The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 1, 2005, at the request of legal counsel, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to wage loss benefits beyond September 20, 2000;

Whether or not responsibility should be accepted for physiotherapy treatment beyond September 2000;

Whether or not responsibility should be accepted for the March 2002 purchase of a Saunders Sacroiliac Belt; and

Whether or not responsibility should be accepted for the out of province medical treatment.

Decision

That the worker is entitled to wage loss benefits from September 20, 2000 to June 28, 2001;

That responsibility should be accepted for physiotherapy treatment from September 2000 to July 21, 2004;

That responsibility should be accepted for the March 2002 purchase of a Saunders Sacroiliac Belt; and

That responsibility should not be accepted for the out of province medical treatment.

Decision: Unanimous

Background

During his work activities as a network administrator on December 5, 1999, the worker lost his footing when going down a flight of stairs and fell onto his back. On December 13, 1999, the worker sought medical attention and was diagnosed with a contusion to his back as well as testicular pain. The Workers Compensation Board (WCB) accepted the claim on the basis of a back and groin strain and benefits were paid to the worker up until his return to work in January 2000.

In May 2000, the worker informed the WCB that he was moving and installing computers at work and felt increased pain in his right thigh and groin areas. He felt that his right thigh and groin pain were related to his fall at work in December 1999.

Following receipt of up-dated medical information which was reviewed by a WCB medical advisor on June 9, 2000, a WCB adjudicator informed the worker on June 15, 2000 that the WCB was not accepting responsibility for his "chronic prostatitis" as being related to his fall at work in December 1999. On July 18, 2000, the worker appealed this decision and stated that he was misdiagnosed and had pelvic joint dysfunction (affecting his symphysis pubis) which was caused by his fall in December 1999. In support of his position, the worker referred to a report by an occupational health physician dated July 17, 2000.

In a letter dated July 21, 2000, the WCB adjudicator informed the worker that after review of the submitted medical information, no change would be made to his decision of June 15, 2000.

A report was made by an orthopaedic surgeon on July 31, 2000. He noted that the worker was reporting ongoing pain. He suggested that if improvement was shown a "trial for return to work" might be considered.

In a report dated August 22, 2000, a physician from Minnesota, USA presented a diagnosis of pelvic joint dysfunction related to a fall at work and recommended a course of physiotherapy. On August 28, 2000, the physician noted that the worker had responded positively to therapy and that his total systems complex score "has been reduced by 90% in 3 days."

On August 29, 2000, the orthopaedic surgeon presented a report to Human Resources Development Canada in which he indicated the worker "is unable to return to work yet." On September 20, 2000, the orthopaedic surgeon observed that since his last examination of July 31, 2000, the worker "had some manipulation to his pelvis which has seemed to have helped his pain quite considerably." He noted that the worker was planning to return to work on September 25, 2000. While he identified some ongoing discomfort and tenderness, he expressed the view that the worker could work at a desk job. He offered no opinion as to whether the return should be on a full time basis.

In October 2000, the worker advised the WCB that he had been off work from April 26, 2000 and returned to part-time work in September 2000. He indicated that he was working 24 hours a week until his leg strengthened. He noted that he was doing exercises and stretches at home and visiting the physiotherapist once every two weeks.

In a report dated November 15, 2000, a sports medicine physician indicated that he saw the worker in a follow-up visit on November 7, 2000 and that the worker was advised to continue working 3 days per week as he was still limited by pain.

On November 15, 2000, a WCB medical advisor reviewed the file information and stated,

The mechanism of injury of December 5, 1999 and subsequent diagnosis of pelvic joint dysfunction would not likely account for the recurrent urethral discharge and right testicular swelling that was intermittently responsive to penicillin and which was diagnosed by a urologist on May 17, 2000 as being on the basis of prostatitis.

