WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 138/11

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 138/11 BEFORE: J. P. Moore: Vice-Chair HEARING: January 25, 2011 at Toronto Oral DATE OF DECISION: March 11, 2011 NEUTRAL CITATION: 2011 ONWSIAT 608 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated April 23, 2010 APPEARANCES: For the worker: J. Sacchetti, C.U.P.E. Local 1750 For the employer: Interpreter: Not participating Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 138/11 REASONS (i) Introduction [1] On November 19, 2009, the worker was in an elevator that dropped suddenly, falling two floors and then ascending back up. The worker sustained injuries to her back, shoulder and left foot, as well as bleeding in her right eye. The worker was off work for several days because of disability associated with the back and shoulder injury. The Workplace Safety and Insurance Board (the Board ) allowed the worker entitlement to loss-of-earnings ( LOE ) benefits for that lost time. [2] The worker did not initially seek entitlement for the eye. When she did, her claim was denied. She objected to that decision. In the decision under appeal, the ARO allowed entitlement to health care benefits only for an optometry appointment the day after the accident. The worker has appealed that decision. [3] The worker is seeking entitlement for a right eye injury. She is claiming LOE benefits for lost time associated with cataract surgery on the right eye from December 19 to 23, 2008 inclusive. She is also seeking ongoing entitlement to health care benefits for the right eye. (ii) The issues [4] The issue in this appeal is whether the worker has entitlement for a right eye injury beyond the limited health care entitlement the Board granted to the worker. (iii) The decision [5] On the evidence and submissions presented to me, I am persuaded that the worker does not have any further entitlement for the right eye. (iv) Analysis [6] I am denying the worker s appeal for two reasons: 1. there is no medical evidence to support a causal link between the eye injury the worker sustained on November 19, 2008 and subsequent right eye problems; 2. there are significant inconsistencies in the presentation of the worker s claim that show there is no continuity between the initial injury and the subsequent condition. [7] As noted above, as a result of the elevator accident on November 19, 2008, the worker had bleeding in one of her eyes. As will be seen in the discussion below, there was inconsistency in the worker s description of the affected eye. The Form 6 filed by the worker in respect of the eye injury referred to her left eye. In subsequent conversations the worker had with her Adjudicator, the worker reiterated that she was seeking entitlement for the left eye. It was not until May 19, 2009, six months after the accident, that the worker informed her Adjudicator that it was the right eye that had been affected and not the left. [8] The worker has a pre-existing bilateral cataract condition, the treatment of which perhaps coloured the information given by the worker to the Board. In her testimony, the worker downplayed this pre-existing condition. However, in a conversation with her Adjudicator on

3 Page: 2 Decision No. 138/11 March 19, 2009, the worker confirmed that she had pre-existing cataracts in her eyes. This fact appears also to be confirmed by a report from the worker s optometrist, Dr. R. Lapienis, dated November 10, In that report, Dr. Lapienis wrote to the Board indicating that he saw the worker on November 18, 2009, the day before the accident, for a routine exam which revealed a secondary cataract in the right eye and a worsening cataract in the left eye. The letter also indicated that a referral was made at that time to a surgeon, Dr. M. Brent. [9] In a report dated March 17, 2009, Dr. Brent indicated that he had been treating the worker for cataracts since 2005, and performed cataract extraction surgery on the right eye on December 8, He indicated that cataract surgery was to be performed on the left eye but the worker cancelled the surgery. Dr. Brent went on to state: We did not see her again until December 19, At that time, her corrected visual acuity was 20/150. [The worker] had an opacified capsule in the right eye and a dense cataract in the left eye. A Vag Capsulotomy was performed to the right eye on the same day. Left cataract extraction and intraocular lens surgery was performed on January 23, [10] Hence, as I interpret the above reporting, the worker had pre-existing cataract problems in both eyes, for which she underwent a routine examination the day before her accident, which resulted in an immediate referral to a surgeon, prior to the accident. The worker then underwent surgery on her right eye on December 19, 2008, and on her left eye on January 23, [11] The worker testified that she injured her right eye in the accident on November 19, 2008, a fact confirmed by Dr. Lapienis in his report of November 10, In that report, Dr. Lapienis stated that he saw the worker the day after the elevator incident and found: Subconjunctival hemorrhage [with] discomfort and tearing. Recommend a few days off work. [12] As noted above, the worker did not initially file a Form 6 with respect to an eye injury. When she did, she referred to a burst blood vessel/left eye. In subsequent discussions with her Adjudicator, the worker sought entitlement for what was then the upcoming surgery on the left eye. In a memorandum dated January 9, 2009, the Adjudicator noted a statement by the worker that she had injured her left eye in the elevator incident and that, when she saw Dr. Brent on December 19, 2008 for a pre-arranged appointment regarding the right eye, he noticed the left eye problem and recommended that she undergo cataract surgery on the left eye. The memorandum confirmed that the worker was seeking entitlement for the left eye in addition to the previously granted entitlement for the shoulder, back and left foot. [13] However, on January 13, 2009, the worker informed her Adjudicator that she had not injured her left eye in the elevator incident. She did not at that time indicate that she was seeking entitlement for the right eye. It was not until May 19, 2009 that the worker informed her Adjudicator that she was seeking entitlement for lost time related to the right eye surgery on December 19, [14] It was the worker s contention, in the course of her testimony, that, after the elevator incident, she continued to experience ongoing visual impairment affecting her right eye. In her opinion, this was related to the elevator incident.

