Worker v. Employer, 2023 CanLII 122891

20230140

REPRESENTED by:

HEARD by:

DATED:

OCTOBER 17, 2023

ISSUES

The worker is objecting to the following decisions:

The Case Manager’s (CM) decision dated April 17, 2023 in which entitlement to benefits for central serous retinopathy, blepharitis, and Meibomian gland dysfunction was denied.
The CM’s decision dated January 30, 2023 in which it was determined that the worker achieved maximum medical recovery (MMR) from their compensable right eye injury by October 1, 2022 with no ongoing or permanent impairment.
The Eligibility Adjudicator’s (EA) decision dated September 28, 2022 in which entitlement to loss of earnings (LOE) benefits after September 13, 2022 was denied.
The CM’s decision dated January 30, 2023 in which entitlement to partial or full LOE benefits after October 1, 2022 was denied.

BACKGROUND

On September 10, 2022, this courier driver sustained an injury to their right eye and face when they were struck by the handle of a truck door. Entitlement to benefits was granted for a laceration to the worker’s face and right eye. Their eyeglasses were also damaged in the accident.

The worker returned to work on September 28, 2022, performing modified work duties at reduced hours.

As explained in correspondence dated September 28, 2022, LOE benefits were only approved to September 13, 2022. The EA determined that the worker could have returned to modified work by this date.

On January 30, 2023, the CM notified the worker that their compensable injury was determined to have resolved by October 1, 2022 with no ongoing or permanent impairment. Entitlement to partial LOE benefits from October 1, 2022 was denied. Entitlement to full LOE benefits from January 14, 2023 was also denied.

These decisions were reconsidered and upheld on April 17, 2023. At that time, the CM also denied entitlement to benefits for central serous retinopathy, blepharitis, and Meibomian gland dysfunction.

Worker’s Position

The worker representative did not make any submissions or arguments for my consideration.

Employer’s Position

The employer states that they agree with the decisions made by the EA and CM.

AUTHORITY

Operational Policies

Published

11-01-01 Adjudicative Process

11-01-05 Determining Permanent Impairment

18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) 19-02-07 RTW Overview and Key Concepts

November 3, 2008

November 3, 2014

September 1, 2021

April 9, 2021

ANALYSIS

I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Secondary Diagnoses

The worker is not entitled to benefits for central serous retinopathy, blepharitis, and Meibomian gland dysfunction under this claim. These diagnoses are not compatible with the accident history.

WSIB Operational Policy 11-01-01 Adjudicative Process states in part that workers are entitled to benefits for personal injuries sustained in a workplace accident. The diagnosed condition must be compatible with the mechanism of injury.

On September 10, 2022, this courier driver was struck in the right eye and face area by the handle of the rear door of a truck. They first sought medical attention at the hospital. The hospital reports are not on file and were not requested. The hospital physician completed a Health Professional’s Report (Form 8). The worker was diagnosed with a contusion.

Subsequent to the date of injury, the worker complained of ongoing pain and blurriness in their eye. An optometrist assessed the worker on September 27, 2022. The optometrist reported that the worker did not sustain an acute injury to the retina. It was noted that the worker had also been referred to a specialist for further evaluation.

Dr. Sivachandran, ophthalmologist, evaluated the worker. In their February 21, 2023 report, the specialist did not identify an acute retinal injury. The clinical findings were said to be consistent with central serous retinopathy. Dr. Sivachandran explained the nature and course of this condition to the worker. Stress reduction was advised. The report states that the worker was seen again and there had been some improvement. A follow-up visit was planned for October 2023. Dr. Sivachandran did not express that the central serous retinopathy was related to the workplace accident.

Dr. Kwok, ophthalmologist, assessed the worker on March 16, 2023. The worker complained of pain, tearing and light sensitivity. The findings from the examination were essentially the same for both eyes. The worker was diagnosed with blepharitis and Meibomian gland dysfunction. Dr. Kwok did not relate these conditions to the workplace accident in their report.

There is no clinical evidence to support that the worker’s central serous retinopathy, blepharitis, and Meibomian gland dysfunction were caused by the workplace accident and injury to their right eye. These conditions are not typically associated with an acute injury or resulting from a strike to the eye area. As compatibility between these diagnoses and the mechanism of the workplace accident is not established, entitlement to benefits related to these conditions is not in order under this claim.

Maximum Medical Recovery

Based on the available medical evidence, I find that the worker achieved maximum medical recovery (MMR) from their compensable right eye injury by February 21, 2023 with no ongoing or permanent impairment.

Policy 11-01-05 Determining Permanent Impairment states in part:

A work-related impairment is considered permanent when it continues to exist after maximum medical recovery (MMR) has been reached.

