WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100046
OBJECTION BY: Worker
EMPLOYER: Out of Business
REPRESENTATIVE: Worker
ISSUES
The worker representative is objecting to the time limit to appeal the decision letter dated April 15, 1996.
The worker representative is objecting to the denial of Sect 147(4) supplementary benefit payments from April 7, 1995 to September 25, 1995 in this case.
The worker representative is objecting to the denial of entitlement for the duragesic (fentanyl) patch in this case.
HOW THE ISSUES AROSE
On November 15, 1980, this then 27 year old miner sustained a low back injury when moving a barrel of oil. The initial diagnosis was back strain. On July 13, 1983, the worker was allowed a 5% pension award recognizing the permanent disability in the low back.
The worker continued to experience continuing problems as a result of the low back injury and chronic pain disability entitlement was accepted in May 1990. The worker was allowed a 20% pension award for chronic pain disability with arrears to March 1990.
The worker was participating in a vocational rehabilitation program and Sect 147(2) supplementary benefit payments were allowed. This benefit payment was closed on April 7, 1995 as the worker was unavailable to participate in the vocational rehabilitation program due to a non-compensable condition. According to the record the worker contacted the WSIB on August 25, 1995 and requested Sect 147(4) benefit payments. Sect 147(2) benefit payments were reinstated on September 25, 1995 when the worker resumed his vocational rehabilitation program.
The Adjudicator provided a decision letter dated April 15, 1996 advising the worker Sect 147(4) benefit payments from April 7, 1995 to September 25, 1995 are denied because a non-compensable condition rendered the worker unavailable to participate in the vocational rehabilitation program in this case. The worker representative at the time submitted a letter dated April 27, 1996 objecting to the decision dated April 15, 1996. The Adjudicator acknowledges the receipt of the objection letter from the worker representative with a letter dated May 24, 1996.
The letter dated July 23, 1996 upholds the denial of Sect 147(4) benefit payments from April 7, 1995 to September 25, 1995. On August 27, 1996, the Program Manager at the time from the WSIB corresponds with the worker representative and acknowledges the denial of Section 147(4) benefit payments from April 7, 1995 to September 25, 1995. The Program Manager sends a subsequent letter to the worker representative acknowledging the objection to the decision letter dated July 23, 1996.
The worker has requested entitlement extend in this case to include coverage of duragesic patches prescribed by the doctor. This is a narcotic based medication and Nurse Case Manager (NCM) case conferenced with the Medical Consultant, a doctor on staff at the WSIB, concerning this request for coverage of this prescribed narcotic based medication.
The Adjudicator provided the decision letter dated June 1, 2007 denying entitlement for the duragesic patches noting the initial injury was a minor strain and under the chronic pain disability guidelines treatment of this nature is not allowed. The worker representative submitted a letter dated July 11, 2007 objecting to the decision letter dated June 1, 2007.
Upon receipt of additional information from the doctor, the decision dated June 1, 2007 was reconsidered and the decision to deny entitlement for this medication was upheld. This decision was communicated to the worker with a letter dated March 31, 2009. The worker representative has submitted the completed objection form dated November 26, 2009 and this matter is now before me.
AUTHORITY
Section 120(1) of the Workplace Safety and Insurance (WSI) Act
11-01-03 – Merits and Justice
17-01-02 – Entitlement to Health Care
18-07-10 – Pension Supplements
RESOLUTION METHOD AND PROCESS
The worker representative has requested the 60 Day Decision Option to resolve this objection.
I have agreed to add the objection to the time limit to appeal the decision letter dated April 15, 1996 and the denial of Sect 147(4) supplementary benefit payments from April 7, 1995 to September 25, 1995 to the agenda and will make findings on these issues in addition to the denial of entitlement for the duragesic patch.
ASSESSMENT OF THE EVIDENCE
I have reviewed the record and considered the evidence.
