The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:

1. She is not entitled to a permanent partial impairment award for her neck; 

2. She is not entitled to a permanent partial impairment award for Major Depressive Disorder; 

3. She is not considered to be competitively unemployable or totally disabled; 

4. Responsibility for the medications Mobicox, Tylenol #3, Celebrex and/or Diclofenac is not accepted.

A hearing was held on January 22, 2020 to consider the worker's appeals.

Issue

1. Whether or not the worker is entitled to a permanent partial impairment award for her neck; 

2. Whether or not the worker is entitled to a permanent partial impairment award for Major Depressive Disorder; 

3. Whether or not the worker is considered to be competitively unemployable or totally disabled; 

4. Whether or not responsibility for the medications Mobicox, Tylenol #3, Celebrex and/or Diclofenac should be accepted.

Decision

1. The worker is not entitled to a permanent partial impairment award for her neck; 

2. The worker is not entitled to a permanent partial impairment award for Major Depressive Disorder; 

3. The worker is not considered to be competitively unemployable or totally disabled; 

4. Responsibility should be accepted for Mobicox, Tylenol #3 and Celebrex.

Background

The worker filed a claim with the WCB on November 20, 2003 for a right shoulder and neck strain. The claim was accepted on December 8, 2003 and payment of wage loss and medical aid benefits began.

Further testing to determine the cause of swelling in the worker’s right hand revealed no vascular cause. A CT scan of the worker’s neck showed degenerative changes but no compression of a nerve root. A May 2, 2004 MRI study of the worker’s right shoulder indicated a glenoid labrum tear and tendinosis of the infraspinatus tendon.

On July 2, 2004, the worker moved to another province, where she had surgery to her right shoulder on October 26, 2004. The operative report noted no tear in the glenoid labrum. The postoperative diagnosis was of rotator cuff tendinopathy and posterior instability. After the surgery, the worker underwent a long course of physiotherapy with minimal benefit.

On September 23, 2005, the worker’s treating orthopedic surgeon advised that the worker’s right shoulder surgery was considered a failure and referred the worker to a neurologist to investigate the worker’s continuing report of pain in her neck. On October 3, 2005, the surgeon recommended a restriction of no repetitive use of the worker’s right arm.

The worker saw the neurologist on November 23, 2005, who reported that the worker’s symptoms were primarily musculoskeletal with no evidence of a radiculopathy or brachial plexopathy.

The worker attended a WCB call-in examination on December 12, 2005. A Functional Capacity Evaluation was attempted, but the worker did not complete enough tests to validate her effort. Based on the call-in examination findings, a WCB medical advisor determined that the worker was at maximum medical improvement (MMI) and recommended permanent restrictions of no lifting, no gripping greater than 5 pounds, no repetitive use of right arm above waist level, push/pull using both arms at light/medium rate of work, pull with left arm only up to 11 pounds, and perform fine motor skills for a short time with either hand.

A further MRI of the worker’s right shoulder on February 6, 2006 found early osteoarthritis of the acromioclavicular joint but no other significant abnormalities.

On February 22, 2006, Review Office determined the worker was entitled to partial wage loss benefits as of February 16, 2006, which was the date the worker was offered a permanent accommodated position with the employer. After the worker attended for a permanent partial impairment (PPI) examination at the WCB on September 23, 2008, the WCB determined she was entitled to a 6.7% PPI award.

The WCB received a report from the worker’s treating family physician on February 3, 2015, noting the worker was suffering from depression and chronic pain in her right shoulder and outlining the medications the worker was taking for both conditions. WCB’s pain management unit reviewed the worker’s medication on February 11, 2015 and determined that there would be coverage for medications related to the worker’s compensable injury but that medications for the worker’s symptoms not related to the compensable injury, including the diagnosis of depression would not be covered.

