Decision #138/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:
1. They are not entitled to coverage for a Butrans patch after August 14, 2019;
2. Their psychological difficulties should not be accepted as being a consequence of the August 10, 2009 accident; and
3. Their average earnings have been correctly calculated.
A videoconference hearing was held on October 14, 2021 to consider the worker's appeal.
1. Whether or not the worker is entitled to coverage for a Butrans patch after August 14, 2019;
2. Whether or not the worker's psychological difficulties should be accepted as being a consequence of the August 10, 2009 accident; and
3. Whether or not the worker's average earnings have been correctly calculated.
1. The worker is entitled to coverage for a Butrans patch after August 14, 2019;
2. The worker's psychological difficulties should be accepted as a consequence of the August 10, 2009 accident; and
3. The worker's average earnings have not been correctly calculated.
The worker has an accepted WCB claim for injury to their right elbow that occurred at work on August 10, 2009 when the crescent wrench they were using slipped, causing the worker’s right elbow to overextend, and then come into impact with a solid surface.
At a September 28, 2009 medical appointment, the physician diagnosed ulnar neuropraxia and provided workplace restrictions to the worker. A nerve conduction study from November 4, 2009 indicated “…a relatively mild right ulnar neuropathy at the right elbow.” A plastic surgeon assessed the worker on November 4, 2009 and offered a diagnosis of elbow pain secondary to trauma and noted it was “…unlikely related to any ulnar nerve or peripheral nerve problems.” The plastic surgeon also provided the worker “…may have a more generalized peripheral neuropathy associated with his diabetes.”
The worker was subject to seasonal layoff beginning on November 10, 2009.
On December 31, 2009, a WCB medical advisor reviewed the worker’s file and provided an opinion that the diagnosis was right ulnar neuropraxia, which was medically accounted for in relation to the workplace accident. The medical advisor concluded that the findings of bilateral median nerve dysfunction in the carpal tunnels were not related to the workplace accident, noting the worker’s history of non-insulin dependent diabetes.
At follow-up with the plastic surgeon on February 24, 2010, the surgeon noted the worker’s “…significant ulnar nerve symptomatology and elbow joint stiffness and pain” but did not believe that peripheral nerve surgery would offer much improvement in outcome. Another hand surgeon assessed the worker on March 17, 2010 and recommended referral for an MRI study as well as specific therapies.
A WCB medical advisor reviewed the worker’s file on April 19, 2010 and recommended further restrictions.
The employer recalled the worker to work on modified duties on May 11, 2010.
The worker attended a call-in examination with a WCB medical advisor on June 29, 2010. On examination, the advisor stated the worker presented “…with evidence of right ulnar nerve injury and right ulnar nerve compression at the elbow. As well, right elbow forearm and hand dysfunction is noted.” The medical advisor also noted “…diminished range of motion at the right elbow, marked sensitivity of the ulnar nerve at the elbow to compression, as well as other muscular tenderness irritability of the right forearm. As well, today’s examination is notable for the presence of what appears to be evidence of mild right-sided complex regional pain syndrome.” The worker was referred to a pain clinic.
When the worker was assessed at the pain clinic on August 14, 2010, the physician recommended changes to the worker's medications and diagnosed "…a combination of neuropathic pain and also myofascial pain". On September 9, 2010, the worker’s family physician revised the recommended medications and recommended the worker remain off work until the side effects of the new medications could be determined.
On December 16, 2010, the WCB’s pain management unit physician noted the worker’s WCB case manager reported their concern about the worker’s report of hallucinations and nightmares and requesting input from the physician. The physician advised the worker’s case manager to have the worker contact a crisis unit for a psychiatric assessment and follow-up with their family physician for further assessment and treatment. On January 12, 2011, the WCB case manager confirmed the worker was seen at their family physician’s clinic on December 17, 2010 and on January 13, 2011, the worker advised the case manager that the incident in late December 2010 may have resulted from the medications the worker was taking, which were changed on January 6, 2011.
In discussion with the WCB on April 29, 2011, the worker requested counselling sessions for psychological difficulties they were experiencing, noting difficulty in dealing with their pain. On May 3, 2011, the WCB referred the worker to a clinical psychologist. The worker attended a call-in examination with a WCB psychiatric consultant on November 18, 2011 and eight additional psychological sessions were authorized.
At a case conference meeting on May 23, 2012, the worker's treating healthcare providers agreed the worker would not be able to return to their pre-accident employment and on June 12, 2012, the WCB contacted the employer to inquire if they could accommodate the worker. On June 19, 2012, the employer advised the WCB that the major project the worker was hired for was ending and they could not accommodate the worker. The WCB then initiated vocational rehabilitation (“VR”) services for the worker.
Between 2012 and 2015, a VR plan was developed based on the worker's education and employment experience for National Occupation Code (“NOC”) 2264 Construction Safety Consultant with an end date of September 12, 2016. On August 18, 2015, the WCB amended the VR plan to NOC 1453 Customer Service, with no additional training required, retaining the original end date. On review of the worker's file by a WCB VR specialist on November 13, 2015, the relocation period set out in the amended VR plan was reset to November 15, 2017 should the worker decline to relocate.
