The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the effective date of August 18, 2003 for the implementation of the worker's permanent partial disability award for psychological impairment is correct and that responsibility should not be accepted for funding opioid pain medication. A hearing was held on January 13, 2020 to consider the worker's appeal.

Issue

Whether or not the effective date of August 18, 2003 for the implementation of the worker's permanent partial disability award for psychological impairment is correct; and

Whether or not responsibility should be accepted for funding opioid pain medication.

Decision

The effective date of August 18, 2003 for the implementation of the worker's permanent partial impairment disability award for psychological impairment is correct; and

Responsibility should be accepted for funding opioid pain medication.

Background

WCB accepted the worker's claim for injuries sustained in a workplace accident that occurred on May 14, 1984. The worker's injuries included a comminuted transverse fracture of his distal tibia at the junction of the middle and distal foot, a fracture to his fibula slightly below the tibia transverse fracture, and a fracture on the anterior aspect of the distal fibula of his left ankle.

Multiple surgeries were performed in 1994, 1998 and 2006 and the worker was ultimately diagnosed with left ankle post-traumatic osteoarthritis, neuritis and chronic complex regional pain syndrome. The worker was provided permanent restrictions of avoiding prolonged walking/standing, repetitive lifting/squatting, walking on uneven surfaces, climbing ladders and stairs. Initially, he returned to working regular full time hours, but later was restricted to working no more than two days per week. WCB provided the worker with vocational rehabilitation services and retraining in another field, and in 2000, the worker began working in a position in that field two days per week.

In July 2003, the worker met with the WCB to discuss his concerns regarding ongoing and deteriorating symptoms in his left ankle as well as psychological difficulties he was experiencing related to that injury. On the basis of this meeting, the WCB arranged a referral to a psychologist for assessment.

On August 18, 2003, the worker first met with a psychologist for assessment, and in September 2003, he was diagnosed with an adjustment disorder with depressed mood, or possibly a major depressive episode. He continued to attend for treatment into 2004 at which point the worker discontinued treatment.

The worker again was assessed by the psychologist on March 21, 2007, at the request of the WCB. At that time, the psychologist noted the same diagnosis. A further referral to this psychologist was made by the WCB early in 2008. In a report dated February 17, 2008, the psychologist noted that the worker was frustrated as a result of recently learning that his surgeon felt nothing more could be done to alleviate the worker's symptoms, but that the worker was motivated to continue working, his relationship with his family members had improved and he had learned to manage his pain symptoms with little impact to his family.

In October 2008, WCB referred the worker to a second psychologist, and the worker continued to see this psychologist for treatment into 2009.

On March 14, 2012, the worker attended a call-in examination with a WCB psychological consultant to determine if the worker had a permanent psychological impairment arising out of his compensable injuries. The WCB psychological consultant concluded that the worker had a chronic depressive disorder "associated with the longer term sequelae from orthopedic injuries that had been life altering for him...." Based upon the psychological assessment undertaken, the WCB consultant recommended that the WCB consider a PPD rating of 15% in the Class 2 Neurosis range, in addition to any physical impairment rating.

The WCB case manager reviewed the WCB psychological consultant's report and determined on April 13, 2012 that the PPD rating for the worker's psychological condition should be applied retroactive to August 18, 2003, being the date of the first psychological assessment.

On August 23, 2012, the WCB's Pain Management Unit assessed the worker. The WCB medical advisor noted that the opioids taken by the worker did not appear to be producing a significant and sustained benefit to his pain and function. Further, concerns were noted with regard to possible side effects from long term use of opioids. The medical advisor also noted that the worker's current dosage at that time was approaching the "watchful dose level" of 120 mg of morphine equivalents per day. The medical advisor stated that given these concerns, and given the availability of alternate medications, continuing use of opioids by the worker was not recommended. A twelve week weaning process for the opioid medication was recommended to fully eliminate the worker's use of opioids.

