APPEALS RESOLUTION OFFICER DECISION
Decision Number:
20210034
OBJECTING PARTY:
worker
REPRESENTED by:
WORKER REPRESENTTIVE
RESPONDENT:
EMPLOYER – out of BUSINESS
REPRESENTED by:
NONE
HEARING:
HEARING IN WRITING
HEARD by:
S. DI CARLO, appeals resolution officer
ISSUES
The worker through their representative objects to the Case Manager’s (CM) decision dated February 24, 2021, which determined:
The worker does not have entitlement to a permanent impairment for narcotic dependence, and
As a result, the suitable occupation (SO) of Library, Correspondence and Related Information Clerks is suitable.
PRELIMINARY ISSUE
At the outset, in considering the issues referred for my consideration, I must preface my jurisdiction within this appeal.
The worker representative completed an Appeal Readiness Form (ARF) on March 25, 2021, and objected to the decision dated February 24, 2021, and outlined the issue in dispute is “loss of earnings and SO suitability.”
I note in the CM decision of February 24, 2021, the CM made no findings of fact on Future Economic Loss (FEL) benefits; therefore, this issue is not before me.
I have reviewed and considered the, Vice-Chair’s findings further to the Workplace Safety and Appeals Tribunal (WSIAT) decision of October 9, 2020, of which the Vice-Chair found “I find that the Appeal Resolution Officer (ARO) decision under appeal [August 13, 2018] considered whether the SO of Library, Correspondence and Related Information Clerks on the basis of the significant deterioration of the worker’s compensable right ankle from the permanent worsening date of July 13, 2010. Having reviewed the ARO decision in detail I find no evidence of significance that the ARO considered whether or not the SO was suitable given her narcotic dependence…As the Board has not made a final decision on this matter it is not properly before me and I make no findings on this matter.”
Further to the CM’s decision of February 24, 2021, which was referred for my consideration, I note the CM initially concluded that the worker does not have a permanent impairment for narcotic dependence and then maintained the identified SO was suitable for the worker. However, in my view, as the CM concluded the worker did not have a permanent impairment for their narcotic dependence, the CM did not have the authority to make a finding on suitability of the SO as the ARO had previously concluded in the decision dated August 13, 2018, that the SO of Library, Correspondence and Related Information Clerks was suitable in light of the worker’s increased Non-Economic Loss (NEL) benefit.
In my review, consideration on suitability of the SO can only be considered if a permanent impairment is accepted for a new area of entitlement or if the worker suffers a permanent significant deterioration with their accepted condition for the right side fusion hind foot and forefoot posttraumatic arthritis impairment that results in a redetermination of the degree of permanent impairment.
Therefore, for the purpose of this appeal, I must first determine whether the worker has a permanent impairment for their narcotic dependence and if a permanent impairment is accepted, then the worker would be entitled to a NEL rating and following the rating can consideration be provided as to whether the SO of Library, Correspondence and Related Information Clerks is a suitable occupation in light of the worker’s accepted entitlement.
Based on the above, I find the sole issue before me remains whether the worker has entitlement to a permanent impairment for their narcotic dependence and I make no other findings on fact within this appeal.
BACKGROUND
On June 20, 1997, this now 61-year-old former reforestation contractor fell from a ladder and sustained a compound comminuted fracture of the right ankle. The worker underwent open reduction and internal fixation on June 21, 1997. Entitlement was accepted for right ankle fusion with osteomyelitis.
Subsequently, the worker underwent additional surgical procedures to which entitlement was accepted for the right ankle in November 1997 (removal of pins); August 2000 (arthrodesis and fusion of iliac bone graft); June 2001 (hardware removal and debridement) and May 2002 (fusion of the right hind foot and forefoot with post-traumatic arthritis).
In April 1998, the worker was referred to Vocational Rehabilitation (VR) services where a Suitable Employment or Business (now called Suitable Occupation - SO) was identified as Library, Correspondence and Related Information Clerks. The worker decided not to participate with the VR program and VR services were closed in November 1998.
