Decision #149/19 - Type: Workers Compensation
The worker is appealing a number of decisions made by the Workers Compensation Board ("WCB"). A hearing was held on November 5, 2019 to consider the worker's appeals.
1. Whether or not responsibility should be accepted for acupuncture and a La-Z-Boy chair;
2. Whether or not there is entitlement to spousal wage replacement benefits;
3. Whether or not further responsibility should be accepted for the costs of opioid medication;
4. Whether or not responsibility should be accepted for the costs of cannabis.
1. Responsibility should not be accepted for acupuncture and a La-Z-Boy chair;
2. There is no entitlement to spousal wage replacement benefits;
3. Further responsibility should be accepted for the costs of opioid medication;
4. Responsibility should not be accepted for the costs of cannabis.
The worker reported he injured his left shoulder at work on March 12, 2004 after slipping on an icy road and injuring his shoulder. The worker was diagnosed with rotator cuff tendonitis. His claim was accepted and payment of wage loss and medical aid benefits began.
On December 2, 2004, the worker underwent an arthroscopic debridement and acromioplasty on his left shoulder. The worker did not fully recover from the surgery and, after a call-in examination with a WCB medical advisor on March 7, 2005, was diagnosed with adhesive capsulitis.
On January 11, 2007, the worker was deemed unemployable and placed on full wage loss benefits. At the same time, permanent restrictions were established of no weight greater than 10 pounds from floor to bench, allow gripping/pushing and pulling at a sedentary workload and no work above shoulder level for the worker's left side.
On April 29, 2015, the worker contacted the WCB to advise he had seen a pain specialist to review a March 28, 2015 MRI study of his shoulder that indicated a subscapularis tear. The pain specialist recommended acupuncture treatments and provided the worker with a prescription for a La-Z-Boy chair to help him sleep.
The WCB contacted the worker on April 30, 2015 to advise more information was required from the pain specialist with regard to the acupuncture treatments and prescription. On June 22, 2015, the pain specialist provided a report to the WCB outlining the recommendation for a 6-week trial of acupuncture and suggesting the worker request the use of a La-Z-Boy chair for sleeping, "…as sleeping in a supine position is extremely difficult for him and only aggravates the pain."
On June 23, 2015, the worker submitted a request for reimbursement of travel expenses to and from appointments, including a request for reimbursement of spousal wage loss when the worker required his spouse to drive him to appointments. The request noted that some of the treatments made the worker drowsy.
A WCB medical advisor reviewed the worker's file on August 10, 2015 and concluded that there was no medical evidence of a "…defined anatomical lesion in regards to the left shoulder." Further, the WCB medical advisor noted that without a targeted anatomical diagnosis related to the compensable injury, acupuncture treatment would not be considered medically required. The WCB medical advisor also expressed the view that the partial tearing of the cranial fibres of the subscapularis, as noted on the March 28, 2015 MRI study, were not related to the original mechanism of injury and as such, if the proposed acupuncture treatment was targeted for that finding, it would not be related to the compensable injury. Finally, the WCB medical advisor stated that "Without an anatomical diagnosis related to the compensable injury, the proposed use of a "Lazy Boy Chair" would not be considered required in relation to the compensable injury."
On August 25, 2015, the WCB advised the worker that responsibility for acupuncture and a La-Z-Boy chair as well as the request for spousal time loss related to attending his acupuncture and Botox injection appointments were not accepted by the WCB.
The worker requested reconsideration of the WCB's decision to Review Office on September 16, 2015, noting he did not agree that his current diagnosis was not related to his compensable work injury and that his expenses for seeking treatment for his injury were not being covered.
On October 16, 2015, Review Office denied entitlement to medical aid benefits for a La-Z-Boy chair or acupuncture treatments, and also denied the request for spousal wage replacement. Review Office noted that the pain specialist, in an August 6, 2015 report, stated that the trial of acupuncture treatments provided the worker with no relief or improvement of his symptoms.
