Decision 13130

WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION
6 Mt. Carson Ave., Dorset Building
Mt. Pearl, NL
DECISION – 13130
Keith G. Barry
Review Commissioner
June 2013
WORKPLACE HEALTH, SAFETY & COMPENSATION
REVIEW DIVISION
DECISION - 13130
Review Proceedings
WHSCRD Case No.: 12042-02
WHSCC Claim No(s).: 737590
Review Commissioner:

Decision Under Review:
Workplace Health, Safety and Compensation Commission decision dated January 4, 2012
Date & Place of Hearing:

Attendances at Hearing:
Worker’s Representative – Eddie Joyce, MHA (via teleconference) WHSCC’s Representative – Kathy Fry, Hearings Officer Observer – Steve Willar, LL.B., WHSCRD
Issues Under Review
1. The worker is requesting the Review Commissioner find that the Commission erred in finding that
he is not entitled to further counseling services. 2. The worker is requesting the Review Commissioner find that the Commission erred in not providing coverage for the prescription drug Citalopram, beyond December 31, 2011. The parties agreed to the use of the file materials for the purpose of this review.
Case Summary
The worker sustained compensable injuries to his left shoulder and neck on March 1, 2004. After
intensive investigation and treatments, along with multiple return to work attempts, he was deemed
unable to return to work in any capacity in May 2010 and is currently in receipt of full Extended
Earnings Loss (EEL) benefits.
In September 2008, the worker, as a result of emotional difficulties in dealing with his injuries,
commenced counseling. On October 1, 2009, the worker’s family physician, Dr. Morris, prescribed
Citalopram, an antidepressant that can be used for treating chronic pain. The Commission approved
coverage of the drug for the period October 1, 2009 to January 31, 2010.
On March 2 and 3, 2010, the worker requested extended coverage for his Citalopram. In a decision
dated March 22, 2010, the worker was advised by his Case Manager that his request for an extension
was denied. However, the prescription was extended through April 30, 2010 to facilitate a gradual
withdrawal. The worker appealed and, in a decision dated July 8, 2010, the Internal Review Specialist
upheld the Case Manager’s decision.
The worker appealed this decision to the Review Division and in a Decision dated November 22, 2010
the Review Commissioner directed the Commission to continue to provide coverage for Citalopram
“…for psychological applications, subject to review…”.
With respect to counseling services, the worker’s counselor, submitted a request dated June 29, 2011,
for a continuation of counseling therapy. On October 31, 2011, the Case Manager advised the worker
that, in keeping with Policy EN-06, she was unable to approve further counseling services or to extend
coverage for Citalopram. However, in recognition that the worker should not suddenly stop taking the
drug, agreed to extend it an additional three months to December 31, 2011. The worker appealed and in
a decision dated January 4, 2012 was advised that his appeal was denied.
The worker disagreed on both issues.

Relevant Legislation and Policy
The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and
Compensation Act (the Act), Sections 26(1) and (2) and 26.1. Also relevant and considered in this case
are Sections 19(1), 60(1), 84(1) and 85(1) of the Act, along with Policy EN-06: “Mental Health
Adjustment Following Physical Injury”, Policy EN-20: “Weighing Evidence” and Policy HC-11:
“Drug Formulary”.
Positions Considered

Worker’s Position:
Mr. Joyce began his presentation by focusing on Issue 2, the decision to deny the worker’s request for
extended coverage of the drug Citalopram. He pointed out that the Commission was using Policy EN-
06 to support their decision to deny extended coverage of the drug, specifically the reference in the
policy limiting the compensation benefits to no more than “three months”. Mr. Joyce noted that the
worker had been receiving Citalopram since October 1, 2009. He pointed out that, by exceeding the
three month ceiling, the Commission have not only contradicted their own policy, but have
demonstrated that they have the flexibility to make exceptions to their policy.
Mr. Joyce reviewed Policy EN-06, specifically the reference that “…Cases will be judged on their
individual merits…”. He also focused on the following additional notation in the policy:
“…If a worker does not engage in return to work programming or prescribed medical treatments after three months of support, compensation entitlement under this Policy will end.”…
Mr. Joyce pointed out that, if the worker was not eligible to receive, or did not require the drug, he
would not have received approval in the first place and certainly would not have continued to receive it
beyond the three month limit.
