The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is contesting the decision made by the Workers Compensation Board ("WCB") that the medications he was taking for pain were not impairing his ability to concentrate and therefore he did not have a loss of earning capacity in relation to his compensable injury. A hearing was held by teleconference on April 8, 2013 to consider the matter.

Issue

Whether or not the worker has a full loss of earning capacity as a result of medications taken in relation to the compensable injury.

Decision

That the worker does not have a full loss of earning capacity as a result of medications taken in relation to the compensable injury.

Decision: Unanimous

Background

On August 5, 2005, the worker injured his left hand in a work-related accident. His claim for compensation was accepted and benefits were paid to the worker. File records showed that the worker did not return to his pre-accident employment due to the nature of his hand injury and he was referred to the WCB's vocational rehabilitation branch to assist in locating suitable employment that met his compensable restrictions.

It was determined that an appropriate vocational rehabilitation goal was employment in National Occupational Classification ("NOC") 4212, Community and Social Services Worker. The goal necessitated the worker to participate in upgrading and then attend a two year secondary program.

On September 20, 2009, a WCB vocational rehabilitation consultant ("VRC") documented that the worker had commenced the Human Services Program in his home province and was in his first year at college. The worker indicated that he was enjoying his studies. On October 16, 2009, the worker advised the VRC that he was finding his studies challenging and stressful. On November 18, 2009, the worker advised the VRC that his courses were going well but he was having problems with anxiety and panic attacks. Ultimately the vocational goal was abandoned.

In October 2010, it was determined that the worker was capable of performing duties in NOC 6621, Gas Station Attendant, and a vocational rehabilitation plan was developed which included job search assistance. The plan was to run from November 8, 2010 to February 14, 2011.

During a hearing held at the Appeal Commission on July 12, 2011, the worker's representative commented on the relationship between the worker's long term use of prescription medications and the worker's condition. As the issue was not before the appeal panel, the representative was advised that he could address this matter with the WCB. The panel did determine that the worker's depression and panic attacks were not related to the compensable injury.

On January 11, 2012, a WCB medical advisor was asked to review the file and respond to the following query: "Is the worker's claim that he could not perform a labour job due to concentration problems from using pain medications for the compensable injury medically accounted for and supported? If yes, please explain." The WCB medical advisor responded as follows:

I cannot see that the ability to perform labor type activities (within the claimant's established restrictions) would be prevented by the ongoing use of this pain medication.

By letter dated February 22, 2012, the worker was advised that the WCB was unable to find evidence to support that the pain medications he was taking for his compensable injury would prevent him from performing the labour activities within his permanent restrictions.

In a report dated March 21, 2012, the worker's treating psychiatrist stated that the worker "…is unable to work due to the significantly impaired medical condition caused by the heavy use of pain medication. He requires the medications to handle his pain for his work place injury. Due to the high doses of medication he would be unfit to work and would pose a risk to himself and others."

On May 31, 2012, a WCB medical advisor was asked to review the worker's file and to comment on whether the pain medications taken by the worker would impact his ability to work. The medical advisor stated on July 2, 2012:

The noted psychiatrist report was reviewed. There isn't any further objective evidence presented that would outline a further deterioration of physical function.

It is noted that [the worker] was able to perform multiple concentration tasks including attending educational institutions prior to December of 2009. It is noted that [the worker] documented that he was doing well in these courses prior to his anxiety/stress and depression episodes. It is noted that [the worker] was on the analgesic medication for nearly 5 years. There are no reports of significant side effects of these medications during this time. The worker's advocate documents possible medication difficulties retrospectively. The writer is unable to relate specific difficulties with the analgesic medications upon review of the medical information (ie. clinic notes or reports from the treating healthcare practitioners) from the date of the CI [compensable injury] onward.

It is noted that the use of such medications is deemed effective if the benefits outweigh the risks insofar as the patient derives improvement in function and pain with little or tolerable side-effects. Use of opioid medication would not be recommended if the use of the medication itself impairs function. If the medication is impairing function, the use of this medication should be reviewed and possibly discontinued.

By letter dated July 10, 2012, the worker was advised that the WCB was unable to find medical evidence to support that the pain medications would prevent him from performing labour activities within his permanent restrictions. On September 23, 2012, the worker's representative appealed the decision to Review Office.

On November 29, 2012, Review Office concluded that the worker did not have a full loss of earning capacity in relation to the medications he was taking as a result of his compensable injury. The decision was based on the opinions expressed by the WCB's healthcare branch and the report of the worker during the Appeal Commission hearing on July 12, 2011 that his use of the pain medication "was reduced from eight doses per day to three when he moved to [his home community] following his accident." The worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the Board of Directors.

The worker has an accepted claim for workplace injury. He is appealing an issue related to his wage loss benefits. Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Worker's Position

The worker was represented by legal counsel. The worker and counsel participated in the hearing via a conference call.

Counsel submitted that the worker is not employable due to the medications that he takes for pain caused by his workplace injury. He noted that the worker uses two narcotic medications for pain. He advised that the worker did not use any medications before the workplace injury. Counsel also advised that the worker uses several other medications for depression.

Counsel advised the worker is now in receipt of CPP disability benefits. He said the CPP decision is based on the worker's pain and medications. Counsel said that the CPP decision supports the worker's position that he cannot work due to the pain medication that he uses.

Counsel disagreed with the opinion of the WCB medical advisors and disputed that the worker successfully completed upgrading. He advised that the worker received extra assistance from instructors and other students.

