DECISION NUMBER:

20230025

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by: DATED:

H. MOHAMED, APPEALS RESOLUTION OFFICER NOVEMBER 28, 2022

ISSUES

The worker representative (WR), on behalf of the worker, objects to the Eligibility Adjudicator’s (EA) decision dated July 31, 2018, which denied initial entitlement to right eye retinal detachment.

BACKGROUND

Sometime around June 11 or June 12, 2018, this then mid 60s year old garden centre manager was reaching overhead to remove a 40-pound bag of mulch. According to the worker’s initial statement to the employer and the Workplace Safety and Insurance Board (WSIB), the bag of mulch ripped and some of the mulch/soil fell into their right eye. The bag fell in front of the worker but did not strike them. While the worker mentioned the incident to their supervisor immediately, they did not formally report the work- related injury to their employer until June 25, 2018.

The worker saw an optometrist on June 27, 2018, and they were diagnosed with superior and inferior retinal detachments with five (5) horseshoe tears. The worker was referred to Dr. Hooper, ophthalmologist, and underwent emergency eye surgery on June 29, 2018.

After obtaining a medical opinion, the EA denied entitlement to the retinal detachments on the basis that it was not medically compatible with the accident history described by the worker. This was communicated in a decision dated July 31, 2018,

The worker objected to this decision and provided additional medical documentation to support their claim. Additionally, the worker now reported that the bag of mulch had actually struck them on the right side of their face as it fell.

In a reconsideration decision dated December 28, 2018, the EA did not accept the worker’s revised accident history and upheld the previous decision. The worker has objected to this decision.

Accordingly, the only issue I need to determine in this appeal is whether the worker has initial entitlement to a right retinal detachment under this claim.

AUTHORITY

Operational Policy Manual

Published

11-01-01 Adjudicative Process

November 3, 2008

ANALYSIS

For the reasons that follow, I find the worker does not have initial entitlement to right eye retinal detachment. In reaching this decision, I have considered the case record, the submissions made by the WR and employer representative (ER), as well as the relevant Operational Policy.

In their submission dated October 27, 2022, the WR argues that the worker was struck on the right side of their face by a 40-pound bag of loose mulch, which resulted in the worker developing a traumatic retinal detachment. The WR acknowledges that while the worker did not initially indicate being struck by the bag when they visited their optometrist on June 27, 2018, this was only because the worker’s main concern was having irritated eyes and blurred vision. However, the worker did tell Dr. Hooper they were hit in the eye, and this was confirmed by Dr. Hooper in their letter dated September 12, 2018. The WR submits that the medical opinion provided by Dr. Rathee was based on an incorrect understanding of the accident history. The WR notes Dr. Rathee did not have a copy of Dr. Hooper’s September 12, 2018 report when they rendered their opinion. As such, the WR believes that initial entitlement should be accepted.

The ER essentially requests that the Operating Area decision should be upheld. The ER notes that the mechanism of accident changed only after the worker’s claim was denied. All the contemporaneous documentation does not support the worker’s revised accident history that they were struck in the face by a bag of mulch. The ER submits that Dr. Rathee is a specialist in ophthalmology and that their opinion on causation should be given significant weight. Conversely, no weight should be given to Dr. Hooper’s September 14, 2018 report, which was provided three months after the accident and after the worker’s claim that already been denied. Nonetheless, the ER argues that even if the bag had struck the worker’s face such a mechanism would not result in a detached retina.

Policy 11-01-01 (Adjudicative Process), states that a five-point check system is used to adjudicate initial entitlement claims. Each point must be satisfied for initial entitlement to be allowed. There must be an employer, a worker, a personal work-related injury, proof of accident and compatibility of the diagnosis to the accident or disablement history.

There is no dispute that we have an employer, a worker, evidence of a personal work-related injury, as well as proof of accident. The only criterion under contention is whether there is compatibility between the diagnosis and the accident history. In order to properly address compatibility, the first step is to determine what is the correct accident history or mechanism of injury.

What is the accident history?

Two different accident histories have been documented in the case record. The first accident history is that the worker got mulch/soil in their right eye while trying to remove a bag of mulch that was overhead. The bag fell, but did not strike the worker. The second accident history is that in addition to the soil/mulch entering the right eye, the 40-pound bag also struck the worker on the right side of their face resulting in the subsequent retinal detachment.

Based on the preponderance of the evidence, I find the first accident history reported by the worker is likely the most accurate.

From a chronological perspective, the first documented record of the accident history is provided by Dr. Bray, optometrist. According to her chart record dated June 27, 2018, Dr. Bray documented that approximately 2-3 weeks ago the worker got some soil/mulch in their right eye while working in the garden centre. The worker used an eyewash station at work and the eye felt better. However, ever since then, the worker said their vision in that eye was a “bit off.” Upon further questioning, Dr. Bray

noted the worker said they were seeing “floaters” for a few weeks as well as a few incidences of flashing, “but not at the time.” Dr. Bray documented that there was no history of any trauma to the eye and no evidence of any prior eye surgery or issues. Following an eye examination, Dr. Bray confirmed a diagnosis of retinal detachment and made an urgent referral for the worker to see Dr. Hooper the following day.

