Decision #76/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that there is no entitlement to coverage for the medications Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole beyond September 8, 2021. A hearing was held on May 3, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to coverage for the medications Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole after September 8, 2021.
The worker is not entitled to coverage for the medications Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole after September 8, 2021.
The worker has an accepted WCB claim for a lower back injury that occurred at work on June 24, 2013. The claim was initially accepted as a lower back sprain, but after further medical treatment and investigation, the WCB accepted the injury as a lumbar strain in the environment of pre-existing lumbar degenerative changes. It was noted at the time of the incident that the worker was already taking medications due to the pre-existing conditions.
The worker underwent medical treatment, including physiotherapy, and returned to work on modified duties on September 24, 2013. The WCB received a March 25, 2014 report from the worker's treating family physician indicating the worker re-sprained her lower back at work on March 19, 2014, and was being referred to a pain management clinic. The worker was seen at a pain management clinic on April 19, 2014 and pain injections were recommended, which the worker underwent on July 5 and August 23, 2014.
On October 7, 2014, a WCB pain management specialist reviewed the worker's file with respect to the medications she was taking. The specialist noted that the worker was taking a specific opioid medication prior to the June 24, 2013 workplace accident and opined that this medication should not be eligible for WCB financial support. With respect to Diclofenac, the WCB pain management specialist noted the worker was using 25mg of the medication twice a day prior to the workplace accident, which was increased to 25mg in the morning and 50mg in the evenings, and the additional 25mg of Diclofenac should therefore be eligible for WCB financial support. The specialist opined that Gabapentin, Duloxetine and Cyclobenzaprine were also appropriate and related to the compensable injury and were eligible for WCB financial support. The specialist further advised that the worker might require these medications on a long-term basis and recommended regular medication reviews.
At a further review on October 3, 2017, the WCB pain management specialist noted the worker's use of Diclofenac had returned to the same dose or baseline use as prior to the workplace accident and opined that the use of Diclofenac was not eligible for financial coverage in relation to the compensable injury.
On November 15, 2017, the worker contacted the WCB to discuss her recent appointment with her treating family physician. The worker advised she reported ongoing difficulties with pain, described as "…a burning pain above her left buttock, down the front of her leg, into her knee, and down to her feet and toes." The worker said the treating physician recommended increasing the dosage of Diclofenac to see if this helped. The WCB received a copy of the November 13, 2017 report from the worker's treating family physician, who noted the worker's report of worsening back pain, especially after a long day, with aching and burning into her left thigh. The physician noted acute on chronic exacerbation with reported overworking, and prescribed an increase in the worker's Diclofenac to 50mg twice daily Rabeprazole. On November 30, 2017, the WCB pain management specialist reviewed the worker's file and opined that the additional 50mg of Diclofenac was related to the compensable injury and eligible for WCB financial support, and the use of Rabeprazole for gastro-protection from the use of that medication was also appropriate and related to the compensable injury and eligible for financial support.
On May 15, 2018, the worker advised the WCB that due to an increase in her symptoms, her treating family physician had increased her dosage of Gabapentin. A report received from the family physician for the worker's appointment on May 14, 2018, indicated the worker reported increased pain to the left lower back, with sharp, dull aching pain radiating to her left mid-thigh area after lifting a 50 pound animal at work. It was recommended the worker increase her Gabapentin dosage by 100mg.
On May 30, 2018, the worker's file was reviewed by a WCB medical advisor, who opined that the increase in dosage was appropriate in relation to the compensable injury, noting the worker had sustained a temporary flare-up of her symptoms, and the increase in Gabapentin was helping based on the worker's reporting. On September 7, 2018, based on a further review of the worker's file, the WCB medical advisor noted the worker continued to experience the ongoing symptoms, which were controlled by the Gabapentin, and it was recommended the dosage remain the same, with a change to the worker's permanent restrictions to decrease her lifting capabilities to 40 pounds.
On March 12, 2019, the worker advised the WCB that she had sustained a new injury while at work and a new WCB claim was established. An increase in the worker's medications was noted as a result of the new injury.
On February 13, 2020, the WCB received a Doctor's Progress Report regarding the worker's appointment on February 11, 2020 with her treating family physician. The physician reported the worker's complaints of right lower back pain radiating down to the right thigh/lower leg area. The physician noted the worker was in visible discomfort while sitting, stood with difficulty and walked with some right-sided discomfort. A diagnosis of right side sciatica was provided and it was recommended the worker remain off work for a period of time.