A further assessment by the WCB's Pain Management Unit was undertaken on April 22, 2014. The WCB medical advisor reiterated the recommendations from 2012 that the worker be fully weaned off opioids for the reasons set out at that time. A WCB psychological advisor also reviewed the worker's claim and noted that despite the 2012 recommendations, the worker had not been weaned from opioids and was taking additional medications that could be "depressogenic."

The WCB requested on June 12, 2014 that the worker's treating pain clinic physician provide a Progress Opioid Management Report at the worker's next visit and do so at the following two visits as well. This information would be used to assess the impact of the use of opioids by the worker.

The worker attended a call-in examination with a WCB medical advisor on November 4, 2014. The medical advisor assessed the worker and reviewed the file documents, noting that the worker continued to use opioid medication "…despite apparent lack of improvement in pain or function. The use of medical marijuana similarly has not been associated with improvement in pain or function. In fact, function has decreased with use of both of these medications. The dose of opioid utilized has decreased only slightly."

The worker's file was reviewed by a WCB psychiatric consultant on February 18, 2015 for comments on the use of opioids. The psychiatric consultant concluded that the worker's dosage of 112 mg equivalents of morphine per day was higher than the current watchful dose, and noted that the worker was unable to demonstrate sustained benefit in pain and function. The psychiatric consultant concluded that the WCB criteria for funding of opioids had not been met.

The WCB medical advisor from the Pain Management Unit recommended that the worker's use of opioids be funded for a further period of 12 weeks to allow for weaning to occur over that time. On March 12, 2015, the WCB advised the worker that funding for opioid medications would only be covered until June 4, 2015, allowing for a twelve week weaning period.

On May 4, 2015, the worker requested reconsideration of the WCB's decision to Review Office. The worker provided letters in support of his request from his spouse, two co-workers/friends and his treating pain clinic physician and noted that in order for him to continue working and maintain his lifestyle, he required the opioid medication for pain relief. The information from the worker's pain clinic physician was reviewed by a WCB medical advisor on May 20, 2015 who noted that the information did not indicate a significant or sustained benefit to the worker's function and on May 22, 2015, the WCB advised the worker that there was no change to the earlier decision.

Review Office determined on July 17, 2015 that the worker was not entitled to further funding for opioid medications. Review Office accepted and placed weight on the opinion of the WCB medical advisor that the opioid medications the worker was prescribed were not providing a sustained, documented improvement in the worker's functional abilities. This was indicated by the worker's ongoing complaints of pain, his documented increased difficulties with performing his sedentary job duties and performing basic activities of daily living.

On June 4, 2019, the worker requested Review Office reconsider the effective date of the PPD award for his psychological condition, being August 18, 2003. The worker noted in his request that he had been suffering from flashbacks and nightmares since the date of his workplace accident in 1984 and believed that the effective date should be retroactive to the date of his accident.

Review Office, on July 31, 2019, determined that the effective date for the worker's PPD rating for psychological impairment was correct. Review Office found that a review of the information on the worker's file provided no documented reporting from the worker to the WCB or any of his treating healthcare providers that he was experiencing psychological difficulties prior to August 2003.

The worker filed an appeal with the Appeal Commission on September 19, 2019 with respect to the effective date for the implementation of his permanent partial disability award.

On October 29, 2019, the worker requested Review Office reconsider the July 17, 2015 decision that he was not entitled to further funding for opioid medications and on November 5, 2019, Review Office advised the worker that his submission did not include new evidence for their consideration and as such, the earlier decision remained unchanged.

The worker filed an appeal with the Appeal Commission on November 6, 2019 with respect to his entitlement to funding for opioid medications.

An oral hearing was arranged for both appeals.

Reasons

Applicable Legislation and Policy:

The worker's accident occurred in 1984 and therefore the applicable legislation is The Workers Compensation Act, CCSM 1970, c.W200, as amended (the "Act"). Section 4(1) of the Act provides for compensation to be paid by the WCB where "...personal injury by accident arising out of and in the course of employment is caused" to a worker.

