Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
Claim: 20210012
Objecting Party: Worker
Represented by: Self
Respondent: Employer (Not Participating)
Hearing: Hearing in Writing
Heard by: K. MacMillan, Appeals Resolution Officer
Issue
The worker is objecting to the Eligibility Adjudicator’s decision of November 17, 2020 denying initial entitlement to health care benefits and loss of earnings (LOE) benefits for a foreign body in the left eye.
Background
In July 2020, this then 35-year-old framer/labourer was on a job site when he attempted to wipe something out of his left eye. The worker continued to perform regular duties. The worker reported the injury on October 22, 2020 and declined the employer’s verbal offer of modified duties. Lost time began on October 23, 2020. A Workplace Safety and Insurance Board (WSIB) decision letter dated November 12, 2020 allowed the claim for health care benefits for an eye injury.
The Eligibility Adjudicator’s decision letter of November 17, 2020 overturned initial entitlement after determining that medical attention, reporting, and lost time did not take place until October 2020. The decision letter denied entitlement to LOE benefits from October 23, 2020 ongoing. A reconsideration letter dated December 18, 2020 confirmed the denial of initial entitlement. The reconsideration letter also upheld the denial of entitlement to LOE benefits as there were no medical restrictions or limitations.
Authority
Operational Policy Manual
Published
11-01-01 Adjudicative Process 11-02-02 Lost Time Claims 11-01-04 Determining the Date of Injury 15-02-01 Definition of an Accident 15-02-02 Accident in the Course of Employment 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-01 Work Reintegration Principles, Concepts, and Definitions
November 3, 2008 January 2, 2015 February 15, 2013 October 12, 2004 October 12, 2004 January 2, 2018 December 3, 2012
Analysis
I find that initial entitlement to health care benefits is in order. There is no entitlement to LOE benefits. My reasons for this finding are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.
Initial entitlement
In my opinion, initial entitlement is appropriate as a disablement injury for the diagnosis of foreign bodies in the left eye.
Policy 11-01-01 sets out five factors that must be present in order to allow a claim:
- Is there an employer?
- Is there a worker?
- Was there a personal work-related injury?
- Is there proof of accident?
- Is there compatibility of diagnosis to disablement history?
There is general agreement that the first two criteria are met. Policy 15-02-02 states that a personal injury by accident occurs in the course of employment if the factors of place, time, and activity suggest that the accident was work-related. The Employer’s Report of Injury (Form 7) signed November 10, 2020 indicates that the worker is claiming an accident that occurred on a work/job site. The employer’s verbal statement of November 17, 2020 describes the worker’s pre-injury duties as moving lumber, cleaning up the construction site, and general labour. While the Worker’s Report of Injury (Form 6) is not on file, the ophthalmologist’s report of March 3, 2021 documents the worker’s indication that he felt something go into his left eye while working at a construction site. Therefore, I accept that the worker is claiming a personal work-related injury.
Proof of accident
I am satisfied that there is sufficient proof of accident.
Policy 11-01-01 provides the authority for decision-makers to consider if a disablement situation exists and if there were any delays in the onset of symptoms or in seeking health care attention. I have also considered that Policy 15-02-01 states that the term accident includes disablements. Policy defines disablements as including both a condition that emerges gradually over time and an unexpected result of working duties. In either case, Policy 15-02-01 requires the disablement to arise out of and in the course of employment.
I appreciate that the case record contains the employer’s verbal statement that it was not until October 22, 2020 that he reported getting something in his eye at work in July 2020. According to the employer, the worker described wiping his eye and continuing to perform full regular duties without complaint. The worker’s verbal statement of November 16, 2020 indicates that he informed his foreman two weeks prior to the first medical assessment of September 22, 2020. While I recognize that this date is still several months after July 2020, I must consider that the worker’s verbal statement confirms that he called the optometrist in July 2020 but that the earliest available appointment was September 22, 2020 due to the coronavirus pandemic.
Additionally, I observe that the worker does not identify a specific event or date that the foreign body went into his left eye. Instead, I accept the employer’s indication that the worker reported that the eye irritation occurred sometime after initially wiping his left eye. I observe that the optometrist’s report of September 22, 2020 documents the worker’s description of experiencing a foreign body sensation in his left eye many months ago but that his sensitivity to light only began approximately two weeks ago. Based on this evidence, I accept that the worker is claiming a gradual onset disablement injury of the left eye.
Policy 11-01-04 confirms that the date of injury can refer to the date of an actual accident, of first medical attention, or of diagnosis. In a gradual onset disablement claim, the date of injury is established using the earliest of either the date of first medical attention which led to the diagnosis, or the diagnosis. In the case before me, the first medical attention took place with the optometrist on September 22, 2020 prior to being referred to the ophthalmologist who assessed the worker on October 13, 2020. Due to ongoing left eye symptoms, the worker was then assessed by a corneal specialist (ophthalmologist) on February 24, 2021. The second ophthalmologist’s report dated March 3, 2021 provides the final diagnosis of several embedded pieces of fiberglass in the cornea of the left eye.
After considering all of the above-noted evidence, I find that the most appropriate date of injury in this gradual onset disablement claim is September 22, 2020 as this is the date of first medical attention that eventually led to the left eye diagnosis. Accordingly, I am not persuaded that there are unreasonable delays in reporting, medical attention, or lost time. For this reason, I accept that the policy criterion of proof of accident is met.
Compatibility
It is my opinion that the final criterion under Policy 11-01-01 is met.
Policy 11-01-01 requires clinical compatibility of diagnosis with disablement history. In other words, the medical diagnosis must be shown to have resulted from, or been caused by, the worker’s job duties.
The optometrist’s report dated September 22, 2020 confirms the referral