The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits beyond August 16, 2022. A videoconference hearing was held on April 13, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after August 16, 2022.

Decision

The worker is entitled to wage loss benefits after August 16, 2022.

Background

The worker filed a Worker Incident Report with the WCB on August 22, 2022, reporting an injury to his left eye that occurred at work on August 15, 2022 and was reported to the employer on August 16, 2022. The worker described the incident as "I was using compressed air to clean my work station that had lots of dust and metal pieces and didn't notice that anything went into my eye until I got home and showered." The worker noted he sought treatment from an optometrist on August 16, 2022.

The employer submitted an Employer's Accident Report to the WCB on August 23, 2022, reporting the worker injured his left eye as the result of an incident at work on August 15, 2022. The employer noted they were able to accommodate the worker with alternate/modified duties of "office work, sedentary assembly work (paint touch up, part marking/labeling)" and indicated that modified duties were offered.

The WCB spoke with the worker on August 23, 2022 to discuss the claim and gather further information. The worker confirmed the mechanism of injury as noted on his incident report and that he attended for medical treatment with the optometrist the following day. The worker advised that the treating optometrist had removed a piece of metal, noted a "…little bit of rust in the cornea…" and given him antibiotic eye drops. The worker advised the WCB that the redness in his eye got better but he could still feel something in his eye. He indicated he did not discuss restrictions or a return to work with the optometrist, but he wanted to keep his eye closed as much as possible as the eye drops made his eyes sensitive to light. The worker noted his current symptoms included his eye was a little red, his nose was running, and every time he blinked he felt a burning sensation and as if something was in his eye. The worker advised the WCB he had not yet returned to work and had not been offered modified duties by the employer. On August 25, 2022, the WCB advised the worker that his claim was accepted and wage loss benefits were approved for August 16, 2022.

On August 26, 2022, the WCB received a Doctor First Report from the treating optometrist referring to his August 16, 2022 examination of the worker. The optometrist noted the worker described getting a small piece of metal in his left eye the previous day at work, and was complaining of blurry vision with a sore, red left eye and chronic foreign body sensation with blinking. The optometrist reported he removed the foreign body and prescribed antibiotic eye drops to be used for three days only, noting there was a small residue of rust and the worker might have a very small permanent corneal scar. A diagnosis of "Trauma with foreign body L (left) eye/rust ring" was provided and the optometrist indicated the worker could return to work on August 17, 2022.

The worker called the WCB on August 26, 2022 and left a message that the treating optometrist had called him earlier that day and said they never discussed the worker taking time off work, and that if the worker had issues three days after seeing him, he should let him know. The worker noted the optometrist "pretty much said" he was okay to return to work, but he could still feel burning in his eye and was going to see a physician on Monday, August 29, 2022 and would call back then.

On August 29, 2022, the worker was seen by a family physician at a walk-in clinic, who recommended the worker attend the hospital eye care centre for a second opinion and full assessment. The worker was assessed at the hospital eye care centre that same day, and the attending physician diagnosed the worker with healing corneal abrasions in the left eye, provided a different antibiotic eye ointment and recommended the worker return to be reassessed in six to seven days if his left eye was still symptomatic. The employer advised the WCB that the worker returned to work on August 31, 2022.

On September 1, 2022, the WCB advised the worker that while his claim was acceptable, his entitlement to wage loss benefits was limited. The WCB determined that based on the medical information, the worker was fit to return to work after August 16, 2022, and no further wage loss benefits would be issued after that date.

On September 14, 2022, the worker requested that Review Office reconsider the WCB's decision. In his submission to Review Office, the worker noted that he had attempted to arrange a follow-up appointment with his treating optometrist as his left eye symptoms had not improved, but when the optometrist finally called him back, he only told the worker he was fine and could return to work. The worker then sought further medical treatment with a walk-in clinic physician and a physician at the hospital eye care centre, and returned to work on August 31, 2022.

On November 7, 2022, Review Office upheld the WCB's decision that the worker was not entitled to wage loss benefits beyond August 16, 2022. Review Office noted the typical recovery period for an injury from a foreign body intrusion was one to three days, and found a non-requirement for work limitations and return to work date as specified in the August 16, 2022 report from the treating optometrist was consistent with the recovery expectation. Review Office acknowledged the worker's attempt to seek further medical attention for his left eye due to worsening symptoms, but found his decision to only initially seek treatment from his original optometrist after his symptoms did not improve was questionable.

