Decision #117/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to coverage for Butrans 15 mcg/hr Patch – Butrans (buprenorphine) after August 20, 2022. A hearing was held on October 18, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to coverage for Butrans 15 mcg/hr Patch – Butrans (buprenorphine) after August 20, 2022.
The worker is entitled to coverage for Butrans 15 mcg/hr Patch – Butrans (buprenorphine) after August 20, 2022.
The WCB accepted the worker’s claim for a medial meniscus tear and tricompartmental osteoarthritis in their left leg sustained arising out of an incident at work on June 6, 2001.
Since the accident, the worker has undergone multiple surgeries. On December 7, 2015, the worker underwent a left knee arthroscopy. At follow-up with the treating family physician on January 11, 2016, the physician recommended a trial of Butrans patch for pain relief as the worker was having difficulty managing their pain. A WCB medical advisor reviewed the request and the worker’s file, and on March 17, 2016, the WCB determined the worker was satisfactorily recovered from the surgery to repair the compensable meniscal tear and as the Butrans patch had been prescribed for their non-compensable degenerative osteoarthritis coverage for the patch would not be provided. The worker requested reconsideration of that decision to Review Office and on May 27, 2016, Review Office determined the osteoarthritis in the worker’s left knee was a combined effect related to their workplace accident and as such, the worker was entitled to benefits for that condition including medical aid. On May 30, 2016, the WCB advised the worker they were retroactively entitled to coverage for the Butrans patch from January 2016.
The worker’s treating family physician provided the WCB with regular medication updates and opioid progress reports. On December 6, 2018, the WCB advised the worker that when they reached 65 years of age, they would no longer be entitled to wage loss benefits, but medical aid benefits would continue. On December 11, 2018, a WCB medical advisor spoke with the treating family physician regarding analysis of the risks and benefits of continued long-term use of the Butrans patch. The medical advisor noted that at eight months’ post-surgery the worker continued to report high levels of pain and low levels of functioning. The WCB medical advisor advised the WCB would no longer support the worker’s entitlement to opioid medications (Butrans patch) as the long-term use was not considered favourable for the worker and recommended an opioid weaning process begin for the worker.
Following a December 19, 2018 report from the treating orthopedic surgeon noting the worker may require a further revision surgery, the treating family physician reported to the WCB on December 20, 2018 that as the worker had not yet returned to their pre-accident status, the opioid weaning process had not begun. The worker began a reconditioning program on January 3, 2019, with a three-month refill of the Butrans patch provided as a suitable alternative had not yet been found.
On January 29, 2019, the treating family physician referred the worker to the pain clinic. On discharge from the reconditioning program on February 20, 2019, the worker demonstrated measurable improvements in strength, walking speed and overall function. The consulting pain clinic physician assessed the worker on February 16, 2019 and recommended continued use of the patch as the worker’s pain control and functional status were “quite stable” and a change in medications was not necessary.
A WCB medical advisor reviewed the worker’s file on April 10, 2019 with respect to the use of opioid medications. Noting the worker’s improvement in pain and function after attending the reconditioning program, in addition to the use of hinged brace for their knee, the medical advisor concluded that “…the risk/benefit ratios for the use of Opioids continues to be considered not favorable.” Despite the opinion of the WCB medical advisor, on May 8, 2019 the WCB case manager, taking into account all medical opinions and information on the worker’s file, determined that use of the Butrans patch contributed to the worker’s ability to sustain their current level of functioning and allowed them to continue to work and as such, the WCB would continue coverage of the Butrans patch, provided the reports from the treating family physician every three months noted the benefits continued to be favorable.
The treating family physician continued to provide the WCB with opioid progress reports until May 5, 2022. At that time, the WCB case manager requested a WCB medical advisor to review the worker’s medications. On May 19, 2022, a WCB medical advisor provided an opinion that the April 10, 2019 opinion of the WCB medical advisor had not changed. Further opioid medication was not recommended for the worker due to “…reported lack of improvements in pain and function and concerns regarding adverse effects of opioid use in a patient with other medical conditions, advancing age, and use of other medications…”. On May 20, 2022, the WCB advised the worker further coverage for the Butrans patch would not be accepted, and that a weaning period would be implemented with funding to end as of July 1, 2022.