Mr. Joyce pointed out that it was important to note that Citalopram has as much to do with the mental
aspect (i.e. depression), as it does to the physical component (i.e. pain). He referenced Policy HC-11,
specifically:
“…In any case, the Commission has the discretionary authority under the Act to approve or deny prescription drugs based on the merits of a particular case. The guidelines of this policy do not apply to other medical aid terms covered by the Commission, such as assistive devices.” Mr. Joyce felt that this demonstrated that there are “discretionary calls” which the Commission has the authority to approve or deny. He also pointed out that precedent had been set by already extending approval of the drug beyond three months. Mr. Joyce referenced the worker’s Request for Internal Review dated November 13, 2011, specifically the following statement: “Prior to any injury psychological stress was not an obstacle in my life. Today, however, 7 years after my injury, my life has been forever changed both physically and emotionally…”.
Mr. Joyce felt that this supported the worker’s claim that the drug was necessitated as a direct outcome
of his injury.
Mr. Joyce referenced a medical report dated November 30, 2011 from Dr. Woolfrey, Physiatrist, who stated that the worker’s mood has improved on the Celexa (Citalopram). He felt that this supported the worker’s assertion that the drug was effective and should continue. Mr. Joyce also referenced the Case Manager’s decision, dated October 13, 2011, specifically, her acknowledgment that the worker “…should not suddenly stop taking Citalopram…”. He felt that this also was an indication that the drug was indeed necessary. Mr. Joyce expressed his view that the Commission’s decision to cancel the drug was totally unfair. He asserted that the Commission had a responsibility to not only deal with the injury, but the resulting fallout emanating from the injury (i.e. stress, psychological issues, etc.). With respect to the counseling issue, Mr. Joyce referenced the October 13, 2011 decision of the Case Manager, specifically the following: “…I acknowledge I referred you for counseling with … on September 4, 2008. At the time I never equated counseling services within Policy EN-06. As a decision maker, I must render entitlement decisions based on our policies and legislation. The counseling you received and the Commission’s coverage of Citalopram has far exceeded the 3 month period allowed under Policy EN-06. As outlined in Policy EN-06, if an injured worker does not engage in a return to work program or prescribed medical treatments after the 3 month period, entitlement under this policy will end. Reports from [the Counsellor] confirm you continued to see him until May 27, 2011. In keeping in with [sic]Policy EN-06, I cannot approve further counseling sessions with [the Counsellor] nor continue to extend coverage for Citalopram. Yet I understand you should not suddenly stop taking Citalopram. It is for this reason I have extended coverage for Citalopram to December 31, 2011. I encourage you to see your family physician in the very near future to discuss alternate arrangements of this particular prescription…”. Mr. Joyce expressed his opinion that this was evidence to indicate that the Case Manager recognized that the worker suffered psychological problems as a result of his compensable injury, hence, the reason for the referral to the Counsellor in the first instance. Mr. Joyce also referenced the February 27, 2011 report from the worker’s Counsellor, who stated that the worker “…appears to have responded well to therapy. The goal of therapy has been to assist in maintaining a functional equilibrium. [The worker] is requesting continuation of treatment. If therapy were to continue, the only therapeutic value would be to provide continued support and assist with maintaining his present level of functioning”. Mr. Joyce questioned if there was something wrong with providing an injured worker with the help that would help maintain his present level of functioning. Mr. Joyce felt that the Commission had a responsibility to ensure that the worker’s functional abilities were not compromised. Mr. Joyce referenced Policy EN-20, specifically the fact that, when weighing evidence, the standard of proof for decisions under the Act is the balance of probabilities. He asserted his opinion that, on a balance of probabilities, the evidence weighs 100% in the worker’s favor in that the Commission initially agreed and recommended that the worker receive counseling and drug coverage. They provided this coverage and they continued to use their discretion to extend it. The worker provided a brief background that supported his assertion that he was very active in his
community (i.e. Bus Driver, volunteer Fire Fighter, etc.) prior to his injury. However, since his injury
he has not been able to do any of the things he used to. He noted that, prior to taking Citalopram, he
used to experience all kinds of psychological problems that were caused by his injury (i.e. depression,
emotional stress, etc.). Once he started taking the drug these problems were alleviated. He also stated
that he was advised by his Case Manager that if he wanted coverage of Citalopram he should get his
family doctor to prescribe it, specifically for pain. He noted that neither his physician, nor himself,
wanted to take this approach as they did not think it was right. Finally, he described how his life had
been changed as a result of his injury especially in his ability to perform the activities of daily living.