On April 30, 2020, the WCB pain management specialist reviewed the worker's medications, and opined that the worker's continued use of Gabapentin, Duloxetine, Cyclobenzaprine and Rabeprazole was appropriate and qualified for medical support by the WCB, and WCB financial support of only 50mg out of the 100mg of Diclofenac the worker was taking daily was also appropriate.
On March 11, 2021, the worker advised the WCB that due to her ongoing and increasing symptoms, she had been off work since February 11, 2020, and had seen a spine surgeon who was recommending spinal fusion surgery. On March 18, 2021, the worker underwent L3 to S1 fusion surgery.
On April 19 and 20, 2021, the WCB spoke with the worker regarding her claim. The worker requested the WCB consider the difficulties she was currently experiencing and her need for the fusion surgery to be a recurrence of the June 24, 2013 workplace accident as her entitlement to benefits under the new WCB claim she had filed in 2019 had ended. The worker further noted that an MRI of her lumbar spine conducted on March 31, 2020 indicated tearing and asked that the WCB investigate the relationship of the tearing to the workplace accident.
On April 27, 2021, the worker's file was reviewed by a WCB orthopedic consultant, who opined that the worker had "…extensive signs and symptoms of lumbar disc degeneration with disc desiccation, facet osteoarthritis, and degenerative listhesis (slippage) at two of the levels." The consultant further opined that the 2020 MRI did not note "tearing" as referred to by the worker, but instead indicated a progressive increase in the worker's pre-existing lumbar disc degeneration. The WCB orthopedic consultant went on to opine that the March 18, 2021 surgical procedure was not related to the June 2013 workplace accident, noting the spine surgeon made a clinical diagnosis of extensive lumbar disc degeneration and radicular-like right lower limb symptoms, all of which would relate to the pre-existing degenerative condition. The consultant also opined that funding for the fusion surgery and any post-surgical medications would not be the WCB's responsibility; that there had been no aggravation or enhancement of the worker's pre-existing condition by either the 2013 workplace accident or the worker's further WCB claim in 2019; and that there would be no continuing WCB financial responsibility for the medications the worker was prescribed.
A further review was conducted on May 25, 2021 by the WCB orthopedic consultant, who opined that the worker's current difficulties were related to her pre-existing condition and not the 2013 workplace accident and recommended no further funding of the medications. On June 16, 2021, the WCB advised the worker that she was not entitled to coverage for Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole after June 22, 2021.
On June 16, 2021, the worker contacted the WCB to express her concern over the ending of entitlement to medications she had been receiving for over seven years. The worker noted a period of seven days' notice was not sufficient for her, noting a financial concern with having to pay for the additional cost of the medications, and requested an extension of time for coverage. On June 17, 2021, the WCB advised the worker that they would provide an extension of additional 12 weeks, to September 8, 2021, to allow her time to prepare for the end of the WCB's coverage.
On September 16, 2021, the worker's representative requested that Review Office reconsider the WCB's decision. The representative argued that the WCB had provided the worker with permanent restrictions and a permanent partial impairment rating and award, which indicated the worker had a permanent impairment, and as such, should be entitled to ongoing medical aid benefits as a result of the workplace accident. The worker's representative further noted that the WCB's policies with respect to pre-existing conditions provide that when a worker's loss of earning capacity is caused in part by a compensable injury, and in part by a pre-existing condition, the WCB would accept responsibility for the full injurious result of the compensable injury, and requested Review Office consider that policy for medical aid benefits, such as medications, as well. The representative went on to note that the WCB determined the worker's pre-existing condition was the dominant cause of her current difficulties, but the WCB's pre-existing policy only required a portion of the difficulties to be related to the compensable injury in order for the WCB to accept full responsibility for the worker's difficulties.
On November 16, 2021, Review Office determined that the worker was not entitled to coverage for Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole beyond September 2021. Review Office found that the worker had an extensive pre-existing chronic back condition and sustained a lumbar strain in the environment of the pre-existing lumbar degenerative changes on June 24, 2013. Review Office acknowledged that benefits were paid at times, including for various medications. Review Office determined that based on the current file evidence, a relationship could not be established to account for the worker's current need for medications with respect to the June 24, 2013 compensable back injury.
On November 25, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations made under the Act and policies of the WCB's Board of Directors. The Act and regulations in effect on the date of the June 24, 2013 incident are applicable.
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 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 27(10) states, in part, that "Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board..."
Section 37 of the Act outlines the compensation which is payable to workers, as follows:
37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:
(a) medical aid, as provided in section 27;
(b) an impairment award, as provided in section 38; and
(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.
