The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim is not acceptable. A videoconference hearing was held on October 19, 2022 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on October 20, 2020, noting an injury to his left eye. The worker reported that while welding a patch on a line at work on October 15, 2020, he blew a hole in the line and air came shooting out. The worker stated he flipped his helmet up and started down the ladder he was on, when he heard a gurgling sound and "Water came splashing into my face." The worker noted he felt fine right after the incident, but having been advised a short time later that the water could contain caustic material, he flushed his eye for approximately five minutes. The worker further reported his left eye started to get foggy about 45 minutes later.

The worker sought treatment from an optometrist on October 16, 2020. The optometrist diagnosed the worker with a left superior nasal retinal detachment and referred him to an eye surgeon. The worker saw the eye surgeon on October 17, 2020, reporting a "…caustic acid injury to the left eye…" with slight irritation. The worker indicated the irritation was gone the next day, but he noticed blurry vision in his left lower vision, sought medical attention, and had been referred to the surgeon because of a retinal detachment. After examining the worker, the

eye surgeon diagnosed a superonasal/nasal retinal detachment with tears, and recommended surgery. On October 18, 2020, the worker underwent retinal detachment repair surgery on his left eye.

On October 22, 2020, the WCB contacted the worker to discuss his claim. The worker confirmed the October 15, 2020 mechanism of injury and that his left eye started to get foggy approximately 45 minutes after the incident, then got increasingly worse, causing him to seek medical attention the following day. The worker confirmed he underwent surgery on October 18, 2020 after being diagnosed with a "Hole in eye and detached retina," and that he had been off work since October 16, 2020. The worker called the WCB back later that day and advised he had undergone cataract surgery for his left eye on September 8, 2020, and for his right eye on September 22, 2020, after which he had 20/20 vision.

The WCB received a November 3, 2020 report from the treating eye surgeon, who noted that the worker had "Sudden decreased vision after getting substance in eye" and had undergone surgery for retinal detachment with gas on October 18, 2020. The surgeon further recommended bed rest "…with gas in eye" for eight weeks.

On November 30, 2020, the worker provided the WCB with photographs of the water line he was working on when the October 15, 2020 incident occurred and an associated danger sign. At a follow-up appointment with the treating eye surgeon on December 8, 2020, the worker indicated to the surgeon that he could see out of the top part of his left eye, but the bottom of the eye was very watery. The worker further advised that he believed his left eye had improved since his last appointment.

On December 18, 2020, the worker's file was reviewed by a WCB neuro-ophthalmology consultant, who opined that "Neither the atrophy of the inferior portion of the left retina or the multiple retinal holes in the left eye (representing the major risk factors for [the worker's] left retinal detachment) are medically accounted for in relation to the workplace incident of October 15, 2020."

On December 22, 2020, the WCB advised the worker that his claim was not acceptable, as they were unable to confirm his left eye difficulties were related to the workplace accident.

On January 13, 2021, the WCB received correspondence from the worker's legal counsel, with a copy of a January 12, 2021 report from the worker's regular eye specialist and requested the WCB review the information. The worker's regular eye specialist reported he had been treating the worker since 2015, and the worker underwent cataract surgery for his left eye in September 2020. The specialist noted the worker reported that on October 15, 2020, leaking fluid sprayed directly into his left eye which "… was a mixture of water and caustic acid," and that "Because

of the force of the fluid, he describes a reflexive movement backwards with his neck which resulted in a whiplash mechanism." The worker further reported that soon after that, he became aware of a loss of vision in his left eye. The specialist noted the worker was then seen by the ophthalmology service on an urgent basis and was diagnosed with a retinal detachment, which was surgically repaired on October 18, 2020. The specialist opined that:

Based on the sequence of these events, it is somewhat suspicious that the retinal detachment may be linked to the workplace injury. The 2 mechanisms which may have caused the detachment would be the force of the fluid injury as well as the whiplash mechanism. A high-pressure fluid injury could definitely cause a compression/ decompression situation which can be harmful for the retinal status. Whiplash injuries are also known to affect the vitreous gel which can have deleterious effects on the retina.

The specialist advised that in his opinion, the October 15, 2020 workplace incident was related to the worker's retinal detachment.

On January 15, 2021, the WCB asked that the WCB neuro-ophthalmology consultant advise as to whether the new medical information changed his December 21, 2020 opinion. At the consultant's request, the WCB sought further medical information from the worker's regular eye specialist, which information was received by the WCB on January 22, 2021.

