DECISION NUMBER:

20220132

OBJECTING PARTY:

WORKER

REPRESENTED by:

WORKER REPRESENTATIVE

RESPONDENT:

EMPLOYER

REPRESENTED by:

EMPLOYER REPRESENTATIVE

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

K. MACMILLAN, APPEALS RESOLUTION OFFICER

OCTOBER 17, 2022

ISSUES

The worker, through their representative, is objecting to the following issues denied with the Case Manager’s decision letter dated September 27, 2018 (reconsidered and upheld in a letter dated February 4, 2021):

1. The denial of secondary entitlement related to medication use, including a worsening of an abdominal and gastrointestinal (GI) condition, anxiety, organ failure, weight loss, and upper/lower back pain; and,

2. The denial of entitlement to a reassessment of the 25% permanent disability (PD) benefit for the low back.

BACKGROUND

On February 22, 1989, the worker slipped on slush causing them to twist and fall, resulting in a lower back injury. The PD examination of December 10, 1991 awarded a 15% PD benefit for mechanical low back pain, degenerative disc disease with moderate pre-existing premature degeneration of the lumbar discs. A PD re-examination performed in May 1995 increased the PD benefit to 20% for the lower back post-spinal stimulator which was only partially effective. Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision number xxxx/xx dated December 3, 2003 allowed entitlement from the date of hospital admission on May 25, 1996 to June 6, 1996 for hepatomeal (liver/kidney) failure due to an acetaminophen overdose to deal with the work-related pain.

A Case Manager documented a non-work-related brain tumour in July 2007. The PD benefit for the low back and right thigh increased from 20% to 25% as documented in a decision letter dated July 20, 2017. Correspondence from the worker dated November 29, 2017 requested entitlement to the stomach and upper back. The worker explained that three electrodes remained from the spinal stimulator and that there is abdominal pain and nausea due to prolonged use of medication, as well as anxiety/depression due to the amount of pain. The Case Manager’s decision letter dated September 27, 2018 denied entitlement to the requested secondary conditions as there are other non-work-related health factors. The

Case Manager denied entitlement to a PD reassessment on the basis that there was no evidence of a deterioration since the last review in 2017.

The reconsideration letter of February 4, 2021 determined that an updated report from the family doctor essentially outlined the same conditions reviewed in the decision letter of September 27, 2018. In the opinion of the Case Manager, the requested conditions could not be related to the remote injury of 1989. The reconsideration letter stated that the worker’s decline was multifactorial and that it was difficult to prove the original trigger of the decline. The Case Manager determined that the worker’s shoulder injury of 2020 was not within the scope of the claim. The reconsideration letter requested notification of any consultation for the removal of the original dorsal column stimulator implanted in 1994 so that a decision could be made for entitlement to any benefits or services.

The Appeal Readiness Form of June 2, 2022 and Respondent Form signed August 29, 2022 both requested that the worker’s objection be resolved as a hearing in writing. The issues are now before me.

AUTHORITY

Operational Policy Manual Published

15-02-05 Recurrences

15-04-02 Psychotraumatic Disability

15-05-01 Resulting from Work-Related Disability/Impairment 15-05-02 Accidents Resulting from Treatment

18-07-01 Determining the Degree of Disability

February 1, 2018

September 7, 2018

February 15, 2013

October 12, 2004

January 2, 2015

ANALYSIS

I find that secondary entitlement is limited to an abdominal/GI condition and associated weight loss. Additionally, I find that entitlement is not in order to organ failure, anxiety/depression, or a reassessment of the PD benefit. My reasons for these findings are outlined below. I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision.

Worker representative’s position

It is the worker representative’s position that the secondary conditions are linked to the original injury of February 22, 1989. The worker representative relies on the family doctor’s reports of June 22, 2020 and November 19, 2020. The written submission of January 20, 2021 requests compensation for the worker’s ongoing treatment of multiple complications that have resulted from the work-related injury.

Employer representative’s position

The employer representative argues that there are no physical findings to demonstrate a significant new worsening of the low back condition. With respect to the claimed secondary conditions, the employer representative points out the brain tumour identified in 2007, that the nerve stimulator implanted in the back in 1994 was removed soon after, and a history of losing prescriptions and using more medication than required/prescribed. The written submission of August 29, 2022 highlights that the right shoulder injury from 2020 is not within the scope of the claim. The written submission asserts that entitlement has also been denied for fibromyalgia and the liver.

1. Secondary conditions

It is my opinion that secondary entitlement is order only for the abdominal/GI condition and associated weight loss.

