The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer and the worker are appealing decisions made by the Workers Compensation Board ("WCB") regarding the worker's claim for bilateral eye conditions. A hearing was held on November 14, 2016 to consider the appeals. The November 14, 2016 hearing was adjourned and reconvened on January 26, 2017.

Issue

Employer Appeal:

Whether or not the worker sustained an injury to his right eye as a result of the May 2, 2013 accident; and

Whether or not the worker's left eye difficulties subsequent to May 10, 2013 are a consequence of the May 2, 2013 accident.

Worker Appeal:

Whether or not the worker's right eye difficulties after May 2, 2013 are a consequence of the May 2, 2013 accident.

Decision

Employer Appeal:

That the worker did not sustain an injury to his right eye as a result of the May 2, 2013 accident; and

That the worker's left eye difficulties subsequent to May 10, 2013 are not a consequence of the May 2, 2013 accident.

Worker Appeal:

That the worker's right eye difficulties after May 2, 2013 are not a consequence of the May 2, 2013 accident.

Background

On June 4, 2013, the worker filed a claim with the WCB for a work-related injury that occurred on May 2, 2013.  The worker reported that the area of injury was "left eye (primarily) & right." The worker said that he was standing about 15 feet away from the back of a truck trailer when the brakes went off, sending dust and sand in the air which hit him in his left eye.  The worker reported the incident to his employer on May 29, 2013.

Attached to the Employer's Incident Report dated June 5, 2013, was the following description of the May 2, 2013 incident:

[The worker] said…they were having issues with the trailer.  [He] said that the trailer air bags were not filling up.  [He] said that the mechanic came out into the yard to take a look at the trailer.  [The worker] said that he was about 15-20 feet away from the trailer having a cigarette when the mechanic released the air from the trailer which sent sand and dusts (sic) in his left eye.  [He] said his eye did not bug him at the time of the incident.

[The worker] did not report the incident until May 29, 2013.  During his time off work [the worker] had spoken to myself and the other supervisor on duty…prior to May 29, 2013 but never mentioned the incident.

[The worker] has mentioned that his current eye infection is Viral and no way related to the previous incident as per his doctor.  [The worker] has filed for short term disability.

On July 3, 2013, the worker spoke with a WCB adjudicator and confirmed that he developed a viral infection in his eye which was not work-related.  The worker asked that his claim be cancelled.  On October 10, 2013, the worker wrote the WCB to advise that he was having continuing difficulties with his left eye and was seeking a second medical opinion.

On October 16, 2013, a WCB adjudicator contacted the worker to discuss his claim.  The worker noted that he was getting conflicting information from his physician and closed his claim because he was told he had a viral eye infection and it was not work-related.  The worker said he was unclear about his eye condition and wanted to see another doctor for a second opinion.  The worker also answered questions related to the incident that occurred on May 2, 2013. 

On October 23, 2013, the worker's co-driver confirmed that the worker reported that he got some dust in his eye.  On the drive back home, the worker complained that his eye issues were getting worse and he needed to see a doctor.  He said the worker received medical attention and took a couple of extra days off work.  The co-driver said the worker had always had bad eyes since starting with the company.  His eyes always appeared red and he had trouble seeing signs.

Medical information showed that the worker saw a physician on May 5, 2013 for left eye complaints and no mechanism of injury was provided.  The diagnosis outlined was left eye conjunctivitis.  The worker saw the physician again on May 10, 2013, who reported that his symptoms were improving.

On May 30, 2013, the worker saw an ophthalmologist with entrance complaints of left ocular soreness and blurry vision three weeks after the workplace accident.  The diagnosis rendered was bilateral uveitis unrelated to his prior accident.

On October 30, 2013, a WCB medical advisor reviewed the file and opined:

• The initial diagnosis on May 2 was likely a foreign body injury/reaction left eye.  The diagnosis noted in the first medical assessment was conjunctivitis (likely viral but possibly allergic in nature).
• Causes of conjunctivitis fall into 3 categories:  bacterial infectious causes, viral infectious causes or allergic infectious causes.
• The current diagnosis was bilateral uveitis.
• It was unlikely that the initial diagnosis led to the current diagnosis of uveitis.  The initial complaints concerned the left eye only, with the current uveitis affecting both eyes.  Additionally, trauma was less likely to be related to bilateral uveitis.  There was some suggestion that the worker may have had some ophthalmological complaints pre-dating the mechanism of injury, characterized by eye redness/erythema and decreased visual acuity.  The writer's opinion on this question regarding causation had been opined by the treating ophthalmologist as well.