Section 120 (1) of the WSI Act States:
A worker, survivor employer, parent or other person acting in the role of a parent under subsection 48 (20) or beneficiary designated by the worker under subsection 45 (9) who objects to a decision of the Board shall file a notice of objection with the Board,
(a) in the case of a decision concerning return to work or a labour market re-entry plan, within 30 days after the decision is made or within such longer period as the Board may permit; and
(b) in any other case, within six months after the decision is made or within such longer period as the Board may permit.
When considering time limit extensions, broad discretion to extend the time limit will be applied if appeals are brought within one year of the date of the decision. There are additional criteria to take into consideration for longer delays:
Serious health problems (experienced by the party or the party’s immediate family) or the party leaving the province/country due to the ill health or death of a family member;
Whether there was actual notice of the time limit. This acknowledges that post ’98 decisions specifically refer to the time limits but pre’98 decisions do not;
Whether there are other issues in the appeal which were appealed within the time limits and which are closely related to the issues not appealed within the time limits;
The significance of the issue in dispute;
Whether the party was able to understand the time limit requirements.
All decisions to extend time limits will be based on the merits and justice of the case.
In my assessment of the evidence pertaining to the issue of the time limit to appeal a decision prior to 1998, I find this to be an exceptional circumstance. In this case, it is clear the worker representative at the time objected to the decision letter dated April 15, 1996 within days of this decision having been issued. It is also evident the decision letter dated April 15, 1996 did not contain an actual notice of a time limit to appeal. The objection to this decision was acknowledged by the both the Adjudicator and the Program Manager at the time.
I find the worker representative at the time did object to the decision letter dated April 15, 1996 and under the circumstances an extension of the time limit to appeal is allowed based on the real merits and justice of this case in this exceptional circumstance.
The objection form on record received from the worker representative expressed an objection to the denial of Section 147(4) benefit payments from April 7, 1995 to September 25, 1995. In accepting the time limit to appeal in this exceptional circumstance, I have added this objection to the agenda.
According to the record, the worker was allowed Section 147(2) benefit payments as he was actively participating in a vocational rehabilitation program and was in receipt of a pension award recognizing the existence of a permanent disability resulting from the work-related injury in this case. At the time, it was anticipated the worker would approximate his pre-accident earnings upon completion of the vocational rehabilitation program.
Sect 147(2) benefit payments were closed on April 7, 1995 as a non-compensable condition rendered the worker unable to participate in the vocational rehabilitation program. The record reveals the worker was able to resume the vocational rehabilitation program on September 25 1995, thus Sect 147(2) benefits were reinstated.
The worker requested entitlement for Section 147(4) benefit payments from April 7, 1995 to September 25, 1995 and this request was denied as the worker was totally disabled for a non-compensable reason and was therefore unable to participate in the vocational rehabilitation program.
I find it noteworthy the worker, upon resuming his studies in September 1995, attended upgrading until December 1995 and subsequently the vocational rehabilitation services were closed according to the report dated March 21, 1996. The worker was paid Sect 147(2) benefit payments until the closure of the rehabilitation file. The rehabilitation file was closed as the worker was not demonstrating a willingness to participate fully in the program and the worker was claiming he was totally disabled. On that basis the Adjudicator determined the worker was unable to fully participate in the vocational rehabilitation program and allowed Sect 147(4) benefit payments from April 29, 1996.
I acknowledge the worker was unable to participate in the vocational rehabilitation program from April 7, 1995 to September 25, 1995 for reasons unrelated to the compensable injury however, it could be argued the circumstances that resulted in the allowance of Sect 147(4) benefit payments from April 29, 1996 were quite similar in that the worker was totally disabled and found unable to continue in the vocational rehabilitation program.
The worker was totally disabled and unable to participate in the vocational rehabilitation program during this period. Although I acknowledge the worker was unable to participate in the vocational rehabilitation program for a non-work-related condition during this period, within a short period of time, the worker claimed total disability due to the work-related injury and unable to continue in the vocational rehabilitation program and Sect 147(4) benefit payments from April 29, 1996 were allowed.
