Decision #77/09 - Type: Workers Compensation

Preamble

The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a right shoulder injury. Presently, the worker is appealing the decision made by Review Office on January 21, 2009 to deny costs associated with his antidepressant medication. On February 6, 2009, an appeal was filed by the Worker Advisor Office to the Appeal Commission and a hearing was held on June 18, 2009 to consider the matter.

Issue

Whether or not the worker’s antidepressant medication should be covered.

Decision

That the worker’s antidepressant medication should be covered.

Decision: Unanimous

Background

On May 28, 1999, the worker injured his right shoulder in a work related accident. The claim for compensation was accepted and various types of benefits were paid. Current file information showed that the worker was deemed capable of full-time employment earning minimum wage effective March 11, 2005.

On October 21, 2008, the worker was advised by his WCB case manager that the WCB was not able to accept responsibility for his depression and cover the costs of his anti-depressant medication beyond October 22, 2008. In support of her position, the case manager noted that the worker had been assessed by the WCB’s Pain Management Unit (PMU) in 1999 and 2005 and there was no evidence of depression from either assessment. The worker did not meet the diagnostic criteria for depression between 1999 and 2005. The case manager noted that in 2005, the worker’s anger and agitation was more related to developmental/personality factors than to a mood disorder. There was no objective information which documented the presence of a mood disorder. The case manager referred to an opinion expressed by a WCB medical advisor who was of the opinion that the worker’s depression was not related to his claim.

On December 20, 2008, the worker appealed a number of decisions that were made on his claim to Review Office. One of the issues the worker asked Review Office to consider was the case manager’s decision that his depression was not a sequela of his compensable accident and to deny further responsibility for the costs of antidepressant medication.

In a decision dated January 21, 2009, Review Office determined that the issue of whether the worker’s depression was compensable was moot and that the costs of the worker’s antidepressant medication should not be covered. Review Office stated that the October 20, 2008 decision made by the case manager took into account the October 20, 2008 opinion of a WCB consultant physiatrist which stated:

“The claimant has taken antidepressant medication since 2001. When he was seen by the [WCB’s] Pain Management Unit [PMU] on two occasions, the PMU did not find evidence of Depression. It does not appear that he met the diagnostic criteria for depression between 1999 and 2005. It was noted in 2005 that the claimant’s anger and agitation was more related to developmental/personality factors than to a mood disorder . . .

There is no objective information on file that documents the presence of a mood disorder. It is quite common for a person with maladaptive personality factors, as described by the PMU, to have dysphoria [an emotional state marked by anxiety, depression, and restlessness] related to the person’s reaction to external events. Sometimes this dysphoria is treated with antidepressant medication, but this does not mean a person has a clinical depression.

The claimant is now 9 years post C.I. [compensable injury]. Even if the claimant currently did meet diagnostic criteria for Depression, there is not a temporal relationship to the injury, and the Depression would not be considered to be related to the claim. It is recommended that the cost of antidepressant medication not be covered by WCB.”

Review Office indicated that the evidence did not support that the worker met the diagnostic criteria for depression. The consultant psychiatrist noted that because the worker was being prescribed an antidepressant does not mean that he is clinically depressed. For this reason, Review Office considered that the issue of whether the worker’s depression was compensable was moot and that the worker’s medication was not related to a compensable depression, its costs could not be covered.

Further, Review Office indicated that it accepted that the worker’s medication improved his mood. On November 7, 2008, the worker’s general practitioner stated, “should continue [medication] for control of his mood and secondarily as an adjunct for pain control re his right shoulder/neck compensable injury.” Review Office assumed that the general practitioner’s opinion was that when the worker’s mood is improved his pain is as well. Review Office noted that it considered whether this would be a basis for the WCB covering the worker’s medication and in the end, it could not stretch the coverage envelope that far. In making its decision, Review Office considered Section 27 and Board Policy 44.120.10 Medical Aid. Review Office said that the section and policy do not allow for providing a worker with everything which can be in some way related to his or her injury.

On January 21, 2009, a worker advisor acting on the worker’s behalf, appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation:

When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of The Worker’s Compensation Act (the “Act”). Medical aid payments for expenses such as medication are payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident. WCB Policy 44.120.10 Medical Aid (the “Medical Aid Policy”) states that: “The provision of medical aid attempts to minimize the impact of the worker’s injury and to enhance an injured worker’s recovery to the greatest extent possible.”