Therefore, Review Office determined acupuncture was not an acceptable treatment for the worker's left shoulder difficulties. Further, Review Office could not find any medical evidence on the worker's file to support that the worker's left shoulder difficulties created an inability for him to drive or that any of the treatments he was undergoing made him unable to drive. Review Office found that the worker did not require a chaperone for his medical treatments and as such, approval for spousal wage replacement was denied. Review Office acknowledged the worker had difficulty finding a comfortable position to sleep but found that there were no medical findings to support that the worker required a La-Z-Boy chair so he could be in a reclining position to sleep.
On March 17, 2016, the worker's treating pain specialist advised the WCB that the approved Botox injections provided to the worker caused the muscle to become "…very painful and tight for a short duration of time before the benefit kicks in, so much so that he would have trouble driving his vehicle home." The pain specialist was of the view that it was necessary for the worker's spouse to accompany the worker to drive him home.
On March 24, 2016, the worker submitted travel expenses, together with spousal wage loss expenses, for reimbursement. On April 1, 2016, the WCB provided the worker with a copy of the October 16, 2015 Review Office decision and advised that responsibility for reimbursement of travel expenses for injections and spousal wage loss had already been denied by Review Office.
On April 4, 2016, Review Office advised the worker that the new information provided by the pain specialist on March 17, 2016 had been reviewed, and there would be no change to the October 16, 2015 decision.
The WCB received an Opioid Management Report dated January 23, 2018 from the worker's treating healthcare provider. The report noted the worker's reported pain level at 8/10 and noted severe depressed mood and mild cognitive deficits. The WCB reviewed the worker's file to confirm the worker's compensable diagnosis and requirement for further funding of opioids.
On February 21, 2018, a WCB medical advisor determined that the medical evidence substantiated a diagnosis of non-specific left shoulder pain. A follow-up request was made to the WCB medical advisor on February 27, 2018 regarding the recovery period for non-specific shoulder pain. The WCB medical advisor responded on March 13, 2018 that as there was no medical evidence of objective pathology in the shoulder to account for the reported symptoms, a recovery period for the worker's non-specific shoulder pain could not be provided. On March 20, 2018, the worker was advised that no further responsibility for opioid medication would be accepted by the WCB as the potential benefit of the medication did not outweigh the possible risks or side effects.
The worker requested reconsideration of the WCB's March 20, 2018 decision to Review Office on April 11, 2018. In his submission, the worker noted that his healthcare provider had advised he could only be taken off the opioid medication gradually given the amount of the medication he had been prescribed and the length of time he had been taking the medication. As well, the worker noted that if funding for opioid medication was to be withdrawn, he should be provided with an alternative pain medication. The worker requested that consideration be given to coverage for medical cannabis.
Review Office returned the worker's file to the WCB's Compensation Services on April 13, 2018 for further investigation with respect to the length of time the worker had been prescribed opioid medication and his request for medical cannabis.
The WCB reviewed the worker's prescribed opioid medication with his treating healthcare provider and on May 17, 2018, the worker was advised that responsibility for the costs of the opioid medication would be covered for a six month weaning period to October 17, 2018 (later corrected to November 17, 2018 by letter dated May 18, 2018).
On August 6, 2018, the worker requested reconsideration of the WCB's decision to Review Office. The worker noted that six months was not a sufficient enough time to be weaned off the opioid medication and that he would require coverage for a replacement pain medication. He re-stated his request for coverage of medical cannabis. On October 30, 2018, the WCB advised the worker that the risk/benefit ratio for the use of cannabis was not considered favourable and as such, would not be eligible for financial coverage.
