The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing three decisions made by the Workers Compensation Board ("WCB")with respect to his 2008 claim for a hernia condition.  A hearing was held on September 21, 2015to consider the worker's appeal.

Issue

Whether or not the worker should be covered for Opioid based medications after December 28, 2014;

Whether or not the worker's vocational rehabilitation plan for NOC 2231 Civil Engineering Technologist should be pursued; and

Whether or not the worker's adjustment disorder and treatment is compensable.

Decision

That the worker should not be covered for Opioid based medications after December 28, 2014;

That the worker's vocational rehabilitation plan for NOC 2231 Civil Engineering Technologist should not be pursued; and

That the worker's adjustment disorder and treatment is not compensable.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a hernia condition that he related to a workplace accident on June 17, 2008. His claim for compensation was accepted by the Appeal Commission under Decision No. 59/09. Subsequent file records showed that the worker underwent hernia repair surgery on November 25, 2008. Due to a recurrent hernia that occurred in August 2009, the worker underwent further hernia repair surgery in October 2009 and November 2011.

Over the course of the claim, the worker has been treated by physicians and specialists regarding his hernia condition and ongoing chronic pain complaints. In 2012, 2013 and 2014, the worker was assessed at the WCB's Pain Management Unit ("PMU") with respect to psychological distress and intake of prescribed opioid medication. The worker was also provided with vocational rehabilitation assistance while attending courses related to Civil Engineering Technology under National Occupational Classification ("NOC") 2231.

On May 5, 2014, the worker was admitted to a hospital facility. Medical records pertaining to the worker's stay in hospital between May 5 and 7, 2014 were obtained along with a report from the family physician dated May 21, 2014. On May 15, 2014, the worker met with WCB staff and details of the incident were discussed.

Following a call-in assessment at the WCB's offices on July 31, 2014, the WCB psychiatric consultant stated:

[The worker] sustained a groin injury with resultant inguinal hernia in 2008. [The worker] continues to experience pain and reported limitation of function despite medical and surgical treatment.

[The worker] does not believe that he had symptoms consistent with a diagnosis of a Mood Disorder at the time of [the May 2014 incident]. He did believe that he had some symptoms of depression when he took [medication]. The psychiatrist who assessed him in the [name] Hospital before his discharge from hospital did not find he had Depression, and focused on the situational stressors [the worker] was dealing with... Evidence from the file as well as the assessment today does not suggest the presence of a Mood Disorder. The psychiatric diagnosis is Adjustment Disorder. [The worker] is dealing with a number of stressors, most of which are not related to his WCB claim. Until recently, [the psychologist] has found [the worker] unwilling to engage in therapy. Rather, [the worker] has consistently externalized responsibility for his difficulties, blaming other people or WCB.

It is the opinion of the writer, having reviewed the file and having assessed [the worker], the Adjustment Disorder is not related to his WCB claim.

[The worker] was previously advised in 2012 by the WCB Pain Unit Medical Advisor of the risks of continued opioid use, and the presence of an unfavourable risk to benefit ratio. This remains unchanged in 2014.

In a WCB decision dated August 26, 2014, the worker was advised that no responsibility could be accepted for medical treatment and expenses incurred for symptoms of adjustment disorder which occurred on May 5, 2014. The case manager's decision was based on WCB policy (Further Injuries Subsequent to a Compensable Injury) and the WCB medical opinion outlined on July 31, 2014.

In another decision dated September 17, 2014, it was confirmed to the worker that the WCB decided to end his current vocational rehabilitation plan in the Civil Engineering Technology Program and that an alternate vocational rehabilitation plan ("VRP") in Customer Services was under development. The case manager's decision was based mainly on the worker's inconsistent attendance at university classes, tutoring sessions and a work experience program; and with being placed on academic suspension due to his grade point average and failing 4 of 7 courses.

In a further decision dated October 6, 2014, the worker was advised that the WCB would no longer be responsible for the costs associated with two medications beyond December 28, 2014. The decision was based on the nature of his injury, his response to treatment, and WCB policy. In October 2014, the worker appealed the above decisions to Review Office.

On December 15, 2014, Review Office rendered the following decisions:

1. That the worker would not be covered for opioid based medications beyond December 28, 2014.

In support of its decision, Review Office noted that the worker's opioid medication usage had been monitored since his second surgery in 2009. It noted that the worker suffered a variety of side effects from taking the medication even after the medication and dosage had been adjusted over time. After considering the WCB medical opinions on file dated March 9, 2012, June 25, July 31 and August 25, 2014 and a report from the treating physician dated October 14, 2014, it was concluded that there was no medical evidence to support that the opioid based medications were optimally controlling his pain. It was also concluded that the worker had been provided with an appropriate weaning period to transition him off opioid based medications.

