The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that:

1. They are not entitled to an increase in their Special Additional Compensation benefit; 

2. Responsibility should not be accepted for further opioid medication; and 

3. Responsibility should not be accepted for the cost of medical cannabis.

A videoconference hearing was held on April 7, 2021 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to an increase in their Special Additional Compensation benefit; 

2. Whether or not responsibility should be accepted for further opioid medication; and 

3. Whether or not responsibility should be accepted for the cost of medical cannabis.

Decision

1. The worker's appeal of the question of their entitlement to a permanent increase in the Special Additional Compensation benefit is dismissed. The WCB is directed to consider whether or not the worker is entitled to a temporary increase in their Special Additional Compensation benefit as explained further in these reasons; 

2. Responsibility should not be accepted for further opioid medication; and 

3. Responsibility should not be accepted for the cost of medical cannabis.

Background

This claim has been the subject of two previous appeals. Please see Appeal Commission Decision No. 283/94, dated January 10, 1995, and Decision No. 31/05, dated February 24, 2005. The background will therefore not be repeated in its entirety.

In March 1986, the worker was lifting a patient during the course of their employment as a healthcare assistant when they injured their back. The claim was accepted by the WCB and benefits were paid which included vocational rehabilitation assistance. The WCB awarded the worker a permanent partial disability award as a result of their back injury and set permanent work restrictions. Appeal Commission Decision No. 283/94 determined the worker’s deemed earning capacity of $306.75 was appropriate.

On January 24, 2003, the worker’s representative appealed a number of decisions that were rendered by the WCB between June 1997 and June 2002. The representative referred to various medical reports on file and presented argument with respect to the following positions:

• that the worker was not capable of sustaining full time employment at an earning capacity of $306.75 per week, arguing that the worker’s compensable chronic pain syndrome prevented them from obtaining and maintaining the earning capacity confirmed by the Appeal Commission in January 1995, and suggesting the worker’s chronic pain syndrome and depression had not been fully investigated nor given due consideration when case management adjudicated the recurrence of the worker’s injury; 

• that the worker’s permanent partial disability award should be reassessed given recent diagnostic imaging that confirmed a progression of degeneration; and 

• That the worker’s recurrences and subsequent loss of earning capacity were due to their ongoing unaddressed chronic pain syndrome which was responsible for their increased physical limitations and depressive condition.

On July 11, 2003, Review Office rendered a decision that there was no evidence of chronic pain syndrome that required treatment, the identified physical restrictions were appropriate, and the worker was capable of working within these restrictions. Review Office determined that the worker was not entitled to temporary total disability benefits and the worker’s permanent partial disability award should not be re-assessed at that time.

In June 2004, the worker’s representative requested the case be considered at the Appeal Commission, as they disagreed with Review Office’s recent decisions. On October 18, 2004, the worker’s representative submitted additional medical evidence in support of their position.

On October 27, 2004, an oral hearing was held at the Appeal Commission. Following the hearing and after discussion of the case, the Appeal Commission requested the worker be examined by the WCB’s Pain Management Unit (PMU) with respect to their present medical status. On December 20, 2004, the parties with a direct interest were provided with a copy of the PMU’s exam results and asked to provide comment. On February 24, 2005, the Appeal Commission determined there was no evidence of a compensable chronic pain syndrome that required treatment, the identified physical restrictions were appropriate, and the worker’s permanent partial disability award should not be reassessed at that time.

The worker contacted the WCB on September 12, 2017 to advise their treating physician had provided them with a prescription for medical cannabis as they had not been able to control their pain and requested the WCB provide coverage for the cost. A WCB medical advisor reviewed the worker’s file on September 12, 2017 and stated the use of medical cannabis had to be evidence informed and the risk/benefit ratio had to be favourable in order for the WCB to financially support the use. The medical advisor concluded that review of the medical literature did not provide the required evidence-base and that the risk/benefit ratio for use of medical cannabis was not favourable to the worker. On September 13, 2017, the WCB advised the worker that financial support would not be provided for the cost of medical cannabis.

On November 28, 2017, the worker’s case manager requested a review of the worker’s file regarding the worker’s use of opioids in relation to the compensable injury. A WCB medical advisor, in conjunction with a WCB psychology consultant, reviewed the worker’s file on January 22, 2018. Noting the worker’s range of opioid medication was in the “Watchful Dose” range and that the worker was not obtaining “…a significant/sustained benefit to pain and function” from the medication, WCB determined the worker should be weaned off their opioid medications over a period of 12 weeks at which time, the worker would not be entitled to further financial support for opioids. On January 24, 2018, the WCB advised the worker that financial support for their opioid medications would end on April 18, 2018, after a 12-week weaning process.