In a memo dated December 8, 2000, a WCB adjudicator provided the WCB medical advisor with an outline of the worker's job duties as a network administrator. Based on the job description and the new medical information on file, the medical advisor was asked to comment on whether there was objective medical information to show that the worker was unable to perform his job. His response was as follows:

File reviewed in its entirety. The objective medical information does not indicate impairment of function in a manner that would require the imposition of workplace restrictions for the duties of a network administrator…

Based on the weight of medical evidence, the worker was advised on December 22, 2000, that it was the WCB's position that he had recovered to the point that he could perform his pre-accident duties as of January 6, 2000 and that no loss of earning capacity could be established and wage loss benefits were not payable beyond January 6, 2000.

In a report dated January 10, 2001, the sports medicine physician observed that the worker was:

responding to prevent[ative] treatment program: Advised patient to increase work to 4 days per week in February.

On March 9, 2001, a physiotherapy report noted that the worker was treated from November 23, 2000 to February 9, 2001. By February 9, 2001, the worker's pain movement, strength and function had improved.

A report was received from a physical medicine and rehabilitation specialist dated April 2, 2001. On April 20, 2001, a WCB case manager noted that the specialist diagnosed the worker with pelvic joint dysfunction and recommended conservative treatment and did not comment regarding the worker's ability to work present duties. She therefore remained of the opinion that the worker's symptoms and ongoing difficulties would not preclude him from performing his job duties.

In a report dated May 29, 2001, the sports medicine physician indicated that "the patient is improving but he is not ready to return to full duties."

On June 27, 2001, the Minnesota physician assessed the worker with pelvic joint dysfunction, pelvic joint instability (mild to moderate) and resolving gluteal myofascial pain. He further stated, "Prognosis is for repeated episodes of instability that will probably be lifelong. I do not think is likely that he will have full resolution of his symptoms but the incapacitating pain has gone away."

The Minnesota physician also noted that the worker "has apparently found a physical therapist in Canada who has skills in osteopathic management of pelvic dysfunction. He expressed the view that the "therapist is on the right track." The physician noted that the worker was back to 32 hours a week at work. He did not recommend any further restrictions regarding time at work but he did recommend an ergonomic evaluation of his work station.

In a further report dated July 25, 2001, the Minnesota physician stated, in part, "With respect to prognosis, it is true it is likely that you will experience recurrent pelvic joint dysfunction due to the ligamentous instability of the pelvic structures. The instability is related not only to the initial injury but also to the delay in final diagnosis and treatment which left damaged ligaments in an abnormally stretched position." He went on to observe that "I also concur with you that you can work full time."

In September 2001, a WCB physical medicine and rehabilitation consultant examined the worker and found minor discomfort with palpation over the symphysis pubis and some soft tissue tenderness. He noted that there was no evidence of any active myofascial pain involvement, no significant neurological or lumbosacral nerve root involvement. Recommended treatment included a review by a WCB chiropractic consultant to consider a brief trial of manipulation treatment of the symphysis pubis to facilitate a successful return to full regular work duties and screening x-rays of the femurs, etc.

Following review of the case by the WCB physical medicine and rehabilitation consultant on October 30, 2001, the case manager advised the worker on November 8, 2001, that it was the consultant's opinion that the diagnosis of pelvic joint dysfunction was controversial in nature and that the worker likely sustained a strain type injury to the symphysis pubis area on December 12, 1999. The consultant also commented that the weight of medical evidence did not indicate the need for workplace restrictions and supported that the worker could have been capable of performing his full time job duties effective January 6, 2000 as indicated in her December 22, 2000 letter. The case manager also stated that she was unable to conclude that the worker had a new accident in April 2000.

On March 19, 2002, a union representative appealed the WCB's decision of November 8, 2001 to Review Office. The union representative contended that the worker's condition was misdiagnosed and that he did not suffer from chronic prostatitis in May 2000 or at the time of his original injury. The union representative requested that the worker be paid full wage loss benefits from May 2000 to September 25, 2000, partial wage loss benefits from September 22, 2000 to the date he returned to full time hours along with physiotherapy costs and any other costs associated with the workplace injury.

