The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board that his retinal detachment was a pre-existing condition and that he was not entitled to wage loss benefits after August 25, 2013. A hearing was held on July 30, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits after August 25, 2013.

Decision

That the worker is not entitled to wage loss benefits after August 25, 2013.

Decision: Unanimous

Background

On August 16, 2013, a co-worker accidentally struck the worker's right eye with a piece of wood.

On August 17, 2013, the worker sought medical attention at a healthcare facility and was seen by two eye specialists.

In a report dated August 18, 2013, the first eye specialist stated:

"This patient has a right traumatic mydriasis with a traumatic iritis. Posterior segment exam showed evidence of an inferior retinal detachment and some commotio of the retina superonasally. Whether the detachment was new following this recent blunt trauma or old was unclear and he was referred to [eye surgeron] for further evaluation. I would assume that [eye surgeon] has placed him on a mild topical steroid for the mild iritis and he will apparently be following this patient's retinal detachment, which he claims is more chronic in its appearance due to a demarcation line in about one week's time with surgery planned."

In a report dated August 17, 2013, the eye surgeon diagnosed the worker with the following conditions:

1. Chronic inferotemporal retinal detachment right eye; and
2. Traumatic soft tissue injury, iritis, and sphincter tear, right eye.

The specialist also outlined his view that the retinal detachment was not related to the work accident but was a pre-existing condition that was chronic. The specialist indicated that he would allow the worker's right eye to heal and the inflammation to settle prior to repairing the detachment.

In a decision letter dated September 10, 2013, the worker was advised that the WCB was accepting his claim for a right eye injury but it was unable to accept responsibility for treatment or wage loss from work beyond August 25, 2013. The decision was based on the eye surgeon's medical opinion that the worker's eye condition was both chronic and pre-existing and was not related to the work accident of August 16, 2013.

On September 16, 2013, the treating eye surgeon wrote the WCB and stated:

He was referred to me...after he had ocular trauma during a work-related injury to his right eye. At the time, retinal detachment was discovered.

He did have some soft tissue injury, iritis and a sphincter tear in his right eye. He underwent surgery after orbital swelling subsided. I think that it is reasonable to assume that some of his reduced vision in the right eye was from his work-related injury (albeit, he did have evidence of an underlying subclinical retinal detachment which I do not feel was related to the injury). I have advised him that he could return to work on September 30, 2013. I think it would be reasonable for the Workers Compensation Board to cover him up to this date. His surgery has been successful in re-attaching his retina."

On September 24, 2013, the WCB advised the worker that the September 16, 2013 medical report offered no new historical information, clinical evidence/findings or test results to support that the diagnosis of the retinal detachment was related to the compensable injury. It was confirmed to the worker that the WCB was unable to accept responsibility for his time loss beyond August 25, 2013 inclusive. On November 5, 2013, the worker appealed the decision to Review Office.

On January 2, 2014, Review Office determined that there was no entitlement to wage loss benefits after August 25, 2013. Review Office referred to WCB policy and the medical reports on file to support that the retinal detachment was a pre-existing condition which was not caused, aggravated or enhanced by the workplace accident. Review Office noted the worker began to miss time from work on September 4, 2013 for surgery to repair the retinal detachment and did not find his loss of earning capacity as of that date was related to the August 16, 2013 compensable injury. On June 2, 2014, the worker appealed the decision to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel met to discuss the case and decided to obtain further medical opinion from the treating eye surgeon with respect to the worker's eye condition. A response from the surgeon was later received and was forwarded to the worker for comment. On October 22, 2014, the panel met further to discuss the case and rendered its final decision on the issue under appeal.

Reasons

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker has an accepted claim for a workplace injury. He is seeking wage loss benefits after August 25, 2013.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years. Subsection 27 (1) of the Act provides that the WCB "...may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Worker's Position

The worker was self-represented. He explained his reasons for appealing and answered questions from the panel.

The worker described the accident which occurred when he and an individual resident were unloading a van. He said he was hit in the right eye by a piece of wood that was swung by the individual.

The worker advised, that to his knowledge, he did not have a pre-existing eye problem. He said that he did not wear glasses or have any vision problems. He also advised that he never saw a physician for his eye before the workplace accident. Since the accident he has had two operations on his eye and now wears glasses.

The worker noted that his supervisor wrote to the WCB in support of his claim and confirmed that the worker never had an eye issue.

Employer's Position

The employer was represented by its Human Resources Director. The employer representative advised that the employer supported the worker's appeal. He advised that there was nothing to indicate that the worker had a problem with his eye prior to the workplace accident. He advised that the worker has a good work ethic and is rarely away sick.

Analysis

The worker is seeking wage loss benefits after August 25, 2013. The worker believes that the September 4, 2013 surgery to reattach his right retina is related to the workplace accident. The focus of the discussion at the hearing was on the relationship between the workplace accident and the detached retina. For the worker's appeal to be successful, the panel must find that the accident caused, aggravated or enhanced the worker's detached retina condition.

To assist with the adjudication of this appeal, the panel asked the attending eye surgeon for additional information relating to the worker's retinal detachment and specifically asked his opinion on whether the retinal detachment was aggravated or enhanced as a result of the workplace injury.

In a letter dated August 20, 2014, the eye surgeon responded that:

• the worker has some evidence of anterior segment trauma which would be consistent with the piece of wood hitting his eye.
• the worker also had evidence of retinal detachment in the lower part of the eye, with a robust demarcation line.
• an inferior detachment with a demarcation line would not be consistent with the injury the worker experienced at work.
• the retinal detachment was an incidental finding that was brought to light as a consequence of the trauma causing damage to the front part of the eye.
• the worker's injury did not accelerate the need for retinal detachment repair, it simply revealed the fact that he had a retinal detachment because of the detailed ocular exam that he received as a result of the injury.

The panel places significant weight on the opinion of the eye surgeon and finds that the worker is not entitled to benefits after August 25, 2013.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of October, 2014