The worker requested reconsideration of the WCB’s September 13, 2017 decision to Review Office on November 22, 2018. The worker noted in their submission they had stopped their opioid medication but required medical cannabis for pain management. Review Office requested a review of the worker’s file by a WCB medical advisor. On March 6, 2019, the WCB medical advisor provided that:

“Cannabis use for chronic pain is considered a non-traditional therapy. Based on review of the medical literature there is no reliable scientific evidence to indicate that cannabis use will be safe over the undefined duration for which it may be utilized. Additionally, dosage standards have not been developed for safe use of cannabis in the management of chronic pain”.

The medical advisor concluded the WCB was unable to support the use of cannabis for the worker. A letter outlining the decision was provided to the worker on March 7, 2019.

Review Office found on March 11, 2019 responsibility would not be accepted for the cost of medical marijuana. 

On May 22, 2020, the worker wrote to the WCB and requested an increase to their Special Additional Compensation (SAC) benefits noting they had been unable to work since 2008 as a result of their compensable injury and related difficulties. The WCB advised the worker on May 26, 2020, that as they had received their permanent partial disability (PPD) in lump sum payments, the amount of their monthly SAC benefit could not be adjusted, except for an annual indexation. On July 7, 2020, the worker requested Review Office reconsider the WCB’s decision to not increase their SAC benefit noting they had not been able to work since 2008 due to their injury. On July 24, 2020, the worker also included a request to have the WCB’s January 24, 2018 decision to end responsibility for opioid medications reviewed.

Review Office found on October 19, 2020 that responsibility for opioid medication would not be accepted and the worker was not entitled to an increase in their SAC benefits. Review Office found the worker had been weaned off opioid medications for approximately two years and had not had sustained benefit while on opioid medications and accordingly, determined the worker was not entitled to further coverage for opioid medications. With respect to the worker’s SAC benefits, Review Office noted the worker had requested and received lump sum payments for his permanent partial disability rating and award, and as the monthly equivalent of their initial permanent partial disability award was used to calculate their SAC benefits, there could be no adjustment to their SAC benefit amount.

The worker filed an appeal with the Appeal Commission on October 26, 2020. A videoconference hearing was arranged for April 7, 2021.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the Board of Directors. As the worker’s claim was made in 1986, their benefits are assessed under the Act as it existed at that time (the “1986 Act”). Under s 4(1) of the 1986 Act, where a personal injury by accident arising out of and in the course of employment is caused to a worker, compensation is payable to the worker.

Compensation to the worker under the 1986 Act includes payment for medical aid under s 16 and s 24 “...as it may deem reasonably necessary at the time of the injury, and thereafter during disability, to cure and relieve from the effects of the injury...”. Any medical aid that is furnished or provided is subject to the supervision and control of the WCB, under s 24(11).

Payment of compensation for permanent partial disability, and in certain cases, special additional compensation was provided for in s 32 of the 1986 Act, as follows:

Compensation for permanent partial disability 

32(1) Where permanent partial disability results from the injury, the board shall allow compensation in periodical payments during the lifetime of the workman sufficient, in the opinion of the board, to compensate for the physical loss occasioned by the disability, but not exceeding 75% of his average earnings.

Special additional compensation 

32(1.1) Where the board is satisfied that an injury in respect of which it has allowed compensation under subsection (1) has occasioned a loss in earning capacity that is proportionately greater than the physical loss on the basis of which the compensation is allowed, it may 

(a) during a period when the workman is taking rehabilitation training satisfactory to the board; or 

(b) if the board is satisfied that rehabilitation training is not indicated; or 

(c) if the board is satisfied that, after a fair and honest effort by the workman, rehabilitation has not produced an earning capacity that is reasonably equivalent to his earning capacity before the injury reduced by the physical loss on the basis of which the compensation is allowed; 

increase the compensation allowed under subsection (1) in such amount as it considers fair and just, but the total compensation shall not exceed seventy-five per cent of the average earnings of the workman.

WCB Policy 44.60.30 Special Additional Compensation, outlines the circumstances when, for how long and in what amount, SAC benefits will be paid. This policy provides a formula for calculating the amount of a worker’s SAC benefits and sets out that the benefit amount is indexed biannually and reviewed annually on the anniversary date.

