The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") that the worker's cosmetic permanent partial impairment award was correctly determined, and that the worker was not entitled to opioid medication. A videoconference hearing was held on March 9, 2022 to consider the worker's appeal.

Issue

1. Whether or not the worker's cosmetic permanent partial impairment award has been correctly determined; and 

2. Whether or not the worker is entitled to coverage for opioid medication.

Decision

1. The worker's cosmetic permanent partial impairment award has been correctly determined; and 

2. The worker is entitled to coverage for opioid medication.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 107/18, dated July 20, 2018. The background will therefore not be repeated in its entirety.

The worker sustained multiple injuries in a workplace accident on September 29, 2016. On September 30, 2016, the worker underwent an open reduction and internal fixation and correction of the fractures to the pelvis, which included the installation of fixation hardware. The worker's claim was accepted and payment of wage loss and medical aid benefits started.

On May 29, 2017, the worker's orthopedic surgeon recommended that the worker undergo "revision fixation surgery" to repair the breakage of the screws in the worker's pelvic area, which was subsequently authorized by the WCB, and the worker underwent the revision fixation surgery on August 18, 2017.

On June 6, 2018, a WCB pain management specialist reviewed the worker's file in response to an Opioid Management Progress Report received from the worker's treating family physician dated May 17, 2018 and requesting further opioid medication coverage for the worker. The WCB specialist noted that the worker's physician had not provided the WCB with a completed Opioid Treatment Agreement or regular opioid progress reports during the course of the claim, and the WCB had therefore not been able to monitor the worker's use of the opioid medications. The WCB specialist advised that the use of opioids was not, and would not be on a go forward basis, eligible for WCB financial support. The WCB pain management specialist further advised that if the worker underwent any further claim-related surgery, the use of opioids during the first two weeks' "acute phase" would be eligible for WCB financial support, not to exceed a 30-day supply. In an addendum to the worker's file on the same date, the specialist indicated that as opioid medications had not been approved by the WCB since August 22, 2017, the WCB would not be required to fund a weaning process for the worker.

On September 4, 2018, the worker contacted the WCB to discuss his claim and inquire as to whether he was eligible for a permanent partial impairment (PPI) award. On September 6, 2018, the worker's WCB case manager requested that the WCB Healthcare Services review the worker's current scarring from his surgeries for a possible partial PPI award. On September 12, 2018, a WCB medical advisor determined that the worker would be assessed for an interim PPI for a cosmetic rating for scarring, and a PPI call-in examination was arranged.

On September 25, 2018, the worker attended the call-in examination with the WCB medical advisor. After examining the worker and comparing photographs of the worker's scarring with archived photographs at the WCB, the medical advisor noted that the worker had well-healed scars and opined that the worker's cosmetic impairment related to his compensable injury was 2% whole person impairment. On September 26, 2018, the WCB advised the worker that he was entitled to a PPI rating of 2.00% resulting in an award of $2,700.00.

On November 16, 2018, the worker underwent further surgery, consisting of "Removal of hardware right sacrum and ilium" and "Right SI [sacroiliac] joint fusion with posterior tension band plate and PSIS [posterior superior iliac spine] bone graft and allograft."

On February 27, 2019, the worker contacted the WCB after reviewing file information the WCB had provided. The worker outlined his concerns with the September 25, 2018 PPI examination, indicating he believed that some of his scarring was not well-healed and that he had other scarring that was not accounted for. On March 1, 2019, a WCB Sector Manager contacted the worker to discuss and provide further information regarding the PPI examination. The Sector Manager advised that the WCB had scheduled the PPI examination earlier than normal at the worker's request, and that other potential impairments related to the worker's compensable injuries, including other scars, could not be evaluated at that time because they might not be at maximum medical improvement. The Manager confirmed that other potential impairments would be evaluated once the worker was at maximum medical improvement, but not earlier than one year after his November 2018 surgery. The WCB Sector Manager also provided a further explanation of how the WCB evaluates scarring.

On April 4, 2019, the WCB provided the worker with a further decision letter regarding coverage for opioid medications. The WCB advised the worker that reports from his treating physician which were required to monitor his opioid use were not completed during the course of his claim since the acute phase of his injury, and the WCB was therefore unable to provide coverage.

