The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny responsibility for the costs of medication that he was taking which he related to his compensable knee injury. A hearing was held on June 13, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to further coverage of Tylenol 3 and/or Zopiclone medications.

Decision

That the worker is entitled to further coverage of Tylenol 3 and Zopiclone.

Decision: Unanimous

Background

On January 29, 2009, the worker's claim was the subject of an appeal panel hearing to determine whether he was entitled to wage loss benefits and services beyond January 2, 2008 with respect to his work-related low back and right knee injuries. In Appeal Commission Decision No. 31/09 dated March 5, 2009, it was determined by the appeal panel that the worker was entitled to medical aid costs in relation to pain control and sleep medication for his right knee condition and that the WCB should "…continue to monitor any ongoing need for these medications."

On November 16, 2011, the worker advised the WCB that his prolonged use of Tylenol 3 ("T-3") was causing him liver problems and that he had been placed on morphine medication.

On December 6, 2011, the worker met with a WCB case manager to discuss his medication use. The worker indicated that he was unable to take T-3's or Zoplicone due to liver problems that began in August 2011. The worker noted that he was now taking morphine and a hydromorphone to replace the T-3's. The worker was asked by the case manager why there was a long period of time when the WCB was not asked to pay for medications. The worker indicated that he obtained Tylenol medication from two family members in the past and that he may have submitted the medication prescriptions to his employer's drug plan.

By letter dated April 19, 2012, the worker was advised that the WCB was unable to accept responsibility for his liver difficulties as being directly or indirectly related to his 2005 workplace injury. The worker was also advised that the WCB would not pay for his current medications as it was felt that they were not related to his 2005 accident. The case manager referred to the following comments made by the worker's treating physician as a basis for his decision:

I was unaware that [the worker] had hurt his knee as he did not become my patient until 2010. I asked [the worker] about the injury. He states that he had 2 surgeries on the knee, the first making the knee worse and the second making it much better. He states that at the time he was taking a lot of Tylenol for the pain in the knee. He states that currently he has no pain, can walk and do stairs fine with no troubles. He is currently not on any medications for the knee.

In a report to the WCB dated May 30, 2012, the treating physician indicated that the worker required medication to control his knee pain that was a result of his work injury. The physician stated: "I sent the letter stating that he was not having issues with his knee including no pain but that is because he was taking his medications on a regular basis and as long as he did that there was no pain in the knee. He is not a candidate for any surgery on his knee and he was being managed very well on his medications. Once the medications were withdrawn the knee pain was of course not managed any longer."

In July 2012, the worker appealed the case manager's decision to deny responsibility for his knee medication. The worker's case was then referred back to primary adjudication by Review Office to further investigate the claim.

On December 5, 2012, a WCB medical advisor responded as follows to questions posed by the WCB case manager:

1. In your medical opinion based on [treating physician's] chart notes, narrative reports, etc.; what are the probable medication needs related to the compensable knee versus the non-compensable liver condition? Please outline those related to the CI vs non-compensable condition?

The second of two knee arthroscopies was performed in November 2006. There was very little pathology related to the initial workplace injury and some revision of the repair of the torn medial meniscus was undertaken. According to file reports, the claimant was using narcotic analgesic medication 9in (sic) in the form of Tylenol #3) at that time and continues that medication. The claimant was noted to apparently have more functional impairment reported than was subsequently observed in video surveillance. As such it is probable that any need for ongoing narcotic analgesic would not relate to the ongoing effects of the 2005 workplace injury but rather to some form of non-compensable medical condition. It is important to note the presence of bilateral inguinal hernias, alcoholic liver cirrhosis (and multiple medical consequences of that diagnosis) as well as chronic leg edema said to be associated with leg pains. It is as well probable that the ongoing benefit of use of Tylenol #3 or other narcotic analgesics for knee pain secondary to the 2005 compensable injury is less than the risk associated with ongoing use; the risks include overuse, xerostomia, pain amplification and aggravation of underlying alcoholic liver disease (among many risks of chronic analgesic use (sic).

2. Further to question 1, is there evidence that the right knee condition persists? Considering the significance of the cirrhosis diagnosis; is it probable the medications used for the knee are also required to treat pain from worker's liver disease?

There is no objective medical evidence of ongoing knee difficulties related to the effects of the 2005 workplace injury. No treatments (other than pain medication) are undertaken currently and no persistent abnormal physical findings are reported.

On December 4, 2012, the worker was advised that the WCB was not responsible for any medications effective April 19, 2012 and that the decision of April 19, 2012 remained in effect. It was concluded by the case manager that the probable requirement for ongoing medications were in relation to the worker's non-compensable bilateral inguinal hernias, liver cirrhosis and chronic leg edema. On December 20, 2012, the worker disagreed with the decision and an appeal was filed with Review Office.

