Decision #162/07 - Type: Workers Compensation
Preamble
This appeal considered three issues arising from the 2002 injury to the worker’s left hand. The worker asked that a Medical Review Panel (MRP) be convened under subsection 67(4) of The Workers Compensation Act (the Act). He also asked for benefits in relation to his psychological condition and for vocational rehabilitation benefits. As the WCB and Review Office declined each of these requests, the worker’s representative appealed to the Appeal Commission and a hearing took place on October 10, 2007.Issue
Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4) of The Workers Compensation Act;
Whether or not the worker has any additional entitlement flowing from a psychological condition or psychiatric disorder; and
Whether or not the worker is entitled to vocational rehabilitation assistance.
Decision
That a Medical Review Panel should not be convened pursuant to subsection 67(4) of The Workers Compensation Act;
That the worker has no additional entitlement flowing from a psychological condition or psychiatric disorder; and
That the worker is not entitled to vocational rehabilitation assistance.
Decision: Unanimous
Background
On October 22, 2002, the worker incurred a laceration at the end of his left index finger during a work related accident. The WCB accepted the claim and benefits were paid to the worker commencing October 23, 2002. On March 24, 2004, the case was considered by an appeal panel based on an issue brought forward by the accident employer regarding the worker’s entitlement to wage loss benefits for the period March 12 to June 16, 2003. The appeal panel found that the worker failed to mitigate. For a complete background of the case leading up to the panel’s decision, please refer to Appeal Commission Decision No. 43/04.
In a letter to the WCB dated August 3, 2005, the worker’s representative contended that the worker suffered psychological stress over the lack of ability to use his dominant left hand.
In a medical report dated October 20, 2005, the treating physician noted that the last time he saw the worker was on September 21. The worker told him that he lost his job because he could not perform the duties. He then went into telemarketing but could not tolerate the job. He then went to college for a computer course. The worker indicated he had 12 years of tattooing but could not do it anymore because of his right index finger. The worker said his finger was quite numb and he could not use it for fine movements, grasping, etc. He could not write fast because the finger was numb. He could not hold a pen or pencil properly with the hand. He often had to bypass the finger when he was doing any kind of job because his finger was useless. The worker said he lost a lot of money trying to do various jobs and went through mental agony and anxiety from deciding what he was going to do next. The physician indicated that the worker did not really discuss any of this with him in the past, however, he was getting anti-anxiety medication on a regular basis which he was on even before his injury. The doctor was not sure whether the worker’s consumption increased after the injury.
On November 1, 2005, a WCB psychiatric consultant reviewed the file at the request of primary adjudication and came to the conclusion that there was no evidence of any psychological condition or psychiatric disorder that can be contributed to the compensable injury. He indicated there was evidence of a psychological condition pre-dating the injury which had been referred to as “anxiety” which was not a specific diagnosis. He said the exact nature and severity of this condition on a pre-existing basis was not known.
On November 10, 2005, a WCB case manager determined that there was no evidence of a psychological condition or disorder that was related to the worker’s 2002 compensable left hand injury. This decision was based on the available medical information and the opinion expressed by the WCB psychiatric consultant. On June 5, 2006, the worker’s representative appealed this decision to Review Office. He also asked Review Office to refer the file to vocational rehabilitation services regarding the worker’s purchase and establishment of a small computer repair business. If these two issues were denied, the worker’s representative requested the convening of a MRP based on the difference of opinion between the worker’s physician and WCB psychiatric consultant.
On June 27, 2006, the worker’s representative asked Review Office to abstain from making any decisions until primary adjudication was able to decide on issues 2 and 3 from his June 5, 2006 submission.
In a decision dated July 7, 2006, a sector services manager advised the worker’s representative of the following:
- in 2003 it was adjudicated that the worker was fit to resume a physically suitable work accommodation with the accident employer. As there was no loss of post accident earnings as a result, the request to provide vocational rehabilitation assistance in the self-employment venture could not proceed; and
- the convening of an MRP was denied as there was no clear difference of medical opinion. The report from the treating physician was a summary of events since the October 2002 compensable injury and did not provide a medical opinion as defined under subsection 67(4) of the Act.
In a submission to Review Office dated November 29, 2006, the worker’s representative outlined a number of issues for consideration.
On February 2, 2007, Review Office determined that the worker did not have any additional entitlement flowing from a psychological condition or psychiatric disorder. It considered that the worker’s pre-injury condition was at most aggravated by his accident and that the aggravation was short-lived and had already been compensated for indirectly. Any aggravation of the worker’s pre-existing psychological condition or development of another one or a psychiatric disorder as a result of events such as job loss which transpired after the accident was non-compensable.
