WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20090076
OBJECTION BY: Worker
WORKER: Participating
REPRESENTATIVES: Worker
EMPLOYER: (Not participating)
HEARING DATE: October 2, 2009
ATTENDEES: Worker, Worker Representative
ISSUES
The worker objects to the quantum of the final (R2) future economic loss (FEL) benefit determined in the decision of November 23, 2007.
The worker objects to the decision of December 4, 2008 to deny entitlement for prescription Cyclomen, Wellbutrin, Oxycontin, and Zopiclone.
HOW THE ISSUES ARISE
In November 1992, this now 50 year old worker reported a gradual onset of right shoulder and neck pain. She attributed the onset to the repetitive aspects of her job as an electronics assembler. Entitlement was granted for the repetitive strain injury. The worker was eventually found to have a permanent impairment and, in 1995, was granted a 17% non-economic loss (NEL) benefit. Entitlement to chronic pain disability (CPD) was subsequently granted at appeal and, in 2004, the NEL benefit was increased from 17% to 20%.
The worker was found to be unfit for her pre-injury job. The employer was unable to provide suitable work. In 1993, the worker entered into a labour market re-entry (LMR) program directed to providing her with the skills to become an electronics technician. When, in early 1997, the worker had still not completed the community college program, she was given notice that sponsorship in training would end in May 1997 and that she would be expected to conduct job search. The worker remained unemployed when the job search component of the program ended in December 1997. The worker was deemed capable of restoring her pre-injury earnings and a sustainability FEL benefit was granted. The worker objected to this determination and the issue was brought before the Workplace Safety and Insurance Appeals Tribunal (WSIAT).
In a decision dated November 9, 2006, WSIAT determined that the LMR objective and plan were inappropriate because they did not properly accommodate the stress and depression associated with the CPD condition. While the Tribunal found the worker to have significant medical and functional limitations, they could not conclude that she was unemployable. They confirmed the sustainability FEL benefit and full supplement for the R1 FEL determination period and directed payment of the supplement from January 1, 1998 until the worker underwent a new LMR assessment.
In January 2007, the worker participated in a psycho-vocational assessment. The worker confirmed that she had completed grade 12 and that she had participated in the LMR program, completing all but four credits in the electronics technician program. She advised that in 1999, she began part time university study and had completed 28 of 40 courses toward a degree in sociology. The worker reported the need for such accommodations as note takers and extra time for exams. The worker presented as well-attired and well-spoken. She described herself as in severe pain, depressed, tearful, and socially isolated. She endorsed passive suicidal ideation. She was taking anti-depressant medication but was not involved in any other treatment.
Testing revealed that the worker had average intelligence and functional skills, and above average aptitudes. Personality testing indicated that her depression and anxiety were in the severe range. It was noted that because the worker declined to answer a number of questions, test results may not have been entirely accurate. Based on test results, the worker was considered capable of college-level and, likely, university-level study. It was suggested that the worker would require some form of psychotherapy in order to succeed in a formal training program. In the interim, given the worker’s chronic pain, emotional distress, and cognitive difficulties, it was considered unlikely that she would be able to function in a competitive work environment even on a part time basis.
The worker requested that further contact regarding LMR be directed to her representative’s office; however, the representative did not respond to the LMR provider’s enquiries. As a consequence, supplementary benefits were suspended in July 2007 and LMR service was terminated.
In determining employability and earning potential, the adjudicator had regard for the worker’s success in part time university study and WSIAT’s reluctance to find the worker unemployable. On the basis of courses completed, the adjudicator found the worker capable of securing employment as an employment counsellor with projected earnings of $13.82 per hour.
In December 2007, the worker underwent assessment at a chronic pain management clinic. She reported a longstanding history of depression. She advised that the condition became worse after her workplace accident and, during the period 1994 to 1996, she acted on suicidal thoughts on a number of occasions through medication overdose. The worker described her emotional status as consistently moderately or severely depressed. She reported social isolation but there was no suggestion of panic disorder or suicidal ideation. During the interview, the worker was emotional but displayed little pain behaviour.
When the worker presented for occupational therapy in March 2008, she reported that she had abandoned rehabilitative efforts and that she had “given up”. The worker expressed her intention to end her life by overdose of prescription medications. She explained that she would act on this intent once her parents’ affairs were in order. The worker spoke with the clinic psychiatrist and agreed to go to a hospital emergency department for treatment; however, the psychiatrist had doubts that the worker would follow through. He declined to admit the worker into hospital against her will because suicidality was not imminent. He did feel that her psychological problems were acute and required treatment. The worker did not attend further sessions at the pain management clinic.