I acknowledge the employer representative’s position that the health care treatment provided to the worker did not result in injury but instead improved the pain for a specific period of time. The employer representative sites Policy 15-05-02, Accidents Resulting from Treatment, noting that decision-makers are to ensure that a second accident has occurred and that the injury is not a complication of treatment or a pre-existing condition.

Even so, I must consider the rationale applied by WSIAT when authorizing temporary entitlement to liver/kidney failure due to the worker exceeding the recommended dosage of acetaminophen as a secondary condition. I note that WSIAT allowed this secondary entitlement even after confirming that there is evidence to suggest that the worker had a periodic problem with alcohol consumption over the years. Therefore, I am not persuaded by the employer representative’s argument that the policy criteria are not met since the current symptoms relate to complications from reacting poorly to treatment in the long-term with the interference of pre-existing conditions.

Policy 15-05-01, Resulting from Work-Related Disability/Impairment, outlines that benefits are only payable if it is established that the work-related impairment caused the secondary condition. In order to make this determination, policy requires a causal link to exist between the secondary condition and the work-related injury. Therefore, it is my opinion that the question to address is if the medical evidence supports a causal connection between the claimed conditions and the medication taken for the

work-related permanent disability. I observe that a past medical history of diverticulosis and chronic back pain are identified within a hospital report dated May 26, 1996. A report from the family doctor dated June 28, 2018 states that fentanyl was causing abdominal pain and constipation. The report goes on to explain that the hydromorph contin is being tapered down in attempts to help to improve abdominal pains related to chronic opioid use.

Keeping in mind the rationale applied within WSIAT decision number xxxx/xx, I observe that the family doctor’s report of June 22, 2020 verifies that the worker was assessed for abdominal issues in April 2014. The family doctor documents that the worker had been taking a combination of long-acting morphine and short-acting oxycodone. A gastroenterologist was consulted who suspected that the recurrent abdominal pain was due to chronic opioid use. After more clinical investigations, the only conclusive finding was severe diverticulosis.

The report later clarifies that while the worker’s cholecystectomy (removal of the gall bladder) improved upper right quadrant pain, the chronic abdominal symptoms continued. After being referred to a different gastroenterologist in 2017, it was again concluded that the abdominal pain and discomfort were related to a combination of chronic use of opioids, anxiety, and chronic constipation. According to the family doctor, the gastroenterologist determined that the chronic abdominal pain was linked to chronic and high doses used to treat the worker’s lower back pain. The family doctor indicates that the resulting tapering of medication appears to have improved the worker’s nausea and vomiting, while stabilizing the weight loss. The report of June 22, 2020 also clarifies that the worker’s current dose of opioids seems to be controlling the lower back pain while minimizing the opioid-related abdominal symptoms and side-effects, although further tapering is being considered.

The family doctor summarizes that the abdominal pain, nausea, and recurrent vomiting has resulted in significant calorie reduction and weight loss. As a result, regular nutritional calorie supplements have

been recommended to maintain weight. Despite these efforts, the worker’s weight has decreased from 86 kilograms in 2006 to 56 kilograms in 2020. Finally, the family doctor confirms that constipation is a major side effect of opioids and that the extensive diverticulosis shown on a CT scan and colonoscopy can be a result of chronic constipation.

The family doctor’s report dated November 19, 2020 documents that the remaining thoracic neurostimulator wires continue to cause issues. The report explains that the remaining wires are causing a bigger issue due to the worker’s weight loss. The family doctor’s report dated August 10, 2021 discusses referring the worker to an orthopaedic surgeon to assess for the potential removal of the remaining wires from the neurostimulator device.

Overall, I find that there is insufficient evidence to support secondary entitlement to organ failure. In my view, the issue of secondary entitlement due to the remaining wires (or entitlement to the upper back) should be reviewed once any outstanding medication information is on file from the pending surgical consultation. In addition, I find that there is insufficient evidence of any secondary condition relating to the low back other than the request for a PD reassessment or the pending surgical consultation relating to the removal of the remaining neurostimulator wires. However, the Case Manager may still review this issue upon receipt of updated medical reporting.

That being said, I accept that the work-related impairment is related to, or linked with, the secondary conditions of abdominal/GI issues and resulting weight loss. Similar to the reasoning used by WSIAT in decision number xxxx/xx, I find that the opioids in question were prescribed for the work-related back pain as there is nothing to suggest that the worker was taking this medication for any other reason. I also accept the clinical opinion of the family doctor that the work-related medication led to side effect of constipation which in turn resulted in the secondary condition of severe diverticulosis. Consequently, in keeping with Policy 15-05-01, I find there is a causal link between the work-related impairment and the secondary conditions of abdominal/GI issues and weight loss. The Case Manager is requested to monitor for recovery as the family doctor indicates there being potential tapering of medication.

