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 Gabapentin medication. A file review was held on January 10, 2023 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for Gabapentin medication.

Decision

Responsibility should not be accepted for Gabapentin medication.

Background

The WCB accepted the worker’s claim for an injury to their lower back as the result of an accident at work on November 7, 1996. The worker’s injury was initially diagnosed as an L4-L5 sprain with possible soft tissue tearing, but by 2011, the WCB accepted a diagnosis of chronic low back pain.

On November 15, 1999, Review Office determined the worker was entitled to further benefits as their ongoing difficulties were related to the combined effects of the compensable injury and the worker's pre-existing degenerative condition, and there were permanent work restrictions in place. The WCB provided the worker with wage loss benefits until they turned 65 years of age in 2008 and continued to provide medical aid benefits.

On January 13, 2009, the worker provided the WCB with a list of the medications they were prescribed, in relation to their injury. By March 2009, the WCB case manager approved coverage for the medications listed, along with reimbursement for the previous two years. The worker continued to submit receipts for medications and on October 15, 2010, the WCB attempted to contact the worker's treating physician to confirm what conditions the medications were being prescribed for. In discussion with the WCB on November 15, 2010, the worker advised the medications were prescribed by the treating family physician due to ongoing difficulties with their back, noting constant soreness and pain, that radiated down their right leg. The worker further advised that they had undergone non-compensable hip replacement surgeries on September 1, 2010 and October 27, 2010.

The worker's treating physician provided a report to the WCB on January 20, 2011, in which they noted they had not seen the worker since June 2010 and reported the worker's complaints of "…severe bilateral hip pain with difficulty walking" and diagnosis of severe osteoarthritis of bilateral hips. The physician noted the worker was referred to an orthopedic surgeon and in June 2010, was recommended for urgent hip replacement surgery. The treating physician provided the medications prescribed for the worker's hip pain and indicated the worker was also taking Gabapentin.

A WCB medical advisor reviewed the worker’s file on February 10, 2011and provided an opinion that the medications listed by the worker's treating physician were prescribed in relation to the worker's bilateral hip issues and noted that further information would be required to determine the relationship between the prescription for Gabapentin and the compensable injury. The WCB received chart notes from the worker's treating family physician from 2007 to February 2011 on February 25, 2011. These chart notes indicated the worker's consistent complaint of lower back pain and sciatica, with Gabapentin first prescribed for the worker on July 27, 2007. An April 13, 2009 letter from the referring orthopedic surgeon to the treating family physician concluded "This patient obviously does not have major spinal problem at this stage" and noted the worker's "major problem" with both hips and recommended total hip replacement bilaterally. It was further noted the worker was taking Gabapentin "…without much success."

A WCB medical advisor reviewed the additional information from the treating physician and the worker's file on April 7, 2011. The medical advisor concluded the worker's diagnosis at that time was chronic low back pain and noted that while some of the worker's current symptoms were related to the worker's compensable chronic low back pain, the bilateral leg symptoms were more likely related to the worker's severe bilateral osteoarthritis in their hips. As such, the WCB sports medicine consultant further opined the medications, including Gabapentin, were prescribed for the worker's non-compensable bilateral hip osteoarthritis.

On May 13, 2011, the WCB advised the worker that it was not responsible for Gabapentin and the other medications based on the WCB medical advisor's opinion. The treating physician provided a letter to the WCB on May 26, 2011 in support of the worker's request for coverage of Gabapentin, noting the worker was "…suffering from chronic lumbar back pain and sciatica symptoms involving both legs" and had been taking Gabapentin to alleviate the sciatic pain and not for their hip pain.

The WCB medical advisor reviewed the treating physician’s letter, along with the worker's file, on June 30, 2011 and concluded there was no change to the earlier opinion Gabapentin was prescribed for the worker's non-compensable bilateral hip difficulties. The WCB provided a further decision letter to the worker on July 26, 2011 advising there would be no change to the earlier decision that responsibility for Gabapentin was not accepted.