The WSIB nurse case manager noted that she had spoken with the worker in the past but due to the worker’s reticence had been unable to establish a relationship. The worker had withheld the name of her family doctor and was apparently in no other treatment for her psychological condition. The issue of medications was reviewed by the WSIB medical consultant and it was recommended that funding for narcotic and psychotropic medications be limited due to the possibility that they could be used in a suicide attempt. It was noted that the worker had made such an attempt in the past and that she was an ongoing suicide risk.
The worker has objected further to the finding of employability, quantum of the LOE benefit, and denial of medications.
AUTHORITY
17-01-02 – Health Care Benefits Entitlement and Definitions
18-04-20 – Final FEL Benefit Review
18-04-03 – Date of Determination
18-04-19 – Objections to FEL Determinations
ASSESSMENT OF THE EVIDENCE
Worker Statement
The worker provided testimony regarding her current circumstances. During the course of the one-hour hearing, the worker sat with no apparent discomfort. She was well-groomed and attired. She was articulate and displayed no undue emotions. She had good recall of events and had no difficulty understanding or responding to questions.
The worker reported that she resides alone in a small two-bedroom apartment. She does not work. She performs her own household cleaning and meal preparation. Cleaning is performed with breaks throughout the day. The worker does not vacuum or clean as often as she would like due to pain. Meals are simple and include cereal and soup. The worker stated that because she has difficulty concentrating on television and reading materials, she finds herself getting up frequently and changing activities.
The worker leaves home for appointments, school, visits to her parents’ home, and grocery shopping. She has a car and is able to drive. The worker sees her family doctor occasionally and is not in the care of any other medical practitioner. She saw a Dr. Ennis, pain specialist, a couple of weeks ago but has not yet been given a recall appointment. When she visits her parents, she talks, watches television, takes her mother to the store, or does her laundry. When she goes to the grocery store, she avoids large loads. She uses a buggy to transport groceries from the car to her apartment. The worker also occasionally goes for a walk with a friend.
The worker advised that she has significant problems with sleep. She described both delayed and interrupted sleep, and a consequent need to sleep until noon. The worker reported feeling dazed during the day due to lack of sleep.
The worker began taking university courses in 1999. It was not her intent to use her education to find work. The worker is now three courses away from receiving a BA (Hons) in sociology.
The worker attends university between September and April each year. She needs a break by April and does not take summer courses. The worker has been taking two courses per semester since 1999. She enrols for the courses independently on-line. Each course involves three hours of class time per week in addition to homework. The worker advised that pain and anxiety sometimes cause her to leave class early or miss classes. She estimated that she misses an hour of class each week. She has received assistance from the campus special needs coordinator and is accommodated by means of a note-taker during class and provision of a special chair. For examinations, the worker is placed in a room by herself and gets time and a half. These provisions accommodate her pain and reduce distractions.
The worker writes her papers out by hand and then transcribes them onto her home computer for printing. The worker has difficulty with all aspects of this process and must take frequent breaks. She begins writing her papers as soon as they are assigned so she can take her time. The worker does reading assignments in 15-minute intervals, taking breaks when necessary. She finds reading difficult due to concentration problems.
The worker feels her condition has deteriorated since the LMR assessment of January 2007. She advised that she develops pain and stiffness throughout her upper body when she sits for too long. She experiences intermittent numbness in her right arm which affects her ability to carry out household activities, shopping, writing, and typing.
The worker responded to March 2008 reports from the occupational therapist and psychiatrist regarding suicidal ideation. She advised that she was lead to believe that the occupational therapist had breached confidentiality by discussing her case with an employment counsellor. She was “in a state” because of this belief and left the office abruptly. When the psychiatrist called the next day, she received assurance that no such a breach had occurred. The worker stated that she calmed down after this call and that she had no need for medical attention. She did not go to the hospital or seek psychological treatment or counselling. She has seen no health practitioner other than the family doctor and, recently, Dr. Ellis, since March 2008.
The worker could not recall which medications she was on in 2007. She discontinued Oxycontin when her pain specialist, Dr. Beer, discontinued his practice due to illness a couple of years ago. She could not recall for what period she took Wellbutrin. Her family doctor has tried her on numerous antidepressant medications without benefit. She is currently taking Amitripyline. The worker occasionally takes Zoplicone for sleep but does not take it often due to concerns about its addictive properties. The worker takes Cyclomen for severe menstrual pain and finds it effective.
