The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for the costs of further opioid medications. A file review was held on June 17, 2019 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the costs of further opioid medications.

Decision

Responsibility should not be accepted for the costs of further opioid medications.

Background

The worker suffered injuries to his lower back at work on December 10, 1992 when he slipped and fell on an icy surface while carrying a box weighing approximately 80 pounds. The claim was accepted and payment of wage loss and other benefits started. The worker underwent an L4-L5 discectomy on August 10, 1993, which was only partially successful. On January 23, 1995, the WCB provided the worker with permanent restrictions of no repetitive bending, no repetitive lifting, and no carrying over 10 pounds. The WCB deemed the worker totally disabled on December 8, 1997.

The worker's opioid medication usage was monitored by the WCB Healthcare department. A medication review conducted on January 4, 2013 noted a review of the information on file including a letter dated December 21, 2012 from the worker's attending physician and found that the dosages of medicatioins, both stable, were appropriate and related to the compensable injury. This opinion concurred with an earlier opinion of the WCB healthcare department from April 19, 2007.

On May 29, 2014, the worker's treating family physician wrote to the WCB and advised:

[The worker] suffered an acute kidney injury secondary to NSAID (non-steroidal anti-inflammatory drug) use. He was seen by nephrology in [hospital] at the time…However since discharge his kidney function has returned to normal (in January).

In response to the worker's treating physician's report, the WCB's Healthcare Department reviewed the worker's file, discussed the matter with the physician and on June 5, 2014, indicated that the current use of medications is appropriate and eligible for WCB financial support.

On May 3, 2017, a further medication review was conducted after receipt of a Progress Opioid Management Report ("POMR") dated April 26, 2017 from the worker's treating physician. The WCB healthcare advisor opined:

In response to the Progress Opioid Management Report on file and dated April 26, 2017 the pertinent information on file has been reviewed. It is of note that there have been concerns previously noted on file with regard to the claimant's excessive use of Opioids.… As well the claimant experienced an episode of renal failure in 2013 and based on the information on file his renal function did return to normal….

WCB requested further information on the worker's overall function score as well as detail on the dosage prescribed.

The worker's treating medical clinic submitted a further POMR on November 9, 2017. The worker's treating family physician contacted the WCB Healthcare department on November 17, 2017 to discuss the report and advised that she had been trying to wean the worker from his current dose of opioid medication.

On May 7, 2018, another medication review of the worker's file took place based on a report submitted on April 12, 2018 by his treating physician. The WCB medical advisor noted that despite the worker's treating physician's November 17, 2017 advice that the worker was being weaned from opioid medications, the POMR dated April 12, 2018 indicated that the dose of opioids had increased but was not producing a "…significant/sustained benefit to pain and function."

The WCB medical advisor recommended that an opinion from the WCB psychological consultant be obtained due to the worker's history of psychological concerns and a further opinion was provided after review. On June 12, 2018, the WCB medical advisor discussed the worker's file with the WCB psychological consultant. They agreed that "…the risk/benefit ratio for the use of Opioids is considered to be not favorable and as such the use of Opioids is not eligible for WCB financial support." As abrupt withdrawal of opioids is not recommended, the WCB would continue financial support for opioid for a six month period to allow for an opioid weaning process. The WCB advised the worker on July 18, 2018 that WCB financial support for opioid medications would not continue after January 18, 2019.

The worker requested reconsideration of the WCB's decision to Review Office on August 14, 2018. In his request, the worker noted that the WCB had been paying for the opioid medications since the workplace accident on December 10, 1992 and it did not seem reasonable for the financial support to end as the medications had improved his pain. The worker further advised that stopping the opioid medication would reduce his quality of life.

Review Office upheld the WCB's decision on September 25, 2018. Review Office did not find that the evidence supported the continued use of opioid medications by the worker at any level. Review Office noted that the worker's treating family physician had recommended that the worker be weaned off the opioid medications before the decision by the WCB to end financial support. Review Office found that the risks for the worker to continue to use opioid medication were higher than the potential benefits the worker was deriving from that use and as such, determined that responsibility would not be accepted for the costs of further opioid medications.

The worker filed an appeal with the Appeal Commission on January 17, 2019. 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 under the Act and the policies set by the WCB's Board of Directors.