Anxiety and depression

In my view, entitlement is not in order for anxiety/depression.

I am aware that Policy 15-05-01 states that benefits may be provided to a worker who sustains a secondary psychological condition due to work-related treatment. However, Policy 15-04-02, Psychotraumatic Disability, provides a general rule requiring the diagnosed psychotraumatic disability to become manifest within five years of the injury or within five years of the last surgical procedure. Policy outlines that it must be evident that the psychotraumatic disability diagnosis is attributable to the

work-related injury or to a condition resulting from the work-related injury. There is general agreement that there is no work-related organic brain injury. Policy 15-04-02 outlines that an indirect result of a physical injury may include reaction to the treatment process.

It is established that the neurostimulator was surgically implanted in 1994. The worker’s correspondence of November 29, 2017 indicates that the device was removed approximately one or two years later.

According to the worker, the electrodes in the upper back starting causing pain approximately five to six years prior to 2017. I observe that the prior family doctor’s report of February 17, 2017 verifies that some remaining wires from the nerve stimulating device are now subcutaneous and bother the worker when lying on their back. The current family doctor’s report dated June 22, 2020 states that the worker has been diagnosed with chronic depression and anxiety disorder.

Regardless, I find that there is insufficient evidence of a diagnosis of either depression or anxiety within five years of either the injury date of February 22, 1989 or the surgical implant of 1994. While the prior family doctor’s report of February 17, 2017 discusses trying to remove the wires, I observe that there is no indication of any depression or anxiety. Similarly, I observe that the social worker’s report dated March 1, 2017 only discusses the worker’s physical limitations. The current family doctor’s report dated June 28, 2018 does not refer to any symptoms of depression or anxiety. In my opinion, the prior family doctor’s removal of one of the subcutaneous wires does not represent surgery compatible with Policy

15-04-02. Accordingly, I find that entitlement to either depression or anxiety is not in order as the general rule of an onset within five years from the date of surgery or the most recent surgical procedure is not met.

2. Permanent disability reassessment

I am not persuaded that a PD reassessment is in order.

Policy 15-02-05, Recurrences, requires there to be a significant deterioration that is clinically compatible with the original injury. In other words, the current diagnosis must be related to, or the result of, the accepted permanent impairment. Policy defines the term significant deterioration as a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. Policy 18-07-01, Determining the Degree of Disability, confirms that a reassessment can be considered if the PD worsens. Therefore, I find that there must be sufficient medical evidence of a worsening in the work-related low back injury in order for the requirement of clinical compatibility to be met.

I observe that the PD reassessment of July 2017 considered the worker’s inability to bend down to put on socks, only having a walking distance of approximately 250 metres, and being limited to sit/standing for approximately 10 minutes. The reassessment notes that the worker experiences pain down the right leg into the foot most days, and has difficulties with cooking, dressing, and house cleaning. Range of movements are recorded as being approximately 5% to 10% in all planes. Importantly, I note the reassessment considers the three remaining wires which were not removed prior to the previous family doctor’s retirement.

I appreciate that the family doctor’s report dated August 10, 2021 describes the worker being limited to activity around their apartment, limited range of motion in the lower back, and only being able to walk short distances. Still, it is my view that there is insufficient evidence of a marked degree of deterioration in the lower back/right thigh impairment compared to the clinical findings used in the PD reassessment of 2017. Given this determination, I find that the policy requirement of a clinically compatible significant deterioration is not present. In other words, it is my opinion that there is insufficient evidence of a marked degree of deterioration in the work-related impairment that is demonstrated by a measurable change in the clinical findings. Therefore, I accept that there can be no entitlement to a PD reassessment as I find that there is no worsening in the work-related low back and right thigh injury from the current level of 25%.

CONCLUSION

I conclude the following:

1. Temporary secondary entitlement related to medication use is in order for abdominal and gastrointestinal issues, as well as the related weight loss. The Case Manager is requested to monitor for recovery.

The request for entitlement to organ failure is denied.

The Case Manager is requested to review the issue of secondary entitlement to the upper/lower back once a consultation regarding the removal of the remaining neurostimulator wires is available for review.

There is no entitlement to anxiety as a secondary condition as the onset is not within five years of the work-related injury or most recent surgical procedure as required by Policy 15-04-02, Psychotraumatic Disability.

2. Entitlement to a reassessment of the 25% permanent disability (PD) benefit for the low back is not appropriate.

The Case Manager may review the issue of entitlement to a PD reassessment if further medical documentation becomes available supporting a deterioration from the current PD level of 25%.

The worker’s objection is allowed in part.

DATED October 17, 2022

K. MacMillan

Appeals Resolution Officer Appeals Services Division