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 prescription opioid medication beyond August 31, 2020. A teleconference hearing was held on June 3, 2021 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for prescription opioid medication after August 31, 2020.

Decision

That responsibility should be accepted for prescription opioid medication after August 31, 2020.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 135/07 dated October 3, 2007. The background will therefore not be repeated in its entirety.

The worker has an accepted WCB claim for a back injury that occurred at work on April 5, 1981. The worker subsequently underwent three surgeries: an L4 decompressive laminectomy on April 30, 1985; an L4-S1 bilateral intertransverse fusion on June 21, 1985; and an L3-L4 laminectomy on August 1, 1997. As a result of his accepted injury and surgeries, the worker developed severe pain complaints and a significant decrease in functional ability. The worker was prescribed opioid medications starting in 1998. Once the worker's treatment and medications were stabilized, the WCB's Compensation Services became involved in monitoring those medications and provided yearly reviews and authorizations.

On May 24, 2017, a WCB medical advisor reviewed the opioid medications being taken by the worker. The medical advisor noted that the worker was taking a dose equivalent to 330 mg of morphine per day, which did not appear to produce a significant/sustained benefit to the worker's pain and function, and exceeded the "watchful dose" for opioids of 50 to 90 mg of morphine per day. The WCB medical advisor further noted that he would be seeking input from a WCB psychological consultant with respect to next steps regarding the worker's use of opioids.

On August 21, 2017, the WCB medical advisor and WCB psychological consultant discussed the worker's file and noted that the WCB would financially support one of three options for the worker: a 12-week time period during which the worker would be weaned off the opioids, after which WCB financial support for the worker's use of opioids would cease; the use of a harm reduction strategy involving replacement medication for the worker's current opioids; or the worker's participation in an abstinence-based residential or outpatient rehabilitation program, the result of which would be that the worker would cease using opioids. It was noted that as the worker generally spent approximately six months of the year outside the country, implementation of the options would be held in abeyance pending his return. By letter dated August 28, 2017, the WCB medical advisor advised the worker's treating pain management physician of the three options and asked that he discuss them with the worker and advise as to which option was being considered.

On May 16, 2018, the treating pain management physician advised the WCB that the worker wished to proceed with weaning off the opioid medications, with a plan to rotate to replacement medications if the weaning-off was not successful. In a progress report dated June 12, 2018, the pain management physician indicated the worker was "…experiencing more pain in back, legs and more diffuse MSK [musculoskeletal] pain with reduction in [opioid medication]." In a further progress report dated July 24, 2018, the worker's pain management physician indicated that due to the worker's increased pain and decreased functionality, he would continue prescribing doses of opioid medications as before.

By letter dated September 4, 2018 (as subsequently corrected), Compensation Services advised the worker that funding for opioid medications would end as of October 17, 2018 as they had determined the opioid medications did not support a sustained improvement in his function/ability and the risk/benefit ratio for the continued use of the opioid medications was not favourable.

On November 6, 2018, the WCB received a letter from the treating pain management physician dated September 20, 2018, detailing the worker's experience with the weaning process and supporting his continued use of opioid medications. The physician noted the weaning process resulted in deterioration of worker's pain control, functional status and psychosocial status, and opined that "…the benefits of his opioid analgesics at current doses definitely outweigh any potential risk or side effects from these medications."

On November 26, 2018, the worker's spouse requested, on behalf of the worker, that Review Office reconsider Compensation Services' decision to discontinue coverage of his opioid medications. His spouse noted the worker's decrease in function and increase in pain during the weaning process, and referred to letters from the worker's family physician and pain management physician supporting his continued use of opioid medications. On January 17, 2019, the employer's representative provided a submission in support of the worker's position that his entitlement to opioid medication should continue. On February 8, 2019, Review Office determined that the worker was entitled to opioid medications beyond October 16, 2018 to facilitate an extended weaning period. Review Office recommended the WCB's Healthcare Management Services, in conjunction with the worker's treating pain management physician, develop a plan for a weaning period of no more than 12 months, implementation of which would again start following the worker's return in the spring. Review Office further noted that if the worker was not completely weaned off the opioid medication after the weaning period, but remained below the "watchful dose" level for opioid medication with minimal side effects, the WCB's Compensation Services could adjudicate the worker's entitlement to ongoing opioid medications at that time. The worker's file was returned to Compensation Services to implement the decision.