On June 14, 2022, the worker requested reconsideration of the WCB’s decision to Review Office. The worker noted other methods of pain relief had undesired side effects with the Butrans patch providing relief of their pain and improved quality of life with minimal effects. On June 29, 2022, Review Office determined the worker was entitled to coverage for the Butrans 15 mcg/hr Patch – Butrans (buprenorphine) to August 20, 2022 as the worker reported limited sustained benefits from the use of the Butrans patch and as continued use of the Butrans patch did not meet the requirements of the WCB’s Opioid Policy. Review Office recommended a three-month weaning period in accordance with the opinion of the WCB medical advisor, which would end on August 20, 2022.
The worker filed an appeal with the Appeal Commission on July 20, 2022 and a hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.
Section 4(1) of the Act provides that a worker is entitled to benefits under the Act when it is established that a worker has been injured as a result of an accident at work. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act.
Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”
WCB Policy 44.120.20, Opioid Medication (the “Opioid Policy”) 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.
The worker appeared in the hearing on their own behalf and made an oral submission to the panel in support of their appeal. The worker also provided testimony through answers to questions posed by members of the appeal panel.
The worker’s position is that they should be entitled to continuing coverage for the Butrans patch after August 20, 2022. The worker noted that this medication has permitted them to continue to function and to work part-time in their shop, maintaining a reasonable level of function. The worker noted that Butrans does not cause them any negative side effects and that unlike some medications, does not “make you fuzzy, goofy or put you to sleep.”
The worker noted that after the initial trial at a dosage of 10 mcg/hr, the dosage was increased to 15 mcg/hr and has remained stable at that level since that time. The worker indicated that using the Butrans patch takes the edge off their pain but does not take it all away. The worker described that using the patch “makes it bearable so you can keep on working”.
The worker confirmed to the panel that they have not experienced any side effects from the medication and that they are regularly monitored by the treating family physician who has no concerns with respect to the worker’s ongoing use of the patch.
The worker confirmed that they continue to work as a self-employed person, taking on as much work as they want to. As the worker is more than 65 years old they are no longer eligible for wage loss benefits and as such, they work only to the extent that they wish to.
The worker confirmed to the panel that they were fully weaned from the Butrans patch in August 2022, with the dosage reduced to 10 mcg/hr for the final month of the weaning process. The worker indicated that their pain returned but they did not experience any other side effects during the weaning period. The worker indicated that they have increased their reliance on CBD since being weaned off Butrans and that the treating family physician has also prescribed another pain relief medication that the worker prefers not to use and takes only when their pain is severe. The worker explained their use of the alternative medication is inconsistent because of the side effects, in that it makes the worker feel foggy and almost incoherent, needing to rest, and is also delayed in taking effect. As a result, the worker prefers not to use this medication unless their pain is severe.
In sum, the worker’s position is that they should be entitled to coverage for the Butrans 15 mcg/hr patch as it permits the worker to function in their day-to-day activities and work and does not have any negative side effects for the worker. Therefore, the appeal should be granted.
The employer did not participate in the appeal.
In order to grant the worker’s appeal on this question, the panel would have to determine that the continued use of the Butrans patch by the worker is related to the compensable workplace injury and is associated with an improvement in the worker’s function. For the reasons outlined below, the panel was able to make such findings and the worker’s appeal of this issue is granted.
The panel noted that the Butrans patch was initially prescribed to the worker by the treating family physician on January 9, 2016 as a pain control measure following a surgical repair procedure arising from the compensable injury. By the time the request was reviewed by the WCB medical advisor, the worker had recovered from the surgery and required the use of the patch to control pain related to the diagnosis of osteoarthritis. After Review Office determined that the diagnosis of osteoarthritis was a combined effect of the workplace injury, the WCB agreed on May 30, 2016 that the worker was entitled to coverage for the Butrans patch from when it was first prescribed to the worker in January 2016. Subsequently and as required by the WCB, the worker’s treating physician provided ongoing periodic Opioid Management Reports (“OMR”) until May 2022.
