Decision #135/18 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further coverage for opioid medication. A file review was held on July 12, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further coverage for opioid medication.

Decision

That the worker is entitled to further coverage for opioid medication.

Background

The worker sustained a back injury at work on April 5, 1974. The initial accepted diagnosis was an L5-S1 disc injury, which was treated conservatively. The worker underwent several back surgeries between 1980 and 2012. Bilateral sacroiliac joint steroid injections were also pursued. The worker developed chronic back pain, and treatment for his back has included opioid medications to assist with pain control. The WCB has also approved treatment in the form of medication and counselling in relation to the worker's psychological difficulties (depression).

In addition, the WCB has provided the worker with a personal care allowance and an independent living allowance, as assessed by a WCB rehabilitation specialist on a yearly basis, in recognition of the worker's limited function performing activities of daily living.

Compensation Services has monitored the worker's opioid medication usage through physician progress reports and periodic reviews by WCB medical advisors. Starting in 2013, the worker's treating physician was asked to complete progress opioid management reports ("POMRs") to assist in monitoring the worker's status.

On June 12, 2015, the medical advisor to the WCB Pain Management Unit ("PMU") reviewed the list of medications which the worker was taking and noted, in part, that the two POMRs on file, dated October 28, 2013 and May 21, 2014, showed Pain Scores of 6/10 and 8/10 respectively and Aggregate Functional Scores of 13/50 and 10/50 respectively, and that this was concerning for apparent lack of benefit to pain and function with the use of opioids. The medical advisor therefore recommended that the use of opioids be monitored by review of POMRs to be completed by the worker's attending physician at each WCB related visit, which appeared to be approximately once a month.

In a memo to file dated August 24, 2015, the WCB medical advisor to the PMU noted that an August 18, 2015 POMR showed a pain score of 8/10 and a functional score of 10/50, and that the worker continued to be prescribed opioids at a dosage which exceeded the "Watchful Dose" under the WCB opioid policy, and that this did not have a significant/sustained benefit to pain and function. Given the noted concerns, the WCB medical advisor recommended that the file be reviewed by a WCB psychiatric advisor, for an opinion with respect to the next steps regarding the use of opioids.

On August 24, 2015, the WCB psychiatric advisor acknowledged the prescribed levels of opioids and the worker's pain and functional scores, but indicated that she had reservations about suggesting changes in opioids at that point, noting that the worker was 41 years post injury.

On February 1, 2017, the WCB medical advisor to the PMU reviewed the worker's medications and noted a concern that only one progress opioid management report (POMR) had been completed by the worker's treating physician regarding the worker's continued use of opioids since April 2016. It was recommended by the medical advisor that further consideration by the WCB for continued financial support for opioid medications be predicated on the review of completed POMRs submitted by the worker's treating physician after each WCB-related visit. The WCB medical advisor to the PMU also requested that the WCB psychiatric advisor review the medications, particularly with regard to the ongoing use of benzodiazepines.

On March 27, 2017, the WCB psychiatric advisor opined that there "are significant medical risks from combining opioids and benzodiazepines" as had been prescribed for the worker. The psychiatric advisor noted that the use of benzodiazepines while the worker was taking opioids was not medically supported by WCB Healthcare and recommended that the WCB PMU medical advisor discuss this with the worker's treating physician.

On May 5, 2017, the WCB advised the worker that financial support for benzodiazepine medication would be approved to August 4, 2017 and for opioid medications to November 4, 2017, and that no further financial support for these medications would be provided beyond the stated dates.

On January 15, 2018, a worker advisor acting on behalf of the worker requested reconsideration by Review Office of Compensation Services' decision to end financial support for opioid medications. The worker advisor submitted that the opioid medications were medically necessary to alleviate the worker's pain and allow him to maintain some level of functionality and quality of life.

On February 9, 2018, Review Office determined that the worker was not entitled to further coverage for opioid medication. Review Office agreed with the opinion of the WCB medical advisor to the PMU that the opioid medication "did not appear to be producing a significant/sustained benefit to pain and function." From their review of the POMRs submitted by the treating physician, Review Office found that the use of opioid medication did not show a reduction in the worker's pain scores or an increase in his level of function.