With regard to vocational rehabilitation benefits and services, Review Office indicated there was no evidence that the worker was unable to return to his pre-accident work by reason of the effects of his compensable accident. It felt the employer would have been able to provide the worker with long term suitable work within constraints. A report from the treating surgeon dated August 13, 2003 indicated that the worker could return to his previous occupation at full duties without any workplace restrictions. The worker was able to secure employment on his own without the WCB’s assistance. Review Office also indicated that the other issues brought forward by the worker’s representative were moot given the decisions noted above.
In a further letter dated April 5, 2007, the worker was informed by Review Office that there was no basis to convene an MRP. “Notwithstanding the psychiatric consultant’s opinion, Review Office has already accepted ‘that the compensable injury and its limiting effects to the injured hand have brought about psychological effects”. On April 13, 2007, the worker’s representative appealed this decision and the decision made by Review Office on February 2, 2007 to the Appeal Commission and a hearing was arranged.
Reasons
The worker was represented by an advocate who made a presentation on behalf of the worker. The worker and his representative answered questions posed by the panel. The employer did not take a position at the appeal but was represented by a staff person who observed the proceedings.
Issue 1: Whether a MRP should be convened pursuant to subsection 67(4) of The Workers Compensation Act.
Worker’s Position
The worker’s representative advised that the difference of opinion exists between the opinions of the worker’s family physician dated October 20, 2005 and the opinion of the WCB psychiatric consultant dated November 3, 2005. He stated that the worker’s physician stated there was a psychological reaction to a compensable injury and the WCB psychiatric consultant states there was not. He submitted that this difference of opinion satisfies the requirements of the Act and an MRP ought to be convened.
Applicable Legislation and Policy
The worker has requested that an MRP be convened under subsection 67(4) of the Act. The relevant provisions of the Act are subsection 67(4) and 67(1). Subsection 67(4) provides:
67(4) - Reference to panel on request
Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.
Subsection 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion."
Analysis
For subsection 67(4) to apply, there must be a difference of opinion between a treating physician and a WCB medical officer on a medical matter affecting entitlement to compensation. Subsection 67(1) imposes the requirement that the opinion be a "full statement of the facts and reasons supporting a medical conclusion."
The panel has reviewed the opinion of the worker’s physician and finds that it is not a “full statement of the facts” as contemplated and required by the Act. The report provided by the worker’s physician is a summary of the history of the worker’s claim as relayed to the physician by the worker. The physician noted that “He told me that because of his finger, he lost a lot of money trying to do various jobs and also went through a lot of mental agony and anxiety thinking as to what he was going to do next.” The physician simply appears to agree with the worker’s history and states that he “went through a lot of physical and mental agony” and does not provide a diagnosis with reasons in support. Given this finding, there is no difference of opinion as required by the Act.
The panel notes that this issue may be considered moot in that the Review Office found “that the compensable injury and its limiting effects to the injured hand have brought about psychological effects.”
The worker’s appeal on this issue is dismissed.
Issue 2: Whether the worker has any entitlement flowing from a psychological condition or psychiatric disorder.
Worker’s Position
The worker’s representative submitted that the worker had a psychological reaction to the workplace injury. He relied upon the report of the worker’s family physician that noted the worker “…went through a lot of physical and mental agony”. He also noted the Review Office decision that indicated that “…the worker’s pre-injury psychological condition was at most aggravated by his accident and any such aggravation was short-lived and has already been compensated for indirectly.” The representative submitted that the WCB did not pay for medication or any cost arising from the psychological condition.
Regarding the psychological condition, the worker acknowledged that he had the condition for more than 10 years before the workplace accident. The representative advised that the medication for the condition, dosage and volume of the medication remained the same after the workplace injury. The worker advised that after the workplace injury, he used more medication on each occasion. The representative referred to a letter from a pharmacist dated June 19, 2007 which noted that the worker picked up his monthly prescription 10 days early.
The worker explained the effect of the condition upon him and the type of events that caused the condition to flare up. For example, he advised that he had to take three pills to enable him to attend and participate in the hearing and that he had to take two pills on his wedding day.
The worker’s representative indicated that this condition is not considered an upper range disorder in the psychiatry manual. He also indicated that he did not consider the condition to be permanent. Regarding entitlements flowing from the psychological condition, he submitted that the worker should receive payment for medications, counseling, and transportation to counseling. He questioned the Review Office decision and noted that the WCB never paid for any treatment or prescriptions for the psychological condition. He also submitted that the worker should have received proper transitional services in 2003.
Applicable Legislation and Policy
Policy 44.20.60, Psychological Conditions, describes the circumstances under which psychological conditions might be a consequence of a workplace injury. The policy states that where information indicates a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident or its consequences shall be considered a personal injury by accident, for which compensation may be paid.