On January 27, 2021, after reviewing the new information and speaking with the worker's regular eye specialist, the WCB neuro-ophthalmology consultant advised that the new information did not change his opinion that the worker's left retinal detachment was not medically accounted for in relation to the October 15, 2020 workplace incident. The consultant noted that the chemical composition of the fluid that splashed onto the worker's face was "…not pathophysiologically related to the left retinal detachment;" that there was no evidence a high pressure fluid injury occurred; that the worker had five separate high risk factors for retinal detachment before the workplace incident occurred; and that the nature of the worker's reflexive head movement was not specified, such that its relationship to the retinal detachment was speculative.

On February 8, 2021, the WCB advised the worker that the additional medical information had been reviewed and they had determined there would be no change to their decision that his claim was not acceptable.

On March 9, 2021, the worker's legal counsel requested that Review Office reconsider the WCB's decision. Counsel submitted that the worker's regular eye specialist supported there was a relationship between the workplace incident and the worker's left eye difficulties. Counsel also submitted that the worker had no difficulties with his eye until the incident, and now had ongoing difficulties with that eye.

On March 23, 2021, Review Office determined that the worker's claim was not acceptable. Review Office found that while the worker was involved in a workplace incident on October 15, 2020, the evidence did not support he sustained an injury as a result of that incident.

On January 13, 2022, a worker advisor filed an appeal with the Appeal Commission, and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations, and policies established by the WCB's Board of Directors. As the date of injury is identified as October 15, 2020, the applicable legislation is the Act as it existed at that time.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB, and state that the worker must have suffered a "personal injury by accident arising out of and in the course of" employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.10.20.10, Pre-existing Conditions, addresses eligibility for compensation in circumstances where a worker has a pre-existing condition. Part A of the Policy, the "Policy Purpose," states in part as follows:

The Workers Compensation Board (WCB) will not provide benefits for disablement resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment." The WCB is only responsible for personal injury as a result of accidents that are determined to be arising out of and in the course of employment.

Worker's Position

The worker was represented by a worker advisor, and was accompanied at the hearing by a friend. The worker's representative made a presentation on the worker's behalf, and the worker and his representative responded to questions from the panel.

The worker's position was that he suffered a detached retina in his left eye as a result of the October 15, 2020 workplace incident, and his claim should be accepted.

The worker's representative noted the WCB did not dispute the incident occurred, and the only issue therefore was whether the incident resulted in a detached retina.

It was submitted that the WCB appeared to focus on a list of conditions the worker had which would have caused him to be more susceptible to a retinal detachment, and to suggest that the retina detached spontaneously and coincidentally at the time of the incident. The representative disagreed, and submitted that such pre-existing conditions did not shield the worker from new injuries. Rather, the opposite was true: that the pre-existing conditions represented a weakness and rendered the worker vulnerable to being injured with less force than would be required in the case of a healthy individual and with little provocation.

The representative submitted that there were many forces applied to the eye at the time of the incident, any one of which was sufficient to cause a detached retina in even a healthy individual. Among these, the force of the pressurized air followed by the pressurized liquid hitting the worker in the face and eye could have caused waves in the vitreous fluid and a detached retina. Also, the worker reflexively jerking his head back in a whiplash-like motion when hit by the liquid, as described by his regular eye specialist, could result in a detached retina, and was sufficient in the specialist's opinion to have done so in this instance. The representative further noted that the worker spent five to ten minutes flushing his eye and suggested that the force applied to his eye could have been sufficient to cause a detached retina, given its fragile state.

In conclusion, it was submitted that it was more probable that the workplace incident caused the worker's retinal detachment than that the retina detached spontaneously and coincidentally at the time of the incident with the incident not contributing to the detachment at all. The representative submitted that the worker's vision was good when he went to work on October 15, 2020, and the symptoms of blurred vision which the worker experienced from the moment of the accident through to surgery showed that the retinal detachment occurred in the course of, and as a result of, the workplace incident, and his appeal should therefore be allowed.

Employer's Position

The worker was self-employed.

Analysis

The issue before the panel is claim acceptability. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the evidence establishes the worker suffered a personal injury by accident arising out of and in the course of his employment. The panel is unable to make that finding, for the reasons that follow.

