Decision #32/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits for March 28 and 29, 2018. A hearing was held on December 6, 2018 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits for March 28 and 29, 2018.
The worker is entitled to wage loss benefits for March 28 and 29, 2018.
On the Worker Incident Report, submitted to the WCB on April 3, 2018, the worker reported injuring his right eye in an incident on March 26, 2018 described as:
We were converting propane furnaces into electric furnaces.
The furnace had to be cut in half with a reciprocating saw.
A piece of metal flew up and hit my forehead then bounced off my safety glasses and went into right eye.
I tried flushing it out at the eyewash station.
My eye was irritated and red.
The Employer's Accident Report filed with the WCB on March 28, 2018 confirmed the worker's description of the workplace accident and noted that the worker attended work on March 27, 2018 but left early to seek medical treatment. It was further noted that the worker was away March 28 and 29, 2018 and was expected to return to work on April 2, 2018.
The worker attended at the local hospital on March 27, 2018 and was referred to an ophthalmologist for further treatment. The report from the ophthalmologist on March 27, 2018 noted objective findings of "embedded rust ring right eye" and the treatment provided to the worker was removal of the rust ring under topical anesthesia.
On April 18, 2018, the worker's treating ophthalmologist provided a letter to the WCB on the worker's behalf. The ophthalmologist indicated that he removed a rust ring from the lower part of the worker's right cornea on March 27, 2018 and noted that the worker could return to work on March 28, 2018. It was further noted that the worker had advised the ophthalmologist in a telephone conversation on April 13, 2018 that he was unable to go to work on March 28 and 29, 2018 as he was still having difficulties with his right eye. However, the ophthalmologist advised that he had not seen the worker on either of those dates.
The WCB advised the worker on April 26, 2018 that his claim was acceptable. However, he was not entitled to wage loss benefits for March 28 and 29, 2018 as he did not seek medical attention on those dates and there was no evidence to confirm that he was unable to work.
The worker requested reconsideration of the WCB's decision to Review Office on May 15, 2018. The worker submitted a copy of the ophthalmologist's April 18, 2018 letter in support of his request.
At the request of Review Office, a WCB medical advisor reviewed the worker's file and on May 24, 2018 provided the opinion that the worker's reported symptoms in his right eye after the workplace accident and treatment were not medically accounted for. It was noted that the surface of the cornea heals very quickly, usually within one to two days and while there may be some intermittent tearing, all ocular symptoms should resolve within the same timeframe.
On June 1, 2018, Review Office determined that the worker was not entitled to wage loss benefits for March 28 and 29, 2018. Review Office placed weight on the opinion of the WCB medical advisor and found that the medical evidence did not support that the worker was totally disabled from working due to his compensable injury.
The worker filed an appeal with the Appeal Commission on June 12, 2018. An oral hearing was arranged.
Following the hearing, the appeal panel requested additional information from the employer prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On February 15, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (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 37(1) of the Act provides that "…where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, compensation is payable: (c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39."
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.
WCB Policy 44.40.10, Evidence of Disability, provides "Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition." The administrative guidelines provide: "When a worker stays off work without seeking treatment from a healthcare professional, the WCB will determine why the worker did not report to work or felt unable to return to work and the details of any home treatment used. Based on this information and all other information available in the file, the WCB may consult with WCB Healthcare services to determine whether the lost time is reasonable for the type and circumstances of the accident before paying wage-loss benefits to the worker."
The worker was self-represented and responded to questions from the panel.
In reply, he advised, in part, that:
• His duties included removal and installation of mechanical equipment using power and manual tools.
• He has many years of plumbing and heating experience.
• He is required to drive to multiple worksites on any given work day.
• He used safety equipment (goggles) when performing the task that caused his eye injury.
• He reported the incident to his employer immediately and subsequently advised them that he was unable to attend work due to his eye troubles.
• He returned to work as soon as he felt he was able to safely do so.
• He reported that he attempted to drive on March 28 and 29 and was unable to do so safely.
The worker submitted that he was unable to work on March 28 and 29, 2018 and that he should be entitled to compensation benefits. He described that he does not like to miss work and intended to go to work on both days in question.
The employer did not participate in the hearing. However, upon subsequent follow up by the panel, the employer confirmed that the worker did call in to report that he was unable to attend work due to his eye troubles. He called in prior to his shift start on each day. The employer did not object to WCB coverage being requested.
For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker was unable to work on March 28 and 29, 2018 as a result of a workplace accident that occurred on March 26, 2018. The panel finds that it was reasonable that the worker required more time to recover.
The panel accepts the worker's evidence, corroborated by his employer, that he was unable to attend work on March 28 and 29, 2018. On each of these days, the worker indicated his intent and desire to work.
The panel considered the report provided by the ophthalmologist on March 27, 2018 that indicated clearance to return to work on March 28, 2018. The panel notes that this clearance to return to work was granted by the ophthalmologist in part as a result of the worker's request to be able to return to work and that it was possible for the injury to have sufficiently repaired. The worker did not anticipate an extended recovery period that included the two days in question.
The panel also considered a medical opinion provided on May 24, 2018 to Review Office. Several symptoms seem to not be medically accounted for; however, the panel finds that the ocular soreness/pain is consistent with the worker’s complaint that inhibited his ability to return to work as quickly as is typical. The panel notes in particular that the worker was required to drive not only to and from work but also to a number of work sites during the course of his work day. Under these circumstances, the panel finds that the worker's decisions not to work on each of those two days were reasonable.
In the absence of a medical opinion on or near March 28, 2018, on the balance of probabilities, the panel finds that it was reasonable for the worker to have encountered a longer than expected recovery. Therefore, the panel accepts the worker's appeal. The worker is entitled to wage loss benefits for March 28 and 29, 2018.
B. Hartley, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
B. Hartley - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of March, 2019