On August 22, 2019, the WCB medical advisor advised the worker's pain management physician that the use of opioids at a dose not to exceed the current dose would remain eligible for medical support on a "without prejudice" basis for a 12-month period, beginning September 1, 2019 and ending August 31, 2020. On October 4, 2019, Compensation Services advised the worker that they would cover his opioid medications from September 1, 2019 to August 31, 2020, but any opioid medications prescribed after that would not be covered.

On December 7, 2020, a worker advisor representing the worker appealed the Review Office decision to the Appeal Commission and a teleconference hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. The worker's benefits are assessed under the provisions of the Act which were in effect at the date of the accident.

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

Subsection 24(1) of the Act addressed the payment for treatment in addition to compensation, and stated, in part, that the "…board may provide for the injured workman such…medicines…as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury..." Subsection 24(11) further provided, in part, that medical aid provided by the WCB "…shall at all times be subject to the supervision and control of the board."

WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy") sets out general principles regarding a worker's entitlement to medical aid, which is defined to include drugs. The Medical Aid Policy states that the WCB'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 Policy further provides that the WCB will refuse or limit funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

WCB Policy 44.120.20, Opioid Medication (the "Opioid Policy") recognizes that physicians are confronted with the challenge of prescribing opioids in a way that balances their ability to relieve pain and improve function while minimizing side effects and risks. The stated intent of the Opioid Policy is to provide parameters for the authorization and payment of opioids. The Opioid Policy provides that the WCB may suspend or discontinue authorization of payment for opioid medication in certain circumstances, including when the side effects or risks of opioid medication outweigh their benefit.

Worker's Position

The worker was represented by a worker advisor, who made a submission at the hearing. The worker and his representative responded to questions from the panel.

The worker's position was the WCB should continue to accept responsibility for his prescribed opioid medication beyond August 31, 2020, and his appeal should be approved.

The worker's representative submitted that the worker developed severe pain complaints and a significant decrease in overall function as a result of the workplace accident and surgeries. Early medical information from the attending pain management physician identified the prescribed medications, including opioids, were working well in controlling pain. The WCB accepted responsibility for the prescribed use of opioids as being related to the compensable injury. A WCB medical advisor further accepted and approved these medications on October 7, 2010, noting there had been no change in the medications for years, the prescribing doctor was comfortable with the prescribed strengths, and there did not appear to be any serious side effects.

The worker's representative submitted that it is important to note the rationale on which the WCB supported ongoing responsibility, as this rationale has continued to be supported by the medical information on the claim. The representative submitted that the treating pain management physician confirmed in a report dated July 15, 2014 that the prescribed medications were to improve and/or maintain the worker's pain function and pain level due to his compensable injury and to help maintain or improve his overall functional ability. The WCB continued to approve the medication in 2017, as confirmed by the WCB medical advisor on October 2, 2017. The representative submitted that the WCB should have continued to approve the opioid medication after that, as it remained appropriate.

The worker's representative noted that the Opioid Policy is intended to provide parameters for the authorization and payment of opioid medication and when it should be stopped. She noted in particular that the Policy provides that "The WCB pays for medical services and treatments that contribute to a better quality of life for injured workers through the improvement of functional ability. The WCB supports the appropriate use of opioid medication when the reduction of pain after an injury is associated with an improvement in function." The representative submitted that the use of opioid medication has contributed and continues to contribute to the worker's quality of life and supports an improvement in his overall functional ability.

