The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")to deny further coverage for opioid based medication.  Ahearing was held on January 6, 2016 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted forcoverage of Hydromorphone Contin after August 19, 2015.

Decision

That responsibility should not be accepted for coverage ofHydromorphone Contin after August 19, 2015.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for an L5-S1 disc prolapse related to an accident that occurred at work on November 22, 1983. Medical reports on the claim file showed that the worker underwent 3 surgical procedures related to his back condition and received a permanent partial impairment award of 27%.

In a decision dated May 6, 2015, the WCB case manager advised the worker that based on a review of the claim information and the findings of a December 1, 2014 WCB call-in assessment, the WCB would no longer pay for the costs associated with Hydromorphone Cr 30 - Contin beyond August 19, 2015. The decision stated:

"It is my opinion that the risk outweighs the benefit that has been obtained to date. Claim history shows that you have not demonstrated a significant level of improvement in pain levels or function. The WCB provided the following options to support your efforts to wean off the medications...You have consulted with your physician and have opted to wean off the medication. You are currently utilizing Hydromorphone Cr 30 - Contin, the weaning process began, according to the medical notes from your physician, on February 19, 2015. The WCB agreed to fund 6 months of the weaning process. As per policy 44.30.60 Notice of change in Benefits or Services, the WCB authorization for this prescription will cease effective August 19, 2015. I will continue to contact you on a monthly basis to follow up on your progress."

In a doctor progress report dated June 4, 2015, the treating physician stated:

"f/u (follow-up) for knee and low back pain

reports is attempting wean

has reduced walking on treadmill -- reports due to pain

using a cane -- walking tolerance decreased

reports is not walking outside -- pain limited

Will cont with current dose

function deteriorating

fu in 1 month"

On June 9, 2015, the worker appealed the decision dated May 6, 2015. The worker stated: "The less Hydromorph I take the less mobile I am. As for the high dose (4) doctors weren't worried."

In a phone call with a WCB review officer on June 16, 2015, the worker indicated that if he does not take the medication in question, his function decreases and his pain increases. The worker said he tried the recommended treatment modalities but did not find benefit with his pain or level of function.

In a decision dated June 24, 2015, Review Office determined that there was no further coverage of Hydromorphone Contin beyond August 19, 2015. Review Office referred to the medical opinion outlined by the WCB psychiatric consultant at the December 1, 2014 call-in assessment. Review Office found that the use of Hydromorphone Contin had not resulted in sustained improvement in the worker's symptoms and function and that continued use was unfavorable. Review Office stated that it did not place any weight on the statement made by the treating physician that the worker's symptoms had increased and his function had decreased since reducing the dosage of opioid medication. Review Office indicated that throughout the claim, the worker's level of function with the use of opioid medication had been severely limited and it did not find that there was any long term benefit for its continued use. On August 27, 2015, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged to consider the worker's appeal.

Reasons

Applicable Legislation and Policy

The worker is appealing the WCB decision to discontinue coverage of Hydromorphone Contin as of August 19, 2015.

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

Medical aid payments for expenses, including medication, are payable in accordance with subsection 27(1) of the Act. This 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.

Subsection 27(10) of the Act provides in part that medical aid provided by the WCB shall at all times be subject to the supervision and control of the WCB.

The WCB has established WCB Board Policy, 44.120.10, Medical Aid, which notes that "the provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible." The WCB pays for prescription medications under this policy. "All treatments must satisfy the WCB that their use will aid in the recovery of an injured worker or minimize the impact of the injury."

Worker's Position

The worker was self-represented. He outlined his reason for appealing and answered questions from the panel.

The worker advised that the WCB decision to discontinue coverage of this medication has created a financial hardship for his family. He noted that the cost of this medication which the WCB no longer covers is about $825.00 per month. He is also paying for other medications which the WCB no longer covers.

The worker confirmed that he uses 180 pills per month, 6 per day and takes 1 approximately every 4 hours. In reply to a question, the worker advised that he attempted to reduce his usage to 5 pills per day and down to 4 pills. He said he could not get by on 4 pills. He tried using only 5 pills for about 2 months but found this resulted in a sharp pain. He said that even with 6 pills per day, his back hurts.

Regarding pain levels, the worker said that his pain at the hearing was about 8/10 on the analogue pain level. He said at best his pain averages at 4-5/10 but never disappears.

The worker said that in discussion with a physician he was told that his body is burning off the medication at a reasonable pace and therefore he is not addicted. He said that he is aware of the consequences of long term use of the medication, such as the impact on his kidneys, but said his kidneys have not been affected.

With respect to medical treatment, he advised that he sees his family physician who monitors his other conditions and medications. Besides the physician who prescribes his pain medication, he is not seeing any other medical providers.

He advised the panel that he is not active and spends 90% of his time laying down. He said this is better than sitting up as it takes the weight off his back. He said that he lies down because the pain is less and also because he is fearful of increasing the pain. He acknowledged that he is scared to walk as the pain can increase suddenly without warning when he walks.

The worker said that his condition has been the same for the last 7-8 years.

The worker said that he went to a pain treatment centre a long time ago but found it was not helpful. He left after one week in the program. Other than the WCB psychiatric consultant, he has not seen a psychiatrist and has not received any psychiatric treatment.

The worker acknowledged that the WCB provided 3 options when it determined that it would not fund the costs of this medication. With respect to the options, he advised that:

Option 1: Abstinence based program. He said that he would not participate in this program.

Option 2: Agonist substitution program using methadone or other substitute. He declined this option.

Option 3: Continued coverage of opioid medication for 6 months, as a proxy for a taper program. He advised that he accepted this option and chose to appeal the WCB decision.

The worker advised that his physician also prescribed a different drug which had significant side effects so he discontinued using it.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel was whether responsibility should be accepted for coverage of Hydromorphone Contin after August 19, 2015.

The worker asked for further coverage of an opioid based medication, Hydromorphone Contin. At the hearing he advised that he takes 6 pills per day. He uses the medication to dull the pain caused by his injury.

For the worker's appeal of this issue to be approved, the panel must find that the opioid medication is necessary to cure and provide relief from the workplace injury. The panel was not able to make this finding.

In this case, the panel is not satisfied that the medical information establishes on a balance of probabilities that the use of the medication is necessary to provide relief from the injury. In that regard, the panel attaches significant weight to the analysis and opinion of the WCB psychiatric consultant as noted in a memorandum dated December 3, 2014 following a call-in examination:

It is concluded that the high dosage of opioids has not resulted in sustained improvements in pain and function. The risk benefit ratio of opioid use is unfavourable. For these reasons, WCB healthcare cannot recommend ongoing funding for opioids.

The panel also attaches significant weight to the opinion of the WCB medical advisor who examined the worker on December 1, 2014. In a memorandum dated December 2, 2014 the medical advisor opined:

[Worker] currently takes [amount] Morphine mg equivalents daily. He has been on this medication at a stable dose for many years. Despite this high dose well in excess of any "watchful dose", [worker] reports ongoing severe back pain and very limited function. Risk/benefit analysis of continued use is unfavorable. In view of the lack of improvements in pain or function associated with the use of long term high dose opioids, the criteria for continued funding by the WCB have not been met.

The panel notes the worker's evidence at the hearing that he is not active and spends 90% of his time lying down. He also reported that his pain level is never below 4-5/10 and frequently is at a very high level. He advised that he limits his walking because he is afraid of falling. The panel finds that the worker's evidence is consistent with the findings of the WCB psychiatric consultant and WCB medical advisor. He continues to have limited function and significant pain that is not improved by the use of medication.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of January, 2016