Review Office determined on December 18, 2018 that no further responsibility would be accepted for the cost of opioid medication and no responsibility would be accepted for the cost of cannabis. Review Office found that the evidence on file did not support that the opioid medications prescribed to the worker provided a significant or sustained benefit to the worker. Review Office noted that the worker's treating healthcare provider had considerably reduced the amount of opioid medication the worker was taking; however, there was little to no difference to his reported pain. Review Office concluded that if the opioid medication was providing pain relief, the worker would have had increased pain when the amount he was taking was reduced. With respect to the worker's request for coverage of medical cannabis, Review Office found no evidence to support that it would provide sufficient benefit to the worker to offset the risk of harm.
The worker filed an appeal with the Appeal Commission on January 15, 2019. On January 21, 2019, the Appeal Commission confirmed the issues under appeal and an oral hearing was arranged.
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. Medical aid provided by the WCB is subject to the supervision and control of the WCB, pursuant to s 27(10).
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 has discretion to 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.
The worker was represented in the hearing by an advocate, and accompanied by his spouse. The worker's advocate provided the panel with a written submission that he reviewed for the panel, and made oral submissions as well. The worker and his spouse answered questions from members of the panel in the course of the hearing.
The worker's advocate outlined that the worker's condition has not improved since 2004, and that he suffers continual and debilitating pain in his left shoulder and arm, which becomes unbearable when he uses that arm in any way. While a satisfactory pathoanatomical explanation has not been found for the worker's ongoing left shoulder pain, the advocate outlined for the panel that the worker continues to seek a cure and diagnosis.
Whether or not responsibility should be accepted for acupuncture and a La-Z-Boy chair
The worker's advocate stated that the worker required acupuncture and a La-Z-Boy chair as medical aid in order provide relief to the worker from the chronic pain resulting from the injury incurred in the accident of March 12, 2004.
The worker's advocate noted that the worker described a pattern of disruptive and non-restorative sleep since 2006. In June 2015, the worker's treating pain specialist suggested the worker request use of a La-Z-Boy chair for elevated sleeping in order to reduce pain in the worker's shoulder, which is aggravated by lying on it. The worker advised the panel that he has already been sleeping in a reclining chair for approximately 4 years.
The pain specialist also recommended a 6-week trial of acupuncture treatments in a report dated June 22, 2015. The worker's advocate noted that the worker received acupuncture treatments and was compensated by the WCB for some of those treatments, but that he was not compensated for treatments occurring on June 18 and 25, July 2, 9 and 16, 2016.
The worker's advocate stated that the acupuncture treatments and La-Z-Boy chair were required by the worker to improve his function and provide relief to him from the pain he continues to experience arising out of the accident of March 12, 2004.
Whether or not there is entitlement to spousal wage replacement benefits
In respect of the request for payment of spousal wage replacement benefits, the worker's advocate stated that the worker's spouse takes time off work to drive him when the worker requires transportation to attend treatment. The advocate clarified that the spousal wage replacement request related specifically to time spent transporting the worker to and from, and attending medical appointments, including appointments for acupuncture and for Botox treatments.
The worker's advocate pointed to the letter from the pain specialist dated March 17, 2016 as providing justification for the request. In that letter, the physician stated:
"Immediately following each injection, the muscle becomes very painful and tight for a short duration of time before the benefit kicks in, so much so that [the worker] would have trouble driving his vehicle home. It is my opinion, therefore, that when he comes in for an injection, it is necessary for his wife to come along so that she can be the driver on the return journey."
The worker, in his testimony, advised the panel that he rarely drives now, particularly not in the city. He stated that he drives within the rural community where he resides and he drives when his spouse cannot get time away from work. The worker noted that he received 5 of 6 WCB funded Botox treatments beginning September 3, 2015.
The worker's advocate stated that the statement by the worker's treating pain specialist on March 17, 2016 provides justification for the request for spousal wage replacement benefits where the worker's spouse was required to drive him to and from Botox treatments.