Review Office further noted the worker was finally seen on August 29, 2022 at the hospital eye care centre, where he had sought treatment for another eye injury a month previously, and found that if the worsening condition of his left eye had been of such a concern for him, he would have attended at the walk-in facility sooner, where he knew he could obtain immediate care. Review Office concluded the worker was not totally disabled from working, and did not have a loss of earning capacity beyond August 16, 2022.

On December 8, 2022, the worker filed an appeal with the Appeal Commission and an oral hearing was arranged for April 13, 2023.

Following the hearing, the appeal panel requested additional information from the employer prior to discussing the case further. A response to that request was later received and was forwarded to the worker for comment. On May 30, 2023, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies of the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.

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.

Subsection 4(2) provides that 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 39(2) of the Act states 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.

Worker's Position

The worker was self-represented, and provided a written submission with his Appeal of Claims Decision form. The worker participated in the hearing by teleconference. The worker made an oral presentation and responded to questions from the panel.

The worker's position was that he had not recovered from his August 15, 2022 workplace injury as at August 16, 2022, and should be entitled to wage loss benefits beyond that date.

The worker submitted that he sought medical attention from an optometrist the day after he suffered the injury to his left. The optometrist removed a piece of metal from his eye and provided him with eye drops. The optometrist told him to use the eye drops for three to four days, and to call him if he still had issues after that. The worker said he followed the optometrist's instructions and used the drops for three to four days, but his eye did not heal as the optometrist had said it would. He then tried calling the optometrist three times in the following days, but the optometrist did not call him back until Friday, August 26, 2022, at which time he told the worker he should be healed and at work.

The worker said at that point he could see out of the eye, but it was blurry and burning, and he had to keep it closed as it was still very sensitive to light. He went to the walk-in clinic on Monday, August 29, 2022, but the physician was unable to identify anything and said he should go to the hospital eye care centre. The physician at the hospital eye care centre said the eye drops the optometrist had given him would prolong healing. The worker noted that in the end, the physician gave him an eye ointment which he was to use for the next three days, four times a day or whenever there was itching or burning. The worker said he followed the physician's instructions, and his eye was fine and felt back to normal after two days of using the ointment, and he returned to work on August 31, 2022.

The worker submitted that he kept in contact with the workplace after his injury. He was in touch with the general manager, with emails going back and forth, and he let him know every time he saw a doctor. The worker said he was never offered modified duties by the employer. He was just told to get better, and when he was better, to bring in a doctor's note indicating he could work.

Employer's Position

The employer was represented by its Human Resources Manager, who made a submission at the hearing and responded to questions from the panel. The employer's position was that the worker is not entitled to further wage loss benefits and his appeal should be denied.

The employer's representative said that they did not dispute the worker got something in his eye while working on August 15, 2022. She noted, however, that they had modified work available, which was offered to the worker, but he did not return to work until August 31, 2022.

The representative submitted that they have modified duties available to all of their staff, and that they repeat that modified work is available when employees fill out green cards. She said the worker texted the employer on August 16, 2022 to say he thought he got dust in his eye, and he finally came in to fill out a green card on August 18, 2022. The representative stated that modified duties, which include office work, sedentary work in the assembly department such as paint touch-up, parts marking, labelling, and putting stickers on parts, would have been offered to him then. The representative also noted that the worker never had a functional abilities form filled out, which is something they require when a worker is off work due to an injury.

The representative stated that the employer felt the worker was taking extra time off work to spend time with his family and consider what he wanted to do with his career going forward, regardless of his eye injury. She noted the worker emailed back and forth with their general manager while he was off work, and one of those emails indicated he had been searching for other work but wanted to continue working for them. She also noted that when the worker did return to work on August 31, 2022, he returned on the day shift instead of the night shift so he could spend time with his family in the evenings.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits after August 16, 2022. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond August 16, 2022 as a result of his August 15, 2022 workplace incident and injury. The panel is able to make that finding, for the reasons that follow.

The panel notes there is no dispute in this case that the worker got something in his left eye at work on August 15, 2022. The issue is whether the worker suffered a loss of earning capacity beyond August 16, 2022 as a result of that injury.