On February 19, 2012, Review Office determined that the worker was not entitled to further coverage of T-3 and/or Zopiclone based on the following factors:

• the worker's use of T3's had been sporadic since the 2009 Appeal Commission decision. This would not be consistent with medication usage for a long term injury.
• it could not substantiate the worker's claim of using alternate sources for his T3's (mother and wife) and possibly having expensed them through a work plan for a period of time.
• credibility concerns with the worker's contention based on file history and surveillance evidence which led to entitlement decisions being made on the file.
• the treating physician's chart notes mentioned very little in regards to the worker's right knee.
• the opinion of the WCB medical advisor of December 5, 2012.

The worker disagreed with the decision and an appeal was filed with the Appeal Commission.

On June 13, 2013 a hearing was held at the Appeal Commission. Following the hearing, the appeal panel sought to obtain additional information from the worker's attending physician. A report from the attending physician was later received and was provided to the worker for comment. On August 7, 2013, the panel met further to discuss the case and make its decision.

Reasons

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. Provision of medical aid to injured workers is payable in accordance with subsection 27(1) of the Act which provides as follows:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Worker’s Position

The worker was self-represented and participated in the hearing via teleconference. The worker felt that as a result of the March 5, 2009 Appeal Commission decision, he was entitled to payment of his medication for the rest of his life or as long as he felt he needed to have this coverage. Following the decision, the worker continued to purchase T-3 and Zoplicone periodically as he needed them. He did not use the medications every day. Some days, he would have to take the T-3's up to four times a day if his knee was feeling bad. Generally, he tried not to take any medication if possible. As he was not taking the medication on a set schedule every day, he did not require regular refills of his prescriptions.

In 2011, the worker was diagnosed with liver disease which resulted in the need to make some changes to his lifestyle, including limiting use of his medications. By the time of the hearing, he had successfully made those changes and was much healthier than he had been before. He was therefore able to resume taking the T-3's and Zoplicone. This was a good thing for him as he was having increased pain in his knee. A recent x-ray revealed that there was very little cartilage left in his knee and the bone on bone rubbing was causing him severe pain.

The worker's evidence was that the T-3's and Zoplicone were the only thing which helped him with the pain during the day. At night, the medications helped to put his knee at rest so that he could get a decent sleep. The worker submitted that he had been taking these medications almost continuously since his injury, but did not keep track of when he requested reimbursement from the WCB and when he claimed through Blue Cross coverage he had through an employer (for whom he no longer worked). He was now on income assistance and had some of his medication paid for through disability payments.

With respect to the letter from his family physician, the worker explained that his physician did not know his complete history as she was not his doctor when the initial accident with his knee occurred. Since then, she had become informed of the worker's complete medical history and had sent a letter rectifying the original letter she sent in and clarifying the reasons why the medications were being prescribed.

Overall, the worker stated that he wished he did not have to take the medication, but it was the only thing that gave him some relief. He felt that coverage was promised to him by the WCB until his knee got better. If he was stuck with a painful knee for the rest of his life, the worker submitted that the WCB ought to honour what they said they were going to give him.

Analysis

The issue before the panel is whether or not the worker is entitled to further coverage of T-3 and/or Zoplicone medications. In order for the worker's appeal to succeed, the panel must be satisfied that the medications are necessary to cure and provide relief from the injury resulting from an accident. We are able to make this finding.

In the panel's opinion, the medical information from the family physician is sufficient on a balance of probabilities to establish a continuity of use of T-3 and Zoplicone medications to relieve from the effects of the compensable right knee injury. At the initial first visit to the family physician on February 11, 2010, the knee injury is recorded as part of the worker's medical history and the notes state:

Chronic pain and insomnia: Knee injury 4.5 years ago. Fell from about 5 feet on knee. 2 surgeries, last 2 years ago. C/O aching pain at lateral side of R knee without any radiation. Worse after work. Works on maintenance of an ice rink. Has been taking T3's 1-2/week for pain. At times pain does not let him sleep. Takes 7.5 mg zoplicone 1-2/week for sleep. Needs rx for both renewed.

While the worker did have a number of other non-compensable medical conditions which could also have necessitated use of the medications, the panel finds that the nature of the worker's compensable condition (chronic right knee pain post-surgery) was not one which would have resolved and it is impossible to delineate which type of pain prompted the worker to take the medication on each individual instance. In the context of ongoing periodic renewals of the prescriptions, the panel feels that the worker ought to be entitled to ongoing coverage.

With respect to the WCB medical advisor's concerns that there was no objective evidence of ongoing knee difficulties related to the effects of the 2005 workplace injury, the panel accepts the worker's evidence that his use of the medications was only occasional when the need arose. Indeed, the pattern of prescriptions (the next refill after February 11, 2010 was not until November 25, 2010) supports the worker's only occasional use of the medication. More recently, a May 2013 referral by the family physician to a sports medicine specialist confirms a condition of worsening right knee pain.

Overall, the panel accepts that the worker has experienced ongoing right knee pain which is attributable to his 2005 injury and that continued use of T-3 and Zoplicone, as supported by the family physician, is covered. The panel hastens to add, however, that this coverage is not, as was submitted by the worker, a promise to cover the medication for the rest of the worker's life. As long as the need for the prescriptions is medically supported, entitlement to coverage will continue. This will be a matter which will be monitored and adjudicated on an ongoing basis by the WCB.

The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 28th day of August, 2013