2. That the VR plan for NOC 2231 was no longer supported.

Review Office considered all file information related to the worker's progress while attending the Civil Engineering Technologist program and during the work experience program in 2014. Based on the personal difficulties experienced by the worker, the grades he obtained during the first year of the program and the worker's inability to commit himself to full time study, Review Office agreed with the decision to remove the worker from the VR plan as a Civil Engineering Technologist.

3. That the worker's adjustment disorder and subsequent treatment was not compensable.

Review Office found that the worker did not appear to have any psychological diagnosis resulting from the compensable injury based on an assessment at the WCB's PMU in May 2012.

It noted that in the May 5, 2014 hospital admission report, the worker had a number of stressors including "a break up with his fiancé, WCB withdrawal of some chronic pain medication funding, and he also recently failed a mathematics exam."

Review Office noted that prior to this, the treating psychologist thought that the worker did not have a clinical depression and if he did have a clinical depression in 2014, it was now in partial remission. Based on the comments made by the WCB psychological consultant in the July 31, 2014 examination report, Review Office found that the worker's diagnosis of adjustment disorder was not related to his WCB claim.

On January 25, 2015, the worker appealed the December 15, 2014 Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

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 a groin injury. He is seeking:

· coverage for Opioid based medications after December 28, 2014

· continuation of the vocational rehabilitation plan for NOC 2231, Civil Engineering Technologist

· a determination that his adjustment disorder and treatment are compensable.

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. Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury.

Subsection 27(20) provides, in part, that the WCB may make expenditures to provide academic or vocational training, or rehabilitative or other assistance to a worker where the worker could experience long-term loss of earning capacity. Benefits provided under this provision are discretionary.

Worker's Position

The worker attended the hearing with his father. He called as a witness, his current roommate, to provide evidence on his observations of the worker's physical and mental wellbeing. The witness and the worker answered questions from the panel.

On the first issue under appeal, WCB coverage of opioid-based medications after December 28, 2014, the worker noted that the WCB paid for the opioid medications for a lengthy period and then “took it away.” The worker advised that he was able to stop using the medication for a couple months but then became more active so needed the medication after activity. He said that he uses the medication, drug "C" to help settle down from pain, after activity such as playing hockey. He advised that he uses two to four pills per week and has some left over from a past prescription. He fears that without the medication for use with breakthrough pain, he won’t be able to keep active.

The worker said that he has pain when and after he plays hockey. He explained the importance of this activity to his mental health:

"Psychological. The body needs it. I quit for a year. I gained 50 pounds. Went into a complete depression. It was, honestly, it was the worst. It was one the darkest times in my life, which is, as it sounds, it might sound stupid to some people, but the body needs to work out."

When asked what opioid usage he is seeking approval for in this appeal, the worker advised that he is seeking approval for drug “C”. He said he “just needs something to help me when it comes to the physical activity, the breakthrough pain.”

With respect to the second issue, approval to continue the vocational rehabilitation plan for NOC 2231, the worker said that when his VR program was initially set-up, it included tutoring with a math course and science courses over an eight month period. The VR plan was subsequently terminated by the WCB and then re-instated after an Appeal Commission decision in 2013. When the plan was reinstated, the worker said that he did not get all the brush-up courses and that “I feel that that really hurt my schooling, reason, you know, I failed, ended up failing four courses.” He said that he was wrongfully cut-off and that this hindered his schooling.

He acknowledged that he did not do well in the course, failing four courses including: chemistry, statics and strength of materials, algebra and trigonometry, and surveying. The worker advised that he completed the practical component of surveying and that chemistry is no longer a required course. After he failed the courses, the WCB “just pulled the carpet out from under me”. The worker said that “…just because I failed a few courses and … I could have made them up in the summer, which I was willing to do.”

The worker said that as part of the training for NOC 2231, he tried to participate in a work experience position doing drafting. He was not able to complete his time at the firm due to his medical condition.

With respect to his attendance at tutoring, he denied it was bad. He explained that he missed some tutoring so that he could finish assignments.

The worker also said that he had difficulty with school because:

· he had a poor living arrangement when he returned to school

· he was in pain and his physician was attempting to balance his medication, which included a drug which reduced pain but affected his memory and which made him “loopy.”