Whether or not further responsibility should be accepted for the costs of opioid medication
The worker's advocate noted that the worker is well past the acute stage of his injury, such that the provisions of the Opioid Policy regarding the post-acute phase must be considered. The advocate noted that the Opioid Policy permits payment for opioid medication for as long as necessary and stated that the evidence is clear that the worker continues to experience chronic pain as well as functional deficits that are managed by his ongoing use of opioid medications.
The worker's advocate noted that the worker has attempted to wean himself entirely off the medication but that without it, the worker becomes totally dysfunctional.
Management of the worker's chronic pain was the subject of a memorandum from the worker's prescribing physician to the WCB. In that memorandum dated February 13, 2019, the prescribing physician outlined other treatment options that might be attempted to wean the worker off the prescribed opioid medications, but the worker's advocate advised that this has not taken place. The decision of the WCB to discontinue funding of the worker's only pain relieving medication left him without an effective alternative and resulted in significant financial hardship to the worker who continued to pay for the medication, at a reduced dosage, out of his own pocket.
The worker's advocate set out that the worker cannot function and has no quality of life without some form of pain medication. The WCB should not have discontinued payment of the worker's opioid medication costs after more than 15 years taking opioid medication and without ensuring any effective alternative was provided to him.
Whether or not responsibility should be accepted for the costs of cannabis.
The worker's advocate outlined the worker's position that the WCB should accept responsibility for the costs of medically prescribed cannabis to cure and provide relief to the worker's chronic pain arising out of the compensable injury of March 12, 2004 as an alternative to the opioid medication that the worker had been relying upon for the same purpose.
The worker confirmed to the panel that he did not know whether or not cannabis would provide adequate or any relief from his chronic pain symptoms as he had never tried it, but, as noted by the worker's advocate, medical cannabis was one of the alternatives proposed to continued use of opioid medication as outlined by the prescribing physician in his memorandum to the WCB of February 13, 2019.
The worker's advocate confirmed that the worker's request for the WCB to accept responsibility for the costs of medically prescribed cannabis was as an alternative to the WCB continuing to accept responsibility for the costs of the worker's opioid medications.
The employer did not participate in the appeal.
The worker appealed Review Office decisions with respect to four questions, each of which is addressed in turn below.
Whether or not responsibility should be accepted for acupuncture and a La-Z-Boy chair
In order for the panel to find that the WCB should accept responsibility for the worker's acupuncture treatments and a La-Z-Boy chair, the panel must find that these are necessary to cure and provide relief from the compensable injury resulting from the accident of March 12, 2004. The panel was not able to make that finding.
There are two references to the request for a La-Z-Boy chair in the medical reporting on file. The pain specialist wrote a prescription pad note in 2015 (with a fax date of April 29, 2015) in respect of the worker that indicates "Subcapsularis tear L(left) scapular (Cannot sleep and lie on the Lt(left) side.) For Lazy Boy Chair". In a report to WCB dated June 22, 2015, the same physician noted that the worker's left shoulder pain is causing him difficulty with sleep and that the pain worsens when the worker is lying down flat. The most comfortable position for the worker to sleep is in a slightly elevated position with the back and neck positioned above his pelvis and lying at an angle. The pain specialist suggested that the worker "…should request the use of a La-Z-Boy for sleeping as sleeping in a supine position is extremely difficult for him and only aggravates the pain."
In the report of June 22, 2015, the pain specialist also outlined other circumstances that exacerbate the worker's left shoulder pain, notes the clinical findings of supraspinatus and infraspinatus pain as well as discomfort on stimulation of the brachial plexus and restricted range of motion of the shoulders. The physician recommended a 6-week trial of acupuncture at this time.
A WCB medical advisor reviewed the worker's file and chart with respect to the recommendations made by the pain specialist and determined on August 10, 2015 that acupuncture treatments would not be considered medically necessary without a specific anatomical diagnosis as related to the worker's mechanism of injury. The medical advisor stated that the March 28, 2015 MRI findings of partial tearing of the cranial fibres of the subscapularis cannot be related to the original mechanism of injury and that if the acupuncture is directed to that site, it would not be related to the compensable injury. Further, the medical advisor queried whether or not acupuncture would lead to any sustained benefit.
