NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

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1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participant entitled to respond to this appeal: The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: [X] Form of Appeal: Oral hearing at Sydney on May 21, 2009 WCB Claim No.: [X] Date of Decision: May 25, 2009 Decision: The appeal of the November 28, 2008 Board Hearing Officer decision is accepted in part, according to the reasons of Appeal Commissioner K. Andrew MacNeil.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This decision addresses an appeal by a Worker* from a Board hearing officer decision dated November 28, In that decision, the hearing officer decided that the Worker was not entitled to an earlier effective date of a permanent medical impairment [ PMI ] rating of six percent, awarded as of October 23, The PMI rating was awarded as a consequence of a compensable injury suffered on January 9, In the accident of that date, the Worker suffered multiple injuries. The injury giving rise to his six percent PMI rating was to his right eye. The injury required, after the passage of the intervening 17 years, the replacement of the natural lens of his right eye with a prosthetic lens, which had developed a trauma-induced cataract. The six percent PMI rating was awarded because of the known deficits of the prosthetic lens. The Worker sought a PMI rating effective as of the date of the original injury. The Board awarded the six percent rating only because of the deficiencies of the prosthesis so, it reasoned, the rating should properly date from its installation. The Worker filed an appeal from that decision with this Tribunal. The matter was set down to proceed by way of an oral hearing, and the hearing was held on May 21, At the hearing, the Worker was represented by legal counsel, and was the only statutory participant present. While no new documentary evidence was submitted, testimony was received from the Worker. ISSUE AND OUTCOME: Is the Worker entitled to an earlier effective date for his PMI rating? While the Worker s six percent rating is properly effective as of the date of surgery, it appears that he should also have received a PMI rating effective shortly after the compensable injury, if only a nominal rating initially, which should have risen to the six percent level between the date of injury and the surgical replacement of his lens. The Worker s eye was permanently damaged as of the date of accident, and * This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 the function of that eye steadily deteriorated over the years until it reached the point at which his physicians determined that its lens should be replaced. The evidence of the eye s deterioration, on which the staged PMI rating increases should be based, is recorded in the medical record. ANALYSIS: The Worker was injured in a workplace accident on January 9, Although he suffered numerous, discrete injuries, the injury of concern in this appeal was that suffered to his right eye. The Board has accepted that the Worker s right eye suffered a severe blow in 1990, and that, ultimately, a cataract developed in the lens of that eye requiring surgical removal in The earliest reference in the medical record of an assessing eye specialist to cataract development is in the report dated March 1, 2004 by Dr. E. Ryba. Doctor Ryba noted in his report that the first evidence of lens change was noticed Oct.11/ In his January 27, 2004 report, Dr. C. D. Seamone noted that he had recorded on October 24, 2001 a very tiny posterior subcapsular cataract change. In his testimony before the Tribunal in this appeal, the Worker testified that, following recovery from the 1990 injury, he noticed that his right eye demonstrated increased tearing and blurriness (perhaps because of the increased tear production). He did not make any claim that he noticed early evidence of cataract development. Whether or not any particular inference is reasonable is a question of fact that depends on the circumstances of each case: Workers Compensation Board (N.S.) V. Johnstone et al., 1999 NSCA 164. Medical opinion evidence, while often of great assistance, is neither necessary nor necessarily conclusive. The Worker must show on the whole of the evidence that there is a reasonable inference of causation that is at least evenly balanced with any other possible inference (Canada Post Corporation v. Nova Scotia (Workers Compensation Appeals Tribunal), 224 N.S.R. (2d) 276 (C.A.)). Section 187 of the Workers Compensation Act, S.N.S , c. 10 as amended [ Act ] speaks of possibilities, and provides that where there is doubt on an issue and the disputed possibilities are evenly balanced, the issue shall be resolved in the worker s favour. In considering whether the Worker is entitled to a PMI rating earlier than the date of his lens replacement surgery, I have reviewed the Board s Guidelines for Assessment of Permanent Medical Impairment [the Guidelines ]. Sections 34 and 37 of the Act, together with Board Policy 3.3.2R1, authorize the use of the