A recovery from the work-related injury/disease is considered to have been made if there is no evidence of an ongoing work-related impairment at the time MMR is reached.

Under the policy, MMR “means that a plateau in recovery has been reached and it is not likely that there will be any further significant improvement in the work-related injury/disease.”

The worker’s family doctor (FD) continued to report that the worker had some limitations due to their eye injury through to March 2023. The worker was generally restricted from prolonged exposure to cold weather. They were awaiting their assessment with the ophthalmologist in early 2023.

However, Dr. Sivachandran’s report of February 21, 2023 does not support that the worker had an ongoing impairment related to the compensable injury. They did not diagnose the worker with a condition related to the workplace accident following their assessment. The same applies to Dr. Kwok’s report of March 16, 2023. The FD cleared the worker for full unrestricted job duties after they were seen by Dr.

Kwok.

Therefore, the clinical evidence supports that the worker had achieved MMR from their work-related eye and facial injuries by February 21, 2023 with no ongoing or permanent impairment.

LOE Benefits

The worker is entitled to further loss of earnings (LOE) benefits in this claim, as will be outlined below.

Policy 18-03-02 Payment and Reviewing LOE Benefits (Prior to Final Review) states in part that workers who experience a wage loss due to the work-related impairment are entitled to LOE benefits. Regarding the payment of full LOE benefits, the policy states:

If the nature or seriousness of the injury/disease completely prevents a worker from returning to any type of work, or if the worker is able to return to some form of work but the WSIB determines no suitable work is available, the worker is generally entitled to full LOE benefits providing the worker co-operates in health care measures and all aspects of the return-to-work (RTW) process.

The worker was injured on September 10, 2022. They sought medical attention that day. A CT scan was performed. Based on their assessment, the initial treating physician recommended that the worker remain off work until September 15, 2022.

The worker first saw their FD on September 13, 2022. The worker’s lacerations were healing. There was bruising around the eye. The FD referred the worker for another opinion. They completed a Functional Abilities Form (FAF) stating that due to pain and facial numbness, the worker was not to commence a return to work (RTW) program until September 28, 2022, and this was to be on reduced hours. The FD restated this in a medical note dated September 22, 2022.

The worker saw their FD again on September 24, 2022. They complained of having blurry vision. The worker saw the optometrist on September 27, 2022.

Based on the available information, the worker was unable to work due to their compensable injuries until at least September 28, 2022. The physician at the hospital directed them to remain off work for five days. The worker saw their FD several times after this, who, based on their evaluation of the worker, recommended that they remain off work. The worker was referred for multiple assessments. It was reasonable for them to remain off work as directed by the hospital physician and the FD.

Policy 19-02-07 RTW Overview and Key Concepts states in part that the RTW process requires the integration of activities between the workplace parties with guidance and assistance from the WSIB. “Suitable work” is described under the policy as follows:

Suitable work means post-injury work that is safe, productive, consistent with the worker's functional abilities, and that restores the worker's pre-injury earnings, to the greatest extent possible.

The employer offered the worker modified work duties on the date of accident. This was prior to receiving any medical information regarding the worker’s capabilities or restrictions. The work was described as “computer-based online safety training.” It is questionable as to whether this work would be suitable for the worker’s eye injury in the acute phase of recovery. The worker was permitted to take breaks and work at their own pace. The work was available for four hours per day. It is not known for how many total hours this work was available. The employer did not indicate if the worker would experience a wage loss while performing this work at reduced hours.

The worker reportedly returned to work on September 28, 2022, performing the computer-based training. Full LOE benefits are in order to this date.

The worker contacted the WSIB on October 27, 2022 to report that their supervisor advised them that the online training they had been performing had been exhausted by October 18, 2022 so the worker was not to come into work as of this date. As per memorandum X dated November 2, 2022, the employer confirmed that they only had the computer work available to the worker from September 28, 2022 to October 18, 2022.

I note that memorandum Y dated January 27, 2023 states that the employer then reported that the worker returned to modified work at full hours for one shift on September 28, 2022. They reportedly then worked four hours per day on their pre-injury job from October 1, 2022 until January 14, 2023. There is no clear documentation in the claim file as to what actually happened regarding the worker’s return to work plan. Unfortunately, there were no RTW interventions in this claim provided by the WSIB. However, the information in memorandum Y is inconsistent with

the rest of the claim file documentation, but was used to determine the worker’s benefits, should read that the worker returned to work as a driver at four hours per shift on November 1, 2022, not October 1, 2022. This will need to be confirmed by Operations. Full LOE benefits are in order from October 18, 2022 to the confirmed return to work date.