The worker’s representative requested reconsideration of the WCB’s decision not to accept the depression diagnosis to Review Office on July 5, 2016 and submitted medical information for the worker from 2010 to 2016. Review Office returned the worker’s file to the WCB’s Compensation Services for review of the medical information submitted and further investigation.

On October 12, 2017, the WCB advised the worker that the diagnosis of Major Depressive Disorder (MDD) was accepted as related to her compensable injury and medications she was prescribed for that condition were also accepted. The WCB also advised the worker that as she was assessed at MMI on August 8, 2008 and had a PPI rating assessed on September 23, 2008, and had not been employed since those assessments, the WCB would not accept any further deterioration as being related to her claim. As well, the WCB did not accept the diagnosis of chronic pain as the medical information did not support it. Finally, the WCB advised the worker that she was not entitled to full wage loss benefits, as the WCB medical advisors’ opinions did not support a finding that she was totally disabled.

The worker’s representative again submitted a request for reconsideration to Review Office on November 30, 2017. In the submission in support of that request, the representative requested that consideration be given to a PPI rating for impairment of the worker’s neck and the diagnosis of MDD, as well as noting that the submitted medical evidence did support the worker’s entitlement to full wage loss benefits. On December 4, 2017, the worker’s file was again returned to the WCB’s Compensation Services for further investigation.

Information from the worker’s treating healthcare providers was reviewed by WCB medical advisors and on June 26, 2018, the WCB advised the worker she was not entitled to a PPI award for her neck as the medical evidence did not support that those difficulties were related to the workplace accident. The WCB also advised the worker she was not entitled to a PPI award for MDD, and as she had not returned to work since the workplace accident, there was no medical evidence to support a change in function of her upper right extremity to justify a PPI reassessment. Further, the WCB determined the worker was not totally disabled or competitively unemployable as a result of her compensable injuries, and she was not entitled to coverage for the medications Mobicox, Tylenol 3, Celebrex and Diclofenac as those medications were determined to not be related to her claim.

On October 23, 2018, the worker’s representative submitted a request for reconsideration to Review Office. Review Office requested an opinion from the WCB orthopedic consultant, which was received on February 21, 2019. The WCB orthopedic consultant, after reviewing the worker’s file, stated that the workplace injury of November 20, 2003 caused a strain of the worker’s right shoulder and neck and that the worker’s current difficulties were caused by “…multilevel cervical degenerative disc disease (DDD).” This view was supported by the MRI study of March 15, 2013 that noted multilevel DDD and facet joint osteoarthritis. The orthopedic consultant also relied on an MRI of the worker’s right shoulder of June 10, 2015 that noted degenerative findings. The WCB orthopedic consultant opined that the worker’s shoulder injury “…would affect some functions of the shoulder but would not preclude modified work duties” and that the DDD of the worker’s cervical region would cause neck and arm symptoms “…but would generally not be considered to be a reason for total disability.” The WCB medical advisor’s opinion was shared with the worker’s representative on February 21, 2019, who provided a response on March 7, 2019.

Review Office determined on March 15, 2019 that: the worker was not entitled to a PPI award for her neck; the worker was not entitled to a PPI for MDD; the worker was not considered competitively unemployable or totally disabled; and medications of Mobicox, Tylenol #3, Celebrex and/or Diclofenac would not be covered. With respect to a PPI award for the worker’s neck, Review Office accepted the opinion of the WCB medical advisor that there was no evidence of a significant traumatic injury to the worker’s neck at the time of the workplace accident that would have caused the degenerative changes and that the diagnostic imaging was consistent with natural progression of a degenerative condition. Review Office also accepted the WCB psychological advisor’s opinion of April 10, 2018 that the worker had “meaningful resolution” of her MDD and was not entitled to a PPI for a psychological condition. Further, Review Office found that there was no evidence to support that the worker was totally disabled from her compensable right shoulder injury as the medical evidence on file supported that the worker was capable of returning to work with restrictions. The evidence also did not support that she was competitively unemployable by reason of her compensable injury as an assessment by the WCB’s vocational rehabilitation consultant determined the worker had skills and could be employed with an earning capacity. Lastly, Review Office noted that the medications Mobicox, Tylenol #3, Celebrex and Diclofenac were prescribed for non-compensable injuries and therefore the worker was not entitled to coverage.

