NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: [X] Form of Appeal: Oral Hearing, held at Sydney, NS, April 24, 2009 WCB Claim No.(s): [X] Date of Decision: April 30, 2009 Decision: The appeal of the September 22, 2008 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner Alison Hickey.
2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This is an appeal of a decision of a Hearing Officer of the Board, dated September 22, 2008, in which the Hearing Officer determined that the Worker was not entitled to an increase in his pain-related impairment [PRI] rating. The Worker appealed the decision to the Worker s Compensation Appeals Tribunal on October 1, 2008. The Worker was not present at the hearing, but giving testimony on his behalf was J.L., his nephew s wife. The Worker s nephew was also present at the hearing. J.L. confirmed that she was authorized by the Worker to give testimony on his behalf, and there is documentation on file signed by the Worker to that effect.of the Worker. Exhibits 1" - 3" at the hearing were excerpts from internet articles from a website entitled MedBroadcast, on the medications Percodan, Toradol, and Tramacet. Exhibit 4" was an article from the internet entitled IV Lidocaine - Effective Treatment for Refractory Migraines in the Clinic. ISSUE AND OUTCOME: Is the Worker entitled to a PRI of 6%? Yes. It is just as likely as not that the Worker suffers from what should be considered a substantial PRI. ANALYSIS: The legislation applicable to this appeal is the Workers Compensation Act, S.N.S. 1994-95, c.10, as amended [the Act ]. Pursuant to s. 187 of the Act, on any application for compensation, a worker is entitled to the benefit of the doubt, which means that where there is doubt on an issue respecting the application, and the disputed possibilities are evenly balanced, the issue shall be resolved in the Worker s favour. The Worker has been found by the Board to be suffering from a PRI of 3%, as a result of compensable back injuries which occurred in the 1970's. According to Board Policy 3.3.5, where a worker develops chronic pain causally connected to an injury he/she will be assessed for a PRI. The Board shall rate the worker s PRI at either 3% (a slight PRI) or 6% (a substantial PRI). A slight PRI is defined as a PRI, that in the opinion of the Board, has increased the impact of the Worker s original injury, mildly This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.
3 to moderately as described in Table 18-3 of c. 18 of the American Medical Association s th Guides to the Evaluation of Permanent Impairment 5 Edition [the AMA Guides ]. A substantial PRI means a PRI that has increased the impact of the worker s original injury moderately-severely to severely. In determining the appropriate class of impairment the Board will use a pain-related impairment assessment tool. Table 18-3 rates impairments by requiring an assessment of 5 things: (1) pain severity; (2) the impact on the activities of daily living; (3) the psychological impact; (4) medication use; and (5) the degree of pain behaviour. The Hearing Officer rated the Worker s pain severity, and the impact on his activities of daily living, in the moderately-severe to severe category. The Hearing Officer found that the Worker fell within the mild to moderate category when it came to pain behaviours, the psychological impact of the Worker s pain, and his medication use. With respect to the category of medication use, the Hearing Officer correctly noted that,...a moderate impairment with respect to this category is noted to be an individual who requires ongoing medical monitoring and is taking medication much of the time. In order to be considered with a substantial impairment rating in this category, a Worker would have to be receiving medication to control pain on a maintenance basis or be receiving maximum pharmacological support for his pain on an ongoing basis. The Hearing Officer stated that the Worker had been taking Endocet and Tylenol Extra- Strength for four years, and started on a dose of Amitriptyline in May of 2006. The Hearing Officer noted that there was no evidence indicating that the Worker required increasing doses of narcotic medication on a maintenance basis. Therefore, she found that the Worker would fall within the moderate category with respect to that category of impairment. The medical evidence indicates, and it was the testimony of J.L., that the Worker s condition deteriorated in 2006 to the point where he had to be moved into a nursing home. He was barely able to walk at that time, according to J.L.. It was J.L. s evidence that the Worker has been on medication constantly since she has known him, which has been about 30 years. He has always used canes to walk, and wears orthopaedic shoes. She stated that he had a special chair which was easier to get in and out of than a regular chair. To her knowledge, he has been on daily medication and she stated she could tell because his speech would be thick, his concentration would be bad, and he would get angry at times. She presumed that these were the effects of the drugs, as the Worker is not a drinker. The medical evidence documenting the history of the Worker s condition, shows that the Worker s doctors have been attempting over the years to provide the Worker with varying forms of treatment for pain relief, including various narcotic medications, IV Lidocaine, and epidural steroid injections.
