The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to funding for Nabilone. The WCB's decision was that Nabilone would not aid in the recovery of the worker or minimize the impact of her injury. A file review was held on August 27, 2014 to consider the matter.

Issue

Whether or not responsibility should be accepted for the funding of Nabilone.

Decision

That responsibility should not be accepted for the funding of Nabilone.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for injuries she sustained in a work-related accident on July 19, 2010. The worker was later diagnosed with post concussive syndrome which was accepted as a WCB responsibility.

By letter dated March 27, 2014, the worker was advised that the WCB would not cover any further costs for Nabilone which had been prescribed by her treating physician. The decision was based on the opinion expressed by a WCB medical advisor who reviewed the worker's claim file on March 25, 2014. The medical advisor stated that Nabilone was a man-made product with properties similar to marijuana and its use was to treat nausea and vomiting from cancer chemotherapy. The medical advisor further stated:

"...Nabilone has been recommended to treat the worker's headaches. The presence of 10/10 pain from the headache, almost 4 years post injury, is not consistent with the natural history of the dx [diagnosis] related to the C/I [compensable injury]. The worker also reports facial swelling and left hand weakness. These are not symptoms that would be expected for the C/I related dx, so her overall presentation is difficult to relate to the C/I. This has been further detailed in the call in notes of November 2013. The worker has tried multiple treatments in the past, including evidence based treatment for her symptoms and nothing has worked. The likelihood of Nabilone working is minimal. This is supported by the report from the Pain Clinic indicating that there was no improvement after initial use."

On April 1, 2014, the worker appealed the March 27, 2014 decision to Review Office. The worker noted in her appeal that she had been prescribed Nabilone for the period February 13 to April 13, 2014 and that she obtained pain relief and was able to sleep because of the medication. The worker indicated that she had undergone various forms of treatment and different medications for her head injury, all of which did not help her with pain.

On June 3, 2014, Review Office confirmed that there was no entitlement for funding of Nabilone. In making its decision, Review Office referred to WCB policy and WCB medical opinions on file dated November 10, 2010 and March 25, 2014. It also obtained information from the Meda Pharmaceuticals website. Review Office concluded that the evidence was sufficient to deem the risk/benefit ratio for Nabilone as unfavorable. Review Office indicated that the worker had a broader non-physical symptom constellation which was considered a risk by the manufacturer and by Review Office. Review Office concluded that the available evidence did not demonstrate that the use of Nabilone would aid in the recovery of the worker or minimize the impact of the injury.

On June 20, 2014, the worker appealed Review Office's June 3, 2014 decision to the Appeal Commission and a file review was arranged. Included with the worker's appeal application was a report from her treating physician dated June 2, 2014 for consideration.

Reasons

Applicable Legislation and Policy

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

Pursuant to Subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Medical aid payments for expenses, including medication, are payable in accordance with Subsection 27(1) of the Act. That Subsection authorizes the WCB to make payments for expenses where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident.

The WCB has also established WCB Board Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) which is intended to assist with the interpretation and implementation of medical aid entitlements. The Medical Aid Policy provides, among other things, that the provision of medical aid is for the purpose of minimizing the impact of the worker’s injury and enhancing the injured worker’s recovery to the greatest extent possible. The Medical Aid Policy further provides that:

All such treatments must satisfy the WCB that their use will aid in the recovery of an injured worker or minimize the impact of the injury.

Analysis

The issue in this case is whether the worker is entitled to coverage for the medication Nabilone. For the appeal to succeed, the panel must be satisfied that the medication is necessary to cure and provide relief from an injury resulting from an accident.

In this case, the panel is not satisfied that the medical information establishes on a balance of probabilities that the use of Nabilone medication is necessary to provide relief from the injury. In that regard, the panel accepts the opinion of the WCB medical advisor in his note dated March 25, 2014, which states:

Nabilone is a synthetic cannaboid which means it is a man-made product with properties similar to marijuana. Its produce monograph calls it an anti-emetic, so it’s used to treat nausea. It is indicated for use to treat nausea and vomiting from cancer chemotherapy. That is not why it has been prescribed in this case, so its use would be considered off label. WCB does not typically fund off label treatments because they have not been proven to be effective through good scientific studies.

Each treatment can be reviewed on a case by case basis. In this case, the Nabilone has been recommended to treat the worker’s headaches. The presence of 10/10 pain from the headache, almost 4 years post injury, is not consistent with the natural diagnosis related to the C/I [compensable injury].

…Based on this review, the risk/benefit ratio of the Nabilone is not favorable and its use should not be funded by the WCB in relation to the C/I [compensable injury].

While there may be some support for the use of Nabilone medication in certain circumstances, in the panel’s view, the evidence is not sufficient to support its use in this case and the evidence does not demonstrate, on a balance of probabilities, that the use of the medication will either provide relief from an injury resulting from an accident or aid in the worker’s recovery.

The appeal is therefore denied.

Panel Members

K. Wittman, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

K. Wittman - Presiding Officer

Signed at Winnipeg this 21st day of October, 2014