The worker’s representative filed an appeal with the Appeal Commission on June 25, 2019. An oral hearing was arranged.

Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On April 17, 2020, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act") and regulations, and by the policies established by the WCB's Board of Directors.

Under s 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. Compensation includes wage loss, medical aid and awards for permanent partial impairment, as set out in s 37 of the Act:

Compensation payable 

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

Section 27(1) of the Act provides the WCB with authority to provide the worker with medical aid as is "…necessary to cure and provide relief from an injury resulting from an accident."

The Act defines impairment, in s 1(1) as a permanent physical or functional abnormality or loss, including disfigurement, that results from an accident. Section 4(9) provides that the WCB may award compensation for an impairment that does not result in a loss of earning capacity, and s 38 of the Act allows the WCB to determine the permanent partial impairment rating as a percentage of total body impairment and to make an award based upon each full percentage of whole body impairment.

Entitlement to wage loss benefits is addressed in s 4(2) of the Act which provides that wage loss benefits are payable for loss of earning capacity resulting from an accident. Section 39(2) of the Act sets out that wage loss benefits are payable until such time as the worker's loss of earning capacity ends or the worker attains the age of 65 years.

The WCB has established Policy 44.10.20.10, Pre-Existing Conditions (the Pre-Existing Conditions Policy) to clarify how benefits will be administered where an injured worker has a non-compensable pre-existing condition. This policy sets out that the WCB will not provide benefits for disablement resulting solely from the effects of a worker’s pre-existing condition. The Pre-Existing Conditions Policy sets out that: 

“When a worker has: 

1) recovered from the workplace accident to the point that it is no longer contributing, to a material degree, to a loss of earning capacity, and 

2) the pre-existing condition has not been enhanced as a result of compensable injury arising out of and in the course of the employment, and 

3) the pre-existing condition is not a compensable condition, 

the loss of earning capacity is not the responsibility of the WCB and benefits will not be paid.”

Under the provisions of this policy, enhancement is defined as when a compensable injury has permanently and adversely affected a pre-existing condition. Aggravation is defined as a temporary clinical effect of a compensable injury on a pre-existing condition such that the pre-existing condition will eventually return to its pre-accident state unaffected by the compensable injury.

Worker’s Position

The worker’s position was outlined to the panel by the paralegal representing the worker. The worker gave testimony through answering questions put to her by her representative and by members of the panel.

The worker, in answer to questions put to her, outlined her own history for the panel, including her employment history. She noted that she moved to another province in mid-2004 to follow her family. The shoulder injury was treated with surgery, but that was not successful. The worker confirmed she has not returned to work since her surgery. The worker noted that she has been emotionally impacted by the injury and had no prior psychological issues prior to 2003.

In terms of activities of daily living, the worker advised that she lives with her adult daughter and husband and they provide her with support. She stated that she is able to do things with her left hand, but that her daughter does the household laundry and takes care of them. When she is feeling calm, she will go out for coffee with friends and reads a lot. The worker stated she has interrupted sleep, as a result of pain in her hand and arm.

The worker advised the panel that she sought and obtained Canada Pension Plan disability benefits for her neck, back, shoulder and depressive conditions. She noted that she continues to experience pain in her neck, shoulder and arm, as well as depression, and that she relates the depression to the increase in pain. At present, her worst complaints are with respect to her neck and mental health. The worker acknowledged that she also has had to deal with unrelated health concerns with respect to her low back and knee but stated that these are not debilitating.

