Decision #94/06 - Type: Workers Compensation
Preamble
This case deals with the worker's ability to work while taking narcotic medication for his compensable back injury.In 1986 and 1989 the worker suffered compensable injuries to his right ankle and back. Claims were filed with the Workers Compensation Board (hereafter "WCB") and benefits and services were awarded to the worker which included a permanent partial disability award for his ankle and back and vocational rehabilitation to locate suitable employment. An Individualized Written Rehabilitation Plan (hereafter "IWRP") effective November 29, 2004 to February 20, 2005 was entered into for an occupational goal of insurance agent.
The worker says that his medication precludes him from being gainfully employed as an insurance agent because he would not be able to obtain Errors and Omissions ("E&O") insurance or his driver's licence - two job requirements. He therefore says that he is entitled to temporary total disability benefits beyond February 20, 2005.
The WCB disagrees. This position was upheld by the Review Office in a decision dated June 24, 2005. It is this decision that the worker appealed to the Appeal Commission.
An appeal panel hearing was held on May 23, 2006. The worker appeared and provided evidence. The employer did not participate in the hearing.
Issue
Whether or not the worker is entitled to temporary total disability benefits beyond February 20, 2005.Decision
The worker is not entitled to temporary total disability benefits with the exception of the period of time from March 8, 2005, to August 30, 2005, inclusive.Decision: Unanimous
Background
Reasons
BackgroundThe worker has suffered two workplace accidents - one on July 24, 1986 and one on December 7, 1989 - that caused him injury to his right ankle and back. Combined, the worker has had over ten surgeries for these injuries.
Currently, the worker wears both an ankle brace and a back brace. His main complaints are inflammation and pain, especially in the back.
His physical restrictions comprise no heavy lifting greater than 15 to 20 lbs., no repetitive bending, twisting or working in a flexed forward position, avoiding stair and ladder climbing, walking on uneven surfaces and prolonged standing. He is also required to alter positions between sitting, walking and standing.
At the time of his workplace injuries, the worker was employed as a painter, then a mover. Since about 1991, the worker has been involved in various vocational rehabilitation plans. The latest such plan was in 2004.
The 2004 vocational rehabilitation plan (effective November 29, 2004 to February 20, 2005) was focused on the worker returning to employment as an insurance agent. The worker had previous experience in this field and it was thought that his physical restrictions would be compatible with employment in this field.
Several memoranda to file (for example September 17, 2004 and September 28, 2004) indicate that the worker was eager to start his vocational rehabilitation. He was however experiencing increasing back pain.
A CT scan on September 28, 2004 revealed stenosis and possible left L5 nerve root compromise at the L4 - 5 level. A subsequent MRI on January 17, 2005 revealed a possible epidural fibrosis and central but non compressive L5 - S1 disc protrusion.
By December, 2004 the pain was becoming worse. He was prescribed Tylenol 3's and Oxycontin 20mgs by his family physician. The prescribed dosage of the Oxycontin changed from that time forward as follows:
- March 8, 2005 Gabapentin, 100 mgs
- May 26, 2005 Oxycontin, 40 mgs
- August 31, 2005 Oxycontin, 20 mgs
- January 17, 2006 Oxycontin, 10 mgs
The worker had not held a valid driver's licence since about March, 2002. Memoranda to file indicate and the worker's evidence at the hearing was that his licence was suspended at his request during medical treatment for his ankle and had not yet been reinstated because he was told that he would have to take a strength test to ensure that he had enough ankle strength to operate the normal pedal system in a car. However, a March 17, 2005 memorandum states that when the worker called Driver and Vehicle Licencing, they told him that his licence had simply expired and he would have to retake the test; there was no medical note on file.
The worker was loathe to take this test because of the amount and type of narcotic medication he was on. He thought that his medication would adversely affect his ability to drive a car. He was also concerned that should he be stopped by the police and administered a drug test, he would be positive for narcotic use and charged under the Criminal Code. The worker discussed his concerns with his physician. His physician thought that the effects of the Oxycontin were mild and should not be too much of a problem. The worker disagreed stating that he feels definite effects of the medication. He therefore entered an agreement with his physician that he would not drive a vehicle while on the medication. No medical notice was provided to Driver and Vehicle Licencing.
The worker also thought that he would not be eligible for E&O insurance. A March 17, 2005 memo states that the worker's potential employer told him that he could not obtain E&O insurance due to the medication he was taking. The worker also called some E&O insurers and asked them:
i) "If an agent was found using a narcotic, what effect would it have on an agent's E and O coverage". The response was that it would void coverage;
ii) "Would you sell an E and O plan to a person if you knew prior to selling that plan that that person was using a narcotic?" The response was "No, we would not sell them a plan because the plan would not be enforced, it would amount to fraud."
At the hearing, the worker clarified that he did not specify which narcotic he was using or the dosage. He also conceded that the E&O insurance plans do not require drug testing or medical questionnaires.