The worker does not feel that she is capable of working on a full or part time basis. She notes that her condition is variable and that she cannot be depended upon to maintain attendance. She worker reiterated her difficulties with attention, concentration, and most physical activities.
1. FEL Quantum
Policy
If a dispute regarding entitlement to compensation prevents the WSIB from determining the FEL benefit by the usual determination dates, the WSIB determines the FEL benefit as soon as the issue in dispute is resolved.
The SEB-identified earnings for the purposes of locking in the FEL benefit until age 65 are based on the available wage information as of the LMR plan completion date. Where the final review occurs before the worker is able to find a job, if the WSIB originally used:
- entry-level wages to determine the post-injury earnings, updated entry-level wages are used to pay the FEL benefit. This generally occurs if the LMR plan was designed to provide the worker with new skills or if the worker would have entered a new field, or;
- mid-range wages to determine the post-injury earnings, updated mid-range wages are used. This generally occurs if the LMR plan was designed to improve a worker’s existing or transferable job skills.
Any worker or employer whose interests are affected by compensation for future loss of earnings arising from a work-related injury has a right to object to that decision based on the circumstances as they were, at the time of original determination.
Assessment
The worker representative submitted that the adjudicator’s finding of employability did not properly or accurately reflect the results of the psycho-vocational assessment. He noted that the assessment supported a conclusion that the worker was unable to function in a competitive work environment due to the effects of CPD. With regard to the worker’s ability to take university courses, the representative cited the worker’s testimony regarding the part time nature of her studies and accommodations. In his view, the worker’s employment restrictions are best reflected by the limited and modified demands of school. The representative requested a finding that the worker is unemployable and that she is entitled to a full FEL benefit.
In order to consider the worker’s request for a finding of unemployability, it must be determined whether the evidence supports that the worker has the skills and abilities to secure and sustain gainful employment. In making all determinations in this case, I reviewed the record and considered the evidence and submissions.
In 1997, the worker was assessed for a permanent impairment under chronic pain disability guidelines. She was granted a 20% award, denoting the mildest degree of moderate impairment. The following is the WSIB’s definition of such an impairment:
In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies. The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression.
At the time of the June 2004 NEL assessment, the worker reported right upper quadrant pain, impaired function of the right upper extremity, and distress over her physical condition. There were no signs or complaints of depression or anxiety. It was the finding of the psychiatrist that the longstanding depressive condition was in remission. The worker described her ability to participate in a part time university course-load with accommodations. She described independence in self-care and household maintenance. Aside from physical discomfort, the worker’s greatest complaint related to lack of sleep.
In testimony, the worker reported that she sees her family doctor occasionally. She receives no treatment for a psychological condition. The only medication she takes in this regard is Amitriptyline for depression and sleep disturbance, and occasional Zopiclone for sleep. She confirmed that she has continued with part time university study and is now several courses away from graduating with an undergraduate degree. She remains independent in self-care and home maintenance.
The worker’s present complaints and level of functioning are, according to her testimony, very similar to what they were at the time of the June 2004 NEL psychiatric assessment. It is apparent from the worker’s testimony that her present condition is not significantly worse than it was in June 2004.
There is suggestion that the worker experienced either a temporary period of deterioration in her emotional condition or episodes of increased anxiety and/or depression after 2004. At psycho-vocational testing in January 2007, chronic pain assessment in December 2007, and occupational therapy assessment in March 2008, the worker endorsed feelings of moderate to severe depression. At the March 2008 appointment, the worker presented as being in an acute state of anxiety and/or depression, reporting active but not imminent suicidal ideation. The worker testified that she did not seek any medical treatment beyond infrequent appointments with her family doctor during the period 2004 to 2007 and, after the March 2008 event, did not require medical treatment or counselling. During this period, the worker sustained her part time studies without interruption.
The worker has a mild degree of moderate chronic pain impairment which, since her NEL assessment in 2004, has not prevented her from living independently or pursuing a part time university study schedule from September to June each year. The worker’s continued participation in this endeavour belies her statements that she is incapable of maintaining a schedule or tackling the cognitive demands of employment. In my view, the worker’s impairment would not preclude employment with demands similar to school. The worker has demonstrated an ability to maintain two courses throughout the school year, an endeavour that involves a fixed schedule of classes, essay writing, university-level reading and, accommodations notwithstanding, a high degree of cognitive functioning. I find that the worker is employable with an ability to secure and sustain part time employment of 20 hours per week.