On May 14, 2019, the WCB received an Opioid Management Progress Report from the worker's treating family physician. On June 19, 2019, the WCB pain management specialist reviewed the Report and the worker's file. The specialist noted the pain and functional scores on the provided Report, and stated that it appeared the opioid medication prescribed by the treating physician was "…not associated with a consistent/sustained benefit to pain and function." The specialist opined that based on the information provided in his June 6, 2018 opinion, and concern with respect to the side-effects from the long-term use of opioids, the risk/benefit ratio for the worker's use of opioids was not considered favourable, and the use of opioids was not medically supported and would not be eligible for funding.

On November 1, 2019, the worker provided his WCB case manager with a status update. He raised the issue of the WCB not providing coverage for opioid medications and advised he was not aware of the documentation his treating physician was required to complete in order for him to be eligible for coverage by the WCB. The worker asked that he or his physician be provided with instructions and correct documentation.

On November 5, 2019, the WCB case manager advised the worker that information had been previously provided to the worker's treating family physician regarding the requirement to provide the WCB with regular information on opioid usage. It was also noted that a June 19, 2019 review of the worker's file by the WCB pain management specialist indicated that the risk/benefit for continued use of opioids was not favourable. The case manager advised the worker that he was therefore not eligible for coverage of opioid medication.

On December 4, 2019, the worker's file was reviewed by a WCB medical advisor to consider his eligibility for a further PPI related to his September 29, 2016 accident and surgeries. The specialist advised that the worker was likely at maximum medical improvement and a call-in examination would be arranged to assess him for a possible PPI for mobility deficits of the thoracolumbar spine and the right hip, and a review of the cosmetic rating with respect to further scarring.

The worker attended the call-in examination on December 19, 2019, and after interviewing and examining the worker, the WCB medical advisor opined that the worker's impairment rating for loss of range of motion in his lumbar and thoracic region was 3.1% and in his hip 3.3%, and the cosmetic rating related to the compensable injury remained at 2.0%, with the total recommended PPI rating being 8.00%, an increase of 6% from the previous PPI rating. On December 20, 2019, the WCB advised the worker that he was entitled to a total PPI rating of 8.00% resulting in an award of $10,800.00 less the sum of $2,700.00 which had previously been issued for the 2.00% rating.

On April 2, 2020, the WCB received an Opioid Management Progress Report from the worker's family physician. On April 8, 2020, the WCB pain management specialist requested further information on the worker's current medications, which information was received the following day. On April 15, 2020, the pain management specialist completed his review of the worker's file and concluded that the worker was not entitled to coverage for opioid medication. The WCB received a further Opioid Management Progress Report from the family physician on April 15, 2020, and on April 28, 2020, the WCB pain management specialist again indicated that the use of opioids did not qualify for medical support. By letter dated April 28, 2020, the WCB advised the worker that coverage for opioid medications would not be accepted.

On June 30, 2020, the worker requested that Review Office reconsider the WCB's decision to deny coverage for opioid medication. The worker submitted that he had been in continued pain since the September 29, 2016 accident and required the opioid medication to control that pain.

On August 26, 2020, Review Office determined that the worker was not entitled to coverage for opioid medication. Review Office accepted and agreed with the April 15 and April 28, 2020 opinions of the WCB pain management specialist, and found the worker's opioid intake was not aiding in his recovery and the risk/benefit ratio was negative.

On September 9, 2021, the worker requested that Review Office reconsider his PPI rating and award. On September 10, 2021, the worker's file was returned to the WCB's Compensation Services as Review Office noted the worker was scheduled for a re-evaluation of his PPI rating and award in December 2021. On September 23, 2021, in a discussion with Review Office, the worker requested that Review Office reconsider the 2% cosmetic PPI rating from September 2018 prior to the upcoming PPI assessment.

On October 26, 2021, Review Office determined that the worker's PPI rating for a cosmetic deformity had been determined correctly at 2% and found no compelling evidence to support a change to that rating. Review Office noted that the upcoming and further PPI assessment might demonstrate additional entitlements which would be addressed at that time.

