The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is presently appealing two decisions made by Review Office of the Workers Compensation Board (“WCB”) which determined that he had recovered from the effects of his accident and that no responsibility would be accepted for the cost of medications beyond January 26, 2009. A hearing was held on August 19, 2009 to consider these issues.

Issue

Whether or not the worker has recovered from the physical effects of his accident; and

Whether or not medications should be covered beyond January 26, 2009.

Decision

That the worker has recovered from the physical effects of his accident; and

That medications should not be covered beyond January 26, 2009.

Decision: Unanimous

Background

On July 25, 2003, the worker was rear-ended by another vehicle while driving a tow truck. He immediately sought medical attention and was diagnosed with a neck, back and shoulder strain. The claim for compensation was accepted and wage loss benefits commenced.

The worker suffered a previous back injury in 1977 and had fusion surgery performed at multiple levels of the lumbosacral spine. Following the surgery, the worker was able to return to work and worked as a tow truck driver for a few years prior to his 2003 injury.

File information showed that the worker underwent various forms of laboratory investigations and had been treated by different specialists including a sports physician, physiatrist, neurosurgeon and clinical psychologist. File records indicate that the worker’s neck and shoulder symptoms resolved but he continued to complain of pain in his low back despite various forms of treatment. The worker’s medical condition had been reviewed by several WCB healthcare consultants by physical examinations, interviews and by file review. It was concluded that the worker did not meet the WCB’s diagnostic criteria for chronic pain syndrome nor was there a definite pathoanatomical diagnosis to explain the worker’s degree of reported pain symptomatology or the degree of the worker’s reported disability.

Based on a December 2006 medical report from the treating physician, a WCB case manager indicated to the worker on January 23, 2007, that after he completed a drug reduction plan, wage loss benefits and financial support for medications and treatment would end effective July 5, 2007.

On April 16, 2007, a worker advisor requested reconsideration of the case manager’s January 23, 2007 decision. The worker advisor argued that the worker had not recovered from the aggravation caused by the work related accident and that the worker continued to suffer a loss of earning capacity. The worker advisor indicated that the proposed drug reduction plan had plateaued and had not reached a level that was previously anticipated by the WCB. In support of these findings, the worker advisor submitted copies of diagnostic testing and a letter from the treating physician dated March 19, 2007.

In his letter to the worker advisor dated March 19, 2007, the treating physician’s diagnoses were outlined as follows:

1. Lumbar spondylosis and degenerative disc disease
2. Mechanical low back pain with regional myofascial pain and dural tension
3. Chronic disabling pain related to the aforementioned, central nervous system sensitization, and his motor vehicle collision of July 2003.

The physician outlined his medical opinion that the worker’s present lumbar spine pain and impairment was related to his July 25, 2003 motor vehicle accident. He acknowledged that the worker had a pre-existing condition in his lumbar spine and had previous surgery. In his opinion, the motor vehicle collision aggravated his condition and the worker had not yet recovered from this event.

In a decision dated June 13, 2007, Review Office determined that the worker was not entitled to wage loss benefits after July 5, 2007 as in the opinion of Review Office, the worker had recovered from the physical effects of his July 2003 accident. In reaching this decision Review Office relied on the following findings:

· a WCB call in examination on February 19, 2004 where the examining medical advisor reported minimal quantifiable findings and “several medically unexplainable findings”.

· the findings of a physiatrist whom the worker saw on March 31, 2004. The specialist reported that the worker had significant symptoms without any neurological or ominous findings. The worker had an increase in pain since his injury which was non-physiologic and could possibly be attributed to his decreased level of activity and poor tolerance.

· the findings of a WCB physical medicine and rehabilitation consultant dated February 10, 2005 who reported no evidence of any radiculopathy or symptoms to suggest problems with the fusion. He noted there was no significant benefit to apophyseal joint blocks suggesting against any facet origin as a cause to the worker’s symptoms. There was no definite pathoanatomic diagnosis identified in the current examination to explain the degree of reported pain symptomatology or the degree of the worker’s reported disability.

· the findings of the worker’s doctor dated December 14, 2006. He reported that the worker on examination “generally moved reasonably well” and the neurovascular examination was unremarkable.