WCB Policy 44.120.10, Medical Aid, sets out general principles regarding a worker's entitlement to medical aid. These general principles include:

• The Board is responsible for the supervision and control of medical aid funded under the Act or this policy. 

• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. 

• In determining the appropriateness and necessity of medical aid, the Board considers: 

• Recommendations from recognized healthcare providers; 

• Current scientific evidence about the effectiveness and safety of prescribed/ recommended healthcare goods and services; 

• Standards developed by the WCB Healthcare Department… 

• The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries. 

… 

• The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

Schedule A to the Medical Aid Policy sets out general principles regarding the WCB's funding of prescription and non-prescription medications. The Schedule provides that the WCB may refuse or limit the authorization of payment for prescription or non-prescription medications that are considered by the WCB to be inappropriate, ineffective, excessive or harmful, including those that may lead to dependency or addiction. Schedule A further provides that the WCB may refuse or limit the funding of any medications it considers non-traditional, as described in Schedule C to the Policy.

Schedule C to the Policy sets out the general principles regarding the WCB funding of non-traditional treatments. Non-traditional treatments are identified for the purpose of that Schedule as treatments which are "considered experimental" or "lack scientific validity to the extent required for widely-held acceptance in the Manitoba community of recognized health care providers." Schedule C provides that the WCB does not generally authorize payment of non-traditional treatments, but that payment for non-traditional treatments may be authorized on a case-by-case basis when the WCB determines that:

1. The non-traditional treatment will be used for a medical condition that results from a compensable injury; 

2. Traditional treatments have not been, and will likely not be effective; 

3. The prescribing or recommending health care professional has outlined the number of appointments and treatments required for the non-traditional therapy and the period of time over which the non-traditional treatment is required; 

4. There is sufficient reliable scientific evidence to indicate that the prescribed or recommended, non-traditional treatment will promote a timely recovery and return to work, enable activities of daily living or eliminate or minimize the impacts of the worker's injuries; 

5. There is sufficient reliable scientific evidence to indicate that the non-traditional treatment will be safe over the anticipated duration of which it is being prescribed or recommended; 

6. The side-effects are widely known, well described in the scientific literature, and do not outweigh the potential for benefits in the particular case; 

7. Standards have been developed and are in place for the safe use of the non-traditional treatment; and 

8. The non-traditional treatment can be provided legally in Canada from a regulated source and is recommended or prescribed by a recognized health care provider.

WCB Policy 44.120.20, Opioid Medication outlines the WCB’s approach to providing for appropriate use of opioid medication when the reduction of pain after an injury is associated with an improvement in function and to ensuring opioid medications are used safely. This Policy provides that the WCB ordinarily pays for opioid medication during the acute phase of an injury or during the acute, post-operative phase. Thereafter, the WCB may pay for the minimum dose of opioid medication that supports a documented improvement in the injured worker’s functional ability. The Opioid Medication Policy outlines when the WCB may suspend or discontinue authorization of payment for opioid medication and allows for one-time funding of an opioid medication intervention program.

Worker’s Position

The worker appeared before the appeal panel advocating on their own behalf by providing an oral submission to the panel as well as answers to questions posed to them by panel members. The worker’s position with respect to the request for an increase in their SAC benefit is that the benefit amount is not sufficient to meet the worker’s financial needs. The worker stated that they have not worked in any capacity since 2008 as a result of the compensable injury sustained in 1986. Further, the worker stated that even with the WCB benefits received, they live in poverty.

With respect to the responsibility for further opioid medication, the worker’s position is that the WCB should have provided assistance to them in their detoxification and withdrawal from the opioid medications in 2018 but noted that they have no interest in resuming use of opioid medications, given how difficult it was to discontinue that usage. On questioning by panel members, the worker confirmed that they are not currently using any opioid medication and are no longer seeking to have the WCB accept responsibility for further opioid medications.

With respect to the issue of responsibility for the cost of medical cannabis, the worker’s position is that the WCB should be responsible for the ongoing expense of the worker’s medical cannabis prescription. The worker indicated that the cannabis is required for ongoing pain control, noting that they continue to suffer as a result of the compensable workplace injury and due to pain, are socially isolated and spend a lot of time in bed. In response to questions from panel members, the worker confirmed their current symptoms include anxiety, mood disorder and chronic pain. The worker described their pain as 7 or 8 on a scale of 1 to 10 and indicated that their life is very hampered by pain. The worker advised the panel that the cannabis medication helps with coping with the pain on a daily basis and stated that they are willing to risk any potential negative future outcomes that may arise in order to have a better quality of life now. The worker further advised the panel that there really are not other medication alternatives available to address their pain and that they require financial support from the WCB for the pain relief provided by the medical cannabis.