The worker advised that he has problems concentrating, cannot focus, and has difficulty with making decisions. He attributed these symptoms to the pain medication that he uses as a result of his workplace injury. The worker said that he is not lazy but is too confused to work.

In answer to a question, the worker advised that his hand looks better now but that use causes sharp pain and achiness. He said he drops things when he uses his injured hand.

In answer to questions about the use of the pain killers, counsel stated that the use of 3 narcotic pills each day is not a problem when the worker is functioning but became a problem when the worker started to contemplate the need for skills to find a job.

The worker confirmed that his physician has not pulled his driver's license or told him not to drive. The worker also confirmed that he has not worked since the workplace injury. He advised that he has difficulty performing everyday duties.

Counsel relied upon the March 21, 2012 opinion of the treating psychiatrist which states, in part, that the worker "…suffers from Major Depressive Disorder secondary to a work place injury. There is no evidence that he had suffered depressive disorder prior to the injury… He is unable to work due to the significantly impaired medical condition caused by the heavy use of pain medication. He requires the medications to handle his pain for his work place injury. Due to the high doses of medication he would be unfit to work and would pose a risk to himself and others…."

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker argued that he is unable to work due to the effect of painkillers he must take because of his workplace injury. He is appealing the WCB decision that his loss of earning capacity is not a result of medications taken in relation to his compensable injury. For the worker's appeal to be successful, the panel must find that the worker is unable to work due to the pain medications that are prescribed for his compensable injury.

The panel was not able to make this finding. After considering all the evidence including the evidence presented at the hearing, the panel finds that the worker's loss of earning capacity is not due to the pain medications that he takes. In other words, the panel finds that the worker's inability to work is not related to the medications prescribed for his workplace injury.

In reaching this decision the panel notes the following:

• file information indicates that the WCB has approved prescriptions for two medications for pain arising from his compensable injury.

• the worker began using one of the medications shortly after the injury. Each tablet of this medication contains 5 mg of narcotic drug and 325 mg of acetaminophen. The worker initially used 8 tablets of this medication per day but reduced this to 3 tablets per day when he returned to his home community at the end of 2005. He continues to use 3 tablets per day.

• the second medication used by the worker for chronic pain was authorized by the WCB in 2007. This prescription has been filled periodically. File information shows the daily dosage is 2 tablets each day.

• the worker attended education upgrading from grade 10 to grade 12 while using the current dose of pain medication. He performed well in the program, was consistent in his attendance and was able to concentrate on his studies. While he later withdrew from his studies in a post secondary institution, it was due to non-compensable medical issues (depression and panic attacks) which were found by a previous Appeal Commission panel to be unrelated to the worker's compensable injury.

• the worker continues to possess a driver's license and drive a vehicle.

• file information indicates that the worker is prescribed five medications related to his psychological status (depressive disorder) which is not considered related to the worker's workplace injury.

• there are no incidents recorded in the worker's file of the worker being unable to work due to the effects of pain medication alone.

The panel relies upon the opinions of the WCB medical advisors in reaching this decision. Specifically the panel accepts these opinions:

• the January 30, 2012 opinion of a WCB medical advisor that "The dose of [drug name] being consumed by the claimant …is unlikely over the 4-5 years of usage (sic) continue to cause significant sedation or cognitive impairment to the degree that it would be predicted to interfere with the capacity to safely perform normal activities of daily living. Similarly, I cannot see the ability to perform labor type activities (within the claimant's established restrictions) would be prevented by the ongoing use of pain medication."

• the July 2, 2012 opinion of a second WCB medical advisor that "It is noted that [worker] was able to perform multiple concentration tasks including attending educational institutions prior to December of 2009. It is noted that [the worker] documented that he was doing well in these courses prior to his anxiety/stress and depression episodes. It is noted that [worker] was on analgesic medication for nearly 5 years. There are no reports of significant side effects of these medications during this time. The worker's advocate documents possible medication difficulties retrospectively. The writer is unable to relate specific difficulties with the analgesic medications upon review of the medical information (i.e. clinic notes or reports from the treating healthcare practitioners) from the date of the CI onward."

The panel is unable to rely upon the March 21, 2012 opinion of the treating psychiatrist. The panel notes the opinion makes no mention of any change in the worker's physical condition, no mention of the effects of the non-compensable psychiatric drugs which he prescribes to the worker, and no mention of clinical findings to support the opinion that pain medication causes the worker's inability to work. The panel also notes that the psychiatrist did not explain how the worker could function on the same level of medication before 2010 but is unable to do so after 2010. In this regard, the panel notes the psychiatrist first started to treat the worker in January 2010, after his depression and panic attacks had started, and does not have first-hand knowledge of the worker's functional capacity before that date. As well, the psychiatrist does not address the question of how the medications prescribed due to the worker's psychological status (depressive disorder) affect the worker's ability to function.

The panel also notes that the treating psychiatrist completed a medical report, dated June 16, 2010, in support of the worker's application for CPP Disability benefits. The report indicates the diagnosis of the worker's condition is major depressive disorder and anxiety disorder. The psychiatrist identifies relevant/significant medical history relating to the main medical condition to be psychological factors and does not identify the worker's physical condition as a result of the workplace injury or impact of pain medications for the injury as a diagnosis or relevant medical history. As such, the panel finds that this report does not support that the worker's current disability is related to the compensable injury.

The panel finds on a balance of probabilities, that the medications provided for pain caused by the workplace injury are not responsible for the worker's loss of earning capacity.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 22nd day of April, 2013