On November 2, 2021, the worker appealed the August 26, 2020 and October 26, 2021 Review Office decisions to the Appeal Commission, and a videoconference 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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid. Subsection 4(9) provides that the WCB may award compensation in respect of an impairment that does not result in a loss of earning capacity.

Subsection 27(1) of the Act states that the WCB "…may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident."

Subsection 38(1) of the Act provides that the WCB "shall determine the degree of a worker's impairment expressed as a percentage of total impairment." Subsection 38(2) provides a formula to determine the monetary value of an impairment award. The dollar amount in that formula is adjusted on an annual basis pursuant to the Adjustment in Compensation Regulation (the "Regulation").

The WCB Board of Directors has established Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy"). Impairment benefits are calculated under the Policy by determining a rating which represents the percentage of impairment as it relates to the whole body.

The PPI Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings (with the exception of impairment of hearing ratings) will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy.

Schedule A to the PPI Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits:

• loss of a part of the body; 

• loss of mobility of a joint(s); 

• loss of function of any organ(s) of the body identified in the Schedule; and 

• cosmetic disfigurement of the body.

With respect to cosmetic disfigurement, Section 9 of Schedule A, provides, in part, that:

When a worker is permanently disfigured as a result of an injury, the WCB may determine that the disfigurement be considered a permanent impairment to which the worker is entitled to an impairment benefit.

Disfigurement is an altered or abnormal appearance. This may be an alteration of color, shape, or structure, or a combination of these.

The rating for disfigurement is done by a WCB Healthcare Advisor and the degree of disfigurement is determined on a judgmental basis. The maximum rating for disfigurement, in extreme cases, is 25%. Typical ratings for disfigurement are between 1 and 5%.

In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, WCB's Healthcare Services Department makes reference to a folio of disfigurement ratings established in previous cases…

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 self-represented, and was accompanied by his spouse at the hearing. The worker made a presentation to the panel, with assistance from his spouse, and the worker and his spouse responded to questions from the panel.

The worker's position with respect to the first issue, being whether his cosmetic permanent partial impairment award had been correctly determined, was that the December 2019 PPI award did not consider, or sufficiently account for, a number of issues created by his September 29, 2016 workplace accident and subsequent surgeries, for which he should be compensated.

The worker indicated that he had huge incisions with the surgeries, and he did not think sufficient consideration was given to the size and number of incisions and scars resulting from the accident and those surgeries. He submitted that nerve damage resulting from the incisions should also have been considered.

The worker submitted that the PPI also failed to consider or provide for abnormalities or deformities which were caused by the accident to the hip area and leg muscles on the right side of his body, which cause his right side to sag and look distorted. He stated that as a result of damage to the membrane that holds the muscle on that side, he has a large lump like a softball in the right hip area which has never gone down since the accident and is very embarrassing.

The worker further submitted that the December 2019 PPI did not include the mental health issues created by his accident. He noted that the cosmetic effects of his accident are more than just physical; they also impact his thinking, his relationships, and how he feels about himself, and should have been addressed.

With respect to the second issue, being the worker's entitlement to coverage for opioid medication, the worker's position was he should be entitled to financial coverage for such medication, and in particular, for his pain medication Tramacet.

The worker submitted that the Tramacet helps to manage his day to day pain. He said that he feels much better with the Tramacet; that it enables him to get up in the morning, to function and to do things around the house during the day such as vacuuming.

He submitted that his doctor had filled out the WCB opioid paperwork required for that medication. He noted that the doctor missed completing one form after the WCB's decision not to cover the cost of the Tramacet, as indicated in the WCB's April 28, 2020 decision, but submitted that he should not be held accountable for medical paperwork.

The worker submitted that he had never abused the medication, and had followed the control plan and prescription. He noted that he used to be on Tramadol and Tramacet, but had concerns with that and slowly weaned himself off the Tramadol due to his concern with respect to the effect it might have on him, and has not taken it for at least a couple of years. The worker submitted that Tramacet is among the lowest dose of opioid medications available, and he has tried every other medication that has been prescribed for him to replace the Tramacet, but nothing else has worked. He noted that the pain clinic has suggested stronger opioids, but he has declined.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not the worker's cosmetic permanent partial impairment award has been correctly determined.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the Act and/or PPI Policy were not properly applied in establishing the worker's cosmetic PPI rating of 2%. For the reasons that follow, the panel is unable to make that finding.