At the request of the worker's new WCB case manager, a WCB psychological advisor reviewed the worker's file on February 9, 2016 to determine whether further psychological treatment should be authorized. The psychological advisor opined that the worker had received lengthy treatment and education in the areas of pain and mood management and had made successful adaptions and transitions. Further, they noted the worker's current diagnosis was relatively mild and did not preclude the worker from participating in work or other activities. The psychological advisor provided that ongoing treatment would not "…lead to additional sustained, substantive improvement…" in the worker's psychological function and as such, additional treatment beyond transitional sessions, was not recommended.
On February 10, 2016, a WCB medical advisor reviewed the worker's medications. At that time, the worker's prescription for Butrans patches was found to be appropriate and related to the compensable injury; however, as it was an opioid medication, use of the medication would be reviewed by Opioid Management Reports.
On February 17, 2016, the WCB advised the worker they were not entitled to further psychological counselling. On May 12, 2016, the worker's treating family physician submitted a progress report from the worker's appointment on May 10, 2016 requesting the WCB reconsider the decision to end the worker's entitlement to psychological treatment. On May 17, 2016, the WCB advised the worker the family physician's request was considered but there would be no change to the earlier decision.
On January 9, 2018, the worker underwent neurolysis of the right ulnar nerve at the elbow and medial epicondyloplasty of their right elbow. By March 14, 2018, following post-surgical physiotherapy and chiropractic treatment, the WCB deemed the worker to be recovered and determined the worker was entitled to partial wage loss benefits based on the deemed earning capacity of NOC 1453. On July 4, 2018, the worker contacted the WCB to advise of an offer of casual employment, with a possibility of full-time employment. On September 26, 2018, the worker contacted the WCB to advise of their termination from the position. The WCB advised the worker on November 13, 2018 that their partial wage loss benefits were calculated to include earnings from the employment, and they were now deemed capable of earning more than their previous deemed earning capacity.
A WCB medical advisor reviewed the worker's file on December 11, 2018 after receipt of a November 6, 2018 Progress Opioid Management Report and noted the worker continued using a Butrans patch but that "…it appears that over time the use of Opioids has not been associated with a significant/sustained benefit to pain and function…" and the risk/benefit factor was considered not favourable for the continued use of the opioids. The WCB medical advisor requested a WCB psychiatric consultant review the file and the December 11, 2018 opinion. The WCB psychiatric consultant requested further information. On February 20, 2019, the medical advisor requested an opinion from the worker's treating family physician regarding the use of the Butrans patch. On February 25, 2019, the worker's treating family physician advised the Butrans patch had been prescribed to the worker for "…solely pain management, not opioid replacement." At a meeting on May 2, 2019, the WCB medical advisor and the WCB psychiatric consultant agreed that based on an unfavourable risk/benefit ratio, the use of the Butrans patch would no longer qualify for support by the WCB, but funding would continue for a three-month weaning period. On May 14, 2019, the WCB advised the worker funding for the Butrans patch would end on August 14, 2019.
On November 25, 2019, the WCB received a copy of a November 21, 2019 report from a neuropsychologist who had been treating the worker. The neuropsychologist noted they first treated the worker in May 2018 at the request of a counsellor who was working with the worker and had conducted a neuropsychological assessment on the worker on July 4, 2018. The treating neuropsychologist provided an opinion that the worker's current psychological difficulties were "…associated with vocational rehabilitation and struggling with his wage loss." In a further report received on January 15, 2021, the neuropsychologist noted the worker's primary mental health diagnosis as "…a persistent Adjustment Disorder with predominant depressed mood in the context of his chronic pain and the functional implications of his occupational injury…". The neuropsychologist noted the worker would not be able to return to their pre-accident employment due to their physical restrictions and nor to any type of employment due to their current mental health disorder. On February 19, 2021, the WCB advised the worker that following a review of their file by a WCB psychiatric advisor, it had determined the worker was not entitled to benefits in relation to their psychological issues.
The worker's WCB case manager advised on February 18, 2021 that the worker's established earnings had been reviewed and attached a copy of the revised wage loss calculation based on their 2018 employment earnings. It was noted the revised calculation provided the worker with a payment adjustment and would be the worker's established earning capacity going forward.
On March 12, 2021, the worker's representative requested reconsideration of several WCB decisions to Review Office, including the decision as to the worker's pre-accident average earnings calculation, whether the worker's psychological condition was compensable, and whether the worker was entitled to coverage for a Butrans patch after August 14, 2019.
Review Office determined on May 11, 2021 that the worker was not entitled to coverage for a Butrans patch after August 14, 2019 and the worker's psychological difficulties were not related to their claim. With respect to the Butrans patch, Review Office agreed with the opinion of the WCB medical advisor and WCB psychiatric consultant that the risk/benefit ratio for the worker's use of the opioid medication was not favourable and further agreed that an appropriate weaning period was provided. With respect to the worker's psychological difficulties, Review Office noted the evidence indicated the worker had pre-existing personality issues prior to the workplace accident and further noted that dissatisfaction with how a WCB claim is handled is not a workplace accident and would not lead to an accepted psychological condition. Review Office determined the worker's average earnings were not correctly calculated and returned the file to the WCB's Compensation Services for recalculation based on a five-year average.
The worker's representative filed an appeal with the Appeal Commission on May 17, 2021. A videoconference hearing was arranged for October 14, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors. The Act sets out the definition of an accident in s 1(1) as follows:
"accident" means a chance event occasioned by a physical or natural cause; and includes
(a) a wilful and intentional act that is not the act of the worker,
(i) event arising out of, and in the course of, employment, or
(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and
(c) an occupational disease,
and as a result of which a worker is injured….