Section 27(1) of the Act 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 Act goes on to state, in s 27(10), 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. The Medical Aid Policy states that medical aid is provided 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.

WCB Policy 44.120.20, Opioid Medication (the "Opioid Policy") sets out that the WCB supports the appropriate use of opioid medication where the reduction of pain from an injury is associated with an improvement in function. The intent of the Opioid Policy is to provide parameters for the authorization and payment of opioids. Under the Opioid Policy, the WCB ordinarily pays for opioid medication during the acute phase of an injury or during the acute, post-operative phase. But, following the acute phase, the WCB may pay for the minimum dose of opioid medication that supports a documented improvement in the injured worker’s functional ability. To authorize or continue payment for opioid medication beyond the acute phase, the WCB must be satisfied that the physician has followed best practices adopted by the WCB, including utilization of outcome measures acceptable to the WCB.

The Opioid Policy also states that the WCB may suspend or discontinue authorization of payment for opioid medication in circumstances that include when opioid medication does not support a sustained documented improvement in the worker’s functional ability or when the side effects or risks of opioid medication outweighs their benefit.

Worker's Position

The worker's position is that he is entitled to further coverage for opioid medication as that medication enables him to have some quality of life.

In a letter dated December 27, 2018, the worker stated that the medication "…does provide some relief which allows him to have some quality of life which includes completing day to day activities." He states that he understands that the dosage he was receiving at that time had to decrease and that he was working with his doctor toward that outcome.

The worker requested that the WCB consider continuous payment for a maintenance dose during the weaning process. He stated "Without this medication his quality of life would deteriorate."

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 succeed, 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 was unable to make this finding.

The Act requires that medical aid be "reasonably necessary to cure and provide relief from an injury resulting from an accident." Here, there is no question that the worker suffered an injury resulting from an accident, nor that he continues to experience the impacts of that injury. The question that the panel must determine is whether the medical aid in question, opioid medication, is reasonably necessary to cure and provide relief from the compensable injury. To answer that question, the panel must consider and apply the provisions of the Opioid Policy to the worker's circumstances.

The panel notes that at the time that the Opioid Policy was established and implemented by the WCB in 2012, the worker had already been prescribed opioid medication to address the continuing symptomology arising out of his 1992 workplace injury. The implementation of this policy reflects a shift not only in how the WCB approaches and addresses opioid usage, but also a shift in societal and medical profession understandings and approaches to the use of opioids for pain management and relief.

Here, the file documents indicate that as early as July 2013, the WCB psychological advisor raised concerns with respect to the worker's use of opioid medications. The worker at that time was noted to state that he had been informed of the risks of taking large quantities of Tylenol #3 and that he does not care about these risks. In the same report, the WCB psychological advisor notes that when asked if the medication he takes helps, the worker responded "It makes it livable." The WCB psychological advisor concluded that the worker's "…long-term use of medication, (by his somewhat varying report, a very excessive use of medication) certainly may be having an effect on his mood and on his functioning." The WCB psychological advisor recommended that this usage be reviewed by a WCB medical advisor.

Subsequently, in November 2013, the worker was hospitalized and treated for acute kidney failure. According to the WCB medical advisor in a report dated May 12, 2014, the kidney failure was due to multiple factors including use of non-steroidal anti-inflammatory drugs ("NSAID") which had been prescribed to the worker to treat the compensable injury. In that same report, the medical advisor notes:

"Codeine can also be toxic to the kidneys and would not be recommended for use in the environment of a kidney problem. The worker should be slowly weaned from this medication. There are other opioids that are considered safer in someone with kidney issues. It would be recommended that this be managed through an opioid advisor…."

The WCB healthcare advisor reviewed the file soon afterward and requested additional information from the worker's attending physician. The attending physician responded in a report dated May 29, 2014, noting that the worker was no longer taking NSAIDs and that his kidney function had returned to normal in January. In a follow-up conversation with the WCB healthcare advisor, the worker's attending physician confirmed he was aware of the concerns of the WCB psychological advisor in respect of the worker's excessive use of Tylenol 3. The attending physician noted that the manner in which the medications were prescribed addressed the concerns raised.

In light of the information from the worker's attending physician and noting the stable use of the various opioid medications prescribed to the worker to address the compensable injury, the WCB continued to provide these medications as medical aid.