Analysis

The worker is seeking a determination by the appeal panel in respect of three issues, each of which is addressed below.

Is the worker entitled to an increase in their Special Additional Compensation benefit? 

The worker is seeking an increase in their SAC benefit on the basis that they have had a total loss of earning capacity since ceasing all work in 2008 and that this is a direct result of the compensable workplace injury. For the worker’s appeal of this question to be successful, the panel would have to determine that the worker sustained a total loss of earning capacity because they were disabled from all work during the period in question as a result of the initial compensable injury or a secondary injury arising from the compensable injury. The panel was not able to make such a determination, for the reasons that follow.

While there is new medical information in the file, there is a lack of new medical evidence to support the worker’s position that they have a current and ongoing total loss of earning capacity related to and the result of their compensable workplace injury. The evidence supports that the worker continues to experience significant pain and functional limitations but does not support a finding that there has been any change to the worker's permanent restrictions due to the workplace injury sustained in 1986.

The panel noted that a 2018 review of the worker’s PPD rating resulted in a reduction in the worker’s permanent partial disability rating to 3.5% from 5.0% in July 1994, suggesting that the worker’s overall functional capacity in fact increased during the period in question.

The panel heard the worker’s testimony that on two occasions during the period of opioid withdrawal in 2018, they went into hospital. The panel notes that these emergency visits are documented as well in the worker’s claim file. Further, the panel noted the claim file indicates the WCB authorized a period of weaning off of opioid medications through the spring of 2018.

The panel noted that the WCB has not adjudicated the question of whether or not the worker may be entitled to additional benefits due to an increased loss of earning capacity during the WCB-mandated period when the worker was weaning off opioid medication and during the resulting withdrawal period. In this regard, the panel directs the WCB to consider whether there should have been a temporary increase in the worker’s SAC benefit due to a temporary increase in the worker’s degree of disability during the period of weaning and withdrawal from opioid medication, including consideration of the periods when the worker was hospitalized as a result.

As outlined in the applicable legislation, the SAC benefit is based upon a combination of the worker’s entitlement to a PPD benefit and any loss in earning capacity that the WCB determines is proportionately greater than the physical loss on the basis of which the PPD compensation is allowed. The total of any SAC benefit and periodic PPD benefit payment must not exceed more than 75% of the worker’s average earnings.

The worker’s average earnings were determined by a previous Appeal Commission decision No. 283/94 in which the appeal panel determined the worker’s deemed earning capacity of $306.75 was appropriate. While the amount of the deemed earning capacity is indexed and has increased over time, this panel not able to reassess the amount initially fixed by the Appeal Commission in 1994. That amount has been determined and we are bound by that decision.

In the worker’s case, the worker’s PPD entitlement was initially paid out in periodic payments that were accounted for in determining the worker’s SAC benefit, but from October 2009 and May 2010, the worker’s PPD award entitlement was fully paid out to the worker in lump sum settlements. As a result, when the worker’s PPD rating declined from 7.5% in March 1990 to 5% in July 1994 and 3.5% in December 2018, this reduction in the PPD rating did not result in a concurrent increase to the worker’s SAC benefit to maintain the 75% of gross average earnings amount because the worker already received the full PPD award amount through the lump sum payments provided. In other words, because the worker took the PPD entitlement by lump sum settlement payments, the worker’s SAC benefits cannot now be adjusted based on a reduction in the PPD benefit entitlement.

With respect to the question of the worker’s disability, the panel is bound by the previous Appeal Commission decision No. 31/05, dated February 24, 2005 which makes findings that the worker was not fully disabled but remained capable of working within the permanent restrictions in place at that time. Further, the 2005 panel found that the only barriers to the worker’s employment related to the worker’s psychological condition which was found not to be related to the compensable workplace injury. The panel also found there was no “significant change or deterioration in the worker’s physical status” that would justify a reassessment of the worker’s PPD rating.

The panel therefore determines that there is no basis upon which it can find that the worker is entitled to a permanent increase in their SAC benefit. The worker’s appeal of the question of their entitlement to a permanent increase in the Special Additional Compensation benefit is dismissed.