The panel notes that the issue on appeal, as confirmed at the hearing, related to the worker's PPI award for cosmetic disfigurement due to scarring as a result of the workplace injuries and surgeries. The panel is satisfied, on a balance of probabilities, that the WCB medical advisor's assessment of that cosmetic disfigurement was conducted in accordance with the process which is set out in the Policy.

In reaching that conclusion, the panel notes that the WCB medical advisor's notes of his PPI assessment of the worker on September 25, 2018 indicate that he arrived at the recommended PPI rating based on his own visual examination of a total of five scars, in the worker's axilla, posterior right hip, right abdomen and over the area of the symphysis pubis. The medical advisor's notes also indicate that he compared digital pictures of the scarring with archived photos at the WCB, and based on his assessment, and in the exercise of his judgment, the WCB medical advisor recommended a 2% impairment rating.

The same WCB medical advisor's notes of his PPI assessment of the worker on December 19, 2019 similarly indicate that he arrived at the recommended PPI rating based on his own visual examination of two further scars over the lumbosacral spine area, and consideration of the digital photographs of the scarring of that area, as well as the scarring described and photographed on September 25, 2018. Based on his assessment, and in the exercise of his judgment, the WCB medical advisor recommended that the cosmetic impairment related to the compensable injury remain at the 2% whole person impairment.

In the course of the hearing, the worker described a number of other ongoing concerns or issues resulting from his injury, including with respect to swelling and changes in form in his lower abdomen and a large lump on his right side. The panel notes that these other issues or concerns do not fall within the parameters of the issues which were to be evaluated at the September 25, 2018 or December 19, 2019 PPI assessment, namely scarring. The panel is not able to expand the PPI assessment to these other concerns or issues that have been raised by the worker.

The panel further notes that an opinion on file from the WCB medical advisor, dated November 16, 2021, makes reference to a number of these concerns and indicates that a PPI reassessment is to be undertaken at which these concerns may be addressed.

With respect to the worker's reference to other effects of the injury and surgeries, the panel also notes that a PPI award is not intended to compensate a worker for pain and suffering resulting from an injury. The impact of any injury on the lifestyle of a worker is similarly not part of an impairment rating.

In sum, the panel is satisfied that the PPI cosmetic rating was properly assessed. The panel has also considered the calculation of the amount of the PPI award and finds that it has been correctly calculated at $2,700.00 in accordance with the Act and Regulation.

The panel therefore finds, on a balance of probabilities, that the Act and PPI Policy were properly applied in establishing the worker's cosmetic PPI rating of 2% and that the cosmetic permanent partial impairment award has been correctly determined.

The worker's appeal on this issue is dismissed.

Issue 2: Whether or not the worker is entitled to coverage for opioid medication.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that opioid medication is reasonably necessary to cure and provide relief from the effects of the worker's workplace injury. For the reasons that follow, the panel is able to make that finding.

The worker's family physician submitted an Initial Opioid Management Report and Opioid Management Progress Report in January 2017. The physician was advised that the reports were incomplete and asked to provide further information. It appears that while funding for Tramacet was initially provided, such funding was discontinued early in 2017 when completed forms were not provided to the WCB.

In the panel's view, it was not appropriate in the circumstances to deny coverage on the basis that the forms had not been filled out, or completely filled out, without making further inquiries or efforts to obtain whatever information was considered necessary. If information was missing which was considered necessary, it is unclear to the panel why a WCB medical advisor or case manager would not take the further step of at least calling and speaking to the doctor.

After the WCB stopped funding opioid medication for the worker, coverage for such medication appears to have been funded through an employee benefit plan, and this continued to be the case up until the worker's employment with the employer ended in March 2020. The treating family physician continued to prescribe opioid medication throughout this period of time. The physician also filed regular reports with the WCB relating to his ongoing treatment of the worker, which indicated that such medication was being prescribed for the worker.