With respect to the worker's position that the opioid medication was allowing "the worker to leave the home and attend a public swimming pool…", Review Office considered notations from the WCB rehabilitation specialist's assessments on file, including notations that the worker had reported his medical and functional status had been gradually deteriorating, and that his level of activity was dependent on his symptoms, and because of his limited mobility, he required assistance with community outings. Review Office also noted that the rehabilitation specialist had recommended assistance with administering medication to the worker for his safety, due to concerns that he might take an inaccurate dose, which had occurred twice. Review Office found that given the circumstances, the risk for the worker continuing to use opioid medication for his symptoms outweighed any potential benefits.

On February 13, 2018, the worker appealed the Review Office decision to the Appeal Commission, and a file review 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 WCB's Board of Directors. The worker's claim arose from a 1974 workplace accident. Accordingly, his benefits are assessed under the Act as it existed at the date of the accident.

Subsection 4(1) of the Act, as it read in 1974, provided that where a workman suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.

Payment for treatment was provided under subsection 24(1) of the Act which stated, in part, as follows:

24(1) In addition to the other compensation provided by this Part, the board may provide for the injured workman such medical, surgical, and hospital treatment, transportation, nursing, attendant care, medicines, crutches, and apparatus... as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury; and the board may adopt rules and regulations with respect to furnishing medical aid to injured workmen entitled thereto, and for the payment thereof.

Subsection 24(11) further stated, in part, that medical aid provided by the WCB shall at all times be subject to the supervision and control of the WCB.

WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy") sets out a comprehensive and coordinated approach to delivery of medical aid services to injured workers. It is noted in the Medical Aid Policy 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.

WCB Policy 44.120.20, Opioid Medication (the "Opioid Policy") notes that the WCB supports the appropriate use of opioid medication when the reduction of pain after an injury is associated with an improvement in function. The stated intent of the Opioid Policy is to provide parameters for the authorization and payment of opioids.

Worker's Position

The worker was self-represented and was assisted by his spouse on the appeal. The worker's position was that he is entitled to further coverage for opioid medication as that medication enables him to have some quality of life.

It was noted that the WCB had not suggested any medication to replace the opioid medication or any alternative which would be acceptable to the WCB and its policies and not cause a financial burden to the worker.

It was submitted that the Review Office decision does not take into account the human factor or the facts of this case. The worker is 75 years of age. He needs to get to the swimming pool to exercise his muscles, and needs the pain medication. The worker's spouse is also 75 years of age. It was submitted that if no alternative is found for the opioid medication, the worker's spouse will have to get a part-time job to pay for the worker's medication and the worker will then require a caregiver for 40 hours per week.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further coverage for opioid medication. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the opioid medication is reasonably necessary to cure and provide relief from the effects of the worker's workplace injury. The panel is able to make that finding.

The panel places weight on the original reports of the WCB medical advisor to the PMU, who opined, both before and after implementation of the Opioid Policy in 2011, that the use of the opioid medication was appropriate and related to the worker's compensable condition. In his subsequent report of September 18, 2013, the medical advisor to the PMU recommended that the worker's attending physician be requested to complete and submit POMRs at each WCB related visit.

The panel also places weight on the October 31, 2013 and June 15, 2014 reports of a second WCB medical advisor. In the October 31, 2013 report the medical advisor opined, after reviewing the worker's claim, including a POMR dated October 28, 2013, that the risk benefit ratio for using the prescribed medications remained favourable and funding was acceptable as per the WCB Opioid Policy. In the June 15, 2014 report, the medical advisor noted, after reviewing a POMR dated May 21, 2014, that even though the pain score was higher and the functional score lower than in the previous report, the worker had been using a stable dose of narcotics for the last number of years. The medical advisor opined that the risk benefit ratio remained favourable and it was reasonable to continue funding for the prescribed narcotics.

In light of his concerns, and "given her expertise", the WCB medical advisor to the PMU sought an opinion from the WCB psychiatric advisor in August 2015. The panel places significant weight on the August 24, 2015 note to file by the WCB psychiatric advisor, who spoke to the worker's family physician to confirm the worker's medications. The WCB psychiatric advisor noted that the family physician had stated that the worker's depression was a result of his injury, not a side effect of the opioids. The psychiatric advisor went on to opine that:

Though [the worker] is taking [dosage], with 8/10 pain and 10/50 ADL, I have reservations about suggesting changes in opioids at this point in time. He is 41 years post injury.