In a decision dated August 30, 2002, Review Office determined that the weight of medical evidence established an ongoing connection between the worker's primary complaints of groin pain with referral down the leg, to his accident at work on December 5, 1999 and that responsibility should be accepted for the worker's ongoing medical treatment in this regard. Review Office did not feel, however, that the worker was totally disabled commencing May 2, 2000 or that he was unable to work full time hours commencing September 22, 2000 based upon the employer's willingness to accommodate him with suitable modified work.

In October and November 2002, the worker provided the WCB with medical bills and physiotherapy receipts for reimbursement based on the decision rendered by Review Office.

On January 10, 2003, the case manager advised the worker that the WCB was accepting responsibility for expenses related to physiotherapy treatment from August 30, 2000 to December 12, 2001 and a Futuro Sacroiliac Belt. It was not accepting responsibility for the following expenses:

Saunders Sacroiliac Brace - the case manager indicated that the Futuro Sacroiliac Belt purchased on October 24, 2000 may have been beneficial to the worker at the time but the Saunders Sacroiliac Belt purchased on March 22, 2002 would not have been required.

Ciprofloxacin - this prescription was an antibiotic. The case manager felt that the medication was not related to the direct treatment of the worker's compensable injury.

Travel/Expenses to the USA - the case manger noted that the treating occupational health physician referred the worker to the physician in Minnesota for an opinion as to the cause of his ongoing complaints. The US physician diagnosed the worker with pelvic joint dysfunction. The WCB did not accept this as a valid diagnosis related to the compensable injury. Because of this and the lack of pre-approval for the trip, the case manager felt the WCB would not accept responsibility for any costs incurred for the trip.

Mileage for appointments: - the case manager noted that the WCB paid for mileage distance incurred over and above the distance the worker routinely traveled to work and back. It appeared that the worker's travel to work and back was further than any of his related appointments.

On April 7, 2003, the union representative appealed the above decision to Review Office. The union representative also asked Review Office to decide on the issue of whether the worker was misdiagnosed at the time of his injury. It was pointed out that in its previous decision of September 9, 2002, Review Office stated, '…there is clearly a difference in opinion concerning the correct diagnosis of the injury sustained by the worker on December 5, 1999.' Given this statement, the union representative requested the convening of a Medical Review Panel (MRP) under subsections 67(3) or 67(4) of The Workers Compensation Act (the Act).

In an August 18, 2003 decision, Review Office advised the union representative that the worker's file was being referred to a sector manager regarding his request for an MRP. With respect to the other issues brought forward by the union representative, Review Office determined the following:

• it could not authorize reimbursement of the costs associated with the Saunders Sacroiliac Belt as no request had ever been received from a medical practitioner explaining why a second sacroiliac belt was required at the time of its purchase in March 2002.
  
  
• it could find no medical correlation between the worker's urethral discharge and the December 5, 1999 accident. Therefore reimbursement for the costs related to Ciprofloxacin was denied.
  
  
• Review Office indicated that it preferred the opinion offered by the WCB medical advisors (i.e. that pelvic joint dysfunction was not a valid diagnosis), over the opinion expressed from the US treating physician who indicated that it was a valid diagnosis. In addition, the worker did not obtain the necessary pre-authorization for his out of province medical care. Therefore, in Review Office's opinion, the costs associated with the worker's traveling to the USA to obtain medical treatment would be not reimbursed.

In a letter to the union representative dated September 30, 2003, a sector services manager denied the request to convene an MRP. She stated, in part, "In my view, while there were differing opinions on the diagnosis, the worker's claim was accepted, and therefore, his entitlement was not affected. As a result, I find no basis to convene a MRP." This decision was later appealed by the worker's legal representative. On April 30, 2004, Review Office overturned the sector manager's decision and an MRP was set for December 17, 2004.