The worker's representative noted that although the worker was functioning well while taking the opioid medication at steady prescribed levels, the WCB directed a weaning off process. Progress reports in June and July 2018 confirmed that the worker's level of function deteriorated with the process, with pain levels of 8 and 9 being identified, as compared to a level of 5 with controlled opioids prior to the weaning process. The representative noted that the progress report after the weaning process had stopped, dated September 17, 2018, confirmed that the worker's pain level had again improved, going back to a 5.

The worker's representative submitted that the medical information and WCB opinions confirm that the prescribed opioid medication was providing relief to the worker until the WCB decided to wean him off the opioids and disrupt his controlled treatment plan. The representative noted that the reason that was provided as to why funding was no longer accepted was simply that the risk/benefit ratio for the use of opioids was considered to be unfavourable. The representative submitted that the medical information on file supported the contrary, and that after more than almost 23 years of opioid use, the risk/benefit ratio had been nothing but favourable.

The worker's representative asked that the panel place weight on the opinion of the treating pain management specialist who had been steadily attending and monitoring the worker's opioid dosages for a very long time. The representative submitted that the pain management specialist confirmed in his letter of September 20, 2018 that the worker was at a stable dose of opioid analgesics for many years with stable pain control, functional level and psychosocial status, and that the benefits of the opioid analgesics at the current level of doses definitely outweighed any potential risk or side effects from these medications.

The worker's representative submitted that there is no medical evidence to support the WCB's position that there had been an unfavourable risk/benefit ratio in this case after more than 20 years of WCB-supported opioid use. It was submitted that the WCB has not identified any rationale that counters the pain management specialist's medical opinion that the current doses outweigh any potential risks or side effects after controlled use.

The worker's representative submitted that the ongoing coverage for the opioid medication is consistent with the Medical Aid and Opioid Policies, particularly as the medication is prescribed by a pain management specialist. The representative noted that the treating specialist has been regularly monitoring the safe use of the medications, and continued to implement a pharmacological plan as confirmed by his regularly submitted progress reports. As confirmed by the pain management specialist, there has been a continued benefit to the opioid medication, with a reduction in pain and associated improvement in function.

In closing, the worker's representative submitted that the financial support for the opioid medication is clearly a WCB responsibility in this case, particularly when the weaning process has been confirmed by the WCB as failed. The representative submitted that it is reasonable to return to what was working, and to support the continued monitored use of opioids as was previously approved and accepted as a WCB responsibility numerous times.

Employer's Position

The employer was represented by an advocate, who advised that the employer agreed with everything the worker's representative had said in her submission.

The employer's advocate characterized the WCB's decision not to pay for the worker's opioid medications as completely arbitrary, and submitted that WCB policy clearly allowed for the payment of these medications, to improve quality of life, functional improvement and reduction of pain.

The employer's advocate submitted that the medication was essential to controlling the worker's pain and was not being abused by the worker. The worker tried to wean himself off the opioids as directed by the WCB in 2018, but his condition quickly deteriorated when he did so, then improved once the opioids were returned to their previous levels. The advocate submitted that there was clearly a benefit to the worker, and it did not make sense not to continue supporting the worker's opioid use after all these years.

In closing, the employer's advocate strongly urged the panel to do what was both compassionate and right, and to reverse the Review Office decision.

Analysis

The issue before the panel is whether or not responsibility should be accepted for prescription opioid medication after August 31, 2020. For the appeal to be successful, the panel must find, on a balance of probabilities, that prescription opioid medication is reasonably necessary to cure and provide relief from the effects of the worker's compensable injury. The panel is able to make that finding.

Based on our review of all of the evidence that is before us, the panel is satisfied that there was a continued benefit to the use of opioids, and that the prescription opioid medication was reasonably necessary to cure and provide relief from the effects of the worker's compensable injury.

In arriving at that conclusion, the panel notes that the worker has been relying on opioid medications to manage his pain and support his functional abilities since they were first prescribed in 1998. File information shows that the worker had been regularly monitored by his pain management physician and his use of opioid medications was being reviewed and authorized by the WCB.

In 2017, however, the WCB determined that the opioid medications did not support a significant/sustained benefit to the worker's function/ability and the risk/benefit ratio was not favourable, and a weaning-off process was outlined.