The Operating Area conducted a Future Economic Loss (FEL) determination (known as the D1) based on the SO of Library, Correspondence and Related Information Clerks. The FEL Adjudicator considered this SO, and did not anticipate any future loss of earnings and the worker was granted a sustainable D1 FEL benefit as of January 1, 1999. The worker was subsequently granted a FEL medical supplement from January 1, 1999 until May 1, 1999, when the worker was to begin treatment for narcotics dependence. The SO previously identified was still considered appropriate at the R1; in 2001, and at the R2 review; in 2003, and a FEL sustainability benefit was preserved.
The Claims Adjudicator determined the worker had a permanent impairment with restrictions for returning to work, and on September 25, 2002, the worker received a 20% NEL benefit for their right ankle impairment. The worker appealed this decision.
In a decision dated October 28, 2004, the ARO upheld the suitability of the SO of Library, Correspondence and Related Information Clerks as suitable for the worker’s right ankle impairment and confirmed the worker’s 20% NEL quantum impairment for the right ankle.
The WSIAT decision of December 13, 2007, upheld the worker’s 20% NEL quantum for the right ankle. In the same decision, the Panel confirmed the SO of Library, Correspondence and Related Information Clerks was suitable at the R1 and R2 dates and that the worker was not unemployable as of the R2 date of December 24, 2003. The Panel approved the worker was entitled to a FEL supplement on a temporary basis while the worker sought treatment for narcotic dependence.
The Board allowed entitlement to supplementary FEL benefits from January 4, 2004 up to June 1, 2008, when the worker did not participate in treatment programs that were offered to assist them with their narcotic dependence. An ARO decision dated February 25, 2010, found that the worker was not entitled to further supplementary benefits from June 1, 2008, and the worker did not appeal this decision.
In March 2011, the CM reviewed and denied entitlement to a NEL redetermination for the worker’s right ankle impairment. The worker appealed this decision and in a decision dated May 3, 2012, the ARO denied the worker’s appeal. The Vice-Chair determined in the WSIAT decision May 2, 2014, that the worker was entitled to a redetermination of their right ankle with a permanent worsening date of July 7, 2010. The Vice-Chair also found that as a result of the NEL redetermination, the worker would be entitled to a FEL supplement while cooperating in a medical rehabilitation program.
In June 2014, the worker’s NEL award was increased for their right ankle impairment to 25%.
In October 2014, the CM advised the worker that the worker was not entitled to any further FEL supplementary benefits from August 2014 onward, as the worker declined to participate in the medical rehabilitation program for narcotics dependence. The ARO decision dated June 5, 2015, upheld the denial of a further supplement subsequent to August 28, 2014.
The worker participated in a narcotics dependence program from January 14, 2016 to March 21, 2016, and supplementary FEL benefits were paid during this period.
The worker’s representative requested a reconsideration of the SO suitability further to the worker’s 5% NEL quantum increase. In a decision dated April 26, 2018, the CM concluded the worker remained employable in the SO of Library, Correspondence and Related Information Clerks.
On August 13, 2018, an ARO determined that the worker remained employable and that the SO was suitable. In the WSIAT decision dated October 9, 2020, the Vice-Chair found the SO of Library, Correspondence and Related Information Clerks remained suitable for the worker’s organic ankle injury. In the same decision, the Vice-Chair made no findings of fact of the worker’s narcotic dependency in relation to the SO.
In November 2020, the worker representative referred to the October 9, 2020 decision and submitted the worker’s work-related narcotic dependence affected the worker’s ability to work. In a decision dated February 24, 2021, the CM concluded there is no permanent allowance for narcotic dependence and that the worker remains partially impaired with restrictions that would allow them to work in the SO of Library, Correspondence and Related Information Clerks.
The worker representative objects to the decision dated February 24, 2021, which now forms the basis of this appeal.
AUTHORITY
Workplace Safety and Insurance Act (WSIA), 1997. Section 2.