On December 15, 2004, the worker's current physiotherapist wrote to the MRP expressing his regret that he was unable to attend the hearing on December 17, 2004. In his letter, he detailed the experience of the worker at the physiotherapist's clinic. He noted that the worker had been treated for sacroiliac joint strain and dysfunction with mobilizations, manipulation and home stabilizing exercises and stretches since January 26, 2000. He observed that a sacroiliac belt had been recommended to try and help stabilize the worker's sacroiliac joints.

The worker's current physiotherapist went on to note that he began seeing the worker in July 2002 at which time the worker was concerned that his right hip "felt out". He described a series of treatments aimed at stabilizing the joint. He noted that the joint seemed to be stabilizing in January 2003 but that there was a slight relapse in April, 2003. Following a course of injections and treatment, the worker's sacro-iliac again seemed to stabilize. According to the physiotherapist, in "November, 2003, he began one more course of injections and treatment and by the end of January, 2004 no movement or positional faults were noted on examination"

According to the physiotherapy statement form dated July 14, 2005, the treatment of the worker continued on a fairly regular basis in the first seven months of 2004 with treatments on January 6, January 20, February 16, 2004, February 24, March 29, May 1, June 15 and July 21, 2004. Following the July 21, 2004 treatment, no further treatments were offered until November 17, 2004 at which time the worker "had no positional or movement faults of his right sacro-iliac joint."

The physiotherapist went on to explain in considerable detail how the joint's stability could be enhanced and maintained through form and force closure. He explained how use of a sacro-iliac belt and prolotherapy might be prescribed to help augment the force closure mechanism. He observed that: based on my last review with [the worker] on November 17, 2004, I feel he may now have reached a point where he has begun to achieve stability through motor control. He has not had an upslip of his right innominate bone since January of 2004."

The MRP provided its report on January 18, 2005. In its report, it noted the success of the Minnesota physician's manipulation in reducing the worker's pain. It noted that the worker has "continued to receive somewhat similar treatments from the physiotherapist he has seen in Winnipeg." It also noted the worker's suggestion that prolotherapy treatments from October 2002 to January 2003 and November 2003 to January 2004 had been helpful.

In a decision dated January 24, 2005, Review Office pointed out that it was the unanimous opinion of the MRP that the December 5, 1999 accident produced a contusion of the worker's right gluteal musculature, with possible strain of the right sacroiliac joint as well as sterile reflex epididymitis.

The MRP also suggested that the worker had likely recovered from the effects of his compensable injury by early September 2000. Review Office indicated that while the MRP's findings were not binding, it accepted the MRP's viewpoint that the worker was unable to work at his regular job or with restrictions commencing May 2, 2000. Review Office therefore determined that wage loss benefits were payable to the worker from May 20, 2000 (later adjusted to May 2, 2000) to September 20, 2000 inclusive given that the worker's treating orthopaedic surgeon found him fit to return to work when he examined the worker on September 20, 2000.

On February 23, 2005, legal counsel for the worker asked Review Office to reconsider the issues of costs associated with physiotherapy treatment, travel to the US, etc. in light of the MRP's findings. In a response dated June 14, 2005, Review Office stated the following:

• regarding payment of ongoing physiotherapy treatment, no responsibility could be accepted beyond the time of the worker's recovery from his compensable injury in September 2000;
  
  
• no responsibility could be accepted for the Saunders Sacroiliac Belt purchased in March 2002 "long after the Medical Review Panel has indicated Mr. [the worker] had recovered from the effects of the workplace injury.
  
  
• WCB policy concerning out of province healthcare service providers clearly established that all referrals must be pre-approved. As this was not done, Review Office felt that the costs associated with these trips could not be accepted.
  
  
• regarding wage loss benefits beyond September 20, 2000, Review Office was satisfied that the MRP report correctly reflected the intent of the Panelists in confirming that the worker had recovered from the effects of his accident by September 2000. As such, Review Office indicated that no additional wage loss benefits were payable.

On June 23, 2005, the worker appealed Review Office's decision of June 14, 2005 and an oral hearing was arranged.