Analysis
The issue before the panel was whether the worker has any entitlement flowing from his psychological condition or psychiatric disorder. For entitlement to flow from such a condition, there must be a relationship between the condition and the workplace injury. In this case the psychological condition is clearly a pre-existing condition for which the worker had been receiving prescription medications for more than a decade before the workplace injury occurred. Therefore entitlement to benefits would only flow if the psychological condition was aggravated or enhanced by the workplace injury.
The panel notes that the type of events that were noted to cause the psychological condition to flare-up were, in the opinion of the panel, more related to employment issues, financial matters and other unusual or stressful events in the worker’s life, than to the actual injury or treatment of the injury.
While the evidence suggests to the panel that the psychological condition was not aggravated or enhanced by the workplace injury, the panel finds that any aggravation that occurred was temporary and has completely resolved. The panel notes the evidence that the worker received the same medication before and after the workplace injury and that the dosage and volume of use per month did not change and, in fact remains the same at this date. There was evidence that the worker and his wife attended counseling in 2004, however, the panel finds that the evidence does not establish that the counseling was required as a result of the workplace injury. The panel finds, on a balance of probabilities, that the worker received no treatment or additional medications in relation to any aggravation of the pre-existing condition caused by the workplace injury, that any aggravation has resolved, and therefore no entitlement to benefits flows from an aggravation.
The panel notes there was some evidence that the worker used more medication after the workplace injury. It was explained that the worker used more medication at one time but that the prescription amount remained the same. There was also evidence that an increase in medication may be needed because of the worker’s growing tolerance to the medication. To the extent that the worker used more medication, the panel is unable to attribute the increased use to an aggravation of the pre-existing psychological condition. The panel attaches no weight to the letter from the pharmacist regarding the early renewal of the prescription, as it deals with a period in 2007.
The worker’s appeal on this issue is dismissed.
Issue 3: Whether the worker is entitled to vocational rehabilitation assistance.
The worker’s representative noted that the worker was not provided with vocational rehabilitation assistance, and was unable to return to his pre-accident employment. He submitted there was a poisoned work environment at the pre-accident employer and that the worker was afraid to return to work because he thought he would be fired. As well, the worker was frustrated about the duties that he was assigned.
The worker’s representative noted that after the worker ceased working for the accident employer, he attended training and started his own business dealing with computers. The worker explained that with his injured hand he found it difficult to perform some of the tasks involved in running a computer related business. The representative advised that the business did not succeed and the worker had to find other employment. He noted that the WCB did not provide any assistance to the worker in regards to the business venture.
In terms of assistance, the worker’s representative stated that the WCB should assist the worker to find employment, at his pre-accident rate, that respects his compensable injury and related restrictions. In a prior submission to the WCB, the representative also suggested the WCB consider vocational rehabilitation services in relation to the establishment of the worker’s computer business.
Applicable Legislation and Policy
Vocational rehabilitation services are authorized pursuant to subsection 27(20). There are three categories of services provided under this subsection, specifically, assistance with employment, assistance to remove or reduce effect of a handicap and assistance in activities of daily living. Policy 43.00, Vocational Rehabilitation, sets out the general principles of vocational rehabilitation.
Section II, Paragraph 1 of Policy 43:00 deals with eligibility. It provides;
1. A worker will receive vocational rehabilitation services when: a) The worker experiences a long-term loss of earning capacity; b) It is reasonably determined that the worker will be unable to perform the pre-injury work without help; or c) There are reasonable indicators that there is a risk of chronicity. Under these circumstances, vocational rehabilitation is intended to speed up or improve the chances of the worker returning to the pre-injury or alternate work. Analysis For the appeal of this issue to be successful, the panel must find that the worker met the eligibility provisions of Policy 43.00. The panel was not able to make this finding and concludes that the worker was not entitled to vocational rehabilitation. The panel notes that vocational rehabilitation assistance related to employment is a discretionary benefit (under subsection 27(20) of the Act) that is available to a worker in cases where it is determined that the worker will suffer a long term compensable loss of earning capacity due to the workplace injury. Vocational Rehabilitation assistance is usually provided when the worker is unable to return his/her pre-accident employment and does not have alternate employment. In this case, the panel finds that the worker did not meet the eligibility criteria. The panel finds, on a balance of probabilities, that the worker did not suffer a long term loss of earning capacity as a result of the workplace injury. In making this decision, the panel relies upon the following information: In passing, the panel notes that the Appeal Commission considered a related issue on this worker’s claim in Decision No. 43/04. It found that the employer had offered the worker alternate duties for the period of March 12 to June 16, 2003 and that the worker refused to participate in the alternate work thereby failing to mitigate the consequences of the workplace accident. The Appeal Commission also noted that the worker sought and obtained full-time employment shortly after the termination of his employment with the pre-accident employer. The worker’s appeal on this issue is dismissed.
Panel Members
A. Scramstad, Presiding OfficerR. Koslowsky, Commissioner
L. Butler, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 6th day of December, 2007