Operational Policy Manual
Published
11-01-05 - Determining Permanent Impairment
November 3, 2014
ANALYSIS
In my review, I have had regard for the available information, the submissions provided by the worker representative and the relevant policy and legislation. I do not find in favour for the worker. In arriving at my decision, I have considered all of the evidence and the following is a summary of my decision.
The worker representative submitted a submission dated June 7, 2021, and outlined the issue before the Appeals Services Division is whether the worker could do the job of Library, Correspondence and Related Information Clerks in light of the worker’s 25% NEL benefit. The representative contends the worker has significant restrictions for walking, climbing, standing and low level, the worker went on to develop a narcotic dependence, which was accepted by the Tribunal. The representative notes that WSIAT did make some determination as to SO suitability, the issue is left open of the worker’s narcotic dependence.
The representative refers to Dr. Vaghadia’s medical report of August 26, 2020, which reveals “due to the nature of her injury, the patient’s ongoing chronic pain in the right ankle and lower leg which causes difficulty with mobility, positional discomfort and completion of her activities of daily living (ADLs). As this has been the case for over twenty years time, it is expected that this pain and loss of function will be her baseline indefinitely... it should be noted that this is not indicative of improvement of her underlying condition and its symptoms, rather a measure to reduce the short-and long-term complications of opioid medications, some of which she continues to suffer.”
The representative submits that the worker is suffering from chronic right lower leg and right ankle pain, as well as the long term effects of the opioid medication. The worker representative positions that the physical issues are one problem but compound with the drug dependence, and that the worker is not competitively employable. The representative submits that the worker’s NEL should be increased in light of the worker’s significant impairments and that SO of Library, Correspondence and Related Information Clerks is found not suitable.
The employer is out of business and therefore not participating in this appeal.
As stated earlier in preliminary section of this decision, the sole issue before me remains whether the worker has entitlement to a permanent impairment for their narcotic dependence and I make no other findings on fact within this appeal. I note the worker representative has not provided any submissions on the issue of a permanent impairment for the narcotic dependence.
As pointed out by the Vice-Chair in the October 9, 2020, WSIAT decision, “the Panel in the Decision (December 13, 2007) confirmed that the SO was suitable and in doing so also considered the worker’s narcotic dependence… As the Tribunal has already adjudicated the issue of the suitability of the SO due to narcotic dependency and also reviewed the worker’s FEL benefit entitlement as of December 13, 2007, this decision is final.”
The issue to be determined in this appeal is whether the worker has a permanent impairment for their narcotic dependence, which was accepted further to the WSIAT decision of December 13, 2007.
I refer to Policy 11-01-05, titled “Determining Permanent Impairment”, which outlines when a worker reaches maximum medical recovery (MMR), the Workplace Safety and Insurance Board (WSIB) attempts to determine the degree of the worker’s permanent impairment by considering all relevant health care information in the claim file. To determine that a permanent impairment exists, decision-makers must confirm that MMR has been reached, evidence of ongoing impairment exists, and the ongoing impairment is a result of the work-related injury/disease.
According to Section 2(1) of the Workplace Safety and Insurance Act (WSIA), “impairment” means physical or functional abnormality or loss (including disfigurement) which results from the injury and any psychological damage arising from the abnormality or loss. This section defines “permanent impairment” as an impairment that continues to exist after the worker reaches MMR. A worker reaches MMR when it is not likely that there will be any further significant improvement in his or her medical condition.
The worker underwent a Medication and Substance Program (MSP) WSIB Specialty Program Comprehensive Assessment on August 28, 2014, and the worker was diagnosed with the chronic pain associated with psychological factors and a general medical condition, opiate misuse – rule out opiate dependence, depression, and anxiety disorder; Not Otherwise Specified (NOS).
The report detailed treatment recommendations were discussed with the worker and noted recommendations for the worker’s family doctor regarding the worker’s health include: that the worker was taking two (2) different proton pump inhibitors (PPI) and recommends rationalizing this to one (1) PPI and a sleep study was recommended post opioid rotation if needed. Recommendations through the Medication Substance Program for the worker to be referred for an inpatient stay of seven (7) to 10 days in the Medical Withdrawal Unit (MWU) at CAMH for discontinuation of OxyNeo. The MWU admission involved the worker being initiated on adjuvant medication to address the remaining pain symptoms with further recommendation of eight (8) Allied Health session in preparation for the MWI admission. The final recommendation consisted of a follow up with a pharmacist and physician three (3) months post medication change to monitor the worker’s response.