In addition to compensation, the Act provides as well, in s 24(1) for an injured worker to receive medical treatment, including medicine "…to cure and relieve from the effects of the injury" and also provides authority for the WCB to adopt rules and regulations with respect to furnishing medical aid.

Section 32(1) of the Act allows the WCB to provide compensation where the injury resulted in permanent partial disability.

The WCB has put in place Policy 44.90.10, Permanent Impairment Rating (the PPI Policy) which outlines how the WCB will establish and compensate for permanent impairment, or partial disability, benefits. This policy sets out that these benefits are calculated by determining a rating that represents the percentage of impairment as it relates to the whole body and that the appropriate time to assess an injured worker for such a rating will be established by the schedules to the policy. Schedule A to the PPI Policy (Schedule A) sets out that an impairment is generally considered permanent when, in the opinion of a WCB Healthcare Advisor, the condition to be rated has reached maximum medical improvement. At that time, permanent impairment is evaluated through medical examination of the injured worker or by review of the medical information documented on the claim file.

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.

The WCB has also established Policy 44.120.20, Opioid Medication (the Opioid Policy) to provide parameters for the authorization and payment of opioids in a way that balances their ability to relieve pain and improve function while minimizing side effects and risks. The Opioid Policy provides, in part, that:

The WCB ordinarily pays for opioid medication during the acute phase of an injury or during the acute, post-operative phase.

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….

The WCB may suspend or discontinue authorization of payment for opioid medication: 

• When an injured worker does not co-operate with the prescribing physician’s instructions; 

• When opioid medication does not support a sustained documented improvement in the worker’s functional ability; 

• When the side effects or risks of opioid medication outweighs their benefit; 

• When it is evident that the prescribing physician has not followed best practices adopted by the WCB, or has not utilized outcome measures acceptable to the WCB.

Worker's Position:

The worker appeared on his own behalf in the hearing. He provided a written submission to the panel in advance of the hearing, made an oral submission to the panel at the hearing and answered questions put to him by panel members.

The worker's position with respect to the issue of effective date for the implementation of his PPD award is that it should be effective as of the date of his injury. He stated that he experienced psychological symptoms, including nightmares, difficulty sleeping, mood swings and depression beginning immediately following his injury, and as a result has required ongoing psychological therapy.

In support of his position regarding the effective date for implementation of the PPD award, the worker directed the panel to consider the medical reports and excerpts he provided as part of his written submission. He stated these indicate that his psychological symptoms arising out of his injury were evident well before August 2003. He noted as well that a WCB file memo dated January 26, 2000 notes that the WCB employment consultant raised concerns about his mental health at that time, such that counselling support was recommended to provide some intervention so that the worker would not suffer a mental health crisis. The worker stated that the psychological reports on file from 2011 and following make a direct link between his psychological status and the injury that occurred in 1984.

With respect to the issue of WCB's responsibility for funding opioid pain medication, the worker's position is that WCB should accept responsibility given that there is evidence of the significant pain relief provided to him by that medication and given the absence of evidence of any misuse of the medication.

The worker described to the panel how the chronic pain he experiences has impacted his life, stating that it took away his life. He told the panel that the opioid medications provide him with pain relief that allows him to have a life and that he needs it for his ongoing and chronic pain resulting from the accident in 1984. The worker told the panel that his pain has worsened over time and is erratic in terms of level, but through pain control techniques he learned through psychological counselling and the opioid medications, he is able to manage his pain.

The worker confirmed to the panel that although WCB had determined not to continue to fund this medication, he has continued to take it at his own expense.

Employer's Position:

The employer is a finalled firm and therefore was not provided notice of the appeal.