The worker was seen by Dr. Hooper on June 28, 2018, and they underwent a retinal detachment repair on June 29, 2018. There is no contemporaneous documentation for either visit.

The second documented record of the accident history was provided by the employer. According to the Employer’s Report of Injury (Form 7) dated June 28, 2018, the worker reported an injury to them on June 25, 2018. The worker stated that while they were getting mulch from the top of a skid, debris went into their eye resulting in right eye discomfort. There was no mention on the Form 7 of the worker being struck in the face by the bag of mulch.

The worker completed a Worker’s Report of Injury (Form 6) on July 9, 2018. It should be noted that this form was completed 10 days after the worker saw Dr. Hooper and had surgery. On this Form, the worker indicated that “debris from top of mulch pallet struck me in eye. It hurt a lot and I had blurry vision which did not improve.” The worker did not make any mention of the mulch bag striking their face or head.

On July 10, 2018, the worker spoke to a customer service representative (CSR) who documented the conversation on the CSR Eligibility Template. When asked to explain the workplace injury, the worker said they were getting down a bag of mulch that was 8 feet high on a shelf (the worker said they are 6’4” tall). The worker was on “tip toes” while trying to reach for the bag. The worker said the bags of mulch weigh approximately 40 pounds and can easily tear due to the cheap plastic. As they were taking the bag of mulch off the edge of the shelf, debris from the bag fell and landed in the worker’s eye due to a tear in the bag. The worker said that when the debris fell into their eyes, it startled them and the mulch bag fell in front of them. The worker said that it hurt a lot and they went directly to the eyewash station and washed their eye as best as they could. The worker said they reported it to the assistant manager and continued working, but with cloudy vision. The CSR did not document the bag striking the worker.

Once the worker’s claim was denied on the basis that a retinal detachment could not be accepted in the absence of ocular trauma, a revised accident history was presented. The worker submitted an Intent to Object Form on September 20, 2018, stating that a 40-pound bag of mulch fell from a distance of 9 feet “onto my face and eye (3 feet above me).” The WR submitted a package on December 11, 2018, and requested a reconsideration. Included in this package was the worker’s timeline of the injury, which now stated that on June 25, 2018, a 40-pound bag of mulch fell from a distance of 3 feet striking them on the right side of the face sending debris into the right eye along with the force of the weight of the entire bag.

It is difficult to accept this amended version of the accident history because it is incongruent to all the previous statements the worker provided to Dr. Bray, to their employer, and to the CSR. The fact that all

three individuals documented very similar statements independent of each other leads me to believe that the first version of the accident history is likely the most accurate. I cannot ignore the fact that

Dr. Bray documented that the worker had not experienced any trauma to the eye, which suggests the worker was specifically asked this question. Similarly, it is implausible to accept that the CSR went to the trouble of obtaining and documenting a detailed statement from the worker only for them to omit the most crucial part of the statement i.e. the bag striking the worker’s face. The fact that the CSR took the trouble of documenting that the bag fell in front of the worker provides further proof that the falling of the bag and where it landed was discussed during the conversation. The fact that the CSR statement and Dr. Bray’s records are very similar leads me to conclude that the worker was likely not struck in the face by the bag of mulch. It is worth noting that Dr. Bray’s report was not on file when the CSR took the worker’s statement.

This brings me to Dr. Hooper’s letter dated September 12, 2018. It appears this letter was specifically requested by the worker or WR. Dr. Hooper states that the worker was seen on June 28, 2018 and that the history at the time “was the worker was struck on the head and in the right eye by bag of mulch.”

I have a number of concerns with this letter. Firstly, it was written approximately three months after the worker initially saw Dr. Hooper. Secondly, Dr. Hooper did not provide his clinical notes for the initial visit, and therefore, I am unable to verify what was actually reported contemporaneously. Thirdly, even if the worker did report this accident history to Dr. Hooper, I am unable to reconcile how two healthcare practitioners could have provided such inconsistent accident histories in the span of 24 hours. How did the worker go from reporting that some debris fell in their eye without any trauma to reporting that they were struck on the head and face by a bag of mulch that weighed 40 pounds? This is more than a simple discrepancy in documentation. What is even more confusing is why did the worker revert to the original accident history on the Form 6 and in their initial statement to the CSR? The conversation with the CSR and the completion of the Form 6 both occurred approximately one week after the assessment with Dr. Hooper. Assuming the worker told Dr. Hooper that a bag of mulch fell and hit them on their face, why would the worker not just reiterate that same accident history going forward? Why revert back to the less traumatic accident history of having soil in the eye? None of these questions have been properly addressed. As a result, the only reasonable conclusion I can reach is that the accident history documented by Dr. Hooper appears to have been provided at the behest of the worker and was not the accident history the worker likely reported when they were seen on June 28, 2018.