On August 8, 2011, the worker requested reconsideration of the WCB's decision to Review Office. In their submission the worker indicated they were prescribed and taking Gabapentin due to their chronic back pain, which did not change after their bilateral hip replacement surgeries and requested the WCB continue to be responsible for the coverage for same. On September 20, 2011, Review Office determined responsibility would not be accepted for the medication Gabapentin. Review Office accepted and relied upon the opinions of the WCB medical advisors who reviewed the worker's file, in addition to the medical information provided by the worker's treating healthcare providers and found the worker was prescribed Gabapentin due to their bilateral hip issues.

The worker filed an appeal with the Appeal Commission on August 18, 2022 and a file review was arranged.

Reasons

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.”

The WCB has established Policy 44.120.10, Medical Aid (the “Policy”) to define key terms and sets out general principles regarding a worker's entitlement to medical aid. The Policy notes that medical aid, as defined in the Act, includes treatment or services provided by healthcare providers. The Policy goes on to set out that the general principles governing the WCB's funding of medical aid include the following:

• 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: 

o Recommendations from recognized healthcare providers; 

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

o Standards developed by the WCB Healthcare Department. 

• The Board promotes timely and cost-effective access to medical aid. 

• 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.

Worker’s Position

The worker was represented in the appeal by a worker advisor, who provided a written submission for the panel’s consideration, in advance of the file review.

The worker’s position, as outlined in the written submission, is that responsibility should be accepted for Gabapentin medication as the worker relies upon this medication to alleviate the nerve pain resulting from the injury sustained in the compensable workplace accident of November 7, 1996.

The worker advisor noted that the 1996 accident aggravated the worker’s pre-existing degenerative disc disease and the WCB accepted responsibility for the worker’s chronic low back pain with sciatic symptoms radiating down the right leg as well bilateral sciatic symptoms.

The worker advisor stated that the WCB’s authorization of payment for Gabapentin as noted in the claim file dating back to March 2009 confirms that the WCB accepted this medication as required by the worker in relation to their compensable injury. When the WCB denied responsibility for the Gabapentin in May 2011, that decision was based on the WCB medical advisor’s opinion that this medication was prescribed in relation to the worker’s hip difficulties which were not compensable; however, at that time, the medical evidence confirms that the worker had undergone bilateral hip replacement surgeries in the previous year but continued to report ongoing lower back pain with bilateral sciatic symptoms that were not attributable to the worker’s earlier hip difficulties.

The worker advisor noted there is no doubt that both compensable and non-compensable conditions were “at play at the same time. However, the focus was directed away from the chronic low back pain and sciatic symptoms to the severe degenerative hip conditions, while the sciatic symptoms continued since the 1996 accident.” The worker advisor relied upon the May 26, 2011 report by the worker’s treating physician to confirm that the worker is not taking Gabapentin for hip pain but to alleviate the worker’s continuing chronic lumbar back and sciatic symptoms.

Further, the worker advisor argued that while the consulting orthopedic surgeon noted the worker’s report that Gabapentin did not alleviate all their symptoms, the worker reported to the Review Office that the medication was effective in helping to deal with their symptoms. As such, the evidence supports a finding that the medication is providing relief to the worker, as required in the WCB’s Medical Aid Policy.

In sum, the worker’s position is that the evidence supports an ongoing relationship between the worker’s chronic low back pain with sciatica and the worker’s use of Gabapentin for relief from the symptoms of that compensable condition. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker has appealed the decision that the WCB should not accept responsibility for Gabapentin medication. For the worker’s appeal to succeed, the panel would have to determine that the worker requires this medication to “cure and provide relief” from the injuries sustained in the compensable workplace accident of November 7, 1996. As outlined in the reasons that follow, the panel was not able to make such a finding and therefore, the worker’s appeal is denied.

The panel reviewed the medical reporting in relation to the prescription of Gabapentin to the worker and notes that the evidence indicates this medication was first prescribed in 2007 in relation to the worker’s increasing chronic lumbar, sciatic and hip pain. Prescriptions were provided in July 2007 and December 2007. The chart notes do not indicate a further prescription in January 2008, but do indicate that in April 2008, the Gabapentin was “restarted”. At that time, the chart notes indicate reporting of chronic lumbar back pain that worsened, with weakness and sciatica symptoms involving both legs but worse on the right. The panel noted that the treating family physician referred the worker to the orthopedic surgeon in April 2008 regarding severe spinal stenosis at the L4-L5 and S1 levels with sciatica symptoms involving both legs, as indicated by an MRI study of March 11, 2008.

