WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1059/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1059/14 BEFORE: W. Sutton: Vice-Chair HEARING: May 23, 2014 at Toronto Written DATE OF DECISION: October 1, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2099 DECISION UNDER APPEAL: WSIB decision of Appeals Resolution Officer (ARO), L. Diaz, dated February 27, 2013 APPEARANCES: For the worker: For the employer: Interpreter: M. S. Grossman, Lawyer Not participating Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1059/14 REASONS (i) Introduction [1] The worker appeals the decision of the ARO that concluded that the worker was not entitled to reimbursement for the medications Lyrica and Oxycontin. The ARO rendered the decision based on the written record, without an oral hearing. (ii) Issues [2] The issue is whether the worker is entitled to health care benefits in the form of reimbursement for the medications Lyrica and Oxycontin. (iii) Background [3] The ARO s decision of February 27, 2013 provides a concise summary of the background to this appeal: On June 7, 1989, while employed as a paving stone machine operator, the worker sustained a fall from a ladder, injuring his lower back, left shoulder and sustaining multiple soft tissue injuries. He was 24 years old at the time of the injury. The worker is currently in receipt of the 33% Permanent Disability (PD) award for his lower back, left shoulder and for Psychotraumatic disability. This pension award was partially commuted in 1996 to permit the worker to purchase a van to assist in obtaining employment as a private investigator, which was his approved vocational objective. In a December 2004 decision, WSIAT granted entitlement to section 147(2) benefits for six months preceding August 2, 2002, date on which he established his own private investigation business, as it was determined that he had been engaged in self-directed Labor Market Re-entry services. In 2010, the worker s physician submitted an Opioid Maintenance Form, requested by the WSIB. The June 17, 2010 and March 12, 2010 decisions confirm the worker had ongoing coverage for Percocet, Dolobid and Zoloft under the claim, however, entitlement to Lyrica and OxyContin were denied as it was determined these medications had been prescribed as a result of a May 2009 motor vehicle accident (MVA). The worker objected to the decisions which denied entitlement to the above medications. (iv) Law and policy [4] Since the worker was injured on June 7, 1989, the pre-1989 Workers Compensation Act (pre-1989 Act) is applicable to this appeal. All statutory references in this decision are to the pre-1989 Act, as amended unless otherwise stated. [5] Under section 52 of the pre-1989 Act, every worker who sustains a compensable injury is entitled to such health care as may be necessary as a result of the accident and is entitled to make the initial choice of health care professional. The Board, and on appeal the Tribunal, shall determine questions concerning the necessity, appropriateness or sufficiency of health care and payment for health care. [6] The hearing of this appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (WISA) also apply to this appeal.

3 Page: 2 Decision No. 1059/14 [7] Pursuant to section 126 of the WSIA, the Board stated that the following policy packages, Revision No. 9, would apply to the subject matter of this appeal: Policy Package No. 95, Health Care Benefits and Policy Package No. 300, Decision Making/Benefit of Doubt/Merits and Justice. [8] I have considered these policies as necessary in this appeal, particularly, the Board s Operational Policy Manual (OPM) Document No , Entitlement to Health Care. It states, in part, the following: Law The Workplace Safety and Insurance Act provides: A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate, and sufficient as a result of the injury.... Health care includes... (v) prescription drugs Submissions [9] The worker s representative argues that prior to the MVA in 2009, the worker was taking Percocet or Oxycontin. While it was conceded that the MVA had a profound effect on the worker s health, Dr. Upton s February 18, 2014 report supported the conclusion that the worker s chronic pain related to his workplace accident. [10] The representative submitted that in all of the circumstances, the worker s pre-existing work injuries supported the conclusion that his pain medication and the Lyrica, which is designed for persons who suffer from chronic pain as defined by the Board, were in fact work-related and, therefore, the costs of these medications should be covered by the Board. [11] Alternatively, the representative argued, the worker s pre-existing workplace injuries rendered him more susceptible to the development of severe chronic pain necessitating an increase in dosage, for which he should be reimbursed by the Board. (vi) Conclusions [12] In reaching a decision on this appeal, I have considered the law and Board policy, the Case Record and the worker s submissions. For the following reasons, I conclude that this appeal should be denied. [13] According to the worker s file, Dr. Mee has been the worker s family physician of record since his compensable accident in The medical evidence in the file indicates that following the 1989 compensable injury, the worker s pain in the shoulder and back became chronic and the pain was managed with Tylenol No. 3. On October 23, 2006, Dr. Mee advised the Board that he discontinued Tylenol No. 3 and replaced it with Percocet, two tablets, three to four times daily. [14] On April 13, 2010, Dr. Mee completed the Opioid Maintenance Assessment Form, in which he requested coverage for Oxycontin and Lyrica. Dr. Mee noted that Lyrica had been added after MVA and that Oxycontin was prescribed after the MVA for ++ escalation of pain has been on Oxycontin tapering now.

