The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker’s estate is appealing the decision made by the Workers Compensation Board ("WCB") that they were not entitled to reimbursement for the Oxyneo medication at a dosage rate of 10 mg three times per day. A hearing was held on November 20, 2023 to consider the worker's estate’s appeal.

Issue

Whether or not the worker’s estate is entitled to reimbursement for the Oxyneo medication at a dosage rate of 10 mg three times per day.

Decision

The worker’s estate is entitled to reimbursement for the Oxyneo medication at a dosage rate of 10 mg three times per day.

Background

The worker had an accepted WCB claim initially for an injury to their left knee that occurred at work on December 30, 1969, while lifting a heavy object and underwent surgery to repair a posterior horn tear. The worker returned to work and continued to work until their retirement in May 1995.

Due to ongoing complaints and bilateral knee osteoarthritis, the worker underwent a left knee replacement surgery on February 14, 2001. In 2008, the worker’s treating orthopedic surgeon recommended a revision surgery, which surgery was approved by the WCB and occurred on October 27, 2009. The worker reported to the WCB they fell down the stairs at home due to the instability in their left knee in June 2009 and on March 1, 2010 and May 14, 2010, the WCB accepted responsibility for right shoulder and left shoulder injuries respectively. The worker underwent rotator cuff surgeries for both shoulders, the right shoulder on August 17, 2010 and the left shoulder on February 1, 2011, with this surgery unsuccessful.

On February 26, 2013, as part of the review of the worker’s file, the WCB requested the worker’s treating physician provide a list of medications being prescribed for the worker and the rationale for those medications. On July 3, 2013, the worker’s treating physician indicated the worker had been switched from a skin patch pain medication due to difficulties with the patch adhering to the worker’s skin to an oral medication and had been prescribed 30 mg of OxyNeo daily on June 14, 2013. On August 1, 2013, the worker’s claim was reviewed by a WCB medical advisor who noted the change in medication was appropriate. It was noted the worker was reporting ongoing and increased pain in their shoulders and left knee and further treatment with their orthopedic surgeon and a pain clinic was recommended.

The worker’s medications continued to be reviewed by the WCB, including annual reviews in 2017, 2018 and 2019, with the WCB sending the worker a letter on December 24, 2019 noting approving 20 mg of OxyNeo daily. On April 17, 2020, the WCB advised the worker’s representative the worker’s medication would be reviewed and a WCB medical advisor placed their opinion to the worker’s file on April 28, 2020. The advisor opined it was reasonable for the WCB to continue to support the worker’s use of OxyNeo at 10 mg twice daily, with increases in the dose not likely accounted for in relation to the worker’s compensable left knee and bilateral shoulder difficulties.

A further medication review was started in 2021 with a letter to the worker’s treating physician on April 16, 2021, requesting an update to the worker’s medications. On May 12, 2021, the treating physician provided a response and included their chart notes for the worker’s appointments on May 4, 2020 and May 12, 2021. A WCB medical advisor conducted their review and placed an opinion to the worker’s file on June 1, 2021. The advisor provided that based on the recommendations of their regulatory body for the use of opioid medications for treatment of chronic pain; no indication of “…meaningful sustained improvement in pain and function…” found on the May 4, 2020 or May 12, 2021 chart notes from the worker’s physician; and the worker’s current dosage of morphine equivalent per day, it was noted WCB Healthcare was no longer able to recommended ongoing support for the worker’s use of OxyNeo. It was recommended a six month weaning period at which time the WCB would support the worker receiving 10 mg of OxyNeo twice daily. A formal decision letter was sent to the worker on June 3, 2021, setting out the 6 month weaning period and noting WCB support for OxyNeo to December 3, 2021. On July 13, 2021, a revised decision letter was provided to the worker clarifying the worker was entitled to 10 mg of OxyNeo three times per day to December 3, 2021.

On March 10, 2023, the worker’s representative requested reconsideration of the WCB’s decision to Review Office. The representative noted the worker was no longer a candidate for further surgery due to the worker’s advanced age and as such, required the opioid medication to relieve pain. Review Office determined on April 26, 2023, the worker was entitled to OxyNeo coverage after December 3, 2021 as the same dosage of 20 mg daily, they were receiving prior to the WCB’s decision to end coverage. Review Office found the OxyNeo was providing the worker with relief from the effects of their compensable injuries. Further, Review Office agreed with the April 28, 2020 WCB medical advisor’s opinion the WCB would not support an increase in the dosage as it would not be medically accounted for in relation to the compensable injuries. On May 8, 2023, the WCB confirmed with the worker the WCB would only cover OxyNeo for 10 mg twice per day.

The worker’s representative filed an appeal with the Appeal Commission on May 30, 2023 and a hearing was arranged.