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which states that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.
Calculation of a worker’s average pre-accident earnings is addressed by s 45 of the Act, as follows:
Calculation of average earnings
45(1) The board shall calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just, but the amount of average earnings shall not exceed the maximum annual earnings established under section 46.
Average earnings includes all employment income
45(2) In making a calculation under subsection (1), the board shall consider any employment income the worker has at the time of the accident from which the worker sustains a loss of earnings, whether or not the employment is in an industry to which this Part applies.
Adjustment of earning capacity
45(3) Where the board is satisfied that a worker's average earnings before the accident do not fairly represent his or her earning capacity because the worker was an apprentice in a trade or occupation, the board may adjust wage loss benefits from time to time by deeming the worker's average earnings to be an amount that, in its opinion, reflects the probable earning capacity of the worker in the trade or occupation.
The WCB has established Policy 44.05.30 Adjudication of Psychological Injuries (the “Psychological Injury Policy”) to outline how claims for psychological injury will be adjudicated. This policy sets out that such claims will be adjudicated in the same way as claims for physical injuries. The WCB will determine whether: there has been an accident arising out of and in the course of employment; the worker has suffered an injury; and the injury was caused by the accident.
WCB Policy 22.214.171.124, Further Injuries Subsequent to a Compensable Injury (the “Further Injuries Policy”) sets out when a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury is itself compensable. This policy states that:
A further injury occurring subsequent to a compensable injury is compensable:
(i) when the cause of the further injury is predominantly attributable to the compensable injury; or
(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or
(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.
WCB Policy 44.120.20, Opioid Medication (the “Opioid Policy”) outlines the WCB’s approach to providing for appropriate use of opioid medication when the reduction of pain after an injury is associated with an improvement in function and to ensuring opioid medications are used safely. This Policy provides that the WCB ordinarily pays for opioid medication during the acute phase of an injury or during the acute, post-operative phase. Thereafter, the WCB may pay for the minimum dose of opioid medication that supports a documented improvement in the injured worker’s functional ability. The Opioid Medication Policy outlines when the WCB may suspend or discontinue authorization of payment for opioid medication and allows for one-time funding of an opioid medication intervention program.
WCB Policy 126.96.36.199, Average Earnings (the “Average Earnings Policy”) outlines how the WCB will determine a worker’s average earnings at the time of a compensable injury based upon either regular earnings at the time of accident, or average yearly earnings or probable yearly earning capacity. This policy sets out that the formula that “best represents the worker’s loss of earnings will be chosen.” Schedule D to the Policy outlines that the probable yearly earning capacity formula forecasts what a worker may be expected to earn for a consecutive 12-month period after the accident and sets out that “This formula is used when neither regular earning nor average yearly earnings accurately reflect the worker’s loss of earning capacity.” Examples provided include where the worker’s employment circumstance at the time of the accident is “significantly different from” their previous employment circumstances.
The worker appeared in the hearing represented by a worker advisor who made oral submissions on behalf of the worker and relied upon previously filed written submissions. The worker provided testimony through answers to questions posed by the worker advisor and by members of the appeal panel.
Is the worker entitled to coverage for a Butrans patch after August 14, 2019?
The worker’s position, as set out by the worker advisor in their March 12, 2021 submission to the Review Office, is that the medical evidence available when the WCB determined, on May 14, 2019 to discontinue funding of the worker’s Butrans patch after August 14, 2019 did not support the worker’s discontinuance of the medication nor the WCB’s withdrawal of financial support for that medication. Further, the worker advisor noted that the WCB decision was a point in time decision that did not preclude future medical requests for funding of the Butrans patch nor did it mean that any such requests would be dismissed without a WCB healthcare review.
The worker advisor noted that the medical information on file including numerous opioid progress reports confirm that the worker’s dosage was stable and both their pain and function scoring were consistent over time, with only mild or moderate side effects reported. The medical information on file demonstrates not only the benefit the worker received from the use of the Butrans patch but also that the worker’s treating physician was closely monitoring the worker.
The worker advisor noted that the WCB consistently supported the worker’s use of the Butrans patch until December 2018 when the WCB pain management unit physician first commented that the risk/benefit ratio was no longer favourable and pointed to some of the potential risks associated with the long-term use of opioid medications. Early in 2019 the worker’s treating physician confirmed that the purpose of the Butrans patch was solely for pain management and not for risk management or opioid substitution.
The worker advisor argued that there were no viable alternatives to the Butrans patch available that would have provided reasonable pain relief to the worker and noted that the WCB also did not consider or recommend the worker’s treating physician to consider any alternative pain relief medications to replace the Butrans patch, despite receiving confirmation from the worker’s treating physician that it was specifically required for pain management.
The worker testified that they first had conversations with their treating physician about tapering off usage of the Butrans patch after the WCB indicated that it would no longer provide coverage for this pain relief medication. The worker recalled the physician stating that the WCB did not offer any alternatives or provide any options in respect of their decision. The worker also recalled the physician advising that it was possible the Butrans patch was no longer as effective in reducing the worker’s pain, as with such powerful opioid medications, longer usage can result in reduced effectiveness. The worker stated their physician also noted their prior concerns about potential for addiction and potential impact on their career options due to opioid reliance. The worker indicated they agreed that it would be beneficial to try weaning off the Butrans patch for these reasons.