Commission’s Position:
The Commission’s position was presented by Ms. Fry and contained in the Internal Review decision
dated January 4, 2012. The Internal Review Specialist began her decision with a reference to the
worker’s Request for Internal Review dated November 13, 2011 wherein the worker states, in part:
“…I believe the drug Citalopram as well as the counselling sessions with [the Counsellor] should be covered and extended due to the fact that it helps me cope with the pain that I suffer daily. This would also allow me to cope with the psychological stress that I face as a result of the pain that remains during the recovery period of my injury…”. Issue 1 – Counseling The Internal Review Specialist acknowledged that the worker has been provided counseling for approximately three years, which was well in excess of the three month maximum that is provided for in Policy EN-06. While she noted that coverage to solely support treatments for mental health issues may be extended, it is only to complete return to work programming or medical rehabilitation. The Internal Review Specialist concluded that, since this was not the circumstance in the worker’s particular case, the Case Manager was correct to deny the worker’s request for an extension. Ms. Fry began by acknowledging the seriousness of the worker’s injury and his related subsequent medical issues along with the worker’s significant involvement in his community which he could no longer do following his compensable injury. In reference to Mr. Joyce’s assertion that the worker’s counseling referral was initiated by the worker’s Case Manager, Ms. Fry noted that the referral was actually initiated by the worker’s physiotherapist in a report dated August 26, 2008 who stated, in part: “…I feel [the worker] would benefit from further psychological counselling. This could be assessed by a Psychologist, as it appears [the worker] continues to have difficulty accepting the possibility and ramifications of permanent significant injury. He has personal issues including guilt and depression over his limitations within his family unit and difficulties in his dealings with his colleagues and past co-workers in the community. I believe [the worker] has shown positive progress in managing these issues to date, through P-GAP counselling, which touches on these areas. I feel further counseling will help him reach the point of being able to live with his abilities and symptoms more successfully and independently.” Ms. Fry noted that the Case Manager, acting on the recommendation of the physiotherapist, forwarded a referral to the Counsellor on September 4, 2008 which showed that the Case Manager’s role was more of a coordinator, than a person who independently made the decision on her own. Ms. Fry also clarified why the counseling services (and the Citalopram) went well over the three month maximum, pointing to the November 2010 decision by the Review Commissioner who concluded: “…The missing component from this assessment is whether or not the worker continues to require ongoing counseling and the drug related to that on a go-forward basis and for how much longer that is required. The Commission would be required to answer that question, but in the meantime, to continue to provide the drug Citalopram on the basis of the recommendation of Dr. Woolfrey…”. Ms. Fry noted that the worker’s case has to be viewed in the context of Policy EN-06. She noted that the Case Manager acknowledged that she made a mistake in allowing the coverage of the counseling (and Citalopram) to go beyond the three months allowed under Policy EN-06. However, Ms. Fry explained that while the mistake was primarily caused by the Case Manager’s error, it was to some extent due to the Case Manager’s efforts to carry out the direction of the Review Commissioner. Issue 2 – Coverage of Citalopram The Internal Review Specialist began by pointing out that at the time the Citalopram was initially prescribed it was for the worker’s chronic pain, but subsequent medical reports indicated that “…you were being prescribed this drug for depressive symptoms…”. The Internal Review Specialist, once again, referenced Policy EN-06, noting that it limits coverage of compensation benefits for mental health related treatments to three months. As the Commission’s coverage of the drug was far in excess of three months, she felt that the Commission had been “…more than reasonable…” in their coverage. The Internal Review Specialist, while noting the Case Manager’s October 2011 decision to extend coverage for an additional three months to allow the worker to wean off the drug, upheld the Case Manager’s ultimate conclusion that there would be no further entitlement beyond December 31, 2011. Ms. Fry reiterated her opinion on this issue of the drug coverage in that it has to be viewed in the context of Policy EN-06, especially as this pertains to the three month maximum timeframe. While she acknowledged that the Case Manager went well over this three month period, she offered that it was again partially due to the Case Manager’s efforts to follow the direction of the Review Commissioner’s Decision in November 2010. Ms. Fry concluded with a review of the Case Worksheet notes relative to the issue and other medical reports from Dr. Woolfrey and the Medical Consultants, which all clearly support that the Citalopram was prescribed for the worker to deal with his depression. Reasoning and Conclusions
