Decision #61/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on January 15, 2001, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on January 15, 2001 and April 2, 2001.

Issue

Whether or not responsibility should be accepted for the claimant's chiropractic treatment subsequent to February 12, 1996.

Decision

That no responsibility should be accepted for the claimant's chiropractic treatment subsequent to February 12, 1996..

Background

On March 4, 1977 the claimant, a firefighter, sustained a compensable lower back injury while removing shingles from a roof during a fire.

In a progress report dated February 13, 1995, the treating chiropractor noted that the claimant had been receiving multiple spinal subluxations for the treatment of headaches and for pain in the upper and lower back areas. In August 1995, a Workers Compensation Board (WCB) adjudicator asked a WCB chiropractic consultant to review the report and to advise whether the treatment was considered maintenance in nature. On September 28, 1995, the WCB's chiropractic consultant documented the following comments after speaking with the treating chiropractor:

    "Tx (treatment) is considered to be supportive in nature as when it is withdrawn his condition regresses. Dr. [chiropractor] will send in a report."

A further progress report was received from the treating chiropractor dated December 15, 1995. The claimant was receiving specific chiropractic adjustments for a chronic lumbosacral strain. The chiropractor noted that the general prognosis was good and that the claimant attended for treatment as needed. On January 25, 1996, a WCB chiropractic consultant reviewed the report and stated that he still thought treatment was supportive in nature. He also noted that he had spoken to the treating chiropractor who indicated the "claimant's condition regresses when treating interval is extended."

In January 1996, a WCB medical advisor reviewed the case at the request of primary adjudication. The medical advisor indicated that in his opinion, chiropractic treatment was "maintenance only."

On February 5, 1996, the claimant was notified by Claims Services that his claim had been reviewed and after consultation with a WCB healthcare consultant, ongoing chiropractic treatment was considered to be in the nature of maintenance or preventative care. As maintenance and preventative care was not payable by the WCB, no responsibility would be accepted for the costs associated with chiropractic treatment beyond February 12, 1996. On February 21, 1997, a union representative appealed this decision to Review Office.

In a decision dated April 11, 1997, Review Office confirmed that WCB would not cover the cost of the claimant's chiropractic care subsequent to February 12, 1996. Review Office noted that the WCB accepted responsibility for ongoing chiropractic treatment when it was supportive in nature and declined to do so when it was considered to be maintenance care. Review Office made reference to a March 13, 1997, letter from the treating chiropractor who noted that he had been treating the claimant regularly for the past 12 years (commencing 8 years after the compensable accident). Review Office was of the opinion that it had not been shown that the claimant's chiropractic treatment met the WCB's definition of supportive care and "as such, it would be considered maintenance in nature."

On March 29th and July 29, 1999, a worker advisor requested Review Office to reconsider its decision of April 15, 1997. The worker advisor submitted letters from the treating chiropractor dated February 19, 1999, July 5, 1999, and x-ray reports of July 7, 1999, for consideration.

In a decision dated November 5, 1999, Review Office noted that the applicable standards guiding the making of decisions with respect to responsibility for continuing chiropractic care had not changed since its previous decision of April 15, 1997. Review Office made reference to the correspondence provided by the treating chiropractor dated March 13, 1997 and July 5, 1999. Review Office remained of the opinion that the evidence did not establish that there was a continuing relationship between the claimant's need for chiropractor treatment and his 1997 compensable injury. In September 2000, the worker advisor appealed Review Office's decision and an oral hearing was held on January 15, 2001.

Following the hearing, the Appeal Panel requested that arrangements be made for the claimant to be assessed by an orthopaedic specialist prior to discussing the case further. The claimant was subsequently examined by an orthopaedic specialist and his report of March 13, 2001 was forwarded to the interested parties for comment. On April 2, 2001, the Panel met to render its final decision and took into consideration final rebuttal arguments from the worker advisor dated March 22, 2001.

Reasons

The Worker Advisor acting on behalf of the claimant advanced the argument that the chiropractic care being administered approximately two to three times a month was necessary treatment, which assisted the claimant’s completing his full-time job duties as a fire fighter. In particular, the Worker Advisor proposed that the claimant’s chiropractic treatments were supportive in nature and thereby satisfying the requirements set out in a WCB memorandum dealing with chiropractic supportive care.