Worker’s submission:

The worker was assisted by a worker advisor at the hearing. The worker’s medical history was reviewed and it was noted that the worker first mentioned feeling depressed at a WCB call-in examination on June 30, 1999, two months after the injury occurred. On June 8, 2001, the general practitioner made an initial report of depressive symptoms and prescribed antidepressants. By August 2001, the general practitioner moved from describing depressive symptoms to actually diagnosing depression. The WCB accepted responsibility for the costs of the medication from 2001 until October 22, 2008. The decision to end responsibility was based on the opinion of the WCB psychiatric consultant who relied on the Pain Management Unit’s findings in concluding that the worker was not suffering from depression and that his reported dysphoria or depressed mood was likely due to maladaptive personality factors, rather than clinical depression. Contrary to this opinion, it was noted that the general practitioner had repeatedly confirmed that depression developed and persisted due to ongoing symptoms of chronic pain. It was submitted that the absence of full signs and symptoms of depression should not be taken to mean that the worker was not suffering from depression, but rather that many of the symptoms were under control as a result of appropriate treatment. It was the worker’s position that the WCB’s responsibility for depression, and by extension the antidepressant medications, would fall under WCB Policy 44.10.80.40 which deals with situations where a worker sustains a further injury subsequent to a compensable injury, as well as Policy 44.22.60 which addresses psychological conditions.

Analysis:

The issue before the panel is whether or not the worker’s anti-depressant medication should be covered. The worker first started taking this medication in June 2001. The WCB extended medical aid coverage to the worker for this medication for over seven years. On October 22, 2008, the WCB discontinued coverage on the grounds that the worker did not meet the diagnostic criteria for depression and that the medication was not considered related to a compensable depression.

The panel agrees with the WCB that the worker does not meet the diagnostic criteria for depression. The worker does not have a diagnosed psychological condition which could be considered an injury in and of itself. As such, we find that the policies referred to by the worker advisor (WCB Policy 44.10.80.40 Further Injuries Subsequent to a Compensable Injury and WCB Policy 44.20.60 Psychological Conditions) are not applicable to this case.

Nevertheless, the panel does find that the anti-depressant medication is beneficial in helping the worker deal with the pain and disability he suffers from as a result of the compensable injury and accordingly, the medication should be covered. This is consistent with the Medical Aid Policy which states that the provision of medical aid attempts to minimize the impact of the worker’s injury and to enhance an injured worker’s recovery to the greatest extent possible. The panel is of the view that the anti-depressant medication assists in minimizing the impact of the worker’s shoulder injury. In coming to this decision, we rely on the following:

  • Although the worker’s personality factors were considered to have contributed to his current anger and agitation, the panel notes that the presence of these traits did not impair his ability to function prior to the accident. He had been able to maintain regular employment and had no prior history of psychological difficulties. He never needed to take anti-depressants prior to becoming injured;
  • The panel acknowledges that the worker continues to suffer from pain and disability from his workplace accident and the two shoulder surgeries. It is not uncommon for persons suffering from prolonged pain to require anti-depressants to help deal with the effects of their injury, even in the absence of a formal diagnosis of depression;
  • The worker described experiencing not only agitation, but also insomnia, decrease in appetite and loss of enjoyment of life;
  • At the hearing, the worker described experiencing increased mood swings when he went off the anti-depressants for a short period of time in October 2008. He described the constant aching in his shoulder which constantly builds, and said that when the pain increased, he was not able to deal with his mood swings. He would experience heightened anxiety and become very upset at just little things;
  • After a few days, he went back on the anti-depressants at his physician’s insistence and said that he: “was back to being livable basically. I was able to function, you know, and not have that many mood swings.”
  • The panel notes that in a previous Appeal Commission decision, the panel quoted the worker’s evidence regarding his need for anti-depressants in dealing with his shoulder injury. The decision states: “At the hearing, the worker’s evidence was that his shoulder condition is the same as it was earlier, that his drug regime has less narcotic content than it previously had and that as long as he takes his anti-depressants in the morning, his anger and depression are controlled and he is able to function.”
  • Based in part on this evidence, the previous panel found that the worker ought to be able to deal with the residual effects of his shoulder injury and maintain full-time employment in a minimum wage position.

On the facts of this case, the panel is of the opinion that anti-depressant medication is necessary to cure and provide relief for this worker’s shoulder pain. We therefore find that the anti-depressant medication should be covered. The appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 16th day of July, 2009

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