4 4 Guidelines. The introduction to the Guidelines includes the following passages: Impairment is basically the loss of, the loss of use of, or derangement of any body part, system or function (after maximum medical recovery). The evaluation of permanent medical impairment is a medical matter which can be measured accurately and objectively. This is carried out by Board physicians, who have years of specialized training and experience in this particular field and occupational and compensation medicine.... Judgement ratings are made to determine a percent of impairment when the impairment does not fit into a specific category of the schedule. This, in general, relies on the experience of the examiner and the guideline values of this schedule. The figures in this guideline are the percentage of medical impairment of the total body with one hundred percent (100%) being the maximum rating. Therefore, multiple injuries are evaluated on the basis of the whole person. From the Worker s testimony about post-injury tearing and blurred vision, and the laterdocumented cataract development, I find it reasonable to conclude under s. 187 that the Worker did suffer the loss of, the loss of use of, or derangement of any body part, system or function (after maximum medical recovery) on the date of injury. Based on his testimony together with the medical record, it would appear likely that the initial, post-recovery impairment was exceedingly slight, probably increasing significantly only with the development of the cataract. The medical course of the Worker s eye deterioration appears broadly analogous to the development of post-traumatic arthritis in a knee joint, which worsens over time until a total knee replacement is warranted. In that situation, it is usual to see the Board assign an initial PMI rating for the damaged occasioned by the initial injury, and that is steadily increased to the point of surgery. In the instant case, while it might be thought that the state of the Worker s lens was not permanent until surgery, when the condition was cured, it is true that its deterioration stopped with surgery, but only because the clouded lens was removed by surgery. In other words, the deterioration of the Worker s lens reached a state of permanency immediately prior to surgery; surgery was not a treatment of the lens, much less a cure for its clouded state, any more than a prosthetic knee is a treatment for a diseased joint. These surgeries do not treat the diseased or injured body part, but substitute prosthetic replacements for them in an attempt to lessen the impairment caused by the injury or disease. From the date of the injury in 1990, the Worker s right lens was not going to be cured; it was permanently damaged, and gave rise to increasingly impaired vision.

5 5 As the medical record respecting the Worker s eye is not detailed, particularly before the reports of Drs. Ryba and Seamone referenced above, it may be wise for the Board to request an opinion from one of the Worker s treating physicians as to the probable rate of deterioration of the Worker s vision in his right eye, from the date of injury to the date of surgery, to provide a reasoned basis for instituting an earlier PMI rating. While the rating exercise is somewhat contrived, it does appear fairer than to assert that, from the date of injury in 1990 to the date of surgery in 2007, the Worker had suffered no permanent impairment. I note, finally, that the Worker testified that he has developed post-traumatic cataract in his left eye as well, so it would appear reasonable to have a treating specialist consider the deterioration of both eyes (as it is anticipated that the Worker will be seeking a separate PMI rating for his left eye). CONCLUSION: The appeal is allowed in part. While I do not accept the Worker s assertion that his eventual six percent PMI rating, awarded following the surgical replacement of the damaged natural lens of his right eye, should be made effective as of January 9, 1990 (being the date of injury), I do accept that his natural lens was permanently damaged on the accident date, and that the damage suffered was progressive. That is, the lens deteriorated steadily from the date of injury to the date of its surgical removal. The Worker merits some (even minimal) rating as of the date of injury to correspond to his immediate post-injury symptoms (excessive tearing, blurring of vision), which should be adjusted progressively to the point where it reached six percent on the date of lens replacement surgery. The Worker s existing medical reports, together with the judgement of a treating specialist, should provide the basis for the graduated award. th DATED AT HALIFAX, NOVA SCOTIA, THIS 25 Day of May, K. Andrew MacNeil Appeal Commissioner

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