Analysis:

There are two issues for determination on this appeal. The panel must determine whether or not the effective date of August 18, 2003 for the implementation of the worker's permanent partial disability award for psychological impairment is correct, and whether or not responsibility should be accepted for funding opioid pain medication.

Whether or not the effective date of August 18, 2003 for the implementation of the worker's permanent partial disability award for psychological impairment is correct

In order to find that the worker's PPD award for psychological impairment should be effective earlier than August 18, 2003, as the worker has requested on appeal, the panel would have to find that there is evidence to support an earlier effective date. The panel was not able to do so for the reasons that follow.

The file documents confirmed that, on referral from the WCB, the worker was first assessed by a psychologist on August 18, 2003. On the basis of that meeting, the psychologist was unable to offer any diagnosis but noted suspicion that the worker "may be mildly depressed, or at least having some adjustment difficulties." A further assessment took place on September 8, 2003, after which the psychologist reported that the worker met "the diagnostic criteria for an Adjustment Disorder with Depressed Mood, or possibly a Major Depressive Episode."

While there are earlier references on file to the worker experiencing psychological distress related to the claim, there is no earlier diagnosis upon which the panel can rely to establish an earlier implementation date, as requested by the worker. The file documents a meeting between the worker and the WCB Case Manager on July 16, 2003 in which the worker's presentation suggested to the case manager that he was encountering some adjustment difficulties and might benefit from some counselling sessions. This meeting resulted in the psychological referral referenced above.

The claim file also contains a memorandum dated January 26, 2000 from a WCB Vocational Rehabilitation Consultant working with the worker. He concluded that the worker required counselling support "relative to mental health coping issues" and noted that "…unless some intervention is provided, a mental health crisis may result." It does not appear that any such intervention or counselling was provided to the worker and there is no further reference to his mental health status in relation to his injury and recovery, until July 2003.

The evidence before the panel does not indicate any clinical confirmation of psychological injury to the worker arising out of this claim until the psychologist's report of August 31, 2003 which is based upon the August 18, 2003 assessment. The panel agrees with the decision of the Review Office that August 18, 2003 is the earliest date at which there is evidence that the worker experienced a psychological injury arising out of his accident in May 1984. There is no clinical evidence before us to support the worker's position that there should be an earlier effective date for the implementation of his permanent partial disability award.

The panel therefore finds, on a balance of probabilities, that the effective date of August 18, 2003 for the implementation of the worker's permanent partial disability award for psychological impairment is correct. The worker's appeal on this issue is denied.

Whether or not responsibility should be accepted for funding opioid pain medication.

To determine that the WCB should accept responsibility for funding opioid pain medication for the worker, the panel would have to find that the worker requires this medication to cure and relieve from the effects of the injury of May 14, 1984. The panel was able to make that finding for the reasons that follow.

The Act requires that medical aid be "reasonably necessary… to cure and relieve from the effects of the injury." 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 noted that at the time that the Opioid Policy was established and implemented by the WCB in 2012, the worker was already prescribed and taking opioid medications for a number of years to address the continuing symptomology arising out of his 1984 workplace injury. Reports on the WCB file indicate that the worker was prescribed opioid medications to manage his pain and support his functional abilities at least since after his surgery in 2007. The worker has been taking these medications, in one form or another, for a significant period of time.

The panel is supportive of the WCB Opioid Policy in its careful monitoring and use of opioid medications, and recognizes that addiction, overdose and illegal usage are problems that can be associated with opioid use. The WCB therefore has an important role to play, together with injured workers and health care professionals, in ensuring that opioid medications are used safely.

In this claim, the WCB medical advisor on August 23, 2012 stated their view that the opioids taken by the worker did not appear to be producing a significant and sustained benefit to the worker's pain and function and at that time, raised concerns about possible side effects from long term use of opioids. The medical advisor also noted that the worker's dosage at that time approached the "watchful dose level" of 120 mg of morphine equivalents per day. Continuing usage of opioids by the worker was not recommended and a 12-week weaning process for the opioid medication proposed to fully eliminate the worker's use of opioids. But, the panel notes, the WCB did not act to implement that recommendation until March 2015, by which time another assessment by the WCB pain management unit had taken place and repeated the recommendations.

