a bilateral hearing loss.
For these reasons, on a balance of probabilities, we find that the claimant's current psychological and physical conditions do not have any causal link to the compensable injury. Therefore, any workplace restrictions stemming from these conditions would not be the responsibility of the WCB. Accordingly, we would dismiss the claimant's appeal on this issue as well.

At the hearing and in his submission, the claimant's advocate sought legal costs. The Appeal Commission is bound, by our enabling legislation, to implement policies passed by the WCB Board of Directors. In this regard, we note that WCB Policy 21.10.40, Expenses for Attendance at Appeal Hearings provides that "Worker or employer representatives appearing before an appeal panel will not be paid fees or expenses by the WCB." Accordingly, there is no basis on which this request can be considered.

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 19th day of May, 2004

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