In May 2018, the treating family physician submitted an Opioid Management Progress Report to the WCB, which was then reviewed by the WCB pain management specialist. The pain management specialist noted that the only reporting submitted by the physician in compliance with the WCB Opioid Policy was the January 17, 2017 Reports, and an Opioid Treatment Agreement had not been submitted. The specialist stated that as it appeared as there had been no reporting as required by the Opioid Policy for approximately 16 months, despite the consistent prescribing of opioids, it was not possible to monitor the use of opioids in the manner required by the Policy and the use of opioids "was not, is not currently and will not be on a go forward basis eligible for WCB financial support," except in an acute phase after any claim-related surgery. The pain management specialist further indicated that the prescribing physician should be advised not to complete any further such Reports.

In the panel's view, it was not appropriate in the circumstances for the WCB to determine or advise that they would not cover past or prospective requests for opioid medication on the basis that forms had not been filled out at or since the beginning of the claim. With respect to the lack of an Opioid Treatment Agreement having been signed, the panel accepts that the Agreement has an important purpose, but is unclear as to how such an Agreement would have anything to do with tracking or monitoring a worker's progress. The panel notes that while the filing of the Treatment Agreement and regular progress reports is referred to as being required, submission of such documentation is contemplated under guidelines to the Policy.

While the WCB pain management specialist did review and comment on a subsequent Opioid Management Progress Report which was filed by the treating physician on May 14, 2019, the main basis on which he indicated that funding would not be provided was as indicated in his June 6, 2018 memo, that the forms had not been provided from the beginning of the claim. The specialist went on to note that it appeared the use of opioids was not associated with a consistent/sustained benefit to pain and function and referred to a concern with respect to potential side effects, and therefore also noted that the risk/benefit ratio for the use of opioids was considered to be not favourable. Again, and particularly given the position that it was difficult to track the worker's progress because of the lack of progress reports, the panel is unclear as to why the WCB or pain management specialist would not speak with, or communicate with, the treating physician in the circumstances, to obtain further information.

The worker advised at the hearing that his medications are all prescribed by his treating family physician, and that the pain clinic also monitors his prescriptions. The worker indicated that he sees his family physician about every six to eight weeks and attends the pain clinic every three months for injections. The worker indicated that he has been on his current regime for a couple of years, and takes two tablets of Tramacet, three times a day. The worker indicated that the current dosage is sufficient to manage his pain symptoms, and that "…if there was something new that I could take that would be better, I'm always open to trying something new."

The panel further notes that the worker's position is supported by the treating chronic pain physician, who wrote, in his letter on file dated December 10, 2021, that he had been treating the worker since 2018 and that:

During that time period he has undergone a multitude of medication and procedure trails (sic).

He is currently using tramacet 37.5 prn which has been the most effective for managing his pain in combination with our procedures done at the pain clinic. He has been on a stable dosage of this medication for over a year and has always used it in accordance with how it was prescribed. He continues to be monitored both through his family doctor's office as well as through the…pain clinic for its usage.

In the past we had trailed (sic) several other medications including [names] without success.

I would ask that you give consideration to the tramacet medication as it is certainly indicated for his medical condition and beneficial for managing his overall pain condition.

The panel notes that the evidence before us does not point to significant manifestation of the potential risks associated with long-term opioid use, and the worker's evidence is that there are ongoing benefits to him from that use. The evidence further shows that his prescribing and treating physicians are supportive of ongoing use. Based on the evidence before us, the panel is satisfied that the risk/benefit ratio is acceptable. The panel is therefore satisfied that prescription opioid medication is reasonably necessary to cure and provide relief from the effects of the worker's compensable injury.

The panel notes that this is a point in time decision, and does not preclude the WCB from future reviews regarding opioid usage/authorization. The panel further notes that one of the best practices listed under the Administrative Guidelines in the Opioid Policy speaks to monitoring the use of opioids and adherence to the opioid treatment plan. The panel's decision to allow funding is contingent on the treating/prescribing physician completing a form of Opioid Treatment Agreement and provide that Agreement, as well as regular Opioid Management Progress Reports, to the WCB.

In conclusion, 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. The panel therefore finds that the worker is entitled to coverage for opioid medication.

The worker's appeal on this issue is allowed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 6th day of May, 2022