The panel noted the worker’s testimony that use of the Butrans takes the edge off but does not fully reduce their pain. The worker described having a strong pain tolerance but that the Butrans patch allows them to manage that pain. We note that this is confirmed by the reporting from the treating family physician. For example, on May 5, 2022 the physician recorded in their chart the worker’s report that “Pain is still severe, despite Butrans” and on July 8, 2020, the physician noted the worker’s report that “Pain managed with Butrans, and CBD oil prn when it is bad”.
The panel also considered the report from the pain clinic physician dated February 16, 2019 which sets out that the worker’s “pain is present all of the time although it does vary in intensity. The pain is aggravated by prolonged sitting, standing, bending of the knee and changes in the weather.” The physician reviewed the worker’s medication history relating to the compensable injury and noted that the worker’s use of the Butrans patch and that the worker “…appears to be tolerating [their] medications quite well and overall is very satisfied with [their] pain control”. The physician concluded that since the worker’s “…pain and function are quite stable at this time I do not feel that even the remote risk of infection or other complications would be worthwhile risking since [the worker] is doing quite well on [their] current analgesic medications.”
The panel noted the listing of potential side effects of the chronic use of opioids as set out in the WCB medical advisor’s December 11, 2018 opinion. These include constipation, xerostomia, decreased serum testosterone, decreased serum cortisol, increased risk of osteoporosis, increased risk of long bone fracture, increased risk of myocardial infarction and opioid-induced hyperalgesia. The worker confirmed in their testimony that they have a diagnosis of osteoporosis but that this pre-dated their use of Butrans. The worker also noted they received a diagnosis of cardiovascular disease prior to this injury and that their treating family physician monitors this condition regularly.
The WCB medical advisor noted on May 19, 2022 that the worker’s dosage remains the same since the previous review in April 2019 and that no adverse effects are noted.
There is no evidence before the panel of any actual negative effects for this worker arising from their use of the Butrans patch since January 2016. Although the panel accepts that there are risks associated with the long-term usage of opioid medications, we have no evidence that any of those risks have materialized in this case; whereas there is evidence that the worker has benefited from this use, in terms of allowing the worker to function and live relatively normally, despite their chronic pain arising from the compensable injury.
The panel noted the worker’s evidence they were weaned from the Butrans patch by August 2022 without any reported withdrawal difficulties, and with the result being an ongoing increase in pain and a loss of function resulting from the use of a replacement medication.
The panel finds that the information provided to the WCB by the treating physician and by the pain clinic physician supports the worker’s position that they require the Butrans patch for pain control arising out of the compensable workplace injury and to sustain their functional capacity arising out of that injury.
As outlined in the WCB’s Opioid Policy, a balanced approach is required in the use of opioid medication, recognizing the negative impacts of side effects and other potential risks associated with long term use of such medication, while considering the positive effects in terms of demonstrated relief of pain and increase in functional abilities. The medical reporting reviewed by the panel does not raise any significant concerns regarding the worker’s side effects from their use of the Butrans patch nor any evidence of other potential safety concerns related to this worker’s usage of the medication.
On the basis of the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the Butrans patch provided ongoing pain relief to the worker such that there was improvement in the worker’s function with the patch versus without it, and that there is no evidence of any concerning side effects or other safety concerns in relation to the worker’s use of this medication. We conclude that the risk-benefit ratio in this worker’s case favours the worker’s use of the Butrans patch for pain control and increase in function. The worker is therefore entitled to coverage for a Butrans 15 mcg/hr Patch – Butrans (bupresnorphine) after August 20, 2022 provided that the worker’s treating medical professionals continue to support the worker in such use.
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 regular Opioid Management Progress Reports to the WCB.
The worker’s appeal is granted.
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 2nd day of December, 2022