The memorandum makes reference to the Clinical Guidelines for Chiropractic Practice in Canada, which, amongst other things, differentiates between two kinds of long-term chiropractic care, supportive care and preventative/maintenance care. Preventative/maintenance care is defined in the Guidelines as being “elective care given at regular intervals designed to maintain maximum health and promote optional function and is discretionary and elective on the part of the patient.” The Guidelines define supportive care as “necessary treatment/care for patients who have reached their maximum therapeutic benefit, and for whom periodic trials of therapeutic withdrawal have led to deterioration and failure to sustain previous therapeutic gains. This form of care is initiated when the clinical problem recurs.”

In this same memorandum, the WCB’s Healthcare Management Services has proffered a reasonable interpretation with respect to these two kinds of chiropractic care. Preventative/maintenance care “is provided for purposes other than the treatment of a compensable injury, and is not the responsibility of the Board.” Supportive care on the other hand “is simply the treatment of spontaneous recurrences of a compensable injury. Subject to normal adjudicative criteria, it is generally a responsibility of the Board.” The Review Office in its November 5th, 1999 decision rejected the Worker Advisor’s contention that the claimant’s course of chiropractic treatments amounted to supportive care. Review Office concluded that the evidence did not establish a continuing relationship between the claimant’s requirement for chiropractic treatment and the compensable injury.

As the background notes indicate, the Panel requested that an independent external physician examine the claimant. The medical advisor to the Appeal Commission arranged for such an examination with an orthopaedic specialist on March 12th, 2001. In addition to conducting a clinical examination of the claimant, the consultant also reviewed reports from March 4, 1977 to January 18, 1995 regarding various injuries, further medical reports, radiological reports, chiropractic reports and the worker’s statements and testimony.

We were impressed with the orthopaedic specialist’s report of March 13, 2001 and attached considerable weight to his clinical findings and opinions. On examination, he recorded the following observations: “Both hips, knees, ankles, and feet have full movements. His gait is good and he walks freely on his heels and tiptoes, and squatted down easily on both legs. Straight leg raising on the left 90°: right 80° and this causes a tight feeling in his right leg. Degenerative spur formation is present on the vertebral bodies L1 and L2. There is slight degenerative narrowing at the disc L4-5 and moderate degenerative narrowing at the disc L5-S1. Lumbar lordosis is normal. He has evidence of degenerative changes in his dorsal and lumbosacral spine and spinal discs, and is 50 years of age. The degenerative changes are ongoing and chronic, and slowly progressive.”

Also of significance were the medical conclusions reached by the this specialist:

“The most probable diagnosis of this patient’s current low back condition, in my opinion, is chronic degenerative changes in his spine, especially the lumbosacral spine. These changes are noted in the radiologic examinations of his spine. He has very minor restriction of straight leg raising of the right leg. He has no radiculopathy and no neurologic deficits relating to his low back condition.”

"No abnormalities of the lumbosacral spine from 5 March 1977 to May 14th, 1982. Then from 1982 onward, there are progressive degenerative changes in the lumbosacral spine and lumbar discs. Now there are further progressive degenerative changes, slight at the disc level L4-5 and moderate to marked at the disc level L5-S1. Lumbar spondylosis at multiple levels.”

“The degenerative changes that have developed in this patient’s lumbosacral spine and lumbar discs are progressive and age-related. In my opinion, his current complaints are related to these age-related changes in his lumbosacral spine and lumbar discs, and are the cause of his recurrent low back complaints.”

“In my opinion, the etiology of this patient’s current low back complaints are lumbar spine spondylosis, and degeneration of lumbar discs.”

“In my opinion, there is no causal relationship between this patient’s present low back condition and his previously-related work injuries.”

After having considered all of the evidence, we find that the claimant’s ongoing chiropractic treatment is, on a balance of probabilities, maintenance in nature and not supportive care as those terms are defined. We accept the orthopaedic specialist’s opinion that the claimant’s present low back condition is not in any way causally related to his previous work-related injuries. We are of the view, therefore, that the WCB should not accept the responsibility for the claimant’s chiropractic treatment subsequent to February 12th, 1996. Accordingly, the claimant’s appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
L. Butler, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 7th day of May, 2001

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