Decision #04/10 - Type: Workers Compensation

Preamble

The worker sustained an injury to his left eye in a work related accident on July 24, 2008. On April 23, 2009, it was determined by Review Office of the Workers Compensation Board (“WCB’) that the worker was capable of returning to his pre-accident employment as a wilderness guide and that he was not entitled to wage loss benefits beyond April 17, 2009. The worker disagreed with the decision and an appeal was filed with the Appeal Commission through the Worker Advisor Office. A hearing was held on September 9, 2009 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits beyond April 7, 2009.

Decision

That the worker is not entitled to wage loss benefits beyond April 7, 2009.

Decision: Unanimous

Background

On July 24, 2008, the worker sustained an injury to his left eye in a work related accident. The claim for compensation was accepted by the WCB on the basis of an abrasion to the left cornea with traumatic mydriasis.

On March 24, 2009, primary adjudication referred the file to a WCB medical advisor to specifically review a report from a corneal specialist dated March 20, 2009 and to comment on the worker’s loss of vision and work restrictions. On March 25, 2009, the medical advisor outlined his opinion as follows:

· the worker’s left eye visual acuity reduction was a result of the workplace injury on July 24, 2008;

· the worker should wear appropriate corrective lenses while working as a guide. It would also be beneficial for the worker to wear appropriate sunglasses to reduce glare. He noted that the worker may need prescription sunglasses to achieve both visual acuity and glare reduction.

On March 25, 2009, the WCB provided the corneal specialist with a copy of the worker’s job description and asked him to comment on whether the worker was capable of working as a fishing guide. In a report dated March 27, 2009, the specialist stated,

“…His vision corrects to 20/20- which is normal vision. He will suffer from symptoms of glare in sunny conditions. Based on the job responsibilities you have provided I believe he should be able to perform his job without any restrictions. He will likely require good quality sunglasses at all times when working…I have also advised him that he needs to see an optometrist to get glasses which could be provided with a tint.”

In a decision dated April 1, 2009, the worker was advised that in the opinion of the WCB, he had recovered from his July 24, 2008 work injury and was capable of returning to his employment as a guide.

On April 20, 2009, a worker advisor asked Review Office to reconsider the April 1, 2009 decision that the worker was capable of returning to his employment as guide. The worker advisor indicated that the worker was experiencing blurring, difficulty with depth perception and peripheral vision on the left. She stated that safety was a key component of the worker’s job duties and that he had to be proficient in the use of a firearm and be aware of any potential danger when hunting in the bush for big game. She stated that the worker’s current eye difficulties were affecting his ability to judge potentially dangerous situations accurately while guiding clients in the bush and that his left eye condition affected his accuracy with a firearm.

On April 23, 2009, Review Office determined that the worker was not entitled to wage loss benefits beyond April 7, 2009. Review Office stated,

“…Contrary to the worker’s contention that his vision is worse in his left eye, the treating specialist confirms that the corrected visual acuity in the worker’s left eye is 20/20. The only ongoing difficulties that he notes is problems with glare associated with corneal scarring, which he felt could be rectified with a good pair of sunglasses…the Review Office can find no reason why the worker would be incapable of resuming his normal duties as a guide.”

On May 7, 2009, the worker advisor appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Following the hearing held on September 9, 2009, the appeal panel requested information from an optometrist prior to further discussion of the case. A report from the optometrist was received and was forwarded to the interested parties for comment. On December 3, 2009, the panel met further to discuss the case and rendered its final decision.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

Worker’s Position

The worker was assisted by a worker advisor at the hearing. It was submitted that the compensable injury to the worker’s left eye has affected his ability to perform his duties as a fishing and hunting guide. Although he has been prescribed eyeglasses and sunglasses to treat his condition, he does not believe he can safely perform his previous duties as a guide. The types of duties which the worker did not feel he could do safely were threading a hook, watching for reefs in the water, using a knife for filleting, tracking/killing animals, gauging the distance of large game, and loading a firearm. The blurring and glaring are the most problematic issues with his eye, and the worker believes that these two problems have greatly affected his ability and his confidence in being a safe guide.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond April 7, 2009. In order for the worker’s appeal to be successful, the panel must find that the worker is unable to resume his pre-accident employment as a wilderness guide due to the effects of his compensable injury. On a balance of probabilities, we are not able to make that finding.

In the panel’s opinion, although the worker may have some residual disability in his left eye, this does not prevent him from performing his duties as a wilderness guide. In coming to this conclusion, the panel relies on the following:

  • The report of March 27, 2009 from the corneal specialist indicated that the worker’s vision could be corrected to 20/20 and that he should be able to perform his job without any restrictions;
  • Updated medical information received by the panel from the worker’s optometrist indicated that at a follow-up visit on October 21, 2009, the worker reported that he was seeing a little better than previously without his glasses, although his left eye was still blurred and sensitive to light. Testing at that time indicated that the worker’s unaided visual acuities had improved from 20/80 OS to 20/30 OS;
  • The blurriness which the worker experienced was in relation to long distance vision, rather than difficulties in seeing things close up;
  • At the hearing, the worker’s evidence was that with respect to tasks such as threading hooks and filleting fish, it was the glare issue and not blurring which made things more difficult for him;
  • With respect to the operation of a rifle, the worker indicated that he uses his right eye to shoot so the left eye injury did not affect his ability to shoot. His ability to judge distances, however, was affected;
  • The worker also expressed concerns with confidence and how he believed he did not have the ability to perform his duties the way that he used to before his left eye was injured. The panel felt that this was more an issue of confidence, as opposed to competence. While the worker’s perception was that he could not do the job, the panel does not agree with this assessment.

Overall, the panel finds that there is insufficient evidence to satisfy us that the worker is unable to resume and maintain his duties as both a fishing and hunting guide. We are of the view that the difficulties which the worker identified in performing his duties could be addressed with the provision of appropriate medical aid in the form of eyewear to correct vision and reduce glare.

As an aside, the panel notes that at the hearing, the worker had a pair of wire framed prescription eyeglasses which were fitted with rather cumbersome looking clip-on sunglasses. He stated: “I strongly feel that the stupidest thing that ever happened to me, wearing glasses (sic). I’ve never worn glasses in my life. I don’t even want to wear glasses.” Given the active nature of the worker’s occupation as a wilderness guide, the panel would suggest that a pair of prescription sunglasses in an athletic wrap-around style might better address the vision problems the worker has been experiencing when outdoors, particularly with respect to glare. With better equipment, the worker may be able to resume his pre-accident duties more efficiently and regain his lost confidence. This would be consistent with the corrective measures (“good quality sunglasses”) recommended by the corneal specialist in his report of March 27, 2009.

We therefore find that the worker is not entitled to wage loss benefits beyond April 7, 2009. The appeal is dismissed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of January, 2010

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