The panel makes no determination as to whether or not the worker is entitled to a temporary increase in the SAC benefit. As noted above, the panel directs the WCB to further consider whether or not the worker is entitled to a temporary increase in the SAC benefit based upon a reduction in earning capacity due to a temporary increase in the worker’s degree of disability during the period of weaning and withdrawal from opioid medication.

Should responsibility be accepted for further opioid medication? 

The issue before the panel is whether or not the WCB should accept responsibility for medical aid in the form of further opioid medication. In order for the worker’s appeal of this issue to succeed, the panel must be satisfied that the opioid medication is required to cure and provide relief from the compensable workplace injury. For the reasons outlined below, the panel was not able to make such a finding.

The worker confirmed to the panel that they are no longer seeking to have the WCB accept responsibility for further opioid medication. The worker’s testimony was that they successfully discontinued use of all opioid medications in 2018 over a period of several months and that they now recognize that the benefits associated with the use of this medication were not greater than the risks or costs in terms of addiction and side effects in particular.

The panel also noted the January 22, 2018 opinion of the WCB medical advisor in consultation with the WCB psychological consultant that the worker’s dosage of opioid medication was in the “Watchful Dose” range and that the worker was not obtaining “…a significant/sustained benefit to pain and function” from the medication. In light of this conclusion, application of the provisions of the Opioid Medication Policy supported a determination that the WCB should not accept responsibility for further opioid medication.

Given the worker’s submission on this issue and the evidence in the claim file, the panel confirms the decision of the WCB that responsibility should not be accepted for further opioid mediation. The worker’s appeal of this issue is dismissed.

Should responsibility be accepted for the cost of medical cannabis? 

The issue before the panel is whether or not the WCB should accept responsibility for and provide coverage to the worker for the cost of medical cannabis. For the worker's appeal to succeed, the panel must be satisfied that the medication is "…necessary to cure and provide relief from an injury resulting from an accident." The panel is unable to make this finding for the reasons outlined below.

The worker testified that there are no more effective pain relief medication options than the medical cannabis. The worker acknowledged to the panel that there are risks involved in use of medical cannabis but indicated a willingness to accept those risks in order to obtain the pain relief benefits. The worker described their current medication regimen to the panel, noting they use medical cannabis 4 times daily. The worker stated they continue to experience a great deal of anxiety and depression, which they attribute to their chronic pain. The worker described their pain as “horrible” and at a level of 7 or 8 out of 10, and that it makes them want to lie down, as the pain lessens in that position. The worker stated they are very hampered by the pain.

The evidence before the panel does not support the worker’s position that the pain relief provided by use of medical cannabis is of greater benefit than the potential risks associated with the use of this non-traditional therapy. The worker described a consistent level of pain as well as anxiety and depression symptoms which the worker attributes to their pain, despite the daily, regular use of medical cannabis. The panel also notes and is concerned by the worker’s recent history of opiate addiction as well as the previous history of addiction to and overuse of marijuana, alcohol, analgesics and other substances documented in the WCB medical information.

The panel finds that the evidence does not support, on the standard of a balance of probabilities, that the use of medical cannabis to provide relief from the effects of the worker's compensable injury is an appropriate treatment. In reaching this decision, the panel accepts the opinion of the WCB Medical Advisor - Pain Management Unit set out in a memo dated March 6, 2019, as follows:

“Cannabis use for chronic pain is considered a non-traditional therapy. Based on review of the medical literature there is no reliable scientific evidence to indicate that cannabis use will be safe over the undefined duration for which it may be utilized. Additionally, dosage standards have not been developed for safe use of cannabis in the management of chronic pain”.

In light of this opinion and notwithstanding the worker’s testimony that they were relying upon medical cannabis for pain relief as a replacement for the opioid medications previously used for pain relief, the WCB did not approve the provision of medical cannabis as a non-traditional treatment in the worker's case.

While the panel understands the prescription for cannabis was provided by the worker’s treating physician as an alternative to the opioid pain control medication the worker was relying upon until 2018, the panel finds that there is not sufficient evidence at this time to support its use in the worker's case. The available evidence does not demonstrate, on a balance of probabilities, that the use of medical cannabis will aid in the recovery of the worker's injury or minimize the impact of the injury.

The panel determines that the WCB should not accept responsibility for the cost of medical cannabis. The worker's appeal on this issue is dismissed.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of May, 2021