The panel considered the report provided by the consulting orthopedic surgeon dated April 13, 2009. The surgeon noted the worker’s report of a “longstanding history of painful legs” that was ongoing since the injury in 1996 and that the worker “…has been taking Gabapentin without much success” as well as another over the counter anti-inflammatory medication, also without success. On examination of the worker, the surgeon noted the worker to have a “major problem” with both hips but “..obviously does not have major spinal problems at this stage.” In making this assessment of the worker’s back, the surgeon relied not only on their own examination findings, but also the x-ray studies of the same date which indicated the worker’s lumbar vertebrae to be normal in alignment, with osteoarthritis of the lower lumbar facet joints and sacroiliac joint, with mild spondylosis throughout the lumbar spine and that indicated severe narrowing of the superior compartments of both hip joints with subchondral sclerosis, cyst formation, and marginal osteophytes consistent with severe osteoarthritis, worse on the right. As a result, the orthopedic surgeon referred the worker to another orthopedic surgeon for bilateral hip replacement surgery, which the panel noted took place in 2010.

The panel further noted that in January 2010, the treating family physician again referred the worker to the orthopedic surgeon in relation to their chronic lumbar back pain with associated sciatic pain in both legs, requesting the surgeon consider “performing steroid infiltration of the lumbar spine to assist with pain control.” The May 2010 chart notes indicate that the appointment with the surgeon was scheduled for June 22, 2010 and that the worker’s back pain was severe and not controlled with the prescription medications provided, which the panel noted did not at that time include Gabapentin. In January 2011, the family physician reported to the WCB that the worker was prescribed Gabapentin but also noted that they had not seen the worker since June 18, 2010. In further correspondence dated May 26, 2011, the family physician stated that the worker “…is experiencing sciatica pain in both legs; therefore, [they] had been taking Gabapentin to alleviate the sciatica pain. The patient does not take the Gabapentin for hip pain. [The worker] underwent previous bilateral hip replacements.”

When the WCB medical advisor reviewed the worker’s file on April 7, 2011, they noted that although “…there appears to be some symptoms attributable to the claimant’s compensable chronic low back pain, it is likely that the claimant’s current signs and symptoms constellation is on the basis of [their] severe bilateral osteoarthritis”, which opinion they based upon the consult report from the orthopedic surgeon and the hip x-rays reviewed. In a further opinion provided on June 30, 2011, the medical advisor confirmed that “…it is likely that the referred pain down the legs is secondary to the hip osteoarthritis as opposed to bilateral sciatica….[T]herefore the use of gabapentin for leg pain symptoms is secondary to the hip osteoarthritis which is a non compensable medical condition.”

While the treating family physician initially prescribed Gabapentin to the worker in or around 2007 when the worker first began reporting increasing bilateral leg pain, the panel noted that these symptoms were ultimately diagnosed by the orthopedic surgeon as related to the worker’s bilateral hip osteoarthritis, rather than to their chronic back condition. The panel accepts and relies upon the report of the orthopedic surgeon in this regard, which is further supported by the opinions provided by the WCB medical advisor.

The panel also noted that although the worker stated their belief that the medication was effective in controlling their symptoms related to the compensable chronic lumbar back pain, the evidence does not bear that out. We noted the worker’s report to the orthopedic surgeon in April 2009 after trialing this medication over approximately two years, that the medication was “without much success”. We further noted that in 2010, when the family physician referred the worker for pain relief injections, the worker was noted to be taking Gabapentin. We also noted that although the family physician advocated in 2011 for the continuation of this medication, they provided no clinical support for the request and further, stated that they had not seen the worker since June 2010.

The panel is not satisfied that there is sufficient evidence to support the worker’s position that Gabapentin provides them with effective pain relief arising from the compensable chronic low back condition. On the basis of the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that responsibility should not be accepted for Gabapentin medication. Therefore, the worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 27th day of January, 2023