The worker’s position with respect to each of the issues for determination by the panel is summarized as follows:

1. The worker is entitled to a PPI award for her neck injury, which has never resolved since the compensable injury of November 20, 2003. The worker’s representative noted a continuity of neck complaints to the worker’s treating physician, as outlined in the chart notes on file. The WCB accepted the worker’s compensable injury as a neck strain, but also noted that she had pre-existing degenerative cervical spine changes. The worker’s representative stated that the worker’s pre-existing cervical spine condition was permanently aggravated by the workplace injury and that the worker has a resulting permanent impairment of her neck. This impairment, the worker’s representative stated, is permanent and related to the compensable workplace injury, and as such should entitle the worker to a PPI award. 

2. The worker is entitled to a PPI award for the diagnosed MDD. The worker’s representative noted that the medical reporting indicates that the worker was undergoing treatment for depression as early as 2005, and that the WCB has accepted in 2017 that the worker’s depression was related to the compensable workplace injury. While the file evidence noted the worker’s diagnosis of MDD to be in remission in the period leading up to the assessment for permanent partial impairment, the worker’s representative noted that the worker’s symptoms of depression are ongoing and that the continuing aggravation of her cervical spine issues are contributing to the ongoing condition. This impairment, the worker’s representative stated, is permanent and related to the compensable workplace injury, and as such should entitle the worker to a PPI award. 

3. The worker is totally disabled as a result of the compensable workplace injury of November 20, 2003. While it may be true that in 2005 the worker could have returned to employment with the restrictions set at that time, in combination with the subsequent compensable diagnosis of MDD and the permanent aggravation of the worker’s cervical spine degenerative disc disease, the worker is now and has been since at least 2012, totally disabled and unable to return to any kind of employment. In the result, the worker’s representative argued, the worker should be found to be totally disabled and entitled to full wage loss benefits. 

4. The worker is entitled to coverage for the medications prescribed to her to address symptoms arising out of and related to the compensable workplace injury. The worker’s representative noted that the WCB accepted responsibility for medications prescribed by the worker’s treating physician in the past, including Tylenol #3 and Celebrex. The WCB should accept responsibility for the medications at issue as the worker’s physician in treatment of her compensable injury has appropriately prescribed these.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker has appealed four determinations made by the WCB, each arising out of the accepted claim that the worker initiated in 2003. In considering these questions, the panel looked at the totality of evidence presented by the worker as well as the contents of the worker’s claim file. The decisions on each issue and reasons for each decision are set out below.

Is the worker entitled to a permanent partial impairment award for her neck?

In order to find that the worker is entitled to a PPI award for the injury to her neck, the panel would have to determine that the compensable workplace injury to the worker’s neck resulted in a permanent impairment. For the reasons outlined below, the panel was not able to make such a finding.

As set out above, impairment is defined under the Act as a permanent physical or functional abnormality or loss that results from an accident.

The worker’s injury was accepted by the WCB on the basis of injury to her right upper extremity arising out of repetitive usage in the workplace. The initial symptoms of pain and discomfort, swelling and numbness appeared in her right shoulder and throughout her arm, as well as tenderness in her neck.

Further medical investigation revealed multilevel degenerative changes noted in the worker’s cervical spine, but no nerve root compression. At a WCB call in examination in late 2005, the WCB consulting physician found that “…there were no consistent radicular features to suggest a cervical root lesion and no trigger points indicative of a myofascial syndrome.” Subsequent investigations, undertaken in 2015, again revealed multilevel degeneration in the worker’s cervical spine, which were thought to be worsening.

A WCB orthopedic consultant reviewed the file on February 21, 2019 and provided an opinion that the worker’s current neck pain is not considered to be caused by the workplace injury but is rather caused by the multilevel degenerative disc disease in her cervical spine. Further, the orthopedic consultant concluded that “[t]here is no objective medical evidence that the workplace injury has changed the degree of degenerative pathology of the cervical spine, nor would treatment modalities be responsible for any changes.”

