The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of the Act.

Medical aid payments for expenses such as medication are payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident.

WCB Policy 44.120.20, Opioid Medication (the "Policy") sets out the WCB's approach to the use of opioid medication to support workers during their recovery process and provides parameters for the authorization and payment of opioids in cases involving non-cancer pain.

Worker’s Position

The Notice of Appeal of Claim form was filed by the worker on his own behalf. The worker's position was that initially he had been prescribed another pain medication by his doctor but he had an allergic reaction to that drug and had to be hospitalized. His doctor then gave him a prescription for T3 and the worker felt that this was the safest pain reliever for him. The worker asked that the panel approve coverage for the T3 medication as it really helped to lessen the pain he had from his workplace injury.

At the hearing, the worker provided information regarding his use of T3 medication. He advised that after his injury in November 2011, he continued working until he got the results from his MRI in February 2012 which indicated that his tendon was torn. While he was working as a long distance team driver, he would only take some T3 after he finished his driving shift.

From March to September, 2012, the worker remained off work while he awaited surgery on his shoulder. During that time, although the WCB was not paying for the medication, the worker took T3s which were prescribed by his doctor. When asked whether the T3s relieved or reduced his pain, he stated: "It helped."

In September 2012, surgery was performed on his shoulder and at that time, his surgeon prescribed the same medication, T3s, to relieve his pain. By the time of the hearing on December 4, 2012, the worker was no longer taking T3s. His evidence was that he had stopped taking T3s approximately one month prior as he could not afford to buy them anymore.

Analysis

The issue before the panel is whether or not the WCB should authorize payment for the use of T3 medications for the worker's left shoulder condition. In order to decide the appeal, the panel must consider the guidelines set out in the Policy and determine whether or not the worker qualifies for authorization of payment for the cost of his T3 prescription, which is an opioid medication. On a balance of probabilities, we find that he does not qualify.

The general principle regarding payment for opioid medications set out in the Policy reads as follows:

The WCB ordinarily pays for opioid medication during the acute phase of an injury or during the acute, post-operative phase.

Following the acute phase, the WCB may pay for the minimum dose of opioid medication that supports a documented improvement in the injured worker's functional ability. To authorize or continue payment for opioid medication beyond the acute phase, the WCB must be satisfied that the physician has followed best practices adopted by the WCB, including utilization of outcome measures acceptable to the WCB.

The term "acute phase" is defined as "up to 2 weeks following an injury or surgery."

As the worker's workplace injury was sustained on November 3, 2011, the acute phase of his injury has long since passed and we must therefore look to the section of the Policy which addresses payment for opioid medication in the post-acute phase. In order for the worker to qualify for payment of opioids following the acute phase, the panel must be satisfied that there is a documented improvement in his functional ability. We find that a documented improvement has not been established in this case. Although the worker continued to take T3 medication since the time of the accident, his functional ability actually declined as he discontinued working on February 28, 2012 and remained off work until his surgery in September 2012. As he was not able to take any T3s while he was driving, his use of the medication actually increased when he went off work. The worker's evidence was that the T3s "helped," but this is not sufficient to establish improved function. In the circumstances, we are not able to find that the worker's use of opioid medication supported an improvement in functional ability.

The panel therefore finds that the worker does not qualify under the terms of the Policy for payment for opioid medication beyond the initial acute phase. We note that in making this decision, we make no comment on the worker's entitlement to payment for opioid medication following his surgery of September 11, 2012, as this has not been previously considered by the WCB.