The worker undertook such a process in mid-2018 as directed by the WCB, but the evidence shows that the process was not successful and resulted in a significant deterioration in the worker's condition during that process. As a result, the worker's pain management physician determined that the worker should continue with his previous analgesic medications doses.

The panel places weight on the September 20, 2018 letter from the treating pain management physician who described the trial weaning-off of the worker's opioid analgesics, in part, as follows:

[The worker] was on a stable dose of opioid analgesics for many years and both he and his wife felt that he was quite stable with regard to his pain control, functional level, and psychosocial status. He was able to walk with the aid of his walker and could sit and interact with his family quite well. Early on in the weaning process, it became quite obvious that his function deteriorated to the point where he had difficulty walking even with his walker and had significant difficulty even getting out of bed. Sitting was also very difficult, which meant that he was unable to participate as he had in the past with social activities and even just relaxing. He also found that his sleep was significantly disturbed as he would awaken often in pain…

It became obvious that the weaning process resulted in deterioration of his pain control, functional status and psychosocial status. It was decided to restart his opioid analgesic at the previous levels and with resumption of the medications at previous doses, his sleep almost immediately improved as did his ability to walk and his overall demeanor and outlook.

The pain management physician went on to opine that:

It is quite clear that [the worker] does benefit from his current doses of analgesics functionally, psychosocially, and with regard to overall pain control. In this particular situation, the benefits of his opioid analgesics at current doses definitely outweigh any potential risk or side effects from these medications.

The panel accepts the pain management physician's opinion, and finds that it supports that the worker derived significant benefit in terms of his functioning, pain control and overall quality of life through the use of his prescribed opioid medications. While it had been noted that the medications did not support a sustained improvement in the worker's function/ability, the panel is of the view that a significant improvement in the worker's condition would not be expected approximately 40 years after his injury and more than 20 years after his last surgery.

The panel is further unable to find that the evidence supports that the worker's risk/benefit ratio is unfavourable. The panel notes that the WCB has not identified specific risks in terms of the worker's particular circumstances or his use of the prescribed medication which would indicate that the risk/benefit ratio is unfavourable.

The panel recognizes that there are always concerns with high levels of opioid use, and that efforts to reduce or wean workers off opioids should always be considered and encouraged. The panel notes that at the hearing, the worker said he had been in favour of trying the weaning off process when the WCB suggested it. He indicated that he had wanted to try a weaning off process and had actually asked his pain management physician a few years earlier about doing so, but his physician had told him that he did not think his body would be able to stand it.

The panel also notes that the worker confirmed in his evidence at the hearing that the pain management physician would see him and fill out reports every three months. He said that more recently, as he had not been allowed into the hospital due to the pandemic, his pain management physician had been calling him more often, approximately every two months. The worker indicated at the hearing that he continued to rely on opioid medications which he has paid for himself since the WCB stopped covering those medications, although he had to stop using certain auxiliary patches because they were too expensive. The panel is unable to find that the progress reports, including the most recent ones on file, show sustained or significant side effects or concerns with respect to the use of the prescribed medication.

In conclusion, the panel acknowledges the challenge with prescribing opioids. Given the particular facts of this case, however, including the fact that the worker has been taking opioids for more than 20 years, his advanced age, and the static or sustained benefit from the use of opioids, the panel is satisfied, on a balance of probabilities, that the opioid medication is reasonably necessary to cure and provide relief from the effects of the workplace injury. The panel is further satisfied that ongoing coverage of the opioid medication, with continuing monitoring of that medication by the WCB Healthcare Services, is consistent with the Medical Aid and Opioid Policies.

As a result, the panel finds, on a balance of probabilities, that prescription opioid medication is reasonably necessary to cure and provide relief from the effects of the worker's compensable injury. Responsibility should therefore be accepted for prescription opioid medication after August 31, 2020. The worker's appeal is allowed.

Panel Members

M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 30th day of July, 2021