The panel acknowledges that the worker continues to experience pain in her cervical spine region (including in her neck) and that this condition may be chronic in nature. The panel notes that the original mechanism of injury supported a finding of a soft tissue injury arising out of repetitive strain, in an environment of significant and pre-existing degenerative cervical spine issues. Such a strain injury would typically resolve in a few months.

The worker’s representative argued that the pre-existing degenerative changes to the worker’s cervical spine were permanently aggravated (i.e. enhanced) by the repetitive strain injury, but the panel is unable to find any medical findings in the evidence to support this view. A WCB medical advisor reviewed the file and in a memo dated July 20, 2004 stated that the degenerative cervical spine changes would not be considered to prolong the worker’s recovery. The panel noted as well that when permanent workplace restrictions were established in December 2005, these related only to the worker’s use of her right arm and none to her neck.

Taking into account the accepted mechanism of injury and the medical reporting and opinions on file, the panel concludes, on a balance of probabilities that the worker’s ongoing cervical spine symptoms do not relate to the compensable workplace injury, and more likely relate to the pre-existing multilevel degenerative changes. Therefore, the panel finds that there is no permanent impairment of the worker’s neck resulting from the compensable workplace injury.

The worker is not entitled to a PPI award for her neck.

Is the worker entitled to a permanent partial impairment award for Major Depressive Disorder?

In order to find that the worker is entitled to a PPI award for MDD, the panel would have to determine that the compensable psychological injury resulted in a permanent impairment. For the reasons outlined below, the panel was not able to make such a finding.

As already noted, under the provisions of the Act, impairment is a permanent physical or functional abnormality or loss that results from an accident.

In 2017, the WCB accepted that the worker’s compensable injury includes the diagnosis of MDD and began to provide medical aid to address this condition.

The panel notes the worker’s testimony suggesting that her psychological condition is not currently stable but continues to fluctuate, and that the worker continues to receive treatment for her MDD, including prescription medication and seeing her psychiatrist every 2-3 months.

When the WCB psychological advisor reviewed the worker’s file in April 2018, the evidence available at that time indicated that the worker’s MDD appeared to be in remission, or was resolved. That conclusion was reached based upon the medical reporting provided to the WCB in 2016 and 2017. That evidence did not lead to a conclusion that there was any level of impairment of or degree of loss of function. The WCB psychological advisor therefore concluded that “…there is no evidence based on the psychiatric reporting that [the worker] would have eligibility for a psychological domain PPI rating for what had been diagnosed as her Major Depressive Disorder as this appears to be in remission….”

The panel notes as well that the WCB continues to accept responsibility for medications arising from the worker’s MDD diagnosis and ongoing treatment.

The most recent evidence on file with respect to the worker’s psychological injury is a report dated May 1, 2017 from the worker’s treating psychiatrist who noted that “[s]he is stable, and there are no major issues.” This is one of the reports that the WCB psychological advisor relied upon in coming to the conclusions outlined above.

A PPI award is intended to compensate a worker for permanent impairment of function arising out of a compensable workplace injury, and assessment for a PPI is to occur when the injured worker is at a point of MMI. On the basis of the WCB psychological advisor’s April 10, 2018 opinion, the WCB did not assess the worker for a PPI with respect to the psychological diagnosis.

The panel finds that there is no evidence of permanent physical or functional abnormality or loss resulting from the worker’s compensable psychological injury, at least in part because a PPI assessment has not been undertaken. Without such an assessment of the degree of permanent physical or functional loss or abnormality resulting from the psychological injury, the panel cannot determine whether or not the worker is entitled to a PPI award.

The panel therefore finds that at this time, and until such time as the worker is determined be at MMI and assessed for permanent partial impairment arising out of the psychological injury, it is unable to determine whether or not the worker is entitled to a PPI award for her MDD.

Is the worker considered to be competitively unemployable or totally disabled?