4 Page: 3 Decision No. 138/11 [15] When asked why she initially sought entitlement for the left eye and not the right, the worker indicated that her Form 6 was completed by her manager and not by herself and that the manager made a mistake. [16] When asked about Dr. Lapienis indication that he referred the worker to Dr. Brent the day before the elevator incident, for bilateral cataracts, the worker stated that the optometrist report was incorrect. The worker testified that her appointment with the optometrist on December 18, 2008 was routine and that the optometrist did not make a referral to Dr. Brent until November 20, 2008, the day after the accident. [17] Because of significant inconsistencies in the worker s presentation of her claim, I am unable to consider her testimony to be reliable. The worker s testimony that she experienced ongoing problems with the right eye after the elevator incident is belied by the fact that she did not seek entitlement for the right eye until six months after the original accident. [18] Her testimony that she was not referred to Dr. Brent until after the elevator incident is contradicted by the report from her optometrist indicating that the referral to Dr. Brent was made the day before the incident and was made because of a bilateral cataract problem. [19] It is significant, in my opinion, that Dr. Brent s summary, on March 17, 2009, of his treatment of the worker contains no reference whatsoever to the elevator incident. In my view, had the worker considered that incident to be significant when she saw Dr. Brent on December 19, 2008, she would have mentioned that incident. I find that to be persuasive evidence of an absence of any continuity of symptoms involving the right eye after the elevator incident. [20] It is also noteworthy, in my opinion, that there is no supportive medical opinion from Dr. Brent, the worker s surgeon, of a causal link between the elevator incident and the condition for which the worker underwent surgery on December 19, In my opinion, the sequence of events establishes unequivocally that the surgery the worker underwent on December 19, 2008 was for a condition that pre-existed the elevator incident. [21] The only supporting opinion regarding a causal link between the elevator incident and the subsequent surgery is found in reports from Dr. Lapienis, dated October 26, 2009 and November 10, 2009, which indicate that it was possible that the elevator incident may have exacerbated the bilateral cataract condition. However, in the report of October 26, 2009, Dr. Lapienis conceded: I have no evidence to support this possibility. [22] In my opinion, that opinion has little weight since it concedes that it is no more than a possibility and that there is no evidence to support the possibility. In my view, the opinion is also inconsistent with the history provided by Dr. Lapienis which is of significant cataracts in both eyes requiring treatment by a surgeon. It is worth noting, in this regard, that, in his report of October 26, 2009, Dr. Lapienis recommended that the worker take a few days off work to give time for the discomfort to subside. In my view, that recommendation implies that the effect of the burst blood vessels in the right eye would likely be temporary.

5 Page: 4 Decision No. 138/11 [23] An opinion to the contrary of the worker s claim was provided by a Board Medical Consultant, Dr. J. Parker, an ophthalmologist. In a memorandum dated May 19, 2009, Dr. Parker wrote: There is no association between the elevator incident and the ongoing care for the pre-existing cataract and opacified capsule. The red patch on the eye may or may not be related to the elevator incident but is of no visual consequence and does not require treatment and recovers spontaneously. Therefore, I see no compatibility with the procedure done for her and no basis for a PI. [24] In his submissions on behalf of the worker, Mr. Sacchetti argued that Dr. Parker s opinion was biased. In my view, that argument has no merit. First, there is no evidence to support that allegation. Second, there is no persuasive medical evidence that contradicts Dr. Parker s opinion. In particular, there is no indication from the worker s surgeon that Dr. Parker s opinion is erroneous. [25] I am persuaded, therefore, on the basis of the above reasoning that the Board was correct in finding that the eye surgery the worker underwent on December 19, 2008 did not treat a right eye injury that the worker sustained in a workplace accident on November 19, I confirm the allowance of initial entitlement with respect to health care coverage for the visit to the optometrist on November 20, There is no additional entitlement for the right eye injury.

6 Page: 5 Decision No. 138/11 DISPOSITION [26] The worker s appeal is denied. I confirm the decision of the ARO dated April 23, DATED: March 11, 2011 SIGNED: J. P. Moore