During the course of the hearing, the Panel heard from the worker's physiotherapist who expanded upon the theme set out in his letter to the MRP of December 15, 2005. He explained the course of therapy provided to the worker and noted a pattern of improvement (with some relapses) into the summer of 2004 with the worker's condition being relatively stable since that time. Counsel for the worker and the employer representative presented comprehensive arguments on all four issues.

Reasons

The Panel finds, based upon a balance of probabilities, that:

1. the worker is entitled to wage loss benefits from September 20, 2000 to June 28, 2001;

2. responsibility should be accepted for physiotherapy treatment from September 2000 to July 21, 2004;

3. responsibility should be accepted for the March 2002 purchase of a Saunders Sacroiliac Belt; and

4. responsibility should not be accepted for the out of province medical treatment.

The Panel's findings is based upon a review of the total record including the medical evidence, written submissions and the evidence and arguments presented at the oral hearing. Particulars of the Panel's finding on each point are set out below.

The worker is entitled to wage loss benefits from September 20, 2000 to June 28, 2001

Section 4(2) of the Act provides that:

Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happened.

Background

In its decision, Review Office accepted the viewpoint of the MRP that the worker was unable to work at his regular job or with restrictions as of May 2, 2000. It held that wage loss benefits were payable to the worker to September 20, 2000 inclusive given that the worker's treating orthopaedic surgeon found him fit to return to work when he examined the worker on September 20, 2000.

In her submissions, the employer's representative argued that there was no loss of earning capacity beyond September 2000 given that medical information "clearly supports the fact that [the worker] had fully recovered from his compensable injury and the employer was willing to make whatever accommodation was necessary to facilitate a full return to work." In particular, she cited the December 20, 2000 report of the WCB medical advisor for the proposition that "during the period review from April to September 2000, there is virtually no objective medical findings to support total disability." She also pointed to the findings of the MRP and noted efforts made by the employer to modify the worker's work station.

The Panel's reasons

After carefully considering the evidence in its totality including the medical information on file and the worker's testimony, the Panel finds, on a balance of probabilities, that the worker is entitled to wage loss benefits from September 20, 2000 to June 28, 2001.

In making this decision, the Panel places considerable weight upon the credibility of the worker and on the opinions expressed by the worker's physician and the Minnesota physician. Based upon its review of the record and its consideration of the worker's sincerity and demeanor during the oral hearing, the Panel concludes that while the worker was committed to a full time return to work at an early date, the pain occasioned by his workplace injury necessitated a careful and gradual return to work while pain tolerance was monitored.

In the Panel's view, a review of the record suggests that the worker was able to return to work on a three day a week basis beginning on September 2000 but that pain prevented a full time return to work. The Panel notes that the worker's ability to return to work on a full time basis was carefully monitored by his attending physician who recommended a continuation of the three day a week regime in November 2000 and an increase to four days a week in early 2001. It observes that a further report was received in May, 2001 suggesting that the worker was improving but not ready to return to work full time. The Panel believes it is noteworthy that the physician with the most frequent contact with the worker was of the view that a gradual and carefully monitored return to work was necessitated by the worker's ongoing pain issues.

However, by the time of the June 27, 2001 examination of the Minnesota physician, it was clear that the worker's condition had improved. The Minnesota physician did not recommend any further restrictions regarding time at work but he did recommend an ergonomic evaluation of the work station.

The Panel notes that a careful reading of the treating orthopaedic surgeon's report of September 20, 2000 suggests support for the worker's return to work on September 25, 2000 but does not demonstrate a recommendation for a full time return to work. The Panel finds this report to be consistent with the subsequent reports from the treating physician cited above which allowed for a gradual increase in the time spent at work based upon pain tolerance. The Panel also observes that both the worker's oral evidence and the Minnesota physician's recommendations of June, 2001 suggest that during this period there was a continued need for an improvement in the worker's work station in order to accommodate his size, his injury and his return to work.