The worker also contacted the Insurance Council of Manitoba (hereafter "ICM") and asked "If a person is under the influence of a narcotic or alcohol would that person be allowed to write the [insurance] exam?" The response was no. However, the WCB also contacted ICM. Memoranda dated April 12, 2005 and August 3, 2005 indicate that the response was that the ICM does not regulate an applicant's medication intake. If, however, the applicant was visibly intoxicated or high, the examination would not be administered.
On April 5, 2005, the family physician commented on the worker's ability to work as an insurance agent:
"As addressed in your letter [the worker] does work in insurance sales and has very light physical demands with respect to his job requirements. [The worker] describes his job as that of mainly sitting but very little to no lifting. It would be considered between a sedentary and light workload. I have indeed had discussions with [the worker] with respect to what his abilities are, would be, and have made him aware that certainly light duties would be a reasonable option for him to explore with his employer. [The worker] has responded to this suggestion with the fact that he is responsible for making decisions regarding people's finances and subsequently must be insured for human error as a result of this work. Because of the medications [the worker] has been on he does not feel that he is capable of insuring that he would not potentially make some errors with respect to financial decisions. [The worker] has explained to me that if he is indeed taking any type of medications that may cloud his mental capacity that he would not be an insurable candidate and this would thus incapable of performing his normal job duties…As previously stated [the worker] would be quite capable of performing some light job duties however based on our discussions his job duties would not be able to entail making decisions that would potentially come to a negative affect (sic) based on his being under the influence albeit mild of medications."A subsequent report of December 1, 2005 specifically notes "no impairment in judgment noted". At this time, the worker was prescribed Oxycontin, 20 mgs.
To assist in reducing his narcotic medication, the worker was referred to a physical medicine and rehabilitation specialist who performed trigger point injections into the low back and upper buttock muscles. According to the worker, the injections were "amazing"; he achieved good pain reduction and was able to reduce the Oxycontin to 10 mgs per dose. After several trigger point injections, the worker was discharged from the physical medicine and rehabilitation specialist's care in February, 2006.
In late February or early March, 2006 the worker secured employment in market research working approximately 25 hours per week. The worker testified that he did not think that he would be able to work more than 25 hours per week as he currently is sometimes unable to finish his 6 hour shifts. However, he also conceded that with better job modifications he might be able to increase the amount of hours he worked.
The worker also testified that he still takes Oxycontin, 10 mgs, but that he will sometimes take up to 70 mgs within a day. This medication is taken throughout the day while at work. The worker testified that his performance is monitored for accuracy. There have been no concerns about his performance raised by his employer.
At the hearing, the worker was questioned about his level of functioning while on this medication. When on more than Oxycontin, 20 mgs, the worker said that he was not able to carry on even a minimal conversation. While at the 10 mgs dose, the worker said he has more function and recall, though there are still some concentration lapses. While on the Gabapentin, he was only awake for approximately 3 hours per day.
Analysis
To accept the worker's appeal, we must find that he was not capable of resuming employment as an insurance agent on February 24, 2005 as a result of his medication. In weighing the evidence, we are only partially able to make this finding. In our opinion, the worker's ability to function varied depending on the dose and type of medication.
Oxycontin is a narcotic medication. Possible side effects include drowsiness or dizziness. Caution is advised when driving a vehicle.
While medication can affect individuals differently, we do not accept that all doses of the worker's medication precluded him from driving, obtaining E&O insurance or his insurance licence, or more generally, from working as an insurance agent.
Many people work and operate equipment while on narcotic medication. The questions asked by the worker to various licencing bodies were posed in terms of "narcotics" only, rather than "narcotic medication". No mention was made of the type of medication or the reason for it.
In our opinion, the worker's framing of questions was too narrow. This is borne out by the different responses given by ICM when asked if the worker could write insurance exams. We therefore do not rely on the answers given to the worker by these licencing bodies. Rather, we have relied on the worker's level of functioning while on the medication.
The worker's evidence is that he is able to function while on lower doses of Oxycontin. Oxycontin, 10 mgs appears to affect the worker the least. That said, he was still able to function to the point of obtaining a job offer while on Oxycontin, 20 mgs. When searching for employment, he was looking for full time employment and held himself out as being able to work these hours in the position of an insurance agent. We also note that his physician did not find his judgment impaired while on this dose and if anything, found the effects to be mild. This however was not the case when he was on higher doses or while on Gabapentin.
Consequently, we find that the worker was not fit for employment during those periods when he was prescribed Gabapentin or a dose of Oxycontin in excess of 20 mgs. and would be entitled to temporary total disability benefits at those times. However, we do find that he was fit for employment when he was prescribed doses of Oxycontin 20 mgs or lower.
To summarize, the worker is not entitled to temporary total disability benefits beyond February 20, 2005, with the exception of the period of time from March 8, 2005 to August 30, 2005 inclusive, when he was on prescribed doses of Gabapentin or Oxycontin 40 mgs.
Accordingly, the worker's appeal is partially allowed.
Panel Members
L. Martin, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
L. Martin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of July, 2006