Finally, I would be remiss if I did not point out that being struck in the face by a 40-pound bag falling from a distance of 3 feet overhead would cause significant injuries and possibly even facial fractures. No such injuries have been documented or claimed.

For these reasons, I find that the correct accident history in this case is that the worker had some mulch/soil fall into their right eye sometime around June 11 or June 12, 2018, while trying to remove a bag of mulch from an overhead shelf/skid. I do not accept the worker was struck in the face by a 40 pound bag.

Is the diagnosis compatible with the accepted accident history?

Since I have not accepted that the worker was struck in the face/head with a 40-pound bag of mulch, I must now determine whether soil/mulch entering the right eye could have caused or significantly contributed to the development of a retinal detachment requiring surgery.

According to medical literature, a retinal detachment describes a situation where a thin layer of tissue (the retina) at the back of the eye pulls away from its normal position. As people get older, the vitreous liquid inside of the eyes starts to shrink and get thinner. As the eye moves, the vitreous moves around

on the retina without causing problems. However, sometimes the vitreous sticks to the retina and pulls hard enough to tear it. When that happens, fluid passes through the tear and detaches the retina. The three main kinds of retinal detachments are described as follows:

• Rhegmatogenous - this is the most common kind. It happens because of a retinal tear. Age usually causes it, as the vitreous gel that fills the eyeball pulls away from the retina. You can also have this following a traumatic eye injury, surgery, or nearsightedness.

• Tractional - this happens when scar tissue pulls on the retina, usually because diabetes has damaged the blood vessels in the back of the eye.

• Exudative - this kind happens when fluid builds up behind the retina, but there is no tear. The fluid pushes the retina away from the tissue behind it. Common causes include leaking blood vessels and swelling because of conditions such as an injury, inflammation, or age-related macular degeneration.

Policy 11-01-01 states that a decision-maker can seek a medical opinion in order to determine whether a diagnosis is medically compatible with the accident history. In this case, the EA correctly referred the claim to a medical consultant for an opinion on causation.

The claim was reviewed by Dr. Rathee on July 31, 2018. According to the College of Physicians and Surgeons of Ontario, Dr. Rathee is an ophthalmologist. It should be noted that Dr. Rathee gave his medical opinion prior to the worker providing their revised accident history. In other words, Dr. Rathee was asked to provide a medical opinion on whether the worker could have developed superior and posterior retinal detachments from having mulch/soil fall into their right eye. After reviewing all the information on file, Dr. Rathee concluded that the mechanism of injury described by the worker would not be consistent with a retinal detachment. While he acknowledged that retinal detachments can be related to ocular trauma, the details in this case (garden mulch accidentally hitting the worker’s eye) could not be reasonably considered compatible.

Given that Dr. Rathee is a certified ophthalmologist, I find he has the necessary expertise and qualifications to provide an opinion concerning eye injuries. I see no reason to question his opinion on the issue of medical compatibility. I note that the WR did not provide an alternative medical report that would challenge the rationale provided to Dr. Rathee. Instead, the WR only challenges the opinion on the grounds that Dr. Rathee had an incorrect understanding of the accident history. However, as I have already stated, I do not accept the worker’s revised accident history. As such, I find that Dr. Rathee had the correct accident history when he rendered his opinion.

The only other opinion on medical compatibility is provided by Dr. Hooper in his letter dated September 20, 2018. However, I do not place much weight on this opinion because it is based on the inaccurate history that the worker was struck in the head and face by a 40-pound bag of mulch.

Nonetheless, I do feel it is important to highlight that even with the revised accident history, Dr. Hooper does not emphatically state that the retinal detachment was caused by the trauma. Rather, he cautiously surmises that there might be a “possible causality.” However, the test to determine work-relatedness is not on a balance of possibilities, but probabilities. In my view, it is not probable even with the revised accident history that the retinal detachment was caused by the work injury.

I acknowledge the WR’s argument that the worker had no issues with their eyes prior to the work accident. I also note the worker had an eye exam approximately six months prior to the work injury that did not identify any significant concerns (though it is unclear whether the worker underwent a full retinal examination during the January 2018 examination). However, the fact that no other cause has been

identified for the retinal detachment is of marginal relevance. As documented in the medical literature, there are various reasons and factors that can cause or predispose one to develop a retinal detachment. The majority of those factors are not related to trauma. The fact that there exists a temporal relationship between the injury and the development of a retinal detachment, does not automatically establish a causal relationship. In the absence of a medical opinion stating otherwise, I am not persuaded on a balance of probabilities that the worker’s retinal detachment was caused by soil/mulch entering the worker’s right eye on or around June 11, 2018.

For these reasons, I must deny the worker’s appeal.

CONCLUSION

The worker does not have initial entitlement to right retinal detachment. The worker’s appeal is denied.

DATED November 28, 2022

Mr. H. Mohamed

Appeals Resolution Officer Appeals Services Division