After listening to the presentations by both Mr. Joyce and the worker, I find that their primary arguments
were:
- The Commission’s reference to Policy EN-06, specifically the three month ceiling on coverage, as support for their decision to deny extended counseling and drug coverage was in itself, contradictory. The very fact that they continued to extend the worker’s coverage beyond three months was proof that they had the discretionary power to deviate from the policy and made a determination on the individual merits of the case, which he felt was applicable in the worker’s circumstances. - The worker’s requirement for continued counseling and drug (Citalopram) coverage was a direct result of his workplace injury and, as such, the Commission had a responsibility to not only deal with the injury, but also with the resulting fallout (i.e. psychological issues, etc.) emanating from the injury. The Commission’s argument for denying extended coverage of both the Citalopram and counseling was based on Policy HC-11 and Policy EN-06. My role as a Review Commissioner is to review the decision of the Commission and determine if the Commission, in making that decision, acted in accordance with the Act, regulations and policy. Section 60(1) of the Act states: “60(1) An issue related to a worker's entitlement to compensation shall be decided on a balance of probabilities and, where the evidence on each side of an issue is equally balanced, the issue shall be decided in favour of the worker”. Policy EN-20 provides direction to decision makers when faced with conflicting medical evidence. It states: “Decision makers must assess and weigh all relevant evidence. This necessarily involves making judgments about the credibility, nature and quality of that evidence as they determine the weight of evidence on either side of an issue. Decision makers must weigh conflicting evidence to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue”. After reviewing all of the medical information on file and listening to the presentations by both parties, I find that the weight of evidence, on a balance of probabilities, favors the position of the Commission over that of the worker. While I recognize that Section 84(1) of the Act places an obligation on the Commission to provide medical aid to a worker that they believe may be necessary as a result of their injury, I also note that Section 85(1) places a mandatory, legislative responsibility on the Commission for the supervision and control of this aid, as follows: “The supervision and control of medical aid and questions as to the necessity, character and sufficiency of medical aid which is provided shall be determined by the Commission.”
I concur with the Commission’s assertion that the worker’s request should be viewed in the context of
Policy EN-06, which states, in part:
“The Commission recognizes that some individuals experience adjustment difficulties following serious physical injuries or the onset of industrial disease. Such reactions may arise at any stage of the recovery process for these individuals. The Commission supports early intervention and necessary health care treatments for conditions of this kind affecting these injured workers. Cases will be judged on their individual merits. For those physical injures which are not serious or life threatening, the Commission also recognizes that some individuals may experience temporary adjustment difficulties during the recovery period. However, payment of compensation benefits solely to support mental health treatments shall not exceed three months. If, after three months, a worker requires continuing mental health care in order to complete his or her return to work program or medical rehabilitation the Commission will cover periodic professional services only where the worker is participating in his or her return to work program or medical rehabilitation. Once the return to work programming or medical rehabilitation is completed, the Commission shall not provide coverage for mental health care. If a worker does not engage in return to work programming or prescribed medical treatments after three months of support, compensation entitlement under this policy will end…”. Issue 1 – Counseling While I recognize that the Commission erred in providing counseling services to the worker far beyond the three month maximum allowed under Policy EN-06 (i.e. approximately 13 months excess), I note that this error was acknowledged by the Case Manager in her October 2011 decision, as follows: “…I acknowledge I referred you for counseling with [the Counsellor] on September 4, 2008. At the time I never equated counseling services within Policy EN-06. As a decision maker, I must render entitlement decisions based on our policies and legislation…”. With respect to this issue, I note that in his November 2010 Decision, the Review Commissioner directed the Commission to make a determination as to “…whether or not the worker continues to require ongoing counseling and the drug related to that on a go-forward basis and for how much longer that it is required.” While I recognize that coverage