In order for the panel to find that the worker is totally disabled, or competitively unemployable, it must find that the worker has a complete loss of earning capacity as a result of the workplace accident. The panel was not able to make such a finding for the reasons that follow.

The panel notes that the worker is dealing with a number of ailments. The file documents that she has degenerative disc disease in her cervical spine causing what seems to be chronic neck and back pain. She has right rotator cuff tendinopathy and posterior instability, as well as degenerative calcification of the supraspinatus tendon. She has been diagnosed with MDD arising out of the physical injury sustained in the compensable workplace accident. There are also comments on file about low back pain and a right knee injury, which the worker indicated had resolved.

The worker’s representative argued that the combined effect of the worker’s cervical spine, shoulder and psychological condition renders her unable to do most anything. The 2005 assessment of the shoulder injury alone resulted in a list of restrictions that would have permitted the worker to undertake light duties at that time, but the addition of the cervical spine condition and the worker’s diagnosis of depression have left her completely disabled and unemployable.

There is no question that as a result of the compensable injury, the worker continues to experience a loss of earning capacity. What the panel must determine is whether that loss of earning capacity is complete, due to compensable injury.

The evidence does not support that there is a causal link between the compensable injury and the worker’s current status. As outlined above, the worker’s cervical spine condition is degenerative in origin and cannot be attributed to the workplace neck strain injury suffered in 2003. Further, the evidence as to the worker’s psychological condition points to the worker managing her MDD with medication and bimonthly, or less frequent, appointments with her treating psychiatrist, and that the condition, as of the most recent medical report on file, was in remission. The worker’s left shoulder injury, while chronic, still allows for some light work to be done, within the established restrictions.

If, as her representative suggests, the worker is totally disabled, the evidence does not support a finding that she is disabled due to the compensable workplace injury.

On the basis of the evidence before the panel, including the testimony of the worker, the panel concludes on a balance of probabilities that the worker does not have a total loss of earning capacity. Therefore, the panel finds that the worker is not competitively unemployable or totally disabled.

Should responsibility for Mobicox, Tylenol #3, Celebrex and/or Diclofenac be accepted?

In order to find that responsibility for the listed medications should be accepted by the WCB, the panel would have to find that these medications are required to cure and/or provide relief from the worker’s compensable injury.

The Act sets out that medical aid, including prescription medications, will be provided as required to cure and provide relief from a compensable injury.

In order to determine whether these medications are required to address the effects of the worker’s compensable injury, the panel reviewed the worker’s medical history as outlined in the medical reporting on file. The panel noted that the worker’s medical history is complex and that the medical reporting on file was not clear in terms of the underlying indication for the medications that the worker was requesting the WCB cover. The panel therefore requested further confirmation from the worker’s treating physician as to the history and purpose of each prescription for the disputed medications.

The worker’s treating physician advised by letters dated February 24, 2020 and March 10, 2020 that: 

- Mobicox was prescribed in February 2018 for neck and shoulder pain; 

- Celebrex was prescribed in September 2009 due to right shoulder pain and stiffness; 

- Tylenol #3 was prescribed in September 2009 for right shoulder pain; and 

- Diclofenac was prescribed in November 2016 chronic back and chest wall pain.

The accepted compensable diagnosis arising out of the accident of November 2003 relates to the worker’s right shoulder injury, which has never resolved and is considered chronic. In treatment of the chronic pain arising out of that injury, the worker’s treating physician has prescribed to her Mobicox, Celebrex and Tylenol #3. The panel accepts that the worker’s treating physician has prescribed this medication to cure and provide relief from her compensable injury.

Diclofenac was prescribed by the worker’s treating physician to address symptoms that do not relate to the compensable workplace injury to the worker’s shoulder, nor to the psychological diagnosis of MDD.

The panel therefore finds that the WCB should accept responsibility for the medications Mobicox, Tylenol #3 and Celebrex, and the WCB should not accept responsibility for the medication Diclofenac.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of May, 2020