WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090037
OBJECTION BY: Worker
EMPLOYER: Not participating
REPRESENTATIVES: Worker
HEARING DATE: July 09, 2009
ATTENDEES: Worker, Worker Representative
No participant form was received from the employer.
ISSUE
The worker objects to the denial of loss of earnings benefits to March 24, 2007, in relation to his March 1, 2007 workplace accident.
HOW THE ISSUE ARISES
On March 1, 2007, at the age of 29 and while then employed as a labourer building homes, the worker was removing a wood frame. As he was hitting a 2 by 4, a piece of the wood struck him in the left eye. Entitlement was accepted for a left eye contusion and corneal abrasion. The worker’s claim for a head injury, symptoms of vertigo, headaches and dizziness, were considered objectively medically unsupported, and denied.
With respect to the left eye injury, it was considered the worker was partially impaired following the accident, but had declined suitable modified duties immediately offered by his employer at no wage loss. As such, benefit entitlement was limited to health care and the claim for loss of earnings benefits to March 24, 2007, less a brief period of time worked, was denied
(March 19, 2007, September 21, 2007 and September 16, 2008 decisions).
The worker objected to the denial of LOE benefits and this matter is now under consideration.
AUTHORITY
Operational Policies:
18-03-02, Payment of LOE Benefits
TESTIMONY AND SUBMISSIONS
The worker testified under oath. The worker’s representative made submissions on the worker’s behalf.
The worker testified that he was employed as a labourer for a company involved in high rise condominium construction. His duties varied from day to day, but essentially consisted of cement work, carpentry, digging and the use of various hand and power tools.
On the date of accident, March 1, 2007, he was required to dismantle a temporary wall constructed of 2 by 4’s and studs. He was using an 8 to 10 pound sledge hammer. At one point when he swung the hammer with extreme force, a piece of 2 by 4 he hit swung back and launched with force, smashing into his left eye at a very high rate of speed. He experienced immediate severe pain and tearing of his left eye. He described the force like a 2 by 4 being placed in a sling shot, stretched to its maximum and launched just inches from the eye as hard as possible. This was not a minor injury nor just some debris getting into his eye, contrary to the employer’s reporting.
The worker indicated that a supervisor from another contractor saw him, and came over asking if he was all right. He responded that he was not, and was having great difficulty opening and closing his eye. He was brought to his own supervisor’s trailer, at which point he informed his immediate supervisor and also site supervisor of his eye injury. They then called a company foreman to drive the worker to the hospital where he sought first medical attention.
At the hospital he was seen by a doctor who advised he had suffered multiple corneal abrasions, something like 5 cuts across his eye. His eye was patched up and the foreman drove him back to the work site. There he spoke with his supervisor again about his injury, and was told he had better return to work the next day. His response was that he would try. The worker stated that there was no discussion about modified duties or what he would be doing. He left and as his eye was really sore, he chose to attend a Walk In Clinic. The doctor there instructed him to immediately attend the hospital’s emergency due to the severity of the injury and because they had an eye centre where he could be assessed by an ophthalmologist.
The worker stated that he attended the hospital where he was seen in emergency and then by Dr. Bindlish, an ophthalmologist. Dr. Bindlish confirmed pretty much what the hospital physician had said about the corneal abrasions to the eye, but he was also suffering from double vision because of the nature of the injury and he had to go see him a few days afterwards at his own clinic.
The worker indicated that on the date of injury he was experiencing severe eye pain associated with the impact and double vision. Other symptoms such as sensitivity to light, headaches, nausea and vomiting, started that evening and continued. Although the actual corneal abrasions only took a few days to heal, these did not cause him as much difficulty as the other symptoms. It was because of these other symptoms that he was off work.
The worker recalled that his next communication with his supervisor was when he received the written offer of modified duties dated March 2, 2007 and this was by mail. He could not recall when he received it, but he had it by the time he attended his own family physician on
March 5, 2007. That memo offered him modified duties in light cleaning/clerical work and inventory work.
He discussed the duties with his family physician. Noting his eye injury, the reports of the other doctors and specialist, and his symptoms of double vision, headaches, nausea, dizziness and vomiting, the family physician felt that a return to work in an office type setting would be a good start. The worker indicated that he was willing to try and do that type of modified work. He was given a March 5, 2007 doctor’s note authorizing a return to office work. He could not recall being referred to another ophthalmologist.