On November 5, 2013, the worker was advised that although his claim for a left eye injury had been accepted, WCB was not able to accept any further responsibility as it was felt that his current/ongoing issues were likely related to an underlying condition.  The worker was advised that no further benefits would be paid beyond May 10, 2013, as it was felt that he had recovered from his compensable left eye injury.

On January 27, 2015, the worker appealed the November 5, 2013 decision to Review Office and asked that responsibility be accepted for his right eye injury as well.  On January 29, 2015, the worker's file was referred back to Compensation Services to further investigate the claim and render a decision on the worker's right eye complaints.

On April 13, 2015, a WCB medical advisor reviewed the file information which included additional medical reports from the worker's treating physicians and answered questions posed by the WCB case manager.

In a decision dated April 29, 2015, the worker was advised that the WCB was unable to find a causal relationship between his right eye difficulties and the workplace accident of May 2, 2013.  The decision was based on the information provided by the worker to the WCB on October 16, 2013 when he said his right eye was fine at the time of the accident.  The worker did not report right eye difficulties until January 2015.  While there was mention of bilateral uveitis on the medical report of June 4, 2013, the ophthalmologist stated this condition was "unlikely related to the previous injury." 

The worker was also advised that no responsibility could be accepted for his ongoing left eye difficulties based on the WCB medical opinion outlined on April 13, 2015, that his bilateral uveitis/cataracts were not accounted for in relation to the accident.

On July 15, 2015, the Worker Advisor Office appealed the WCB decisions dated November 5, 2013 and April 29, 2015 to Review Office.  As the appeal included new information that had not been considered by the case manager, the file was returned to Compensation Services for consideration. 

In a decision dated August 25, 2015, the WCB confirmed its earlier decision that no responsibility would be accepted for the worker's right eye condition or his ongoing difficulties with his left eye as related to the May 2, 2013 workplace injury.  The case manager stated:

The information submitted by the Worker Advisor Office dated July 15, 2015 and a copy of the December 17, 2014 operative report was (sic) reviewed in consultation with a WCB Medical Advisor on August 13, 2015.  The operative report describes a right cataract phacoemulsification and intraocular lens implant.  Medical information on file continues to support the granulomatous precipitates seen on your corneas at the time of the initial diagnosis of uveitis were not typically associated with trauma but rather with an inflammatory process.  The WCB Medical Advisor concluded your bilateral uveitis/cataracts were not accounted for in relation to the accident.

On September 4, 2015, the Worker Advisor Office appealed the August 25, 2015 decision to Review Office.

On October 24, 2015, the employer's representative submitted to Review Office that the worker's eye conditions were not the result of a workplace accident within the meaning of subsection 4(1) of The Workers Compensation Act (the "Act").

Prior to considering the worker's appeal, Review Office requested and received additional medical information that was shared with the parties for comment. 

On March 8, 2016, Review Office determined that the worker sustained personal injury to his right eye by accident arising out of and in the course of his employment on May 2, 2013 and that his right eye difficulties beyond May 2, 2013 were not due to the compensable injury.

Review Office referred to specific file evidence as supporting that the worker injured both eyes, left more than right, at varying degrees, at the time of the accident on May 2, 2013.  It noted that the worker attended a walk-in clinic on May 5 and 10, 2013 and was diagnosed with conjunctivitis and findings of "left eye yellow discharge and no visual defect."  Review Office stated the medical opinions subsequent to this suggested that "conjunctivitis" was not a definitive diagnosis.  Review Office found no evidence to suggest that what was going on in the left eye caused an injury to the right eye. 

Review Office presumed that the extent of the worker's right eye injury at the time of the accident was minimal and had resolved, as the worker did not mention that his right eye continued to bother him when he was seen at the walk-in clinic on May 5 or 10, 2013, or in his letter to the WCB dated October 10, 2013 when he said he was having difficulties with his left eye and wanted to reopen his claim. 

