The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his eye difficulties should not be accepted as being a consequence of the February 1, 2018 accident. A hearing was held on November 19, 2018 to consider the worker's appeal.

Issue

Whether or not the worker's eye difficulties should be accepted as being a consequence of the February 1, 2018 accident.

Decision

The worker's eye difficulties should be accepted as being a consequence of the February 1, 2018 accident.

Background

The employer reported to the WCB on February 9, 2018 that the worker sustained an injury to his eyes on February 1, 2018 as a result of a motor vehicle accident.

The worker attended for treatment at a local emergency department on February 2, 2018. The worker was examined and diagnosed with a superficial injury to his chest. A CT scan was conducted and indicated "No evidence of intracranial injury or skull fracture."

In a discussion with the WCB on March 6, 2018, the worker advised that on February 4, 2018, he was still having difficulties with his vision so he attended a local urgent care centre and was given an appointment with a specialist for the following day. On February 5, 2018, the ophthalmologist queried whether the worker had "bilateral macular holes post trauma" and referred him for further testing. The worker was seen on February 8, 2018 for an OCT (optical coherence tomography) test, which could not confirm a diagnosis. The ophthalmologist referred him to a neuro-ophthalmologist for further in-depth testing.

The neuro-ophthalmologist examined the worker on February 20, 2018. After examination, the neuro-ophthalmologist opined that the worker had central serous retinopathy in both eyes, which was felt to be post-traumatic, although it was noted that the worker denied any blunt ocular trauma. The treating neuro-ophthalmologist noted that there were other difficulties reported by the worker that a diagnosis could not be provided for and referred the worker for an MRI.

At a follow-up appointment on March 26, 2018, the neuro-ophthalmologist reviewed the MRI conducted on March 18, 2018. The results of the MRI indicated "Inflammatory change of the right middle ear cleft and right mastoid. Optic atrophy." However, as the neuro-ophthalmologist could not attribute "…exactly the same visual field defect in both eyes simultaneously to traumatic optic neuropathy and there is no evidence that this could represent bilateral occipital pole damage" a second opinion regarding the MRI was requested. The radiologist requested to review the MRI opined that "…both optic nerves and the chiasm were normal in size and in signal and he is unable to explain the report as submitted." The neuro-ophthalmologist further noted a slight improvement in the worker's left eye compared to the previous examination.

On April 26, 2018, the WCB advised the worker that his claim was accepted for a superficial injury to his thorax only and his claim for an injury to his eyes was not accepted. The WCB further advised that as the medical reports submitted by the worker's healthcare providers were complex, a WCB medical advisor reviewed the worker's claim. The WCB medical advisor was unable to confirm a diagnosis based on the medical information provided and was unable to find any objective evidence to support that the worker sustained an eye injury in the absence of direct trauma to his eyes.

The worker requested reconsideration of the WCB's decision to Review Office on May 7, 2018. The worker submitted a report from his optician dated May 7, 2018 which noted that an examination prior to the workplace accident found no center vision loss or issues with the worker's vision, other than the need for corrective lenses.

Review Office upheld the WCB's decision that the worker's eye difficulties were not compensable. Review Office accepted the WCB medical advisor's opinion and noted that there was no pathoanatomically based diagnosis for the worker's eye symptoms. On a balance of probabilities, Review Office could not establish a causal relationship between the workplace accident on February 1, 2018 and the worker's eye difficulties.

The worker filed an application with the Appeal Commission on June 6, 2018. An oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 12, 2019, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

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.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB. To have an acceptable claim, the worker must have suffered an injury by accident that arose out of and in the course of employment.

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

Subsection 39(3) of the Act provides that in the case of a worker who is 61 years or older at the commencement of their loss of earning capacity, the board will pay wage loss for a period of not more than 48 months following the date of the accident.

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 worker has an accepted claim. He is seeking WCB acceptance for his eye difficulties as being a consequence of his February 1, 2018 accepted accident.

Worker's Position

The worker was self-represented. He was assisted by his spouse.

The worker's position was that the WCB should accept responsibility for his eye difficulties as a consequence of his workplace accident.

The worker explained that he was employed delivering vehicles. He would pick up or deliver vehicles to locations around Manitoba and in adjacent provinces.