The worker described to the panel the process of weaning off and noted how difficult it was, especially during the first two-week period of complete withdrawal, noting that while doing so, they were also engaged in their VR plan. The worker described the impact, after 6-months without the patch, on their life:
“…trying to go to school and manage the pain level that I had soon started to re-account, the difference between being on the Butrans patch, and not, brought a stark reminder of where I was at when I first got injured between the realization of the extreme shocking pains of nerve sharpness when I would roll over in my sleep and wake up with…abrupt sharp pains when I would roll over on my arm….”
The worker described their functional abilities after weaning off the Butrans patch, when they were unable to cook a meal or put their arm near a pocket, or to lift their arm or touch anything with it. The worker indicated that as a result of the collapse of their arm function and increasing pain, they again began asking their treating physician about the possibility of amputation of their arm.
The worker testified that at this point, the treating physician again approached the pain clinic physician to inquire as to other possible options for pain relief. The pain clinic physician noted all options had been exhausted other than marijuana or CBD oil, which the worker stated was not an option for them. As a result, the worker’s treating physician again sought Manitoba Health and WCB approval to cover the Butrans patch.
In sum, the worker’s position is that the worker is entitled to coverage for a Butrans patch after August 14, 2019 as the use of the patch provided pain relief benefit to the worker that could not be otherwise provided through other medications, and that the use of the patch allowed the worker to maintain a consistent level of functional ability, as is evidenced by the deterioration in function upon withdrawal from the medication. Further, the worker’s treating physician supports the resumption of this medication to provide pain relief and increase the worker’s function.
Should the worker's psychological difficulties be accepted as being a consequence of the August 10, 2009 accident?
The worker advisor indicated that the worker’s position on this issue is as set out in their written submission to the Review Office dated March 12, 2021. In that submission, the worker advisor outlined that the WCB should rely upon the January 11, 2021 opinion of the treating neuropsychologist that the worker’s current mental health diagnosis is related to the longer-term effects of the worker’s 2009 workplace injury. The worker advisor argued that the panel should consider that this opinion of the treating neuropsychologist was arrived at after multiple meetings with the worker and reviewing the results of numerous psychological tests and assessments. The neuropsychologist concluded that the worker’s primary mental health diagnoses are
“…a persistent Adjustment Disorder with predominant depressed mood in the context of [their] chronic pain and the functional implications of [their] occupational injury and, in the context of [their] other chronic medical problems, [their] developmental adversity and significant attachment issues, as well as [their] characterological issues that I see have been exacerbated by [their] occupational injury and its subsequent longer-term effects. The persistent Adjustment Disorder with predominant depressed mood would be related to the longer-term effects from [the worker’s] occupational injury from 2009.”
Further, the worker advisor submitted that this opinion, based on in-person assessments and an extended period of contact with the worker over several years, should be given greater weight than that of the WCB psychological advisor who never met with or spoke to the worker. With respect to the WCB psychological advisor’s opinion, the worker advisor noted deficiencies in the report, including that the psychological advisor, in summarizing relevant file information, failed to include the December 29, 2011 psychiatric assessment report that states the worker’s “…main ongoing issue is chronic pain related to a workplace accident that occurred in 2009. This of course explains the majority of [their] symptoms.” The worker advisor also noted the May 23, 2012 WCB psychiatric advisor’s opinion that the worker’s psychological condition at that time was accepted as being predominantly related to the worker’s compensable injury and that this conclusion was formed based upon the findings from a call-in examination in November 2011, reports from the treating psychologist and a case conference with the worker’s entire treatment team.
The worker, in response to questions posed by the worker advisor, described their meetings with the treating neuropsychologist beginning in 2018, noting that initially they met with a view to determining whether the worker was cognitively capable of completing post-secondary education with a view to developing an educational plan. As such, these early interactions were focused on cognitive testing of the worker’s memory and academic skills. In 2019, the worker met with the neuropsychologist to discuss issues related to the worker’s inability to work and lack of function, as well as other hurdles related to the worker’s post-injury struggles. These sessions focused on work and education-related stressors and difficulties. The worker indicated that their 2020 meetings with the neuropsychologist were very different, focusing on more standard psychological assessment through questionnaires and counselling. The worker indicated they continued to seek treatment from the neuropsychologist after the 4 meetings approved by the WCB to “maintain both my physical and mental health.”
In sum, the worker’s position is that the medical reporting supports that the workplace injury is the predominant cause of their psychological condition and therefore, the WCB should accept that their psychological difficulties are a consequence of the August 10, 2009 accident.
Have the worker's average earnings been correctly calculated?
The worker’s position, as outlined in the worker advisor’s October 5, 2021 submission to the appeal panel, is that it was inappropriate for the WCB to calculate the worker’s average earnings based on the five-year average of pre-accident earnings given the evidence that the worker’s income was consistently trending upwards beginning in 2006 and the opportunities presented by the employment the worker had just begun with the accident employer at the time of the accident. Rather, the worker’s average earnings should be based upon the probable yearly earnings formula, or alternatively, the 12 months period immediately preceding the accident, given the evidence that the worker had recently taken on a new work opportunity with strong long-term prospects as well as the worker’s own plans for their future training and career path.