The worker’s pain and emotional circumstances would, in my view, limit employment opportunities and earning potential. The worker has the skills and abilities to perform a number of clerical jobs. She is computer-literate, has average to above average skills and aptitudes, and previous experience as a bank teller. Jobs such as receptionist, customer service representative, administrative assistant, and office clerk would be suitable. Minimum wage would give the worker the broadest scope of clerical employment options.
WSIAT addressed the worker’s objection to the quantum of the R1 FEL benefit effective from August 1, 1996 to August 1, 1999. They requested that a FEL supplement be paid from January 1, 1998 until the results of a new LMR assessment were known. Accordingly, supplementary benefits were paid from January 1, 1998 to July 26, 2007. Although the R2 FEL was due for review on August 1, 1999, there was no such determination until November 23, 2007, after the CPD objection and LMR assessment were finalized. The FEL determination date, in this case, is November 23, 2007. We are required to calculate this FEL benefit on the basis of the circumstances as they were on the date of determination. The minimum wage in effect at the time of the November 23, 2007 R2 FEL determination is appropriate.
2. Prescription Medication
Policy
Operational policy states that workers are entitled to health care as may be necessary, appropriate, and sufficient as a result of the workplace injury.
Health care may include the following: professional services provided by a health care practitioner; services provided by or at hospitals and health facilities; drugs; services of an attendant; modifications to a person’s home and vehicle and other measures to facilitate independent living which are appropriate in the WSIB’s opinion; assistive devices and prostheses; extraordinary transportation costs to obtain health care; and such measures to improve the quality of life of severely impaired workers, in the WSIB’s opinion, are appropriate.
Assessment
The worker representative submitted that the nature and degree of the worker’s CPD suggests a requirement for such medications as claimed. He noted the worker’s testimony that some of the medications were not effective; however, suggested that it was reasonable for her health practitioners to prescribe them on a trial basis. He requested that costs of medications be reimbursed by the WSIB.
In order to consider the worker’s request for the cost of medications, it is necessary to determine whether the medications were necessary, appropriate and sufficient.
The adjudicator denied reimbursement for receipts for prescription Oxycontin, Wellbutrin, and Zopiclone due to the worker’s expressed intent on March 8, 2008 to use one or all of these medications to end her life. The threat of suicide was sufficiently serious in the view of the occupational therapist and the associate psychiatrist to merit a visit to the hospital emergency department for immediate treatment. It was only because the worker had stated her intention to put her parents’ affairs in order before proceeding with suicide that the psychiatrist recommended against having the worker admitted against her will. The worker’s testimony regarding this event is not consistent in any way with contemporaneous reporting and was, in my view, an effort to minimize the seriousness of the situation.
The decision to limit payment for medications under the circumstances that existed after March 8, 2008 was reasonable. In making this finding, I had regard for a number of factors, including: the worker’s stated intent to use the medications to commit suicide; her previous history of suicide attempt by overdose of sleeping pills, and; her refusal to allow consultation with the family doctor. The worker would not have been entitled to certain medications after the March 2008 suicide threat.
The worker is, however, entitled to reimbursement for medications related to her condition which were prescribed prior to March 2008: Wellbutrin (anti-depressant), Oxycontin (narcotic analgesic), and Zoplicone (non-benzodiazapine hypnotic agent). According to the record, these prescriptions were written and filled between April 2007 and September 2007. There was no indication that the availability of these medications in 2007 presented undue risk. These types of medications are sometimes prescribed to mitigate symptoms associated with CPD and when they are so prescribed, generally are paid for by the WSIB.
The worker is not entitled to reimbursement for Cyclomen because it was not prescribed for any condition associated with the work-related injury. The worker testified that she was prescribed this medication for menstrual pain. Cyclomen is a pituitary gonadotropin inhibitor generally prescribed in the treatment of endometriosis. Even if menstrual pain contributes to the worker’s pain complex, it does not fall within the scope of the claim.
CONCLUSION
The objection is granted in part.
The worker’s request for FEL recalculation is granted in part.
- Her request for a finding of unemployability is denied.
- Her request for an increased FEL benefit is granted in part; the Operations Division is directed to recalculate the FEL benefit from the R2 FEL effective date of August 1, 1999, using projected earnings based on the minimum wage in effect on November 23, 2007 and a 20-hour workweek. The minimum wage in effect at that time was $8.00 per hour.
The worker’s request for reimbursement of medications is granted in part.
- Her request for reimburse of the cost of Cyclomen is denied.
- Her request for reimbursement of prescription Oxycontin, Zipiclone, and Wellbutrin, prescribed and purchased in 2007, is granted.
DATED October 8, 2009
D. Shepherd Appeals Resolution Officer Appeals Branch