The worker noted that when he did return to work on March 6, 2007, it wasn’t office work at all. The very first job he was given was counting inventory in the company’s lock up, where power tools, supplies, and anything related to what they needed to do for work on the construction site, was stored. His work in inventory lasted about half an hour or so and, once done, he was sent back to his regular construction job. He was instructed to grab a ladder and drill a hole through a ceiling. He recalled working 8 feet high up on a ladder in the condition he was in, drilling holes through a ceiling because he had to patch up where concrete was going to be poured. He also was involved in scraping ice off stairs, repairing and renovating a washroom. The worker indicated that this was not the type of work his company had offered, nor what his doctor had recommended. In the condition he was in and for safety concerns, he should not have been doing these duties.
The worker stated that he quickly realized on that first day, that the company in fact did not have office duties or other modified work for him. So, over the next few days he tried to do what he could, knowing he needed the job and this was his only source of income. Yet, he continued to experience light sensitivity, nausea, headaches, dizziness and vomiting. He felt really sick and un-coordinated, like his equilibrium was off. He was just not well and, although he really needed the money, he felt it unsafe to continue with regular duties in the condition he was in.
Finally, on the third day, March 8th when he got to work, he went and asked his supervisor and site supervisor about what happened to the supposed office and clerical duties the company said they had for him. The response was that this was a construction site and there were no office duties. He felt the company was telling the WSIB that they had office work, while openly telling him there was no modified work. In actuality, they were just forcing him back to regular work and not abiding by his doctor’s return to modified work requisition. As he could not safely continue on regular duties, he left. Of the days he worked, he was only paid for March 6 and March 7, 2007.
The worker indicated that he had never suffered from any prior similar symptoms or injury as he sustained on March 1, 2007. He had no prior claims either. He considered himself an old school worker who does not take time off for no reason, and has always worked for as long as he can remember. He didn’t try to contact his union about the work he was assigned by his employer as he had never been put in a position like that before and just didn’t know what to do. He had however, spoken with his adjudicator who was made aware about his ongoing symptoms and the unsuitable work duties.
The worker stated that he attended his family physician again on March 10, 2007. The eye abrasions had healed, but that wasn’t the issue. He was still suffering from headaches, nausea, light sensitivity and just wasn’t ready to safely perform a regular work day. At the same time, he knew his employer wasn’t going to offer what they said they would. He felt stuck, frustrated and didn’t quite know what to do or where to go.
He saw his family physician again on March 24, 2007. He could not recall his condition then, but recalled that at some point near then he started getting better. It was just a matter of time for the symptoms which accompanied his eye injury – the headaches, light sensitivity, nausea, dizziness and vomiting – to resolve. After March 24, 2007, he had no further treatment and while he returned to regular duties on March 24, 2007, things at work were never the same after that as he felt his employer treated him differently, and just because of a legitimate injury. The worker stated that his symptoms fully resolved following his return to work and he has no lingering symptoms. He left the company’s employ in June 2007.
The worker’s representative referenced the worker’s testimony and medical evidence and submitted that the worker’s compensable injuries did not simply involve debris just entering his left eye, as reported by the accident employer. Rather, the mechanism of injury was significant in that the worker was struck with force in the left eye and head area with a 2 by 4 beam. It was noted that the injury was taken very seriously and, was significant enough to warrant two emergency hospital visits, a visit at a walk-in clinic and specialist assessment, all on the date of accident.
The worker’s representative referenced the medical reports and submitted they supported a left eye and head injury, with associated symptoms of double and blurry vision, headaches, nausea and photophobia. These symptoms continued at least until March 24, 2007, when the worker returned to regular duties. In the interim, as of March 5, 2007, the worker was medically cleared for modified duties in data entry or office work, which had been offered by his employer. Unfortunately, the duties which the worker actually performed for two days, were very different from the work promised by his employer, were unsafe, and exceeded his restrictions. The adjudicator was made aware of this as noted in memo #1. The worker’s representative submitted that as the worker continued to have restrictions for his compensable injuries up to March 24, 2007 and the offered work was not suitable, the worker ought to be entitled to full LOE benefits to that point, less the 2 days worked.
ASSESSMENT OF THE EVIDENCE
In arriving at a decision on the presenting issue, I have considered the evidence on file, testimony and submissions made.