The panel accepts that the incident occurred in the course of the worker's employment on October 15, 2020. Based on our review of all of the available evidence and submissions, however, the panel is not satisfied that the worker suffered an injury by accident arising out of his employment on that date.

The worker described the October 15, 2020 incident in detail at the hearing. The worker described how he stepped down off the ladder and lifted his welding helmet up, but still had his safety glasses on. The worker said the next part happened fast: the "caustic water shot out of the line, it arced up and shot down behind my safety glasses." The worker said that the fluid came "right in behind the top of my safety glasses and nailed me in the left eye from above." He described the safety glasses as being "quite wrap-around" and "pretty decent glasses" and indicated he was surprised the fluid got in.

The panel notes that while there are numerous references to the escaping fluid as being "caustic water," the medical information on file does not appear to indicate that there was any chemical injury to the worker's eye as a result of the workplace incident. The panel further notes that the worker's representative confirmed at the hearing that she did not believe the worker's regular eye specialist thought the caustic nature of the fluid caused damage to the worker's eye.

The panel accepts that fluid got in behind the worker's safety glasses at the time of the incident, but is not satisfied, based on the description of the incident and on a balance of probabilities, that the pressurized air or pressurized fluid struck the worker in the eye with sufficient force to cause a detached retina. In this regard, the panel notes that the worker reported in his Worker Incident Report that when the water splashed into his face he "felt fine at that moment." The panel also places weight on the January 27, 2021 opinion of the WCB neuro-ophthalmology consultant, who noted in relation to the pressure of the fluid that splashed into the worker's face, that the report from the optometrist who examined the worker on October 16, 2020, the day after the workplace incident, noted that there was no sign of any injury to the front portion or anterior segment of the eye.

The panel further notes that in his medical opinion dated January 27, 2021, the WCB neuro-ophthalmology consultant noted that he spoke to the worker's regular eye specialist on January 22, 2021, and during that conversation they agreed that the worker "did not have a high pressure fluid injury to his left eye at the time of the workplace incident."

The worker's representative has argued, in particular, that the worker jerked his head back reflexively in a whiplash-like motion when hit by the liquid, and that this was sufficient to result in a detached retina. The panel is unable to accept that argument. The representative noted that they were not saying the movement was sufficient to cause whiplash, as the worker did not have whiplash, but added that they did not think that much force was required with the worker's retina being so fragile. The representative further added that the worker's regular eye specialist seemed to think that this was the most determining factor with respect to the retinal detachment.

The panel acknowledges the opinion of the worker's regular eye specialist dated January 12, 2021, in which the specialist concluded that:

Based on the sequence of these events, it is somewhat suspicious that the retinal detachment may be linked to the workplace injury. The 2 mechanisms which may have cause the detachment would be the force of the fluid injury as well as the whiplash mechanism. A high-pressure fluid injury could definitely cause a compression/ decompression situation which can be harmful for the retinal status. Whiplash injuries are also known to affect the vitreous gel which can have deleterious effects on the retina.

It is my opinion that [the worker's] workplace injury is related to the subsequent retinal detachment. 

(Italics added)

The panel finds that the above opinion is based on speculation and is not supported by clinical evidence. The panel is therefore unable to attach much weight to the specialist's opinion in this regard.

The panel notes that in his January 27, 2021 opinion, the WCB ophthalmology consultant noted he discussed the concept of head movement as a factor in the development of retinal detachments with the worker's regular eye specialist, and noted that the "nature of the head movement as reported in the Worker Incident Report is not well characterized and its relationship to the pathophysiological mechanism of the left retinal detachment is speculative."

The panel further recognizes that the evidence indicates the worker had a number of risk factors which pre-existed the workplace incident. While the worker's representative has argued that these pre-existing conditions rendered the worker more vulnerable or susceptible to a retinal tear, the panel is unable to find, on a balance of probabilities, that the evidence establishes that the worker's left eye retinal tear is causally related to the October 15, 2020 workplace incident.

Finally, the worker's representative suggested that the flushing of the worker's eye for five or ten minutes on October 15, 2020 could have caused the retina to detach. The panel is satisfied that the evidence does not support that such a process would have caused or contributed to the retinal detachment, and is unable to accept that suggestion.

Based on the foregoing, the panel finds, on a balance of probabilities, that the evidence does not establish that the worker suffered a personal injury by accident arising out of and in the course of his employment, and the claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of December, 2022