4 The Worker underwent chiropractic treatments in 1998, as indicated by the report from Dr. Morgan, Chiropractor, dated October 2, 1998. The Worker also underwent treatment in the form of photonic stimulation from Dr. Pollett, according to Dr. Pollett s notes of December 2000 and January 2001. Dr. Pollett s note of January 2, 2001 states that the Worker was receiving some pain relief from that treatment. According to the Worker s client information questionnaire, he is taking Tramacet, and Toradol, both narcotic medications. The Worker takes Endocet four times daily as well as Tylenol No. 3 and Tylenol Extra-Strength. The client information questionnaire notes that the Worker receives Demerol injections for back pain as needed, on an ongoing basis. Dr. Collicutt s report of June 6, 2000 confirms the Worker s use of Percodan, a narcotic medication, and Tylenol No. 3. He stated that the Worker had a chronic pain symptom complex and there was nothing he could offer him. Dr. Holmes, in a report dated August 16, 2001, to the Worker s family doctor stated that he simply try to make the Worker as comfortable as possible with anti-inflammatories. The report of Dr. MacKay, dated April 15, 2007, confirms the Worker s use of Toradol. Dr. Spencer, in a report dated December 13, 2006, also confirms the Worker s use of Toradol for chronic pain. Having considered the evidence in its entirety, including the evidence of J.L., and Worker s Adviser s submissions, I find it as least as likely as not, that the Worker s medication use would place him in the moderately-severe to severe category of impairment. The evidence supports the conclusion that the Worker receives medication to control his pain on a maintenance basis and that it could be said that he is receiving maximal pharmacological support for his pain on an ongoing basis. Given my finding on the category of medication use in Table 18-3 of the AMA Guides, I conclude that overall, the Worker has a substantial PRI as opposed to a slight one. The earliest medical evidence of the Worker s use of narcotic medication, would be Dr. Collicutt s report of June 6, 2000, where he refers to the Worker s use of Percodan. On that basis I find that his increase of 3% to 6% in his PRI should be effective as of that date. I have considered J.L. s testimony that the Worker seemed to be on heavy medication throughout the years, and I appreciate her observations, however, I am more comfortable in relying on the medical evidence provided by the Worker s treating physicians in making the necessary a determination regarding the Worker s medication use. The Workers Adviser referred to the attempts by the Worker s treating physicians over the years, to provide some relief to the Worker for his pain. These attempts did not always take the form of medication, but included such treatments as chiropractic treatments. At this point in the course of the Worker s injury, his pain relief is administered solely in the form of significant narcotic medication. One would normally assume that an increase in narcotic medication usage would indicate that the Worker s pain had increased, but that is not the assertion in this case. The evidence from J.L. was that the Worker s condition remained
5 the same over the years. The Workers Adviser suggested that all forms of pain relief could be taken into account as part of a broader picture of treatment, when considering the category of pain medication. I do not share that view, and find that Table 18-3, as it refers to medication and pharmacologic support would apply to medication usage only. In my view, the use of this category is an attempt to ascertain the degree to which an individual s pain picture has reached the point where the pain treatment is aimed purely at masking pain so it is tolerated, and not at a possible elimination of the pain, even on a temporary basis. As stated in the AMA Guides at p. 586, The assessment of pain-related impairment constitutes a substantial challenge, as it is the most common reason for disability, the most subjective, and perhaps the most multi-faceted. The Guides go on to say, however, that each of the components of pain can be assessed with good reliability if a meticulous evaluation is performed that includes observation and collateral information. As I stated in Decision 2007-1009 (June 23, 2008, NSWCAT), the tool used to evaluate a PRI should be applied in as objective a manner as possible. It must be accepted that medication use is a reasonable indicator of the impact of an individual s PRI. Medication use is something that can be evaluated objectively. There is no room in an objective approach, for inquiries as to whether or not the Worker should have been on heavier medication earlier in the course of his injury, or explanations as to why he was not. CONCLUSION: This appeal is allowed. The Worker is entitled to an increase in his PRI rating from 3% to 6%, effective June 6, 2000. th DATED AT HALIFAX, NOVA SCOTIA, THIS 30 DAY OF APRIL, 2009. Alison Hickey Appeal Commissioner
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