WCB Policy 44.120.10, Medical Aid, sets out general principles regarding a worker's entitlement to medical aid, which is defined to include drugs, medical supplies, orthotics and prosthetics. The Policy provides that the WCB determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. The Policy also provides 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 worker was represented by a worker advisor, who provided a written submission in advance of the hearing and made an oral presentation to the panel.
The worker's position was that the decision that there was no entitlement to coverage for the medications in question after September 8, 2021 should be reversed, as it is not supported by the file evidence and there was no proper justification for discontinuing medications which had been funded for more than eight years.
The worker's representative submitted the Review Office deferred to the 2021 opinion of the WCB orthopedic consultant that the compensable injury was a strain or sprain that had somehow resolved, and failed to address or accurately recount the history of the claim. The representative referred to examples of tests or procedures which the WCB had approved and expedited, and suggested that the fact the WCB had expedited those tests or procedures suggested that the compensable injury was not limited to a back sprain/strain.
The worker's representative submitted that Review Office and the orthopedic consultant took an overly narrow view of the claim and the issue, relying on an initially accepted diagnosis, even though a compensable diagnosis may be subject to change with time, and disregarded all the decisions the WCB had made before.
The representative submitted that if the panel decided to look back at the early evidence as part of its adjudication, the evidence pointed to the worker suffering a compensable injury greater than, or in addition to a lower back strain or sprain injury, in that there was early and ongoing mention of pain extending into the left leg. The representative submitted that whatever the WCB chose to call the worker's compensable injury, it appeared that the WCB had accepted that a combined effect injury existed for many years, and the WCB would be responsible for the full injurious result of a combined effect injury or injuries.
The representative submitted that this appeared to be a classic case where the WCB accepted numerous responsibilities, including setting permanent restrictions and undertaking vocational rehabilitation, and took steps which they would not historically take for an injured worker if they did not believe the worker was permanently injured. The representative submitted that they did not believe the WCB orthopedic consultant who took a different view of the same file information should override what had been accepted and done previously.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to coverage for the medications Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole after September 8, 2021. For the worker's appeal to succeed, the panel must find, on a balance of probabilities, that the medications Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole are necessary to cure and provide relief from the injury resulting from the June 24, 2013 workplace incident. The panel is unable to make that finding, for the reasons that follow.
The worker's claim has been accepted for a lumbar strain occurring in the environment of pre-existing lumbar degenerative changes. The panel is satisfied, based on our review of the file, that there is a lack of clinical evidence to support that the workplace incident resulted in anything more sinister or serious than a lumbar strain/sprain injury occurring in the environment of pre-existing lumbar degenerative changes.
The panel does not accept the worker's representative's argument that in authorizing or expediting various tests, such as an MRI, the WCB has suggested or somehow acknowledged that the compensable injury was not limited to the accepted diagnosis of a lumbar back strain.
The worker's representative has also argued that the WCB's actions in approving and accepting responsibility for funding medial branch block injections means that the WCB was responsible for any associated short-term or long-term complications. When it was put to the representative at the hearing that there did not appear to be anything on file to indicate that those injections had had a detrimental impact, the representative acknowledged that that was the case. The worker's argument on this point is therefore moot.
While the worker's representative has further argued that there was early and ongoing mention on the file of pain extending into the left leg, the panel notes that the medical evidence on file shows that the worker attended a call-in examination by a WCB sports medicine advisor on November 12, 2013, a little less than five months after the compensable injury, which showed no clinical evidence of a lower limb radiculopathy in association with the lower back pain.
The panel notes that the claim is for an acute injury. Evidence on file shows that the worker returned to work following her injury and was able to continue performing her work duties for an extended period of time, until she suffered another and separate acute injury, which would take her off work again, and that this had happened more than once.
The panel accepts and agrees with the May 25, 2021 opinion of the WCB orthopedic consultant, who reviewed the worker's file and concluded that the worker's current clinical status could not be related to the 2013 injury and that the medications Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole would also not be related to the compensable injury and should not be funded. The panel is of the view the WCB’s agreement to cover medical aid does not preclude it from discontinuing coverage at any point in the future should information support that the coverage is no longer justified.
Based on the foregoing, the panel finds, on a balance of probabilities, that the medications Gabapentin, Diclofenac, Cyclobenzaprine, Duloxetine and Rabeprazole are not necessary to cure and provide relief from the injury resulting from the June 24, 2013 workplace incident. The panel therefore finds that the worker is not entitled to coverage for those medications after September 8, 2021.
The worker's appeal is dismissed.
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 30th day of June, 2022