of the counseling services has exceeded the 3 month provision of Policy EN-06 the question that has to be determination is whether or not the Commission actually carried out the review directed by the Review Division Decision in November 2010. I note that the Case Manager reported in a Claim Note dated June 7, 2011 that she had requested an opinion from the Commission’s Medical Consultant as to how long the counseling and the Citalopram should continue. I note that the Consultant, following a review of these issues, noted that the Counselor felt that “the only value in continuing to treat [the worker] would be for supportive reasons and to help him cope with activities of daily living.” The Consultant recommended that the worker’s counseling sessions be reduced to “monthly intervals with a view to decreasing it to quarterly intervals over the next year”. Following this opinion from the Medical Consultant, the Case Manager, in a decision dated October 13, 2011 advised the worker that she could no longer approve further counseling services. While I acknowledge that the Commission did not follow the provisions of Policy EN-06, I find that, in some part, it was a result of the direction provided by the Review Commissioner in his November 2010 Decision. While I acknowledge Mr. Joyce’s compelling arguments supporting a further extension of the worker’s counseling coverage, I find that, after conducting a review around continued coverage for counseling, the Commission is bound by their policy and legislation. Policy EN-06 specifically states that “…payment of compensation benefits solely to support mental health treatments shall not exceed three months…”. Clearly, the Commission have exceeded this provision and, as such, I find that their decision to deny counseling coverage to be both correct and reasonable. With respect to the other significant provision of Policy EN-06 related specifically to the extension request, I note that the policy states that coverage may be extended …“in order to complete his or her return to work program or medical rehabilitation…”. I note that a determination has been made that the worker is unable to return to the workforce and is permanently disabled and has been on full EEL benefits for approximately three years. As such, I agree with the Internal Review Specialist’s conclusion that this provision of the policy is not applicable in the worker’s case. Issue 2 – Coverage of Citalopram I note that the worker was initially approved for coverage of Citalopram for the period October 1, 2009 to April 30, 2010, a total of seven months which included a three month weaning period. While I recognize that the Commission erred in continuing to cover the above referenced drug beyond the three month maximum allowed under Policy EN-06, I find again, that it was primarily due to the direction provided by the Review Commissioner in his November 2010 decision. I note that, in his Decision, the Review Commissioner directed the Commission that “…Citalopram will continue to be provided for psychological applications, subject to a review relative to any need to continue to provide that drug”. I find that the Case Manager, in her October 2011 decision to deny coverage of Citalopram effective December 31, 2011, which included a three month weaning period, was, in effect, the result of following the direction of the Review Commissioner to conduct a review on the issue. I note, after reviewing the medical information on file and listening to Ms. Fry’s presentation, that the evidence is clear that the Citalopram was prescribed to treat the worker’s depression more so than to treat his chronic pain that was directly a result of his injury. As an example, I note that Dr. Woolfrey, in his March 22, 2011 correspondence notes that “…He continues to take Morphine 5mg g.i.d. for his symptoms, as well as Celexa 10 mg od for his depressive symptoms…”. As a result, I find that, clearly, the worker’s continued requirement for the drug is to support his mental health issues and, as such, coverage should not exceed three months, as per Policy EN-06. Again, while I acknowledge Mr. Joyce’s arguments supporting a further extension of Citalopram, I note that the worker has benefited from the drug from October 1, 2009 to December 31, 2011, a period of 27 months, which is significantly outside the three month maximum. To reiterate, Policy EN-06 binds the Commission to the three month ceiling and the requirement that the worker participates in a return to work program or medical rehabilitation, neither of which are the circumstances in the worker’s case. Accordingly, I find that while the Commission has extended the coverage of the counseling and drug
benefits beyond three months, they were correct to make the necessary correction once they completed
the review that brought the issue to light. As a result, I find on a balance of probabilities, that the
Commission’s decision to deny the worker’s extension request for the Citalopram and counseling
services was correctly made in accordance with legislation and policy.
Decision
Issue 1 – With respect the review is denied.
Issue 2 – With respect the review is denied.
Issue 1 – Review Denied
Issue 2 – Review Denied

Source: http://www.gov.nl.ca/whscrd/decisions/2013/keith_barry/13130.pdf