The worker testified as to their pre-accident employment history. From 1998 through 2006, the worker was employed by another employer working with youth at risk and seeking funding to develop a skilled trade training program. During that period the worker took a leave of absence in 2004 to complete their journeyman’s ticket and operated a business in their trade with a partner. After the worker left that employment, in the first half of 2007 they completed a project they had organized through their previous employment and when that wrapped up, returned to fulltime employment in their trade taking on a variety of roles arranged through their union hall as well as continuing with their own business. In 2008, the worker continued to work in roles obtained through their union hall, including roles involving teaching in the trade as well as practicing the trade. In 2009, the worker continued in the teaching role through June until beginning a new position with the accident employer in mid-July 2009. The worker explained that they also obtained the accident employment through their union hall. Through this entire period, the worker testified, they continued to build skills in different aspects of their trade with a view to ultimately being qualified to be a full-time vocational instructor in the trade.
The worker referenced the letter provided with their submission from the worker’s trade union, dated August 26, 2021. The worker indicated that the plan, on taking employment with the accident employer, was that the worker would be involved not only in that project but also in two subsequent, planned projects, noting that one of those projects continues to the present. The worker testified:
“With my experience…and with an education, with a teaching education of apprentices, my ability…would have assured me greater opportunities well into my 50s as, both as a teaching educator and a safety officer. I would have been able to be working long after any of the guys who had lost the ability to physically manipulate the tools and at the highest pay rate. So when I lost my ability to use my, to physically work, I still would have been able to go in as a safety officer, but limiting those skills, I would still be able to teach at the union hall, but where I got hurt and how I got hurt completely wiped me out.”
The worker also testified that after the injury occurred, they returned again to school to begin training in vocational teaching but that they were unable to continue when they returned to work.
The worker advisor argued that the WCB’s Average Earnings Policy, in defining average yearly earnings, allows for use of a five-year average as a method of last resort and noted that the evidence confirms the worker’s employment earnings were consistently trending upwards from 2006 onwards, so that the five-year averaging approach did not produce an accurate reflection of the worker’s loss of earnings. Rather, the WCB should have used the probable earnings formula given that the worker had made “a career change vastly different from the worker’s past employment history” in taking on the employment with the accident employer. This change is consistent with the provision of the Average Earnings Policy that sets out that the probable earnings formula would be used when, for example, the “…worker’s employment circumstance at the time of the accident is significantly different from past employment circumstances (e.g., the worker has experienced a career or occupational change, or some other change in circumstances that is likely to affect future earnings.”
The worker advisor noted that the worker’s job status at the time of the accident was significantly different from their past employment in that there were strong prospects for ongoing employment in that project for which the worker was uniquely qualified. Further, the fact that the accident employer called the worker back in spring 2010 is evidence of the worker’s continuing prospects in that employment.
For these reasons, the worker’s average earnings should be determined based on the worker’s earnings with the accident employer, projected forward.
The employer did not participate in the hearing of the appeal.
Is the worker entitled to coverage for a Butrans patch after August 14, 2019?
In order to grant the worker’s appeal on this question, the panel would have to determine that the continued use of the Butrans patch by the worker is related to the compensable workplace injury and is associated with an improvement in the worker’s function. For the reasons outlined below, the panel was able to make such findings and the worker’s appeal of this issue is granted.
The panel noted that the Butrans patch was initially prescribed to the worker by the treating pain clinic physician on July 7, 2014 as a pain control measure and that the WCB pain management advisor indicated in a memo dated July 21, 2014 that the medication be trialed and that the WCB would accept responsibility for the medication as related to the compensable injury, with ongoing support “…predicated on review of Opioid Management Reports…to document if the use of Butrans produces a significant/sustained benefit to pain and function…” Subsequently, the worker’s treating physician provided ongoing periodic Opioid Management Reports (“OMR”) as required by the WCB. The initial OMR dated September 12, 2014 reports the worker noticed improvement in pain with the Butrans patch and a November 17, 2014 report from the pain clinic physician indicates that dosage was being adjusted at that time but that the worker indicated the medication was “well tolerated and it has provided improvement” in pain control.
On reviewing the medical information on file, the panel noted that the WCB reviewed the reports as received and continued to support the worker’s use of the medication until late in 2018. In a memo to file dated September 26, 2018 the WCB’s pain management advisor commented that the worker’s dosage “has been consistent over time” and that there was no increase in dosage after the worker underwent surgery in January 2018. Further, the advisor noted that the worker’s function “is improving even in the presence of pain” and that there are no reported side effects. But on the next review, three months later, the WCB pain management advisor stated that:
“Even in the context of previous opinions from the writer it appears that over time the use of Opioids has not been associated with a significant/sustained benefit to pain and function and that at a time now 10 months post-surgery there would not appear to be an indication related to the compensable injury for the use of Opioids. There is also concern with regard to chronic use of Opioids given the risk of side effects with long-term use.”
This opinion was presented to the WCB psychological advisor for an opinion as to next steps. The psychological advisor offered, on February 19, 2019 that “The question is whether Butrans is being used solely for pain management, or whether it is more related to risk management/opioid substitution” and suggested that the worker’s treating physician be consulted. On February 25, 2019 the worker’s treating physician confirmed to the WCB that:
“The indication for prescribing has been solely pain management, not opioid replacement. To my knowledge, there have not been any clinical indicators of an opioid use disorder. [The worker] has previously reported that [they feel] the Butrans has a clinically meaningful effect on [their] pain and function, albeit it is difficult to discern a correlation with [their] symptom scores. To reduce the risks of polypharmacy, we have been trying to gradually reduce or discontinue medications showing either harms or marginal benefits.”