The panel noted that the pain specialist's August 6, 2015 report confirmed that the six acupuncture treatments provided failed to address the worker's left shoulder pain.
In response to the request for a La-Z-Boy chair, the WCB medical advisor also stated on August 10, 2015 that the use of such a chair would not be related to the compensable injury as there is no related anatomical diagnosis.
The pain specialist provided a further opinion on September 10, 2015 indicating that the area of concern is not the worker's shoulder joint, but the trapezius muscle with is significantly enlarged with spasm and that the involved muscle groups include the scalene muscle, supraspinatus and infraspinatus muscles and the rhomboid muscle. These shoulder girdle muscle spasms impair the worker's ability to function normally and produce the continuous pain. The La-Z-Boy chair, the physician explained, would allow the worker to sleep in an angled position that would reduce the pain caused by pressure on the worker's shoulder in a supine position.
The panel considered the medical reports on file and determined, on a balance of probabilities that the evidence does not establish that the worker required acupuncture treatment to cure and provide relief from the accepted, compensable left shoulder injury. There is no indication in the evidence that left shoulder girdle muscle spasms, which the acupuncture treatment was proposed to address, are related to the worker's accepted compensable injury.
In respect of the request for a La-Z-Boy chair to support the worker's sleep, the panel noted that this request was also made to address the worker's left shoulder girdle muscle spasms and that the evidence does not establish that the spasms are related to the worker's compensable injury.
Therefore, on a balance of probabilities, the panel finds there is not a causal link between the worker's requests for acupuncture and a La-Z-Boy chair and the injury arising out of the accident of March 12, 2004. Responsibility should not be accepted for acupuncture and a La-Z-Boy chair.
Whether or not there is entitlement to spousal wage replacement benefits
In order for the panel to find that there is entitlement with respect to the worker's request for spousal wage replacement benefits in order to assist the worker with travel to and from medical appointments, the panel would have to find that that it was medically necessary for the worker's spouse to drive him to and from those appointments.
In the course of the hearing, the worker confirmed to the panel that he is able to drive and has continued to drive himself to and from appointments. The panel noted there is no evidence of any medical restrictions on the worker that would impact his ability to drive to and from appointments.
With respect to travel to and from the worker's acupuncture treatments in particular, the panel has determined that these treatments are not the responsibility of the WCB. Therefore, any costs in relation to transportation to and from those treatments, including the claimed spousal wage replacement costs, also would not be the responsibility of the WCB.
The worker also specifically noted that there were some post-injection complications with the Botox treatment that necessitated having his spouse travel to those treatments with him so that she could drive him home afterward. This was confirmed by the pain specialist, although the panel noted that this concern was not raised until after most of the treatments had already been completed, in March 2016. Furthermore, the medical chart notes do not indicate any post-treatment complications as a result of the earlier treatments that were administered in September 2015 through to March 2016.
The evidence before the panel is that the worker could and did drive himself to various locations despite experiencing chronic pain.
The panel therefore determined, on the basis of the evidence before it and on a balance of probabilities, that there is no entitlement to spousal wage replacement benefits.
Whether or not further responsibility should be accepted for the costs of opioid medication
For the worker's appeal on this issue 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 finds that it is.
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 by the time that the Opioid Policy was established and implemented by the WCB in 2012, the worker had already been prescribed and taking opioid medication to address the continuing symptomology arising out of his 2004 workplace injury for approximately 7 years. The worker has been relying upon opioid medications to manage his pain and support his functional abilities since first prescribed in 2005.
