The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")which determined that he was not entitled to further coverage for opioidprescriptions in relation to his compensable injury.  A hearing was held on October 20, 2015to consider the worker's appeal.

Issue

Whether or not the worker is entitled to coverage for opioidprescriptions after May 24, 2012.

Decision

That the worker is not entitled to coverage foropioid prescriptions after May 24, 2012.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for an accident occurring on April 11, 2009. The diagnosis was an L4-L5 disc protrusion. On November 30, 2009, the worker underwent a microdiscectomy at the L4-L5 level which was accepted as a WCB responsibility.

On January 10, 2012, the worker was interviewed by the WCB's Pain Management Unit ("PMU") given that he continued to experience pain and limitation of function due to his compensable injury. Based on the finding that the worker's use of opioid medication had not produced a significant/sustained benefit to his pain and function, a 12 week weaning process was recommended. On February 28, 2012, the treating physician was notified that a weaning program was being arranged for the worker.

By letter dated March 1, 2012, the worker was advised that the WCB would not accept financial responsibility for the costs of any opioid prescribed medication beyond May 24, 2012. The worker was advised that based on the recommendation of the PMU, a 12 week weaning program from opioid medication was to start on March 1, 2012.

On March 16, 2013, the treating physician wrote the WCB and stated:

I have not been able to wean him completely off of his narcotic medication although we have tried and he has made a concerted effort and had some gains. He is not on the same doses of narcotic that he had been on before but owing to exacerbations of his pain, he has stayed on a stable level of medications. He has an accepted WCB claim for his back and he has had ongoing symptoms and signs which have been managed on as low a dosage of medications as possible. Currently, he is on a combination of [opioid medications].

He is more active than he has been and still experiences exacerbations of his pain. He works through these flare ups and he has been trying to continue to decrease his medications…had to keep up some of the narcotic in his regimen as he has not been able to function without it.

On March 25, 2013, the WCB PMU medical advisor was asked to review the worker's file to determine whether there was any new medical evidence that would warrant a change to his previous opinion of February 28, 2012.

On April 3, 2013, the medical advisor stated that payment for opioid medication was supported by the WCB only if there was clinical evidence of significant/sustained improvement in pain and function. Based on his review of the file information, this had not occurred.

On April 5, 2013, the worker was advised that no change could be made to the previous WCB decision to end responsibility for opioid medication effective May 24, 2012. The case manager indicated there was no clinical medical information on file documenting a significant/sustained improvement in the worker's pain and function with the continued use of opioid medication. WCB policy 44.120.20, Opioid Medication, was referenced in the decision.

On November 3, 2014, a union representative, acting on behalf of the worker, appealed the decision to Review Office.

On January 5, 2015, Review Office confirmed that the worker was not entitled to coverage of opioid prescriptions beyond May 24, 2012. Review Office stated that it relied on the opinions outlined by the WCB PMU consultant dated April 3, 2013. Review Office concluded that the worker suffered multiple instances of side effects from opioids and that he demonstrated an ability to perform at a higher level of function than he self-reported. It found no clinical evidence to support that opioid use improved the worker's pain and function, and that the pain was possibly elevated due to opioid-induced hyperalgesia.

On March 25, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

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.

The worker has an accepted claim for injuries arising out of an April 11, 2009 accident. He is seeking acceptance for medical aid benefits after May 24, 2012.

Under 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. Subsection 27(1) of the Act provides that the WCB "...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."

WCB Policy 44.120.10, Medical Aid , sets out in part that "…to minimize the impact of workers' injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices, including prescription drugs…" Under Part 2. a. Medically Prescribed Treatments, subparagraph i) states in part that "The WCB will generally pay for medically prescribed treatments…when required by reason of a compensable injury, and the treatment or device is likely to improve function …"

Worker's position

The worker was assisted by a union representative at the hearing who made a presentation on his behalf. The worker answered questions asked by his representative and the panel. Their position was that the worker's opioid medications allow the worker to manage his pain and at least function to some minimal degree and participate in the current vocational rehabilitation program.

It was their submission that the worker had suffered two very serious back injuries as a young man. Throughout the claim he received various benefits and treatment, but it was later determined that his back did not heal and he should have microdiscectomy surgery.

It was their position that the surgery did not go well and led to discitis, nerve tethering and scar tissue, and that the worker has lived in chronic low back pain ever since.

The representative confirmed that the WCB had provided funding for opioid medications specifically to support management of his pain as prescribed by his attending physician. Ongoing use of opioid medication was also supported by his treating physician, anesthesiologist and physiatrist as benefiting him.

In conclusion, the representative submitted that a one-size-fits-all approach does not recognize that people are different and that people who are trying to improve themselves in function deserve all the support and help they can get. We must remain flexible enough to manage patients with appropriate analgesics long term. One of the necessary supports the worker has in getting through and making progress is his ongoing opioid prescriptions.

Employer's position

The employer did not participate in the appeal.

Analysis:

For the worker to be successful in his appeal, the panel must find that the use of opioid medication was providing relief and increasing the worker's function and therefore would be the financial responsibility of the WCB. For the following reasons, we are unable to make this finding.

The panel notes that the first reference to opioid medication being prescribed for the worker's compensable injury was on a Doctor's First Report dated April 3, 2009, and again on April 10, 2009 for breakthrough pain. The prescribing of various opioid medications for treatment of reported pain continued throughout the file, including after WCB stopped financial responsibility, and includes the day of the worker's hearing. This is a period of six years and seven months.

The panel places great weight on the following evidence from the file and at the hearing.