In my opinion, it is not unreasonable that the worker could have been totally disabled due to both the compensable and non-compensable conditions for the period Sect 147(4) benefit payments were denied. In my assessment of the evidence, I find the worker is entitled to Section 147(4) benefit payments from April 7, 1995 to September 25, 1995.
The worker’s doctor provided a letter dated April 3, 2007 pertaining to the issue of the duragesic patch 25 prescription for back pain. The doctor notes “the worker has been taking Percocet for years for his work-related back injury and paying for them with his trillium plan”.
The record reveals the worker advised the NCM he was prescribed Percocet medication for many years by the doctor and now this medication was hard on his stomach. It is also noted the worker reported he uses his medication sparingly and has paid for the medication himself for years.
In August 2008, the worker representative submitted the use of the duragesic patch has increased the worker’s mobility and his tolerance of daily activities and his concentration. It is also indicated the worker has decreased his intake of oral medication with the use of the duragesic patch. In support of the argument for inclusion of the duragesic patch the worker representative has submitted the increase in the pension quantum supports an increase in the worker’s pain.
In the report dated December 1, 2008, the doctor indicates in his opinion the fentanyl slow release patches are a “superior form of pain relief compared to Percocet” and the worker says his chronic low back pain is reasonably managed on this pattern of treatment.
In my assessment of the evidence, I note in the social worker’s report from August 2003 contained in memorandum 218 on record and in summary, the worker was independent of his activities of daily living which included light house work and food preparation. The worker reported he managed his back pain with rest and medication and wearing his lumbosacral support. The reported medications at that time were Tylenol #3 (approximately 50 tablets per month, down from 250 tablets per month when he was working), Prednisone and Alprazolam 25 mg.
The WSIB Clinical Psychologist in memorandum 219 noted the worker’s sleep was interfered with and upon awakening the worker would take 2 - Tylenol #3’s and Oxycocet. The worker described pain radiating from the back down into both legs. It is noted the interview with the Clinical Psychologist was approximately 30 minutes and the worker remained seated for the duration. The results of the social worker’s report and the Clinical Psychologist’s review resulted in an increase in the chronic pain disability pension award from 20% to 30%.
The worker was examined by an orthopaedic surgeon and the report on record dated April 8, 2004 noted the worker was taking the medications Cyclosporine, Cell Sept, Allopurinol and Tylenol #3. The surgeon notes in summary, the worker seemed to be in general good health and “he was able to walk around without any difficulty”. The doctor noted based on the examination “he did not think there is really much wrong with the spine” and there were relatively few findings.
The absence of organic findings to support a worker’s continuing pain is one of the criteria used to determine a worker’s entitlement under the chronic pain disability policy. In my view, an increase in the pension quantum for chronic pain disability does not support an increase in the worker’s level of pain but perhaps a change in terms of marked life disruption.
The initial diagnosis in this case was a back strain, initially recognized with a 5% organic pension award. As the claim progressed entitlement was accepted for chronic pain disability entitlement and a pension quantum reflective of this entitlement decision. In my opinion, there isn’t any indication or medical evidence on record to support that the worker has suffered a significant deterioration in his condition warranting a change in his medication to include a prescription for duragesic patches in order to function on a daily basis or that this medication has resulted in a significant improvement in the worker’s overall level of functioning.
According to the record, the worker was managing his pain with the medication he was prescribed at the time of the increase in the pension quantum. In my view, the medical evidence does not support that in this case the acceptance of the duragesic patch would improve the worker’s level of function or increase his quality of life.
CONCLUSION
I find the extension of the time limit to appeal the decision of April 15, 1996 is allowed.
I find the worker is entitled to Sect 147(4) benefit payments from April 7, 1995 to September 25, 1995.
I find the decision to deny entitlement for the duragesic patch in this case to be appropriate.
The objection is allowed in part.
DATED March 5, 2010
C. Anzil
Appeals Resolution Officer
Appeals Branch