The panel acknowledges that use of opioid medications needs to be carefully monitored by the WCB as outlined in the Opioid Policy. The WCB medical advisor, in a file memorandum dated May 16, 2018, outlined the concerns with respect to the worker's ongoing use of opioid medications noting that the dose prescribed at that time exceeds the watchful dosage level and yet does not appear to be producing a significant and sustained benefit to the worker in terms of pain and function. Concerns were also raised about potential adverse behaviours and outcomes, as well as side effects from long term usage of opioid medications. The WCB medical advisor concluded that the risk/benefit analysis did not favour the worker's ongoing usage and therefore recommended a period of six months for the worker to implement and complete an opioid weaning process, following which the WCB would no longer be responsible for the medication.
The panel noted that the Opioid Policy sets out that WCB will pay for the minimum dose of opioid medication that supports a documented improvement in the worker's functional ability. The medical information on file suggests that there are still benefits to the worker from use of a reduced dosage of this medication.
The worker outlined to the panel that his opioid dosage was significantly reduced and adjusted during and since the six month period of weaning, but that he continued to require an ongoing, reduced dosage that he has paid for out of his own pocket since November 2018 when the WCB suspended its responsibility for the medication. He confirmed that the current dosage is sufficient to manage his pain symptoms. The worker also confirmed he has not experienced any impairment of functioning with the weaning process to the current dosage levels.
The prescribing physician, in a report dated February 13, 2019 outlined that as a result of the weaning process, the worker's pain control was "significantly deteriorated and this also results in deterioration in his overall function." The physician outlines the poor success of other pain control medications tried by the worker in the past, and suggests that WCB consider the possibility of rotating the worker to methadone or trialing the use of medicinal cannabis as part of the weaning process.
The panel noted that the WCB received this information and on March 27, 2019 denied the request for consideration of methadone or cannabis to support the opioid weaning process. No further rationale was provided for that decision.
The evidence before the panel here does not point to significant manifestation of the potential risks associated with long term opioid usage in general. The worker's evidence was that there are ongoing benefits to him from that usage. His prescribing physician was supportive of a complete weaning only with an appropriate alternative provided and made some suggestions to the WCB in that regard.
On a balance of probabilities, the panel concluded that the evidence supports a finding that the risk-benefit balance tilts in favour of the worker's continued usage of opioid medications in accordance with the provisions of the Opioid Policy, specifically those that allow for WCB to be responsible to pay for the minimum dosage required to support improvement in the worker's functional ability.
The panel strongly recommends that the worker together with his physician and the WCB develop a specific strategy to reduce the worker's reliance upon this medication including considering use of alternative medications as outlined by the worker's prescribing physician.
Further responsibility should be accepted for the costs of opioid medication.
Whether or not responsibility should be accepted for the costs of cannabis
In order for the panel to find that responsibility should be accepted for the costs of cannabis, the panel would have to find that it is required to cure and provide relief from the worker's compensable injury.
The panel noted that the worker initially made this request to the WCB in the context of his April 2018 submission to the Review Office, as an alternative to the use of opioids and on the basis of his prescribing physician's recommendation as part of the proposed opioid weaning process. The worker's prescribing physician repeated this request in his report dated February 13, 2019.
In the course of the hearing, the worker confirmed to the panel that he has no prior experience with use of cannabis and does not know whether or not it would provide him with pain relief. He confirmed that this question was raised as a possibility in the context of an alternative to opioid medications, not in addition to the opioid medications.
Given the panel's decision that WCB should accept further responsibility for the costs of opioid medication within the framework of the Opioid Policy and that the request for acceptance of the costs of cannabis was made as an alternative to the costs of opioid medication, the panel found that the cannabis is not required to cure and provide relief to the worker. Therefore, the panel determined that responsibility should not be accepted for the costs of cannabis.
The appeal is allowed with respect to responsibility for the costs of opioid medication.
The appeal is denied with respect to responsibility for acupuncture and a La-Z-Boy chair.
The appeal is denied with respect to entitlement to spousal wage replacement benefits.
The appeal is denied with respect to responsibility for the costs of cannabis.
K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of December, 2019