Review Office also determined that the worker's left eye difficulties would be accepted beyond May 10, 2013.  Review Office referred to specific file information to support that there was no evidence of a pre-existing condition before the worker's accident or known evidence of an autoimmune disease that possibly contributed to his left eye difficulties at the time of the work accident.  Review Office accepted that the workplace accident and its injury contributed to a traumatic iritis and traumatic cataract involving the left eye, and that his left eye difficulties continued beyond May 10, 2013. 

On March 28, 2016, the employer's representative appealed Review Office's decision that the worker sustained an injury to his right eye on May 2, 2013 and that he was entitled to benefits for his left eye difficulties beyond May 10, 2013. 

On June 2, 2016, the worker appealed Review Office's decision that his right eye difficulties after May 2, 2013 were not a consequence of the May 2, 2013 compensable injury. 

On November 14, 2016, a hearing was held at the Appeal Commission to consider the appeals brought forward by the worker and the employer.  The November 14, 2016 hearing was adjourned and reconvened on January 26, 2017.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that 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.

Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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."

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

Employer's Position

The employer was represented by an advocate and by its safety manager, who participated in the hearing by teleconference. The employer's advocate provided a written submission in advance of the hearing.

The employer's position was that the worker did not sustain an injury to his right eye as a result of the May 2, 2013 accident; that the worker's left eye condition had resolved by May 10, 2013, and any subsequent conditions were not related to the workplace accident; and that the worker's right eye difficulties beyond May 2, 2013 were not a consequence of the workplace accident.

The employer's advocate noted that early documentation on the file repeatedly referred to the work's left eye only. In his report to the WCB, the worker did not mention any dust or sand hitting him in the right eye. In a memo dated October 23, 2013, the case manager confirmed that the worker complained that he got dust in one eye. The advocate also noted that there is no mention in the treating physician's reports from May 5 and 10, 2013 of any complaints with respect to the worker's right eye.

With respect to the mechanism of injury, the advocate noted that the worker had written in July 2015 and provided a diagram of the air bag suspension system which he indicated likely caused the accident. The WCB medical advisor contacted the employer's shop supervisor after that and confirmed the mechanics of the equipment, then provided an opinion with respect to the mechanism of injury reported by the worker. He wrote, in part, that it was unlikely, based on the information on file, that the mechanism of injury would have provoked a traumatic uveitis and subsequent traumatic cataract in the worker's left eye.

The employer's safety manager had then prepared a video of the air release process of a truck parked in the same area in the yard where the worker was injured, which had been provided to the panel in advance of the hearing together with a report from the health and safety manager. At the hearing, the safety manager described what he had done in preparing the video and what it showed. It was submitted that the video revealed that there was not enough pressure coming out of the valve to actually hurt anyone or even raise dust or dirt.

The advocate submitted that the video and report of the safety manager supported their position that the worker did not suffer trauma to his eyes in the circumstances he had described, and supported the August 13, 2015 opinion of the WCB medical advisor.

With respect to medical evidence, the advocate noted that in an opinion dated March 23, 2015, the ophthalmologist who treated the worker up until October 29, 2013 stated that the gravel injury was likely not the cause of the worker's uveitis.

The advocate also noted that the WCB medical advisor spoke to the second ophthalmologist, who confirmed that she had not related the worker's condition to the events as described on file.

Worker's Position

The worker was represented by legal counsel, and was accompanied by a family member at the hearing. It was submitted that the worker's difficulties were the result of the work-related accident, and that the employer's appeal should be dismissed and the worker's appeal allowed.

Legal counsel submitted that the physicians who successfully treated the worker were in agreement that the accident caused the problems in both of the worker's eyes. Counsel pointed to the December 18, 2015 report from the second ophthalmologist in particular, which stated, in part:

There was a question of a viral cause initially as [the worker] stated that this was discussed with [the first ophthalmologist] after the initial trauma. I cannot say that his ocular problems were caused by a virus as no objective signs of a virus have been present during the time that I have been examining [the worker].