This response was provided to the WCB psychological advisor on February 27, 2019 and on April 2, 2019 reviewed by the psychological advisor. As set out in a file memo of May 2, 2019 the WCB pain management advisor and psychological advisor agreed that:
“Based on the information on file the ongoing use of Butrans…is not associated with significant/sustained benefit to pain and function. Also noted was the concern with regard to the side effects of the long-term use of Opioids….Given the above….the risk/benefit ratio for the use of Opioids is considered to be not favorable and therefore the use of Opioids does not qualify for medical support….”
This decision was conveyed to the worker’s treating physician on May 14, 2019 with the information that the WCB would continue funding for three months which would “function as a proxy time period for the implementation and completion of an Opioid weaning process.” The panel noted the worker’s treating physician was not invited to provide any further opinion in this regard.
In a report to the WCB dated June 11, 2019, the treating pain clinic physician set out that the worker found the use of the Butrans patch “…to be the most successful modality to help improve pain and function” and that the worker tolerated the medication well and that other pain medications attempted had not been successful. The physician requested the WCB continue funding the Butrans patch to maintain the worker’s current pain control and function and consider a trial of a cannabis product with a view to possibly reducing the worker’s need for the Butrans patch. On June 12, 2019 the WCB case manager confirmed the previous decision to the pain clinic physician but did not address the question of the proposed cannabis trial.
In a report dated July 21, 2019 the treating physician confirmed the worker was tapering off the Butrans patch and was concerned about possible loss of function. In a November 21, 2019 narrative report to the WCB, the treating psychologist noted that the worker’s primary issues at that time related to the worker’s chronic pain, noting the worker was no longer on opioid medication and their pain had exacerbated. In a November 28, 2019 report to the WCB, the treating physician reported worsening major depression and the worker’s report of severe burning pain on their entire right forearm, worsening with activity. The physician was adjusting medications to attempt to control the worker’s mood and pain. On December 12, 2019 the treating physician reported the worker was dealing with chronic pain and poor functioning, noting the worker’s report of worsening symptoms since discontinuing Butrans. The physician continued to adjust medications to deal with the worker’s pain and mood. On February 25, 2020, the worker’s treating chiropractor assessed the worker with chronic right shoulder stiffness, pain, and hypomotility due to disuse secondary to chronic right upper extremity pain and noted “There has been significant deterioration that began in conjunction with cessation of opioid medication.” On March 4, 2020 the treating physician reported to the WCB that the worker’s “level of function appears to be deteriorating” and noted the worker’s report of worsened chronic right arm/elbow pain with widespread burning/itching sensation. On April 7, 2020, the treating physician reported the worker’s significant increase in pain, decrease in function and decreased quality of life since discontinuing the Butrans patch and requested the WCB support a re-trial of the Butrans patch.
The panel noted that the WCB case manager responded to this request on April 14, 2020 confirming the prior decision of the WCB, but there is no indication that the physician’s request was reviewed by any of the WCB medical advisors.
The treating physician reported on May 4, 2020 the worker’s pain was rated at 10/10 in severity and that the worker reported an increase in pain and stiffness. On June 7, 2020, the treating physician provided the WCB with a letter requesting:
“…an in-person evaluation by a WCB physician, if possible, to reassess whether a trial of restitution of BuTrans would be indicated, within continuation contingent on significant improvement in pain and function levels (pain currently reported at 9-10/10 and function at 3.5/10). [The worker] does feel the discontinuation of the medication…has led to significant worsening of [their] condition. There were no concerns regarding misuse, diversion, or major side effects while [they were] taking it. Transdermal buprenorphine would in my opinion constitute a low risk for overdose, and I do believe [they] would fit in the category of severe intractable neuropathic pain refractory to other agents which could be considered an indication for opioid therapy.”
The treating chiropractor reported to the WCB on July 30, 2020 that the worker was “unable to perform meaningful work or [activities of daily living] involving forceful or repetitive activities of the upper extremities”. The chiropractor noted the worker’s limited right arm mobility and progressive pain and stiffness.
In an opinion provided August 13, 2020, the WCB medical advisor indicated that the worker’s progress was not satisfactory and noted the worker “is reporting on going severe symptoms and severe limitations in function. The symptoms from the initial injury of ulnar neuropathy has persisted….”
While there is evidence that the worker and their treating physician did agree to attempt weaning the worker off the Butrans patch, the worker’s testimony was that the impact of doing so at some 6 months after completing the withdrawal process was an increase in symptoms, including “extreme shocking pain” in their right arm and a significant loss of function. This testimony is consistent with the post-weaning reports from the worker’s treating medical professionals and the interpretation of that reporting as provided by the WCB medical advisor on August 13, 2020.
The panel finds that the information provided to the WCB by the treating physician both before and after the withdrawal of the medication supports the worker’s position that they require the Butrans patch for pain control arising out of the compensable workplace injury and to sustain their functional capacity arising out of that injury. As outlined in the WCB’s Opioid Policy, a balanced approach is required in the use of opioid medication, recognizing the negative impacts of side effects and other potential risks associated with long term use of such medication, while considering the positive effects in terms of demonstrated relief of pain and increase in functional abilities. The medical reporting reviewed by the panel does not raise any significant concerns regarding the worker’s side effects from their use of the Butrans patch nor any evidence of other potential safety concerns related to this usage.