The worker said that the impact of the medications was so strong that “…I wouldn’t even remember how I got to school some days, because I was just on so many medications that I just didn’t know what was going on a lot of the time.”

The worker advised that after terminating the VR plan for NOC 2231, the WCB instituted a new VR plan, for a customer service position which included some upgrading. He was not able to complete the job placement arranged as part of this plan because the position exceeded his restrictions.

The worker disagreed with the comment from his psychologist that he was apprehensive about his ability to complete the civil engineering technology course. He said he disagreed with much of the information in the psychologist’s notes. He also disagreed with the note from his tutor which suggested that the worker was asking the tutor to do his assignments for him.

The worker advised that he has found a job as a draftsperson, and will be working full time at 40 hours per week. The new employer has advised the worker that after a year of experience, he may do some jobsite supervision.

With respect to the third issue, whether the worker’s adjustment disorder and treatment are compensable, the worker advised that he is much better than he was a year or 15-16 months ago but asked that he be provided the services of a psychologist. The worker was asked why he wanted the services of a psychologist. He responded “Well just dealing with everyday stress, dealing with the handling of the pain every day kind of thing…”

He was critical of the medical professional who assessed him at the hospital. He said that the assessment took place while he was sedated and that he cannot remember talking to him.

The worker said that he was in pain and was depressed. He said that “…its not easy knowing that there’s not going to be a pain free day for the rest of my life…”

The worker advised the panel that there were several stressors impacting him in the spring of 2014. He was told by a WCB representative that a family member provided negative information on his claim which was very hurtful and angered him. This combined with other matters, such as breaking–up with his long term fiancée and failing school, led to the incident in spring 2014.

The worker advised that he did not have a good relationship with his first psychologist but found his second psychologist was helpful. He said that the second psychologist did not agree with the comments that he had an adjustment disorder, but thought that he was depressed.

Employer's Position

The employer did not participate in the hearing.

Analysis

1. Whether the worker should be covered for Opioid based medication after December 28, 2014.

The worker asked for coverage of opioid based medications. At the hearing he advised that he uses the opioid based medication, drug "C", on a limited basis. He said that after significant physical activity, such as a hockey game or workout, he uses one tablet to help manage his pain. He referred to the medication as break-through medication.

For the worker's appeal of this issue to be approved, the panel must find that the opioid medication is necessary to cure and provide relief from the workplace injury. The panel was not able to make this finding.

The panel notes that since his injury in 2009, the worker has been prescribed a variety of opioid based medications for treatment of pain arising from his injury. In March 2012, the WCB pain management consultant reviewed the worker's file and made recommendations on reduced opioid use. The worker's use of opioid based medication was followed by the WCB and in August 2014, the WCB pain management consultant commented, in part, that:

"With regard to the claimant's medications there was discussion with regard to the current use of Opioids; these being ["T"] 300 mg per day and ["C"] 30 mg 2-4 tablets per day. The use of Opioids is known to have negative cognitive side effects and as well to be depressogenic. The claimant does have a history of mood related issues and in the Progress Opioid Management Report on file and dated August 12, 2014 the claimant's attending physician notes the presence of Moderate Depressed Mood and Mild Cognitive Deficits...

There was discussion today noting that the use of Opioids, given the cognitive side effects, would be a barrier to successful completion of the claimant's educational program at [educational institution].

In the discussion today it was also noted that for the reasons noted in the Pain Management Unit Medical Assessment Notes on file and dated March 18, 2012 the risk/benefit ratio for the use of Opioids in this case was not favorable and as such was not recommended. It was also noted that in the Psychiatric Examination Call-In Notes from [psychiatric consultant] on file and dated July 31, 2014 she did agree with this opinion...

It was therefore agreed that the Medical Advisor to the Pain Management Unit will contact the claimant's attending physician and discuss with him the above opinion as well as the reasons supporting that opinion. He would be advised that the WCB would continue to financially support the use of Opioids for a period of 12 weeks during which time he could wean the claimant off of the Opioids or could access any of the programs that could help the claimant wean off of Opioids completely (abstinence based) or substitute their use with Methadone or Suboxone (harm reduction). He would also be advised that should the claimant agree to enter such a program the WCB would consider financially supporting it on a one-time basis. It was agreed that the claimant's attending physician would also be advised that at the end of the 12 weeks noted above, as the claimant's attending physician he could continue to prescribe Opioids at his discretion however WCB financial support for the use of Opioids would cease."