Review Office also determined that the full costs of the worker’s medication should not be covered as “…there is no basis for doing so as this would be a de facto approval of its use. That being said, this decision does not bind the case manager from doing so on a going forward basis based on the requirements of whatever program is put in place to end the worker’s use of medication.” Review Office felt that the WCB should take a more aggressive effort to wean the worker from his use of medication. It noted that the worker’s entitlement to wage loss benefit was contingent upon his participation in a program designed to end his use of medication.

On May 13, 2008, a worker advisor appealed a number of decisions that were made on the worker’s claim. These included medication coverage, massage therapy treatment, pain clinic treatment, a swimming pool pass and reconsideration of wage loss calculation.

In a June 12, 2008 decision, Review Office determined in part, that the worker had recovered from the physical effects of his accident. Review Office noted that the worker advisor referenced several comparatively recent medical reports and submitted that they supported that the worker had not recovered from the physical effects of his accident. Review Office indicated that it did not place much weight on these reports. It noted that one report referred to sacroiliac joint dysfunction. Review Office questioned how such an injury could be the result of the worker’s accident given its mechanics. Review Office noted that the worker advisor spoke to “further injuries that have occurred that are associated with the treatments that have been attempted thus far”. Review Office acknowledged that the worker reported an increase in symptoms following certain activities in his reconditioning program as well as driving and sitting in a restaurant. Review Office did not find, however, that the reported changes in symptoms were matched with a corresponding change in the objective findings on examination. For these reasons, Review Office remained of the view that the weight of evidence supported that the worker had recovered from the physical effects of his accident.

Review Office also determined that some of the worker’s medication costs should be covered by the WCB. Review Office made reference to its earlier decision of June 13, 2007. It noted that the WCB, for various reasons, had not completed arrangements for a program to end the worker’s use of medication. Given these circumstances, Review Office felt the WCB should cover at least some of the costs associated with the worker’s medication.

On August 15, 2008, the Worker Advisor Office provided Review Office with updated medical information (reports dated July 14, 2008 and August 8, 2008), in reconsideration of the decision made on June 12, 2008. The worker advisor noted that the worker benefited from SI joint injections which suggested that there was a physical basis for the worker’s disability and that he had not recovered from the physical elements of his accident.

A report from a pain clinic dated July 14, 2008 indicated that the worker continued to have ongoing low back pain and that he benefited from SI joint injections which gave him about three months of pain relief. The specialist indicated that because of the worker’s level of pain, he should continue with his medications.

A report from the Pain Clinic dated August 8, 2007 outlined the following impression: “This patient presents with a long-standing history of mechanical low back pain. This appears to be more likely due to the motor vehicle accident in 2003 than the previous long-standing back problems dating back to 1977. The patient appears to have some element of SI joint dysfunction as well as facet joint dysfunction contributing to his pain.”

On August 18, 2008, Review Office clarified with the worker advisor the issues that he wanted addressed. The issues dealt with the worker’s recovery from the physical effects of his accident, that some of the worker’s medication costs should be covered, and the costs related to the worker’s attendance at the pain clinic.

On September 5, 2008, the worker was advised that the WCB was ending responsibility for his claim effective November 13, 2008. The case manager noted that the worker was assessed by a drug rehabilitation specialist in May 2008. In a report dated May 21, 2008, it was concluded that a particular medication was not working for the worker and may be exacerbating his problems. The specialist suggested that the worker taper the use of his medication under medical supervision. A referral was then made for the worker to attend an in-patient drug reduction program. The case manager noted that the worker had a telephone conversation with the specialist concerning an in-patient drug reduction program. “She acknowledges you have received different recommendations of care and therefore she was leaving the ultimate decision up to you. She reports “He decided he did not want to be admitted for Ward Detoxification at this time. [the specialist] indicated further treatment can be offered with a Physician Referral.” The case manager stated: “By declining the in-patient drug reduction program you are failing to mitigate the effects of your workplace accident. Section 22 of the Workers Compensation Act states wage loss benefits may be suspended, reduced or terminated should a worker fail to mitigate the effects of his injury. Therefore wage loss benefits will be payable to November 13, 2008, inclusive and final. No further treatment or medication coverage will be paid beyond November 13, 2008.” On September 15, 2008, the worker indicated that he did not refuse to see the Addictions Unit and was willing to go for an assessment.