On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the Butrans patch provided ongoing pain relief to the worker such that there was improvement in the worker’s function with the patch versus without it, and that there is no evidence of any concerning side effects or other safety concerns in relation to the worker’s use of this medication. We conclude that the risk-benefit ratio in the worker’s case favours the worker’s use of the Butrans patch for pain control and increase in function. The worker is therefore entitled to coverage for a Butrans patch after August 14, 2019 provided that the worker’s treating medical professionals continue to support the worker in such use. The worker’s appeal of this question is granted.
Should the worker's psychological difficulties be accepted as being a consequence of the August 10, 2009 accident?
In order to grant the worker’s appeal on this question, the panel would have to determine that the worker’s psychological difficulties are predominantly attributable to the compensable injury sustained in the workplace accident of August 10, 2009. For the reasons outlined below, the panel was able to make such a finding and the worker’s appeal on this issue is granted.
The worker advisor’s position is that the worker’s psychological condition is a further injury occurring subsequent to the worker’s compensable injury in that the cause of the worker’s psychological condition is predominantly attributable to the compensable injury. The panel therefore reviewed and considered whether the evidence supports a finding that the compensable workplace injury is the predominant cause of the worker’s psychological difficulties.
There is a single WCB psychiatry call-in examination report on file, dated November 18, 2011. This two-page report contains the conclusion of the WCB psychiatric consultant in support of the diagnosis provided by the treating psychologist, being an Axis I diagnosis of Adjustment Disorder with Mixed Emotional Features, Chronic. The report also referenced the worker having various personality traits in the narcissistic spectrum. At that time, the worker did not report any significant symptoms of depressive or anxiety disorder. The report does not contain any conclusions as to causation or relationship of the provided diagnosis to the compensable injury.
The panel also noted the December 29, 2011 opinion of the consulting psychiatrist provided to the treating physician. The psychiatrist assessed the worker and concluded that Major Depressive Disorder was the primary Axis I diagnosis, with Chronic Pain indicated as the primary Axis III diagnosis. The psychiatrist noted that the worker’s “…main ongoing issue is chronic pain related to a workplace accident that occurred in 2009” and that this explained the majority of the worker’s symptoms, but that depression might also be influencing what was happening in terms of the worker’s mental health.
The panel considered as well that the WCB previously accepted that the worker’s psychological condition was related to and predominantly caused by the compensable workplace injury. Following a case management meeting on May 23, 2012 with the worker’s treating medical professionals including the treating psychologist at that time, the WCB psychiatric consultant documented that:
“…it is my opinion that Pain Disorder Associated with Both Psychological Factors and a General Medical Condition is the primary Axis I psychiatric diagnosis. Despite [the worker’s] significant psychosocial history and the psychological and psychiatric symptoms noted on a pre-existing basis, it is the case that the current diagnosis…is a new diagnosis (that is, a new diagnosis in relation to [the] WCB claim) and this diagnosis is related to the [compensable injury].”
The panel also noted that this opinion was not provided by the WCB to the treating neuropsychologist as background to the report and opinion of January 11, 2021, although the December 29, 2011 opinion was shared as well as other earlier reports.
The treating neuropsychologist provided a detailed report dated January 11, 2021 to the WCB. The report outlines the neuropsychologist’s past relationship with the worker, beginning in 2018 at the request of another organization supporting the worker’s efforts at that time to regain function to return to academic training. Subsequently, the neuropsychologist assessed the worker at the WCB’s request in relation to a decline in mental health noted in summer of 2020 and saw the worker on 4 occasions from August through October 2020. The worker also completed two psychometric assessments of personality and emotional functioning at the neuropsychologist’s request. On the basis of these meetings and assessments, as well as numerous background documents provided by the WCB, the neuropsychologist outlined their opinion that the worker:
“…has long-term adjustment problems associated with [their] right upper extremity injury, as well as with significant disappointment with vocational rehabilitation and WCB claim decisions.
Parenthetically, these had been dominant themes in the reports from [the treating psychologist].”
The neuropsychologist went on to state that the worker’s primary mental health diagnoses are:
“…a persistent Adjustment Disorder with predominant depressed mood in the context of [their] chronic pain and the functional implications of [their] occupational injury and, in the context of [their] other chronic medical problems, [their] developmental adversity and significant attachment issues, as well as [their] characterological issues that I see have been exacerbated by [their] occupational injury and its subsequent longer term effects.
The persistent Adjustment Disorder with predominant depressed mood would be related to the longer-term effects from [the worker’s] occupational injury from 2009.”
The neuropsychologist noted as well that despite the worker’s history of developmental adversity, the worker had not been seen as an adult by a mental health professional until after the workplace injury and that any pre-existing psychological factors would relate to the worker’s developmental adversity and attachment issues but that external factors would relate to the worker’s chronic medical problems.