The panel also noted that the worker's treating pain clinic physician, throughout this period from 2012 - 2015, continued to support the worker's use of opioid medications to maintain his function and address his pain. On April 11, 2012, the physician stated that "It is my opinion that his pain condition will maintain as is and I will not anticipate any improvement in the near future." In the same report, the physician noted that the worker's general function remained stable. The worker's treating pain clinic physician also noted in a report dated December 5, 2012, that anti-inflammatory paid medications are not a good idea for the worker, given the documented risks of jejunal ulcerations associated with such medications and that the pain that the worker was suffering was no longer inflammatory in nature. In mid-2013, the worker was prescribed medical marijuana to address "neuropathic pain that has not responded to full trials of regular medical treatments." The treating pain clinic physician noted in August 2013 that the worker reported the medical marijuana allowed some decrease in his dosage of opioid medication.

The panel also noted that the file documents other non-pharmaceutical efforts by the worker to manage his pain, including swimming and other exercise, a reduced work week, rest and elevation of his leg, as well as use of learned pain management and relaxation techniques.

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 the medication continues to provide benefit to the worker in terms of pain relief and maintenance of daily function. This is supported by the worker's testimony to the panel.

The medical reporting also suggests that the worker's condition is worsening over time. The worker's treating pain clinic physician, on June 12, 2014, advised the WCB that the worker does obtain benefit from the use of opioids, but noted at that time that the worker's condition appeared to be worsening. On September 19, 2014, the worker's treating pain clinic physician reported that the worker was experiencing progressive pain in his left foot and metatarsal over the previous 6 months, and that this pain was not addressed by the opioid medication. At that time, the worker was experiencing side effects from the pain that included insomnia, lack of concentration and mood changes and needed to be taken off work as a result.

One of the factors the WCB must consider when discontinuing coverage for opioid medications, as outlined in the Opioid Policy, is when the side effects or risks of opioid medication outweigh their benefit. In an Opioid Management Report dated October 7, 2017, the worker's treating pain clinic physician reported no side effects or adverse opioid related factors were applicable to the worker. The pain clinic physician, in a report to the WCB dated April 16, 2015 outlined the worker's treatment history since 2009 and noted that the worker had, since being under his care, stopped relying upon alcohol for pain relief and was receiving overall average pain relief of 40% with the combinations of all pharmaceutical treatment, including the opioids. The physician stated that the worker:

"…has regained at least 30% of improvement in both function and pain relief, so there is ample evidence indicating that he has a substantial and significant benefit from the medication. Secondly, the patient's total does of opioid is not even slightly close to the maximum watchful does of opioid….Overall, I think the benefit of using opioids in [the worker] is more than sufficient for him to continue using it, provided he follows the guidelines and understand[s] the risks involved in the future….It is my firm belief that [the worker] should be on opioid medications for the treatment of his pain, without which it would be detrimental for his function and for his physical and emotional health."

The evidence before the panel here does not point to significant manifestation of the potential risks associated with long term opioid usage. The worker's evidence was that there are ongoing benefits to him from that usage. His prescribing physician is strongly supportive of ongoing usage.

The worker outlined to the panel that he continued to rely upon opioid medications that he has paid for out of his own pocket since June 2015 when the WCB suspended its responsibility for the medication. He confirmed that the current dosage is sufficient to manage his pain symptoms.

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 strict accordance with the provisions of the Opioid Policy, including those that permit WCB to be responsible to pay only 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 address the worker's reliance upon this medication.

Further responsibility should therefore be accepted for the costs of opioid medication. The worker's appeal on this issue is allowed.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 28th day of February, 2020