4 Page: 3 Decision No. 1059/14 [15] In a subsequent report dated February 22, 2012, Dr. Mee stated the following: [The worker] has a pre-existing chronic injury/chronic pain condition, myofascial pain in the left shoulder and low back (left>right). The onset of this condition was in His medicines have remained the same for the most part stable over the last 20 years until this MVA. Pre accident medicines have been funded through the WSIB and are listed below. Zoloft 100 mg daily Percocet 215 tabs per month Dolobid 500mg twice daily rare Ativan 1mg at bedtime Present medications are increased due to worsening of his WSIB chronic pain condition following an MVA. Percocet 240/month oxycontin 40 mg twice daily and oxycontin 20 Q AM, we are trying to continue tapering... he was at 80mg BID Lyrica 150 twice daily Zoloft 100mg daily Dolobid 1 twice daily [16] Following the ARO s decision of February 2013, a medicolegal report was provided by neurologist, Dr. Upton, dated February 18, Dr. Upton examined the worker on January 29, 2014 and conducted a comprehensive review of the worker s medical records. He listed the worker s main complaints as follow: Neck pain. This 2 or 3 in severity in a scale of 0 to 10 where 0 is not pain and 10 is the worst pain he has ever had. [The worker] takes Percocet 8 per day and Lyrica. Shoulder pain. This is more in the right shoulder. The pain is 2 or 3 in severity in a scale of 0 to 10. It is worse with activity and stretching. [17] Dr. Upton further provided, in part, the following: He attributed his problems to the effects of an accident May 25, 2009 (NB: In fact, he had had pains and the chronic use of narcotics since 1989). He has made a large amount of progress. He deals with his pain. (NB: He has been doing this since 1989). December 16, 1993: Chronic pain. He was involved in a motor vehicle accident on May 25, o He has continued with his pre-accident complaints, chronic complaints and claimed limitations. o Any myofascial injuries should have improved back to pre-accident levels within weeks or months. o It is probable that he has returned to the chronic pain and psychological issues of before his accident of May 25, 2009.

5 Page: 4 Decision No. 1059/14 In response to specific questions relating to his opinion regarding the worker s diagnosis and prognosis with respect to the MVA of May 2009, Dr. Upton stated: [H]e suffered myofascial symptoms as result of the accident of May 25, These problems should have returned to pre-accident levels in weeks or months. His continuing complaints are not consistent with the effect of the accident of May 25, His ongoing complaints are consistent with his pre-accident history. His pre-accident conditions are the probable cause of his current complaints. I find no impairments attributable to the accident of May 25, [18] From the above, I find the following: The worker suffered chronic left shoulder and low back pain as a result of his compensable injury of June 7, The worker s pain was initially managed by Tylenol No. 3 and later by Percocet. Subsequent to the MVA of May 2009, the worker continued to take Percocet. Dr. Mee indicated in his Opioid Maintenance Assessment Form of April 13, 2010, that Lyrica was added after the MVA and that after the MVA, the worker was prescribed Oxycontin but was tapering now, indicating a reduced reliance on the medication. In his February 22, 2012 report, Dr. Mee confirmed the need for Oxycontin and Lyrica needed due to worsening of his WSIB chronic pain condition following the MVA, and that we are trying to continue tapering of the Oxycontin. There is no evident indication that prior to the May 2009 MVA, the worker required Lyrica. The MVA of May 2009 was a noncompensable accident. The worker s representative submits that prior to the May 2009 MVA, the worker was prescribed Percocet or oxycontin. The worker s representative seems to suggest that these are merely interchangeable medications. I note that prior to the MVA, on April 29, 2008, Dr. Mee only referenced Percocet. On my review of the medical evidence, it is not apparent that the worker was prescribed Oxycontin prior to the MVA. Subsequent to the MVA, the worker was prescribed both Percocet and Oxycontin, suggesting that it was the direct effect of the MVA that constituted the need for the added prescription of Oxycontin. Dr. Upton noted that the worker s main complaints were neck and shoulder pain with more pain in the right shoulder. Dr. Upton s opinion is clear in the determination that the effects of the myofascial pain that resulted from the MVA of May 2009 should have resolved within weeks or months, presumably in this context by mid-2010 at the latest. Dr. Upton also opined that having recovered from the effects of the MVA of 2009 that "[h]is ongoing complaints are consistent with his pre-accident history and [h]is pre-accident conditions are the probable cause of his current complaints.

6 Page: 5 Decision No. 1059/14 [19] From the above, I conclude the following. While the worker required the use of Percocet prior to the MVA, it was only following that accident that he was prescribed both Oxycontin and Lyrica in addition to Percocet. I accept Dr. Mee s report that the worker s increased medication use was due to a worsening of the worker s compensable condition following the MVA. As noted in Dr. Mee s report dated February 22, 2012 the worker s medicines have remained the same for the most part stable over the last 20 years until this MVA. As the worsening was due to a non-compensable accident, the medication usage associated with this worsening is not necessary health care as a result of the worker s compensable accident. Accordingly, I find that the prescription of Oxycontin and Lyrica is not health care which is necessary, appropriate and sufficient as a result of the compensable injury. [20] I also do not place weight on Dr. Upton s report in relation to the worker s entitlement to Oxycontin and Lyrica. First, the report was written in 2014 and only relates to the worker s recovery from the 2009 MVA. It does not discuss the worker s need for Lyrica and Oxycontin following the MVA in 2009 and whether it results from the 2009 MVA or the worker s 1989 compensable injury. In addition, the injuries listed in Dr. Upton s report do not accord with the worker s compensable conditions. I note that the main complaints listed in Dr. Upton s report are to the worker s neck and shoulders with pain more in the right shoulder. The worker s compensable injuries are to the back and the left shoulder. Thus, while Dr. Upton indicates that the worker s ongoing complaints are consistent with his pre-accident history, as the main complaints listed in Dr. Upton s report are to non-compensable areas, it does not appear that Dr. Upton s report supports entitlement to Oxycontin and Lyrica as necessary treatment for the worker s compensable conditions. Thus, I find the worker is not entitled to health care benefits in the form of reimbursement for the medications Lyrica and Oxycontin. [21] Accordingly, the appeal is denied.

7 Page: 6 Decision No. 1059/14 DISPOSITION [22] The appeal is denied. DATED: October 1, 2014 SIGNED: W. Sutton