The MSP clinicians discussed the above recommendations with the worker on the date of the assessment and the worker wished to not participate with the recommended treatment.
I note the WSIAT decision dated May 2, 2014, the Vice-Chair granted the worker entitlement to “further, but final, treatment for her narcotics addiction” and that the worker “must fully” comply with the treatment plan.
The ARO decision of June 5, 2015, considered the recommendations of the August 28, 2014 medical report and concluded there was evidence to warrant an adjustment of the worker’s FEL sustainability award from August 28, 2014.
The worker was subsequently reassessed on October 22, 2015 at the MSP WSIB Specialty Program for a Comprehensive Assessment. The worker was diagnosed with chronic pain disorder due to a general medical condition and psychological factors, adjustment disorder with mood and anxiety symptoms. Barriers to recovery included the worker’s “highly somatic presentation and high pain and disability expression.” The treating team recommended that the worker’s opiate medications could be optimized by rotating the agent to an alternate opiate medical such as Kadian. Again, the initial recommendations from the previous MSP was outlined in this report.
The MWU Discharge Note from MSP dated January 26, 2016, indicated the worker reported experiencing pain throughout their body, which the worker attributes to their fibromyalgia. The worker reported that their ankle is unstable because of their injury, and that the ankle is the greatest source of distress. The recommendations made by the MSP team was a seven (7) to 10 day admission at the MWU for transition of the worker’s current opiate medication to a long acting opiate such as Kadian. Inpatient intervention was recommended to ensure close monitoring could occur and allow for a smooth transition to outpatient MSP team where the administration of Kadian could continue during the eight (8) week program. In addition, potential for an adjustment of Sertraline was noted as well as introducing Pregabalin for neuropathic pain, and an alternative sedative agent such as Trazadone.
The Physician Progress Note of February 24, 2016, detailed the worker was rotating on Kadian, which was increased in the prior week. On assessment, various diagnoses were confirmed not all compensable and the treating practitioners noted trialling of some medications along with education of non-pharmacological approaches for pain control.
The worker participated in a narcotics dependency program from January 25, 2016 to March 18, 2016, and received supplementary benefits during this period.
The MSP WSIB Specialty Program Follow up Assessment Report of June 23, 2016, confirmed during admission at the MWU, an opioid rotation was successful from OxyNeo to Kadian. In addition, Lyrica was started to help with neuropathic pain and to minimize the use of opioid medications. The worker took part in the MSP eight (8) week multidisciplinary treatment program from January 25, 2016 to March 18, 2016. It was noted the worker significantly improved their function during participating in group program and the worker medication-focused, attributing any worsening or improvement of their symptoms to medication. Since the completion of the eight (8) week MSP program, the worker stopped two (2) medications: Pregabalin 75 mg bid and Nabilone 1 mg qhs. No current side effects from the worker’s current pain medication were noted. The worker reported that their pain does affect their mood.
The worker complained of pain all over their body and prolonged standing and walking aggravated their condition; however, it was noted that the worker was able to walk unassisted. The prognosis for return to work was guarded; however, noted barriers included the worker’s perception of self as permanently disabled and the worker’s expectation that they be “pain-free” before attempting a return to work.
From a mental status examination, the worker’s speech was clear and coherent with normal rate, and rhyme. The worker’s thought form was logical and goal-oriented with a low mood. There were no apparent deficits in attention or memory. There was no perceived impairment in insight, judgement, capacity or reliability. There were no safety concerns with respect to the worker, others or driving.