In a submission to Review Office dated October 3, 2008, the Worker Advisor Office appealed the September 5, 2008 decision made by the case manager. The worker advisor outlined the worker’s position that he was mitigating as far as could reasonably be expected and that section 22 would not apply to his case and that his benefits should not stop effective November 13, 2008.

On October 17, 2008 Review Office considered the mechanics of the work incident that occurred in April 2003 and reviewed the initial facts of the case. It opined that the SI joint dysfunction would not be a result of the work related incident. It determined that the additional information submitted by the worker advisor did not alter the previous Review Office decision dated June 12, 2008 that the worker had recovered from the effects of his compensable injury.

Review Office also outlined the opinion that medications should be authorized in keeping with the in-patient program, as the worker stated he did not refuse the treatment plan. Review Office indicated that it would defer making a decision on whether the worker was entitled to further benefits beyond November 13, 2008, as the WCB case manager was in the process of gathering further information and reconsidering that decision.

On November 7, 2008, the WCB advised the worker that wage loss benefits would extend beyond November 13, 2008 as the WCB was currently waiting for additional information from the Addictions Unit.

A narrative report was received from the Addictions Unit for an assessment performed on October 22, 2008.

In decision dated December 12, 2008, the case manager stated that no further wage loss benefits were payable beyond January 26, 2009. The case manager indicated that the worker’s assessment on October 22, 2008 indicated that he did not have a drug addiction and treatment was not required. The case manager concluded that the worker had recovered from the effects of his workplace accident and that the WCB would continue to accept the cost of one particular medication, upon reasonable request, until January 26, 2009 as per the Review Office decision.

On January 10, 2009, the Worker Advisor Office wrote to Review Office to appeal the decision of December 12, 2008. The worker advisor noted that the worker was in constant pain for which he required medication and that the pain was all related to his workplace injury. The worker’s position was that he had not recovered from his injury, and that wage loss and medication should be paid beyond January 26, 2009. The worker advisor noted that the Addictions Unit report dated October 22, 2008 supported that the worker had not recovered from the physical effects of his injury and that he had not had enough treatment to be able to resume any employment. He noted that the specialist reported that the worker was moving stiffly due to pain, was sweating due to pain, had to change position and moved with difficulty after sitting for the interview. He also referred to a report from the pain clinic (August 6, 2007) which indicated that the worker’s low back pain was likely due to the motor vehicle accident in 2003. The worker advisor commented that once the worker’s pain was under better control, the worker would be able to move into a more physical treatment plan.

In a decision dated March 10, 2009, Review Office indicated there would be no change to his previous decision of June 12, 2008. It stated there was no evidence of a pathoanatomical or other diagnosis related to the compensable injury in 2003 to explain the worker’s ongoing lower back symptoms.

Review Office also determined that the worker’s medication should not be covered beyond January 26, 2009. It was unable to find that the worker required medications as a result of his compensable back injury of July 2003. In making this decision, Review Office relied on the October 2, 2008 assessment of the worker that there was no diagnosis of addiction. Review Office concluded that as an addiction treatment was not required, it was determined that the worker had recovered from his compensable back injury and there was no entitlement to further coverage for medication in relation to the July 2003 incident. On March 24, 2009, the worker appealed the decisions made by Review Office dated June 12, 2008 and March 10, 2009 and a hearing was arranged.

Reasons

The second issue before the panel is whether or not medications should be covered beyond January 26, 2009. In order for the worker’s appeal on this issue to be successful, the panel must find that the medications are necessary to cure and provide relief from an injury resulting from an accident. The panel is unable to make this finding.

In view of our decision on the first issue that the worker has recovered from the physical effects of his accident, it cannot be said that the worker requires medications to minimize the effects of a compensable injury. The injury has healed so there is no compensable condition left to treat. Accordingly there is no entitlement to coverage for medication beyond January 26, 2009.

The panel notes that in the WCB file, there was some consideration given as to whether the worker may be entitled to medical aid in the form of a detoxification program, which was required to treat a drug addiction which developed subsequent to the compensable injury. At the hearing, the worker advisor clearly stated their position that the worker did not suffer from a drug addiction. This opinion was supported by an addictions specialist. In view of the position taken by the worker that there is no addiction to be treated, it follows that there is no further entitlement to medical aid related to a detoxification program.

The worker’s appeal is therefore dismissed on both issues.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 7th day of October, 2009