A report from the worker's psychologist dated November 9, 2016 indicates that the worker again was hospitalized due to kidney and liver failure in June 2015. The psychologist notes that:

Medical issues and uncertainties continue to be problematic for this individual, which is of no small concern to [the worker], given the gravity of certain diagnoses….In discussing the etiology of these various difficulties, [the worker] considered his extremely high use of potentially toxic medication since the time of injury (1992) to have been of some influence. Efforts to wean [the worker] from narcotic analgesics have largely been unsuccessful.

In a POMR submitted by the worker's attending physician on May 2, 2017 and based on an examination of April 10, 2017, the physician notes that the treatment plan is to continue usage of opioids for pain and to continue "to find lowest effective dose balancing pain/functional status and avoiding dependency."

Additional information was requested from the worker's attending physician in May, August, October and November 2017. A POMR dated November 9, 2017 notes that efforts were ongoing since April 2017 to wean the worker off his narcotics and to balance this with maintaining his function.

On the basis of this information, the WCB healthcare advisor recommended, on November 28, 2017 that medical aid benefits continue to be provided in respect of the worker's opioid medications at no greater dosage than in effect at that time.

Subsequently, on May 7, 2018, the WCB healthcare advisor noted that the attending physician's POMR of April 12, 2018 indicated an increased dosage of opioid medications, rather than the anticipated decrease, and that the dosage at that time was well in excess of the "watchful dose" as set out in the Opioid Policy. Further, at that time the WCB healthcare advisor noted that, based upon the information provided by the worker's attending physician, the use of opioids was "…not producing a significant/sustained benefit to pain and function."

On this basis, the WCB healthcare advisor determined on June 12, 2018 that the risk/benefit ratio for the use of opioids by the worker is not favourable and therefore medical aid benefits for those medications would be withdrawn after 6 months to allow for the implementation and completion of an opioid weaning process.

The POMR from the worker's attending physician of October 10, 2018, March 6, 2019, March 20, 2019 and May 22, 2019 indicate relatively stable scoring on pain and functionality at the same time as the worker was being progressively weaned from his opioid medications. During this time, some concerns were noted with respect to the worker's "self-adjusting" of dosing during this process, as set out in Doctor Progress Reports dated February 11 and 21, 2019.

While the worker's attending physician in October 2018 requested more time to accomplish the weaning process, as set out in her report dated October 23, 2018 the physician also noted that, "…we all agree that decreasing his Codeine Contin is necessary. We are working together in order to accomplish this in a reasonable weaning schedule that [the worker] can be successful at following through while maintaining his functionality."

In light of the provisions of the Opioid Policy that permit the WCB to suspend or discontinue authorization for payment of opioid medication when the side effects or risks of opioid medication outweigh their benefit, and having considered the totality of the medical evidence on the worker's file, the panel accepts the June 12, 2018 conclusion reached by the WCB healthcare advisor that the risk/benefit ratio for the use of opioids by the worker was not favourable.

The information on file confirms that a number of the potential risks associated with long term usage of opioids had by that time already manifested, as detailed above. Weighing the risks against potential benefits in terms of functionality and pain management, we note in particular that as the weaning progressed, there was no evidence of an increase in pain scores or decrease in functionality as could be expected if the medication was benefiting the worker as he believes.

Further, the panel accepts the assessment of the WCB healthcare advisor that six months is an appropriate period of time for the weaning process to be completed, where, as was the case here, the medical reports indicates that the process of weaning already began in April 2017, more than one year before the WCB's decision under appeal here. That process, instigated by the worker's attending physician in 2017, continued into 2019.

Taken as a whole, the panel is of the view that the evidence does not indicate a sustained improvement in the worker’s functional ability resulting from the use of opioid medications and further that the evidence does not establish that the benefit of using opioid medications outweighs the associated side effects or risks. Further, the evidence does not support continued provision of opioid medications in order to minimize the impact of the worker's injury and to enhance the worker's recovery.

On this basis, the panel is satisfied that ongoing coverage of the opioid medication is inconsistent with the Medical Aid and Opioid Policies.

In the result, the panel finds, on a balance of probabilities, that the opioid medication is not reasonably necessary to cure and provide relief from the effects of the worker's workplace injury. Responsibility should not therefore be accepted by the WCB for further opioid medications. The appeal is denied.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of June, 2019