Note that the worker representative did not submit any information that could assist in explaining what happened regarding the worker’s RTW program. The employer’s submission dated September 15, 2023 summarizes information already on file.

The worker submitted a detailed letter dated February 6, 2023 in which they outlined some of the discrepancies in the claim file documentation and the letters from the Case Manager (CM). The issues raised by the worker were not clarified or confirmed.

Regarding the payment of partial LOE benefits, policy 18-03-02 states in part:

Workers who are able to return to some form of work, but who are unable to restore all of their pre-injury average earnings in suitable and available employment, are generally entitled to partial LOE benefits. Examples include but are not limited to:

workers who return to work at reduced hours or wages, and
workers who are capable of work in a suitable occupation (SO) at earnings that are less than pre-injury average earnings.

As outlined above, the medical evidence supports that the worker remained partially disabled as a result of their work-related eye impairment through October 18, 2022. They were participating in their RTW program and were awaiting further medical assessments for their condition. They were not fit to perform the essential duties of their pre-injury job.

It is not clear in the claim file documentation if the employer paid the worker their full wages from September 28, 2022 up to and including their last day worked of October 17, 2022. If the worker was only paid for time worked, then they experienced a wage loss due to the work-related impairment and are entitled to partial LOE benefits for this period.

As the employer had no suitable modified work available to the worker as of October 18, 2022, the worker is entitled to full LOE benefits from this date. The FD indicated on an FAF dated October 15, 2022 that the worker still had limitations related to their eye injury. There is no information on file regarding the physical demands of the worker’s pre-injury job duties, but I presume that these were not consistent with the worker’s restrictions or the employer would not have told them not to come into work.

It is also not clear what exactly happened after the worker was told not to come into work as of October 18, 2022. The worker states that they returned to their pre-injury job duties on reduced hours sometime in November 2022. Based on the worker’s letter, the return to work date may have been November 1, 2022. Perhaps the information in memorandum Y that I stated was inconsistent with

Both the worker and employer reported that the worker continued to work four hours per shift on their pre-injury job duties until January 14, 2023. There were no RTW interventions offered to attempt to

progress the worker’s hours. There is no evidence to support that the employer offered a graduated work schedule to the worker. The claim file information does not indicate definitively whether the worker was paid their full wages during this time or only for their time worked. The worker was awaiting further consultations for their eye injury. Their FD continued to support that the worker limit their exposure to cold during this period. As there is no information on file regarding the demands of the worker’s job duties, it is unclear how much cold exposure was involved in their job tasks. I presume that they would not be cold while driving and would only potentially be exposed to cold while outside of the truck delivering or picking up packages. They also reported that they have to connect the trailer to the truck.

The worker reported that they stopped working again on January 14, 2023. They said that cold exposure had increased their eye pain. Their FD completed an FAF recommending that the worker work indoors. The employer reported that the worker stopped working to the CM. They did not indicate that they offered the worker any alternative work duties or accommodation based on the FAF dated January 17, 2023. The worker said that their supervisor told them that someone from the employer would contact them when indoor work was identified for them.

If the worker was only paid for time worked between their return to work date on or around

November 1, 2022 and January 14, 2023, then partial LOE benefits are in order. The worker continued to have restrictions that prevented them from performing their pre-injury job duties at full hours. There were no graduated RTW plan in place or RTW interventions offered. If there was a wage loss, then it was due to the work-related injury. If the worker was paid their full wages, then LOE benefits would not be payable.

It is not indicated in the claim file when the worker returned to work again, on what duties, at what hours and at what wages. As stated above, I determined that MMR was achieved by February 21, 2023. As the worker had restrictions after January 14, 2023, and there is no evidence to support that suitable work was available to them, full LOE benefits should be paid from this date. Any partial or full LOE benefits between January 14, 2023 and February 21, 2023 will have to be determined by Operations when the worker’s RTW details from this period are confirmed. Consistent with the rest of my analysis outlined above, full or partial LOE benefits related to the worker’s impairment are in order.

As per policy 18-03-06, LOE benefits cease when the worker is no longer impaired as a result of the compensable condition. The worker is not entitled to any LOE benefits after February 21, 2023.

CONCLUSION

The worker is not entitled to benefits for central serous retinopathy, blepharitis, and Meibomian gland dysfunction under this claim.
The worker achieved MMR from their compensable injuries by February 21, 2023 with no ongoing or permanent impairment.
The worker is entitled to full or partial LOE benefits from September 13, 2022 to

February 21, 2023 as outlined in the body of my decision and pending information from the workplace parties regarding return to work dates, schedules, and wages paid while on modified work.

The objection is allowed in part.

DATED October 17, 2023

C. Marr

Appeals Resolution Officer Appeals Services Division