The panel is satisfied that the evidence supports the worker continued to experience difficulties and to be disabled after August 16, 2022 due to his left eye injury. The panel notes that the worker sought treatment from the treating optometrist on August 16, 2022, being the day after the accident, and the optometrist provided him with antibiotic drops for three days. The worker noted the optometrist stressed that he was only to use them for three days, and that if his symptoms did not improve, the worker should contact him.

The worker described how his eye was very sensitive to light, it was very hard to open his eye, and there was lots of burning during those three to four days. The worker said that after three days, his eye was still very sensitive to light and itchy, and it felt heavy, like something was holding it down. He tried to contact the optometrist at that point, but was unable to reach him for almost a week, and when the optometrist eventually returned his call, he told the worker he was fine. At the same time, the worker indicated that he could not open his eye with any overhead light, and had spent more of the week lying in bed in the dark. The panel notes that the optometrist had not seen the worker since August 16, 2022, and is satisfied that the evidence supports the worker continued to experience the same symptoms as a result of his injury. Due to his continuing symptoms, the worker sought treatment from the physician at the walk-in clinic, then the hospital eye care centre on Monday, August 29, 2022.

It is noted in the August 29, 2022 report from the hospital eye care centre, that the worker had been prescribed an eye drop "'with a steroid in it.'" When the worker was asked about this at the hearing, he said the attending physician at the hospital eye care centre noted that the eye drops he was given by the treating optometrist contained a steroid, which "would actually delay the healing process" and he was surprised the worker had been given such a medication. The physician provided him with an antibiotic eye ointment, which he applied and after two days his eye felt better and he was able to return to work. The panel accepts the explanation that the eye drops the worker was given by the optometrist, which contained a steroid, were not appropriate, and that the use of those eye drops likely delayed his recovery and ability to return to work.

The worker confirmed at the hearing that he did not discuss time off with the optometrist when he saw him on August 16, 2022. The worker said he had experienced a very similar injury to his left eye a month earlier, where he had been given eye drops and the treating physician had said he should be off work for two to three days depending on the symptoms. The worker said he was off work for three days with that injury while using the eye drops, after which his condition had improved and he was able to return to work.

The worker said he was under the impression, based on that identical injury, that he would be off work for three days while using the eye drops and waiting for his symptoms to improve in this case. When his condition did not improve, however, he tried contacting the optometrist as instructed. When he attended the hospital eye care clinic and was given the antibiotic ointment, he again understood that he should remain off work while undergoing that treatment, and his symptoms having improved two days later, he was able to return to work.

The employer has argued that the worker is not entitled to further wage loss benefits as modified duties were available and were offered to the worker. The panel is unable to accept that argument. In the Employer's Accident Report filed August 23, 2022, the employer indicates that the worker was offered modified duties, but the date on which such an offer was made was left blank. The employer's representative indicated at the hearing that modified duties "…would have been offered" when the worker went to fill in the green card on August 18, 2022, but no documentation was provided or identified to support that assertion. Information indicating or confirming that such duties were actually offered, by whom and what was said or offered was also lacking.

The employer's representative also submitted that the worker never had a functional abilities form filled out, "which is something that we do require when employees are off." There is no indication, however, that such a form was provided to the worker, and it would seem inconsistent that such a form does not seem to have been provided or required if the worker was in fact being offered modified duties.

The worker's evidence was that he was not offered modified work and there was never any talk of modified duties. In response to a question at the hearing about any conversation with the employer regarding modified duties, the worker stated that when he came in to fill out the green card:

I was filling out the green card, and there was never any modified duty. I have all the emails, text messages, nothing was offered for modified work, and there was never any talk of it before or even when I started just in case something were to happen. There was never any communication on that.

Following the hearing, the panel wrote to the employer, noting that it was indicated at the hearing that there were emails and text message between the employer and the worker regarding a return to work on modified duties and requesting copies of such emails and text messages. In an email dated April 21, 2023, the employer responded that "Modified duties were offered verbally to [the worker]." Again, no details were provided with respect to such an offer. On May 1, 2023, the worker responded to the employer's comment, stating that "There was no talk of any modified work verbally or by text or email."

In the circumstances, the panel acknowledges that the employer may have believed that someone offered modified duties to the worker, but finds that their assertions the modified duties were offered to the worker are not supported by the evidence.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond August 16, 2022 as a result of his August 15, 2022 workplace incident and injury. The panel therefore finds that the worker is entitled to wage loss benefits after August 16, 2022.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 18th day of July, 2023