That leaves his initial trauma as a possible cause. At this time, my only conclusion is that he could have had traumatic uveitis from the initial trauma. Again, it is impossible for me to pinpoint the cause as I never saw him initially.

Counsel also relied on a November 12, 2016 letter from the optometrist, which stated, in part:

In my view, the ocular trauma sustained on the incident date cannot be disputed and the ocular effects from the work-related accident are well documented and reported. [The worker] had no health or ocular complaints before this incident and performed his duties as a transport driver effectively.

The worker described what happened on May 2, 2013. The worker's evidence was that he did not have any eye problems before the May 2 accident, and had never mentioned any eye problems to his co-worker before that accident. He said that both of his eyes bothered him immediately after the accident, and there was never a time after that when only one of them bothered him. He said that he told the first and all of the subsequent doctors about both of his eyes.

Legal counsel submitted that the accident as reported by the worker was one which would have provided sufficient air force to blow gravel into the worker's eyes, as he claimed, and cause damage to his eyes. It was their position that the video that the employer had provided appeared to show the airbrake system of the tractor, and had nothing to do with the trailer. Further, it did not show the system that failed, which was the airbag suspension system. Reference was made to a diagram of that system which had previously been provided to the panel.

Analysis

Employer Appeal

Issue 1: Whether or not the worker sustained an injury to his right eye as a result of the May 2, 2013 accident.

For the employer's appeal of this issue to be successful, the panel must find that the worker did not suffer an injury to his right eye on May 2, 2013 by accident arising out of and in the course of his employment. The panel is able to make that finding, for the reasons that follow.

Based on our review of the information on file and at the hearing, the panel is unable to find that the worker sustained an injury to his right eye as a result of the May 2013 accident.

The panel questioned the worker at the hearing with respect to the conditions and where he was located at the time of the accident. The worker's evidence was that he was standing roughly 10 to 15 feet from the back of the trailer, on an angle of 45° or less, with his left side closer to the truck. It was indicated that the release valve, which was underneath the trailer, was at least 8 feet forward from the back of the trailer, and would therefore have been between 18 and 23 feet away from the worker. The worker's eyes were above the height of the bottom of the trailer, and there was no direct line from the release valve to the worker's eyes. Accordingly, the air released would have to travel down at an angle, disturb the gravel or dirt and launch it upward towards the worker's face, adding significantly to the distances involved.

Given the distances and angles involved and the fact that the truck was parked on a gravel surface, the panel is of the view that the proposed mechanism of injury would not have resulted in an injury to the worker's eyes. This would apply even more with respect to the worker's right eye, given that his face was at turned at an angle and the left side of his face would have been more exposed.

The panel is unable to place any weight on the opinions provided by the optometrist and the second ophthalmologist. The panel finds that both rely on a reported history which is faulty and a mechanism of injury which is not consistent with the evidence on file and at the hearing, and our findings. The opinion from the treating optometrist dated November 12, 2016 thus states:

I first saw [the worker]…on May 29, 2013. He complained of a sore, red, and blurry left eye subsequent to eye trauma, left greater than right, from a high-pressure hose which released a burst of dusty, contaminated air accidently into his eyes when he disconnected the air brakes hose.

In her opinion letter dated December 18, 2015, the second ophthalmologist states:

The clinical history of the accident that was given to me by [the worker] verbally on November 19, 2014 was as follows. He stated that in 2013 he was at work outside and was beside his semi-truck. The truck air brake hose blew into both of his eyes. The air brake hose was under pressure and as a result there was dirt, gravel, and debris that entered both of his eyes.

The panel is further of the view that even then, these opinions are ambiguous and subject to interpretation. The ophthalmologist's December 18, 2015 opinion identifies the initial trauma as being, at best, a "possible cause" of the worker's bilateral uveitis/cataracts.

The panel places significant weight on the April 13, 2015 and August 13, 2015 detailed opinions of the WCB medical advisor as they were based on a physical layout (trailer, valve, distances) that is consistent with the panel's own findings. In his opinion dated April 13, 2015, the medical advisor stated, in part, that:

A distance of 15-20 feet from the trailer when combined with the downwardly directed air discharge, would further reduce the likelihood of propulsion of sand/dust/gravel with sufficient force to the eye to provoke a traumatic uveitis/cataract.