In making a ruling on the host of symptoms and lost time being claimed by the worker, I find it necessary to address the severity and nature of the initial March 1, 2007 work injuries. In my judgement, the worker’s testimony and medical evidence suggest that the injuries suffered by the worker involved a left eye and minor head injury, and clearly more than just some debris entering his left eye.
The worker testified that he was struck at close range and with great force in the left eye with a piece of 2 by 4. The injury was such that he did not simply require flushing of the eye to remove simple debris, but rather he was escorted by his foreman to the local emergency department of the Trillium Hospital for assessment. The hospital’s report documented the worker’s chief complaint was a head injury and he had acute left eye pain. It was noted he had been hit in the head with a piece of wood. He was diagnosed with a left eye injury and left corneal abrasions. The hospital’s emergency physician also completed a Health Professional’s Report for the March 1, 2007 visit, and noted there was pain, abrasion and bruising, with a diagnosis of corneal abrasion.
There is indication on file that the worker then presented at a walk-in clinic also on
March 1, 2007, because of severe left eye pain. This assessment led the worker to be referred for yet another emergency visit at the Oakville Trafalgar Memorial Hospital, also on
March 1, 2007. In emergency, the worker was initially assessed by Dr. Martin, who repeated the worker had been hit in the left eye with a 2 by 4 beam. Dr. Martin’s assessment revealed several vertical linear abrasions of the left cornea as well as an isolated punctuate type abrasion. Dr. Martin diagnosed corneal abrasions as well as a left eye contusion. The worker was referred for orbital x-rays. He was authorized 2 days off work and referred for assessment with an ophthalmologist at the same Oakville Hospital. It is also relevant that the worker was provided with a head trauma sheet by hospital staff.
Also on March 1, 2007, the worker attended the arranged in hospital ophthalmologist examination, with Dr. Bindlish. Dr. Bindlish’s report noted the worker had presented with considerable left eye pain with tearing and light sensitivity. There was no previous ocular or medical history. Dr. Bindlish noted uncorrected visual acuity of 20/50 in the left eye as compared to 20/30 in the right eye. Slit lamp examination of the right eye was normal. In the left eye, however, there was some mild conjunctival infection superiorly with evidence of a conjunctival and corneal abrasion. Orbital x-rays were reportedly normal. The worker was diagnosed with corneal abrasions of the left eye. He was prescribed some artificial tears and eye drops, and he would be followed up in 4 days.
As the medical evidence reveals, on the date of accident, the worker was assessed by four separate physicians and specialists which collectively reported the worker having sustained a left eye injury of some significance and also a minor head injury.
The worker’s subsequent assessments were with his family physician. On the March 5, 2007 visit, the worker presented to his physician with complaints of double and blurry vision with associated headache, nausea and photophobia. On examination, the worker was diagnosed with a minor head injury, diplopia and healed corneal abrasion. He was advised to return to work on modified duties and, the worker was provided with a medical note authorizing a return to office duties. On March 10, 2007, the worker was seen with continued left frontal headaches, and associated nausea. He was advised to continue with modified/office duties. The worker was last assessed on March 24, 2007, with continuing headaches and associated vomiting. There was no photophobia or phonophobia.
In my judgement, the medical evidence supports that, in addition to the left eye corneal abrasions, the worker also suffered a minor head injury, in the March 1, 2007 workplace accident. This is consistent with the worker’s reported symptoms of double and blurry vision, headaches, dizziness, nausea and photophobia, as medically reported until March 24, 2007.
Given his symptoms, the worker was medically authorized 2 days off work by the emergency physician, and then a return to office type duties, on a March 5, 2007 note by the family physician. I accept the worker’s testimony, which I found consistent with his file evidence, that the duties he was provided as of March 6, 2007, were essentially within his regular labourer duties, involved working at heights, and not suitable or safe employment, for a worker suffering from a head injury and its associated symptoms. The worker made such complaints to his adjudicator as noted in memo # 1. Without suitable work and, as he remained partially impaired and active in his medical rehabilitation, the worker would be entitled to full loss of earnings benefits, from March 2, 2007 to March 24, 2007 (less 2 days worked).
CONCLUSION
The worker is entitled to full loss of earnings benefits from March 2, 2007 to March 24, 2007, less two days worked on March 6 and March 7, 2007.
The worker’s objection is, therefore, granted.
DATED August 18, 2009.
S. van Veen
Appeals Resolution Officer
Appeals Branch