At an April 27, 2011 call-in exam, the worker self-reported his current symptomology as having low back pain daily usually at a severity of 7 out of 10, his left leg pain was "never ending" and extended down to his mid calf at a severity of 5 out of 10. He also noted that pain was felt in both right and left greater trochanter areas when attempting to rest lying on his side. Pain prevented him from lifting heavy weights but he could manage ten pounds if conveniently placed. He could only walk ten minutes with a cane, pain prevented him from sitting for more than half an hour, and after standing for more than ten minutes the pain would increase. Pain restricted his social life. When travelling he got "extra" pain, and he could drive himself for 20 minutes. His pain was aggravated by minor household chores like doing dishes, vacuuming, or shopping. Standing in the shower also aggravated his pain. Heat and cold and stretching exercises did not help at all. He noted that his pain was getting neither better nor worse over the past few months. At the conclusion of the examination, the WCB's consulting orthopedic consultant opined that "Opiate analgesics, which were also required pre-operatively, are not resulting in any sustained gain and function", and that "Over time it should be expected that the narcotic medication can be gradually reduced."

The panel notes a hospital report dated May 8, 2011 in which the worker reported a rash and had itching to his arms and torso that was getting worse. After examination, the worker was diagnosed with a drug rash from use of an opioid medication and was given antihistamines on discharge for treatment. He was also advised to see his regular doctor to change his medication and discontinue that opioid medication. This event was also noted as a concern in the January 10, 2012 call-in exam, in that he reported difficulty with hives related to use of an opioid medication but was still using his opioids with antihistamines to help resolve the hives.

At an October 18, 2011 meeting with his case manager, the worker self-reported pain across his low back and down his left leg to his calf, and that his calf would cramp up and wake him at night. Since the surgery, he had more low back pain across the low back and his leg pain had stayed the same. He commented that he was doing no household chores, found it difficult to stand in the shower, and could not pick up shampoo from the side of the tub or lean forward to wash his hair; that standing at the sink to shave or wash was very difficult and flexing forward caused pain. Describing his pain medication's efficacy, he noted that his daily pain medications did not touch his pain. He had been given morphine in the past that did not touch his pain. His activity levels were noted to be going to the store once a week, sitting about 22 hours a day in a recliner, and maybe going to a pharmacy or checking his mail. Even though he was advised in two prior examinations to keep active, he stated that with the amount of pain he was in, that was difficult to do. He concluded the interview by noting that the limiting factor to his getting better was the pain.

On January 3, 2012, when asked by his case manager about the efficacy of his pain medication, he replied that his tolerance kept building and it was not controlling his pain. He tried other opioid medications but nothing was able to touch his pain. His activity was described as:

• Can't do much of anything especially standing and hunching over that causes his back to give out within 4 minutes
• Can't do dishes and showering is very difficult
• Can do laundry but can't fold it
• Unable to cook
• Only gets out of the house once in a blue moon
• Can only do things when in a window of reduced pain and he never knows how long this will last.

At a January 10, 2012 call-in exam, he described his symptoms as constant pain over his lower back, radiates to his left hip and left leg down to just past the knee. Pain felt like aching, stabbing and burning with severe cramping in the left calf. Pain was worse with brushing his teeth, walking longer than 10 minutes or sitting more than half an hour. He reported a pain level at its best as 2 out of 10, at worst 9 out of 10, and during the interview portion his pain was 4 out of 10.

On February 13, 2015, an email from the worker to his WCB vocational rehabilitation consultant noted that he had finished a large project to meet a deadline and that even though he took breaks every couple of hours, "my back did not hold out and I was in a lot of pain while doing it and I could barely move the next day."

In an email dated July 2, 2015, the worker noted that "I can't get on track because I have trouble remembering the commands and have to re-read the material 5 times because the pain/medication affect my memory."

The panel compared the aforementioned self-reporting symptoms and description of activity deficits to the worker's comments as noted by his case manager in a July 14, 2015 memo on file:

• Still has chronic pain every day
• Is unable to walk very far
• Takes medication to leave the house and can only go out for fifteen minute intervals
• His short term memory is extremely poor due to the medications and has to read material 6 - 7 times to remember text
• Is managing though some days are worse than others
• Still gets random flare ups in his back that happen "just because"
• Otherwise, his condition has remained the same.

The panel notes that evidence presented at the hearing acknowledged that the medication he was taking sometimes caused short term memory loss and that he had to manage this by timing how and when he took his medications. The worker's evidence was that when he does take the medication "I get about a couple of hours of quality of life, and I'm going to do this, this and this and then it starts and then I can feel the pain start coming back."

The panel finds, based on the foregoing, that the taking of opioid medications has not contributed to an improvement of pain symptomology or a sustained decrease in the levels of pain. The panel also finds that there has been very little effect on the worker's activity levels and functioning during the period noted from April 27, 2011 to July 14, 2015, a period of slightly over 4 years. The panel also finds that the worker suffered an allergic reaction to his use of opioid medication and requires antihistamine medication while continuing use of that specific medication. The panel further finds that the worker was also suffering cognitive deficits to his memory from his use of opioid medication.

The worker's union representative protested the application of Policy 44.120.20, Opioid Medication (the "Opioid" policy), on the worker's medications as it only came into effect on November 1, 2011 and the worker's injury on April 11, 2009 predated this policy. The panel notes the Opioid policy does represent best practices regarding the use and risks of opioids and is applicable to all new prescriptions of opioids made after November 1, 2011 regardless of injury date. On the matter in front of us, the panel finds the worker's opioid medications as of November 1, 2011 had been prescribed by his treating physician prior to and including January 6, 2011 and therefore the Opioid policy has no application to this decision.

The panel finds, on a balance of probabilities, that the worker is not entitled to coverage for opioid prescriptions after May 24, 2012.

The worker's appeal is dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 11th day of December, 2015