The medical advisor further noted that he had spoken to the treating (second) ophthalmologist and discussed the diagnosis she had proposed in her initial report, and stated:

As to how the current treating Ophthalmologist had made the diagnosis of traumatic scleritis/iritis in the left eye, the current treating Ophthalmologist stated that in her understanding, [the worker] had been in closer proximity to the air discharge hose and based her diagnosis on that history. She was unaware that [the worker] was 15-20 feet away from the air discharge. The current treating Ophthalmologist stated that there was no way for her to substantiate the diagnosis of a traumatic left cataract on clinical findings/signs beyond the history of close proximity to the air brake discharge…

When informed that the initially documented keratic precipitates were granulomatous in nature, the current treating Ophthalmologist stated that granulomatous precipitates are not typically associated with traumatic processes but rather, with inflammatory processes.

The force required for an object striking the eye to provoke a uveitis was discussed with the current treating Ophthalmologist, who was of the opinion that more force would likely be required than that which would be experienced through being struck by dust, sand or gravel at a distance of 15-20 feet from the air discharge from an air brake.

In light of the above, it is unlikely that [the worker's] uveitis/cataract in either eye is accounted for in relation to the May 2, 2013 workplace incident.

The panel notes that the WCB medical advisor wrote to the second ophthalmologist on April 20, 2015 to confirm what they had discussed.

In his August 13, 2015 opinion, the WCB medical advisor considered new information which had been submitted by the Worker Advisor Office, which indicated that the stated mechanism of injury was not air brake discharge but rather a malfunction of the valve on the reserve tank which accidentally released, and that the worker was standing 10-15 feet behind the back wheels of the trailer. Given that it appeared from that information that the worker was closer to the air discharge than previously documented, the medical advisor contacted the employer's shop supervisor for information related to the general physical attributes of the valve mechanism in the air system of highway trailers. The medical advisor went on to conclude:

It is unlikely based on information currently on file, that blast of air through a relatively small valve orifice directed forward, on a tank located between suspension members and 2-3 feet from the ground, would have been capable of propelling the size of projectile necessary at least 15 feet with sufficient velocity to provoke a traumatic uveitis and a subsequent traumatic cataract in [the worker's] left eye…

For reasons already described in the April 13, 2015 HSR response, [the worker's] uveitis was not traumatic in origin as supported by the March 3, 2015 correspondence from the initially consulting Ophthalmologist.

The panel further notes that the worker's uveitis condition is bilateral. It is the panel's understanding that trauma is less often a cause for bilateral uveitis. This is especially so, given that the worker was not directly facing the trailer.

Based on the foregoing, the panel finds that the worker did not sustain an injury to his right eye as a result of the May 2, 2013 accident.

The employer's appeal of this issue is allowed.

Issue 2: Whether or not the worker's left eye difficulties subsequent to May 10, 2013 are a consequence of the May 2, 2013 accident.

For the employer's appeal of this issue to be successful, the panel must find that the worker's left eye difficulties subsequent to May 10, 2013 were not causally related to the May 2, 2013 accident or injury. The panel is able to make that finding, for the reasons referred to in response to issue 1 above and as follows.

The panel places weight on the opinion of the first ophthalmologist, who examined the worker on May 30, 2013, and diagnosed him with "bilateral uveitis likely unrelated to the previous injury." In a subsequent letter dated March 3, 2015, the ophthalmologist opined:

…this patient has bilateral uveitis which appeared granulomatous in the left eye. In my opinion the gravel injury to his eyes is likely not the cause of his uveitis and may have been a coincidentally (sic) occurrence.

Based on the foregoing, the panel finds that the worker's left eye difficulties subsequent to May 10, 2013 are not a consequence of the May 2, 2013 accident.

The employer's appeal of this issue is allowed.

Worker Appeal

Whether or not the worker's right eye difficulties after May 2, 2013 are a consequence of the May 2, 2013 accident.

Given the panel's decision on the employer's first issue, that the worker did not sustain an injury to his right eye as a result of the May 2, 2013 accident, this issue is considered moot.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, R. LaFrance

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of March, 2017