Finally, the Panel notes that even after his full time return to work, there is evidence suggesting ongoing instability with the worker's right sacro-iliac up until 2004.

The Panel finds, based upon a balance of probabilities, that the pain suffered as a consequence of the injury experienced in December of 1999 resulted in a loss of earning capacity until June 28, 2001 when he was cleared for full time work.

Responsibility should be accepted for physiotherapy treatment from September 2000 to July 21, 2004

Policy 44.40.10 provides that compensation benefits are payable where there is medical, or similar evidence of a disability arising from a compensable incident or condition.

The employer's representative notes that "there is no musculoskeletal pathology as a result of the compensable injury" and suggests that the worker's ongoing program of physiotherapy is due to his de-conditioning. She takes the position that since full recovery occurred by early September 2000, there is no legislative basis for payment of physiotherapy costs beyond this date.

As stated above, the Panel does not accept the suggestion that the worker's injuries were fully resolved in September 2000.

In addressing this issue, the Panel places considerable weight upon the worker's evidence as well as on the written and oral evidence of the physiotherapist. It finds this evidence in its totality to be credible and persuasive in establishing that the worker continued to suffer from a disability as a result of his compensable incident up until July, 2004. In particular, it notes the evidence of joint instability in July, 2002 and January 2003 and the conclusion of the physiotherapist that this instability was related to the workplace injury. The Panel also relies upon evidence from both the worker and the physiotherapist that by November 17, 2004 the worker "had no positional or movement faults of his right sacro-iliac joint." The Panel concludes, based upon a balance of probabilities, that the joint continued to improve up to a plateau achieved following an intensive course of physiotherapy treatment which ended on July 21, 2004.

Given that the worker's condition was not resolved in September, 2000 and that he suffered from instability in his joint until some point in 2004, responsibility for physiotherapy treatment should be accepted from September 2000 to July 21, 2004.

Responsibility should be accepted for the March 2002 purchase of a Saunders Sacroiliac Belt;

The employer's representative relies upon the September 20, 2001 opinion of the WCB medical advisor that there was no need for a belt as well as its argument that full recovery had been achieved by September, 2000.

As stated above the Panel does not accept that full recovery was achieved by September, 2000.

In finding, based upon a balance of probabilities, that responsibility should be accepted for the March 2002 purchase of a sacroiliac belt, the Panel observes that the belt was a replacement for a worn out belt initially approved by the WCB. It cites with approval the physiotherapist's evidence both orally and in his December 15, 2004 letter that the use of a sacro-iliac belt augmented the force closure mechanism and enhanced joint stability.

In summary, the worker was still recovering from the effect of his workplace injury in March 2002 and the belt in question assisted in his recovery. Accordingly, responsibility should be accepted for the sacroiliac belt.

Responsibility should not be accepted for the out of province medical treatment.

Policy 44.20.20 indicates that:

Generally, the WCB will not authorize referrals to out-of-province healthcare service providers when the same exam/treatment/procedure is available in Manitoba.

In finding, based upon a balance of probabilities, that responsibility should not be accepted for out of province medical treatment, the Panel has formed the view that the same exam, treatment and procedure is available in Manitoba. In making this determination, the Panel notes that the original diagnosis of pelvic joint dysfunction was provided by a Manitoba occupational health physician on July 17, 2000. It also relies upon the observation of the Minnesota physician that the worker "has apparently found a physical therapist in Canada who has skills in osteopathic management of pelvic dysfunction" and that the "therapist is on the right track." The Panel's position on this subject is also supported by the conclusion by the MRP in its report of January 18, 2005 that the worker has "continued to receive somewhat similar treatments (to that offered by the Minnesota physician) from the physiotherapist he has seen in Winnipeg."

Based upon the record as a whole and this information in particular, the Panel finds that responsibility should not be accepted for the out of province medical treatment because the same treatment and procedure was available in Manitoba.

Conclusion

The appeals on issues one, two and three are allowed. The appeal on issue four is denied.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 24th day of January, 2006