Regarding the accident, he advised that:

All I was going to say was in January 2018 I worked 18 days as a driver. I worked, I was in Winnipeg 12 of those days, and for the other six I made a trip to Virden, I made a trip to Timmins, Ontario, which took three days, and exactly one week prior to my accident I took a vehicle…on the same road that I was driving when I had my accident, when I hit the semi.

He explained that:

So, an accident, by definition, is an unplanned event. When I saw the flashing lights ahead on the road, I thought it was hazard lights on the semi at the side of the road. And as I got closer, I pulled over to pass the semi, and then realized what it was is all I was seeing was the left turn signal on the tractor, and a left turn signal on the trailer, and he was already proceeding into his turn.

And it looked to me as though it was two flashing red lights, as hazard lights. So by the time I realized what I had done, it was too late, I couldn't stop.

The worker explained that a co-worker was following his vehicle and after the accident, the co-worker drove him back to Winnipeg. He said that he could not read the digital readout on the dash, and couldn't see his cell phone. He said that "everything was sort of fuzzy and distorted."

When he arrived in Winnipeg, he attended a hospital. He advised that:

And when I got to the hospital…on the morning of the 2nd, and I told the doctor that was taking care of me that I was having trouble seeing, and he mentioned that it was possibly dust from the airbag, because the airbags all went off in the car. In the following days I started to experience black and white dots in front of my eyes, and for example, I would look at your face, or I would look at a face, and all I would see was the head…Like, when I was looking at it I just couldn't focus. There was no eyes there, there was no nose and there was no mouth.

The worker was off work for more than 9 months. He stated that:

I don't understand the legal, or the doctor's explanation, but I really have no further proof as to why this has happened to my eyesight, it was fine before I made the trip.

With regards to the WCB medical advisor's opinion, he commented:

In fact, if in fact my eyesight was damaged before the accident, as [name], the consultant for WCB stated, in his opinion, I'm at a loss to explain how I could've made all those trips without an incident. Whether [doctor's name], like, he's also mentioned too that he's driven that road many times himself, and he can't understand why I had this accident, you know.

The worker advised that he has been seeing a neuro-ophthalmologist (neurologist) and has been able to return to work. The worker said he had difficulty with the centre of his peripheral vision which meant that he could see things around the edges, but not the middle.

In reply to questions from the panel, the worker said that before the accident he did not wear glasses. He confirmed that he realized he had a vision problem after the accident, when he could not use his cell phone. He said that he could not differentiate which eye was better or worse at that time of the incident. He also advised that he knew that his left eye was getting better because the neurologist told him, after testing, that it was getting better.

Regarding the WCB medical advisor's comment that his vision caused the accident, the worker advised there was nothing wrong with his eyes before the accident and that he drove for many years without incident. The worker advised that he has been driving/delivering vehicles for more than 10 years and much of the driving was at night.

Employer Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the worker's eye difficulties. For the worker's appeal to be successful, the panel must find that the worker's current eye difficulties are causally related to his February 1, 2018 workplace accident. The panel is able to make this finding, for the reasons that follow.

The panel attaches significant weight to the evidence on file and provided at the hearing that establishes that:

• the worker experienced immediate and acute findings of vision loss and loss of function when the accident occurred. 

• the worker had no issues with vision before the incident and did not require treatment for a condition related to his vision.

The panel obtained a copy of a medical report from the worker's treating neuro-ophthalmologist, dated January 30, 2019. The neuro-ophthalmologist referred to conditions which are similar to the worker's but from which no improvement would be expected. She commented that:

Certainly [worker] has seen improvement since the onset which would be more in keeping with the trauma he experienced.

The panel finds, on a balance of probabilities that worker's condition was a consequence of the trauma he experienced in the compensable accident of February 1, 2018. The worker's appeal is accepted.

In adjudicating this appeal, the panel finds it appropriate to apply WCB Policy 44.40.10, Evidence of Disability. In the words of the policy:

Compensation benefits are payable only when there is medical, or similar, evidence of a disability arising from a compensable incident or condition.

In this case, the panel finds on a balance of probabilities, that there is medical and other evidence of a disability arising from the worker's compensable incident.

The worker's appeal is accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Kraychuk, Commissioner

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of March, 2019