The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 7, 1999, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this case on several occasions, the last one being October 15, 1999.

Issue

Whether the claimant is entitled to payment of further wage loss benefits; and

Whether the claimant is entitled to a Permanent Partial Impairment Award.

Decision

That the claimant is not entitled to payment of further wage loss benefits; and

That the claimant is not entitled to a Permanent Partial Impairment Award.

Background

On September 20, 1997, while loading a potato harvester on a windy day, a foreign particle entered the claimant's right eye. The claimant indicated that he initially performed an eye wash and his eye was fine. A few days later his eye condition worsened.

Medical information was received from an ophthalmologist, dated September 25, 1997 and December 3, 1997. The reports indicated that a corneal foreign body was removed from the claimant's right eye on September 24, 1997. The claimant was prescribed medication and an eye patch.

When seen by an optometrist on October 6, 1997, the right cornea reportedly looked normal except for an area of slight corneal scarring and thinning where the foreign body had been removed. The claimant advised the optometrist that his eye felt normal but that he noticed haloes around light sources at night. On December 19, 1997, the claimant was seen for a full eye examination. He told the specialist that he still noticed haloes around light sources and that his eye felt sore after driving. Visual acuity was 20/20-2 on the right. The specialist indicated that the injury had made the claimant more glare sensitive and that this condition would be permanent. He further indicated that the claimant should be able to continue with his pre-accident duties.

On January 21, 1998, primary adjudication wrote to the claimant and indicated the following:

"Your optometrist felt you could continue with your pre-accident duties and you did not miss any time from work and as a result you are not entitled to wage loss benefits. Your file has also been reviewed to determine if you would be eligible for a lump sum permanent partial impairment (PPI) award. Unfortunately, since your corrected vision is 20/20, you are not entitled to a PPI award."

In March 1998, the claimant appealed the above decision to Review Office. On March 12, 1998, the treating ophthalmologist stated that the current condition of the right eye as of March 9, 1998, indicated "an uncorrected visual acuity of 20/25 which did not improve further with pinhole. The intraocular pressure was normal as was the fundal examination. Slit lamp examination revealed a 0.3 to 0.4 mm anterior corneal stromal scar just inferior to the visual axis and within the pupillary margin. The remainder of the anterior segment examination of the right eye was unremarkable." The specialist stated that the claimant's main complaints included disturbances in his vision caused by light shining directly into his eye as well as a streaking and prismatic or rainbow colored effect when light is shone directly into his eye. The claimant also noted discoloration of segments of instrument dials on machinery that he operated as well as a discrete area which was very blurred. The claimant also found his vision was most problematic when working outdoors. The complaints, according to the specialist, were consistent with the corneal scar on his right eye which in turn was a direct result of the work injury. He indicated that these difficulties were likely considered permanent as long as there was no change in the corneal scar. Without any further intervention or treatment, the corneal scar was unlikely to change further at this point.

On May 7, 1999, Review Office determined that the claimant's eye condition did not prevent his continuing with his pre-accident work and maintaining the earnings rate established by his coverage. Under the circumstances, there was no basis on which to extend wage loss benefits beyond the time lost to attend medical appointments. Review Office also acknowledged that the claimant's vision difficulty was very likely permanent, however, the impairment was not of sufficient degree to warrant an impairment award. This decision was appealed by the claimant's legal representative to the Appeal Commission on October 28, 1998, and an oral hearing was arranged.

Following the hearing and discussion of the case, the Panel decided to arrange for the claimant to be assessed by an independent ophthalmologist to assess his right eye condition/status. The claimant was subsequently seen by an independent ophthalmologist on March 31, 1999, and the specialist's examination report, dated May 3, 1999, was forwarded to the interested parties for comment.

On June 1, 1999, the Panel met again to discuss the case and additional information was requested. Specifically, the Panel requested that the claimant be examined by a cornea and external disease specialist who had been recommended by the ophthalmologist on May 3, 1999. The claimant was then assessed by the specialist in June 1999, and his reports, dated July 28th and 30th, 1999, were forwarded to the interested parties for comment. On October 15, 1999, the Panel met to render its final decision.

Reasons

At our request, the claimant was examined by an independent external ophthalmologist on March 31st, 1999. In his report, the ophthalmologist suggested that a consultation be arranged with a physician in Brandon who was "a cornea and external disease specialist." This second physician conducted an examination of the claimant on June 30th, 1999. We attached considerable weight to the supplementary report submitted by this second specialist to the Appeal Commission's medical advisor.

We noted in particular the following comments:

"At this point, I am able to get him to 20/20 vision with a minimal correction of +0.50 Diopters, he does not show any significant distortion on corneal topography, and he shows a mild anterior stromal scar. Anything I would be able to do at this point with a laser, even in the therapeutic mode, would be detrimental to his sight. I do not believe in doing surgery on someone who has essentially 20/20 vision and is basically complaining of glare.

In summary, I think that even though there is a small anterior corneal scar present, the fact that he at times complained of glare even with his good eye, the left eye, makes me think that the problem might not be only at the corneal level. As far as the cornea is concerned, I would manage him conservatively at this point. I did not find any other abnormalities in the lens or the retina of either eye and therefore I think that we should simply continue with lubrication."

We find that the preponderance of evidence does not, on a balance of probabilities, support the contention of a loss of earning capacity or of a permanent partial impairment resulting from the compensable injury at the present time. However, this conclusion does not preclude the claimant from seeking benefits and /or a permanent partial impairment award in the future should the evidence suggest otherwise. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of October, 1999