On reviewing the neuropsychologist’s report, the WCB’s psychological advisor, in their February 16, 2021 opinion, came to a different conclusion, determining that the worker’s psychological condition is related to a wide range of factors, but not to the worker’s chronic pain or the treatment of that pain or to their compensable injury. The WCB advisor outlined that the worker’s current diagnoses as provided by the treating neuropsychologist:
“…no longer are materially related to [the worker’s] 2009 right ulnar injury and instead are related in a substantive way to the following factors:
- Significant pre-existing history of substance abuse, psychological and behavioural issues, childhood trauma, anger management issues
- Narcissistic/antisocial personality features, with some unusual ideation and intermittent histrionic features
- Issues with participating in appropriate vocational rehabilitation planning by WCB
- Significant dissatisfaction with decisions of the WCB related to funding for opioid medication and chiropractic treatment
- Significant dissatisfaction with financial and job stress, with externalizing of responsibility for this status to perceived inadequacy of the vocational rehabilitation provided and sense of unfulfilled entitlement
- Longstanding anger management and relationship issues
- Possible over-reporting of symptoms (based on recent psychometric results)”
This conclusion acknowledges the findings outlined by the treating neuropsychologist but gives greater weight to the pre-existing and external factors noted by the neuropsychologist as causing or influencing the worker’s current presentation, while discounting the conclusion that the worker’s chronic pain and the functional implications of their occupational injury are related to the primary diagnosis of persistent Attachment Disorder with predominant depressed mood.
The panel noted that the WCB psychological advisor had a follow-up discussion with the treating neuropsychologist as documented in a memo to file dated February 9, 2021 from the WCB advisor. The focus of that conversation appears to have been on the recommendation by the neuropsychologist that the worker be provided with additional psychological treatment, with the WCB psychological advisor indicating the past WCB opinions that “ongoing supportive counselling had not resulted in benefit” in the past and “would not be expected to result in any benefit in the future.” The memo does not indicate any discussion substantively addressing the differing conclusions reached as to the predominant cause of the worker’s psychological difficulties.
As noted by the worker advisor in their submissions to the panel, the WCB psychological advisor did not have the benefit of meeting with the worker over the course of more than two years, as the neuropsychologist did. In fact, the file indicates that no WCB psychological advisor or psychiatric advisor met with the worker in person at all after 2012.
The panel accepts and relies upon the opinion provided by the treating neuropsychologist that the worker’s primary psychological diagnosis is “related to the longer-term effects from” the worker’s compensable workplace injury of 2009. While there is evidence that the worker has significant pre-existing developmental adversity and attachment issues that are not related to the workplace injury, we are satisfied on the basis of the evidence that these are not the predominant cause of the worker’s current psychological injury, being adjustment disorder with predominant depressed mood. Where there is any conflict in the conclusions reached by the WCB psychological advisor and the treating neuropsychologist, we prefer and give greater weight to the opinion of the neuropsychologist who assessed the worker in person over a period of years and reviewed the prior psychological reports, assessments and opinions over the opinion of the WCB psychological advisor who did not personally assess or meet with the worker at any time.
The panel is satisfied on the standard of a balance of probabilities that the injury the worker sustained in the compensable workplace accident is the predominant cause of the worker’s subsequent psychological injury and therefore, the worker's psychological difficulties should be accepted as being a consequence of the August 10, 2009 accident. The worker’s appeal of this question is granted.
Have the worker's average earnings been correctly calculated?
In order to grant the worker’s appeal on this question, the panel would have to determine that the formula that best represents the worker’s loss of earnings is the worker’s probable earnings. As outlined in the reasons below, the panel was able to make such a finding and the worker’s appeal is granted.
The panel considered the evidence as to the worker’s employment and income history as outlined in the worker’s testimony and contained in the WCB claim file. The worker’s testimony supports their position that their income was consistently trending upwards beginning in 2006 and that the opportunities presented by the new employment the worker had begun with the accident employer, as well as the worker’s demonstrated history of continuing training and employment in their field of training confirms that the worker was upwardly mobile in their career at the time of the accident. The panel noted as well that even after the accident, the worker continued to pursue training and skill development opportunities, as outlined in their testimony and the evidence in the WCB claim file.
Give the worker’s skillset and certifications and their recently obtained employment on a major project, the panel accepts the worker’s assertion that their annual earnings more likely than not would have been maintained and increased but for the injury sustained on August 10, 2009. The panel acknowledges that there would have been annual periods of layoff, such as occurred in November 2009, but notes that even injured, the worker was called back to work at the end of the layoff period in spring 2010.
We do not accept the rationale outlined by the Review Office in determining the worker’s average earnings should be based on a 5-year historical average given that the worker is a highly skilled individual with a proven history of continuing employment and upgrading of their skills and qualifications while working within a union environment where further opportunities would likely have been available ongoing to a worker with these skills and employment background.
The Average Earnings Policy sets out that the probable earnings formula should be used when a “worker’s employment circumstance at the time of the accident is significantly different from past employment circumstances (e.g., the worker has experienced a career or occupational change, or some other change in circumstances that is likely to affect future earnings).” The panel accepts that the worker’s pre-accident hiring to the project employment represented a change in their circumstances that was likely to affect future earnings and we are therefore persuaded by the submissions of the worker advisor that the worker’s prospective earnings were more likely than not most representative of the worker’s loss of earnings as a result of the accident. Therefore, the panel determines that the worker’s average earnings have not been
correctly calculated and that the formula that best represents the worker’s loss of earnings is the worker’s probable earnings. The worker’s appeal of this question is granted.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 2nd day of December, 2021