The panel attaches significant weight to the above opinion. The panel finds that the medical evidence does not support that the worker's pain was optimally controlled by the use of opioid based medications. Throughout the claim, the worker has reported high pain levels including background pain of 5/10. As well, the file information suggests that the use of these medications has impaired the worker's performance at school.

The worker's appeal of this issue is dismissed.

2. Whether the worker's vocational rehabilitation plan for NOC 2231 Civil Engineering Technologist should be pursued.

The worker was enrolled in a civil engineering technology course as part of his vocational rehabilitation plan. The WCB decided to terminate its sponsorship of this plan, the worker disagreed with this decision and filed this appeal.

For the worker's appeal of this issue to be approved, the panel must find that he is an appropriate candidate for NOC 2231 and had reasonably participated in the vocational rehabilitation plan. The panel is not able to make these findings.

After considering all the evidence including the worker's submission at the hearing, the panel finds that the vocational rehabilitation plan for NOC 2231 Civil Engineering Technologist should not be pursued.

There are numerous aspects of the worker's participation in class which cause the panel to conclude that the worker did not fully participate in the vocational rehabilitation plan. He failed four of seven courses. He did not complete the job placement which would have given him experience in the drafting field. He chose to continue the use of opioid-based medications, notwithstanding that he was to be weaned from opioid-based medications and that the evidence indicated that these medications are known to have negative cognitive side effects and be depressogenic, side effects which have been reported in the worker's case.

The panel notes the September 18, 2014 comments of his treating psychologist, specifically that the worker is motivated to return to school and with close monitoring and support the prognosis for him to complete the training is good. The panel finds, however, that the worker's record of participation does not support this comment.

The panel finds that the worker is not an appropriate candidate for NOC 2231.

The worker's appeal of this issue is dismissed.

3. Whether the worker's adjustment disorder and treatment is compensable.

For the worker's appeal of this issue to be approved, the panel must find medical or other evidence that the worker's adjustment disorder (psychological condition) is related to his workplace injury.

The panel finds that the worker's adjustment disorder is not compensable. The panel considered all the medical information regarding the worker's mental condition and finds on, a balance of probabilities, that the evidence does not support a finding that worker's adjustment disorder is caused by his workplace accident/injury.

In making this finding, the panel notes a June 30, 2014 file note of a conversation between the worker's treating psychologist and WCB psychiatric consultant which states:

"He said that prior to the [May 2014 incident], he did not think [worker] had a clinical depression. This was based on interaction and assessment of [worker]. He said that [worker] reported to him that he had been depressed in May 2014...[worker] is quite reactive and demonstrates anger. It has been difficult for him to assist [worker], as he is said to have difficulty taking ownership of his actions and emotions. If he had a clinical depression in May 2014, [psychologist] believes it is now in remission."

In a report dated June 30, 2014, the treating psychologist noted that the worker's mental status appears to be "relatively stable". He reports that:

"...[worker] indicates the [May 2014 incident] was more a "cry for help", with him perceiving that others had given up on him and abandoned him...[worker] was encountering significant difficulties with his living accommodations, long-term romantic relationship, and his performance at school, with these struggles in these 3 major life areas leading to his impulsive behaviour...

In terms of diagnosis I believe that [worker's] diagnostic formulation at present would be best described as Major Depression in partial remission with there being a strong component to this depression..."

The panel notes the report of the call-in examination conducted by the WCB psychiatric consultant on July 31, 2014. In this report the WCB psychiatric consultant notes that the worker advised that with regards to the incident in May 2014, it was precipitated by problems with his girlfriend and then the end of their relationship, as well as frustration with the WCB. The psychiatric consultant concluded that:

It is the opinion of the writer, having reviewed the file and having assessed [worker], the Adjustment Disorder is not related to his WCB claim.

The panel further notes a recent suggestion by the worker's physician regarding cognitive behavior therapy. This is similar to the worker's request for ongoing treatment by a psychologist. The panel notes that these treatment modalities are being proposed well past the high stress period of spring 2014, and appear to be aimed at the worker's request at the hearing for "...just dealing with everyday stress, dealing with the handling of the pain every day kind of thing...". In the panel's view, while the worker may well benefit from such treatment, it is not causally related to the worker's compensable injury and is therefore not the responsibility of the WCB.

The worker's appeal of this issue 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 19th day of October, 2015