The medical report of September 4, 2019, Dr. Vaghadia outlined that the worker has been amendable to and progressing through a narcotic medication-weaning program. The worker has reduced from Hydromorph Contin 34 per day to current dose of Hydromorph Contin 13.5 mg per day; a reduction of over 60 percent. He outlined the rotation of medications, requested coverage to facilitate the recovery of the worker, and detailed that an opioid risk tool was completed and a narcotic agreement was signed.
Dr. Vaghadia’s medical report of August 26, 2020, noted the worker reports ongoing chronic pain in the right ankle and lower leg and expressed concern over a delayed diagnosis of chronic regional pain syndrome. Dr. Vaghadia outlined the worker has shown exceptional motivation in regards to attempted recovery and improvement as the worker was previously on very high doses of narcotic/opioid medications (Hydromorph Contin 34 mg daily dose [Morphine 136 daily equivalent dose]) which the worker was successfully weaned off of entirely in the last few years. He noted that “this is not indicative of improvement of her underlying condition and its symptoms, rather a measure to reduce the short-and long-term complications of opioid medications…the patient reports ongoing effects secondary to the medications including ones which affect her neurocognitive status (sedation, drowsiness, clouded thinking) and gastrointestinal system (nausea, constipation).”
Dr. Vaghadia’s medical report of October 30, 2020, confirmed the worker underwent a medication taper to reduce both short-and long-term adverse effects secondary to narcotic medications. The worker successfully weaned off Hydromorph Contin entirely (morphine 0 mg daily equivalent dose) in January 2020.
The March 9, 2021, medical report noted that the worker made remarkable progress in successfully tapering off their opioid/ narcotic medications completions.
In this appeal, my jurisdiction lays solely on whether a permanent impairment has been accepted for the worker’s narcotic dependence that was previously allowed in the WSIAT decision of December 13, 2007. While I acknowledge the Tribunal accepted entitlement to narcotic dependency in the decision of December 13, 2007, I note further to the CM’s decision dated February 24, 2021, the CM concluded the worker does not have entitlement to a permanent impairment for the narcotic dependence.
In this case, the medical documentation supports the worker received various treatment interventions for their narcotic dependency and the issue before me remains whether there is a functional or physical abnormality of the worker’s condition due to the narcotic dependency.
While I note the medical documentation refers to ongoing significant pain issues of the worker’s compensable right ankle/foot, I note there are also numerous significant issues related to the worker’s non-compensable conditions. In this case, an organic permanent impairment of the right ankle/foot has been recognized further to the worker’s 25% NEL quantum. I note pain remains a subjective symptom and does not establish a physical or functional abnormality.
In my review, no medical evidence has been submitted to the file to support an ongoing impairment related to the worker’s narcotic dependence. I note the worker’s entitlement remains accepted solely on an organic basis and following discharge from the MSP program, no evidence has been submitted to support a Diagnostic and Statistical Manual of Mental Disorders (DSM-5) diagnosis of narcotic dependence. Furthermore, the medical evidence supports the worker successfully was weaned off certain narcotics and tapered medication dosages. As such, I find the worker achieved MMR for the narcotics dependence condition at the time of discharge from the MSP program.
In absence of confirmation of a DSM-5 diagnosis supporting an ongoing issue of narcotic dependence, I find the worker does not have entitlement to a permanent impairment for narcotic dependence and is without evidence of a physical abnormality in relation to this condition.
In summation, I am not persuaded that there are sufficient objective clinical findings in evidence to support a ruling that the worker was left with a residual permanent impairment involving the narcotic dependence. As I have determined the worker does not have a permanent impairment for their narcotic dependence, I do not have the jurisdiction to consider suitability of the SO of Library, Correspondence and Related Information Clerks as I remain bound by prior ARO and Tribunal decisions.
Regrettably, the worker’s appeal is denied.
CONCLUSION
As I have determined the worker does not have a permanent impairment for their narcotic dependence, I do not have the jurisdiction to consider suitability of the SO of Library, Correspondence and Related Information Clerks as I remain bound by prior ARO and Tribunal decisions.
The worker’s objection is denied.
October 6, 2021
S. Di Carlo
Appeals Resolution Officer
Appeals Services Division