The panel notes that in a memo to file dated August 25, 2015, the WCB medical advisor to the PMU recommended that given the WCB psychiatric advisor's concern with respect to changing the worker's opioids at 41 years post injury, the use of the opioids at the current dose would be eligible for financial support.

The panel further notes that the WCB psychiatric advisor was asked in March 2017 to advise as to the appropriateness of taking benzodiazepines while taking opioid medications, and recommended that the WCB not support the use of benzodiazepines for the worker while he was taking opioid medications. The psychiatric advisor did not comment at that time as to whether or not it was appropriate for the WCB to continue funding the worker's opioid medications, or whether her prior expressed reservations about changing those medications had changed. While it is noted in an April 24, 2017 claim memo that the PMU medical advisor spoke with the WCB psychiatric advisor about the worker's opioid medications, there is no specific comment to file from the psychiatric advisor indicating that she supported discontinuing coverage of the worker's opioid medication. Further, there is no explanation as to why her prior reservations would have changed at that point, the worker being 43 years post injury by that point in time.

The panel also places significant weight on the August 30, 2017 opinion of the WCB orthopedic consultant who opined, in response to questions as to whether there was a new or changed diagnosis related to the compensable injury or prior back surgeries on this claim, as follows:

1. As well as the previous instrumented fusion from L2 to Sacrum, there is degenerative disc disease (DDD) from T10 to L2. Central spinal stenosis is present at L2-L3 and left foraminal stenosis at L3-L4, noted on MRI dated 19-July-2017.

2. Although increasing multi-level DDD is expected to occur with age, it is considered that fusion of the lumbar spine places increased stresses on the more proximal levels of the spine and is a causative factor in the development of progressive multi-level DDD.

3. The exact structural changes responsible for the chronic low back pain cannot be identified. Pain generation could be at the previously fused levels or at more proximal levels. It is not possible to recommend any specific surgical intervention which would lead to sustained improvement.

Based on our review of the information on file, the panel finds that the worker's numbers or scores with respect to his level of pain and functional status as indicated in the POMRs have remained much the same over the past few years. In the panel's view, a significant improvement in the worker's condition would not be expected more than 40 years after the injury.

The panel is nevertheless of the view that there is considerable evidence of benefit from the use of opioid medications. The panel finds, in particular, that the static nature of the worker's pain and functionality, in the environment of the deteriorating condition of his back or progressive multi-level DDD as indicated by the WCB orthopedic consultant, indicates that the opioid medications minimized the impact of the worker's injury.

The panel also relies on the October 10, 2017 report from the treating pain management specialist, who noted that the worker had been followed through their facility for many years, during which time they had trialed a number of strategies with limited benefit. The pain management specialist went on to state that:

We had initiated opioid therapy a number of years ago and this was titrated to a higher dose and although it was limited in reducing his pain scores he was able to function better. He is not considered to be a surgical candidate at this point and has developed severe lesions involving his cervical spine…We have no other treatment modalities to offer this gentleman and I would respectfully ask that the WCB continue to provide coverage for these medications…

The panel further notes that while it has been indicated on the file that the worker's age increases the risk of significant side effects from the use of opioids, such as respiratory depression, we are not satisfied that the evidence, and in particular the POMRs, support that the worker is experiencing or has experienced such side effects as a result of his use of the opioid medication up to this point in time.

In conclusion, given the particular facts of this case, including the fact that the worker has been taking opioids for several decades, his advanced age, and the static or sustained benefit from the use of opioids in the environment of a deteriorating back condition, the panel is satisfied, on a balance of probabilities, that the opioid medication is reasonably necessary to cure and provide relief from the effects of the workplace injury. The panel is further satisfied that ongoing coverage of the opioid medication is consistent with the Medical Aid and Opioid Policies.

The panel recognizes, however, that the evidence indicates the worker may have misused his medications in a dangerous manner in the past. The panel notes that one of the best practices listed under the Administrative Guidelines in the Opioid Policy speaks to monitoring the use of opioids and adherence to the opioid treatment plan. Accordingly, in the circumstances of this case, the panel strongly recommends that WCB Healthcare develop, in conjunction with the worker's treating physician, a specific strategy and more stringent monitoring program to ensure that the worker's medication is used as safely as possible.

In the result, the panel finds, on a balance of probabilities, that the opioid medication is reasonably necessary to cure and provide relief from the effects of the worker's workplace injury. The worker is therefore entitled to further coverage for opioid medication.

The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of September, 2018

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