Reasons

The Appeal Commission and this panel are bound by The Workers Compensation Act (the "Act"), the regulations made under the Act and the policies established by the WCB's Board of Directors.

Subsection 22(1) of the Act in effect at the date of the accident states that the WCB "…may provide for the injured workman such medical, surgical, and hospital treatments, transportation, nursing, medicines, crutches, and apparatus, including artificial members, 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..."

WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy"), defines key terms and sets out general principles regarding a worker's entitlement to medical aid, which is defined to include drugs. The WCB pays for prescription medications under the Medical Aid Policy. The general principles governing the WCB's funding of medical aid, as outlined in the Medical Aid Policy, include the following: 

• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury.

…

• 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.

…

• The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

WCB Policy 44.120.20, Opioid Medication (the "Opioid Policy") sets out that the WCB supports the appropriate use of opioid medication where the reduction of pain from an injury is associated with an improvement in function. The intent of the Opioid Policy is to provide parameters for the authorization and payment of opioids.

The Opioid Policy states that the WCB may suspend or discontinue authorization of payment for opioid medication in circumstances that include when opioid medication does not support a sustained documented improvement in the worker’s functional ability or when the side effects or risks of opioid medication outweighs their benefit.

Worker's Position

The estate of the worker was represented by the late worker's daughter and advocate.

The worker's position, as outlined in the Appeal of Claims Decision form and email dated May 21, 2023 was that the Oxyneo was required to provide relief from the worker's initial workplace accident, knee replacement surgery, subsequent revision surgery and other injuries sustained as a result of the initial workplace accident. The worker's representative stated that the worker had been prescribed Oxyneo for 20 years.

The worker's representative submitted that there was an error in understanding the dosage the worker was on. The worker's representative stated that WCB had been provided with several years' worth of receipts to show the correct dosage amounts.

The worker's representative advised that the worker had been taking Oxyneo at a dosage of 30 mg per day to deal with the pain and inflammation the worker experienced and that a dosage of 10 mg three times per day was the worker's consistent dosage rate.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the estate of the worker is entitled to reimbursement for the Oxyneo medication at a dosage rate of 10 mg three times per day. For the appeal to be allowed, the panel must find, on a balance of probabilities, that Oxyneo is required to cure or provide relief from the worker's injury resulting from the workplace accident. The panel is in agreement that the estate should be reimbursed for the Oxyneo medication at a dosage rate of 10 mg three times per day, for the reasons that follow.

The Review Office determined in its decision of April 26, 2023 that the worker was entitled to Oxyneo coverage beyond December 3, 2021. Review Office found that the Oxyneo dosage being covered would be the dosage being covered on December 3, 2021.

The panel finds that the dosage being covered on December 3, 2021 was 20 mg BID (two times per day), a total of 40 mg per day.

A thorough review of the claim file demonstrates that an error was made in determining the correct dosage being covered. Compensation Services appears to have referenced an increase in medication when there was no such increase. There was a change to the timing of the dosage but the total amount of mg per day remained the same.

Historically and consistently the worker was prescribed Oxyneo at a dosage rate of 40 mg per day (often described in the medical correspondence as 20 mg BID (two times per day)). This dosage rate was then decreased in or about February 2020 to 30 mg per day. These dosage amounts were confirmed by a review of numerous receipts from pharmacies provided by the worker representative. The change to the dosage rate was also confirmed in a letter from the worker's treating physician dated February 12, 2020 which states that: "[The worker] has been working hard on reducing his use of opioids. He has been able to discontinue his percocet and reduce his oxyneo to 10 mg tid." The panel notes that the decrease referenced by the physician was a decrease from 20 mg BID (= 40 mg per day) to 30 mg per day.

The physician also further confirmed the Oxyneo dosage as 10 mg TID (three times a day) in a letter dated July 9, 2021. He states in that letter that the worker has been on this dosage since February 2020.

The panel notes that the error stems from the WCB correspondence and claim notes incorrectly describing the Oxyneo dosage as 20 mg but not referencing 20 mg BID.

Various changes to the dosage amount and different descriptions used for the dosage rate (such as BID and/or TID) caused confusion regarding the dosage amount over the years. However, a detailed and careful review of the file has shown that the total daily dosage the worker had been taking had not changed from 30 mg per day (10 mg TID) since February 12, 2020. Therefore, the panel agrees with the worker's estate that the appropriate Oxyneo dosage to be covered is 30 mg. The worker has already received reimbursement for 20 mg of Oxyneo per day, and ought to be reimbursed for the remaining 10 mg of Oxyneo per day. The panel finds that the worker's dosage of Oxyneo at 30 mg per day was on a balance of probabilities necessary to eliminate or minimize the impacts of the worker's injuries.  

The worker's appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of November, 2023