Decision #57/09 - Type: Workers Compensation
Preamble
The worker has an accepted claim with the Workers Compensation Board (“WCB”) for a left shoulder injury that occurred at work on March 8, 2008. The issue being appealed by the worker deals with the WCB’s denial to cover the costs associated with acupuncture treatments that she received from an acupuncturist who was not a member of a provincially regulated healthcare profession. A file review took place on March 17, 2009 to consider the matter.Issue
Whether or not the worker’s acupuncture treatment should be covered.Decision
That the worker’s acupuncture treatment should not be covered.Decision: Unanimous
Background
On March 8, 2008, the worker injured her left shoulder in a work related accident.
When discussing her claim with a WCB adjudicator on March 27, 2008, the worker enquired whether she would be covered for acupuncture treatment through an acupuncturist clinic. The adjudicator indicated to the worker that the WCB did not cover acupuncture treatments through a private acupuncture clinic but did cover treatments that were administered by a physiotherapist or chiropractor. As the worker indicated that physiotherapy advised her to continue with acupuncture treatment, she was instructed to have the physiotherapist provide a report to the WCB for consideration.
On June 11, 2008, the worker advised the WCB that she underwent nine acupuncture treatments through a care provider in a private clinic. She stated that acupuncture sped up her healing time.
On June 16, 2008, a WCB medical advisor was asked to review the claim and provide comment as to whether or not the WCB would authorize the worker’s acupuncture treatments. In a response dated July 4, 2008, the medical advisor stated:
“…While acupuncture is covered by WCB when performed by approved therapists such as physicians, chiropractors or physiotherapists (ie accredited providers who are governed by regulatory bodies and an act which incorporates peer review in their accreditation), private acupuncturists do not fall into this category. [the worker] may benefit from acupuncture treatment, and there are qualified therapists who would meet the criteria alluded to above located in [city] with whom [the worker] could attend, and be covered for same through WCB. In summary, acupuncture treatment obtained through a private clinic whose provider does not meet the criteria described above would not be authorized as a financial responsibility of the WCB.”
On September 25, 2008 the worker was advised that: “…the Workers Compensation Board (WCB) only authorizes acupuncture treatment from a member of the Acupuncture Foundation of Canada Institute…any expenses incurred by the private acupuncture clinic cannot be considered by the WCB at this time.” On September 29, 2008, the worker appealed this decision to Review Office. The worker indicated that the acupuncture treatments helped her tremendously and have sped up her recovery time.
On November 6, 2008, Review Office determined that the worker’s acupuncture treatment should not be covered by the WCB. Review Office indicated that it was the WCB’s practice to limit its acceptance of acupuncture treatment to that provided by practitioners who are members of the Acupuncture Foundation of Canada Institute which was a government regulated professional association. Review Office concluded that the acupuncturist the worker received treatment from was not a member of the Acupuncture Foundation of Canada Institute and it followed that the WCB would not cover the acupuncture treatment the worker received. On December 12, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a file review was arranged.
Following the file review held on March 17, 2009, the appeal panel sought clarification from the WCB’s healthcare branch as to the current protocol used by the WCB to approve acupuncture treatments. A response from the WCB was received and was forwarded to the interested parties for comment. On April 27, 2009, the panel met to render its final decision on the issue under appeal at which time they considered a final submission from the worker dated April 15, 2009.
Reasons
Applicable Legislation:
When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of The Workers Compensation Act (the “Act”). Provision of medical-aid services to injured workers is payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident. WCB Policy 44.120.10 Medical Aid (the “Policy”) sets out a coordinated approach to delivery of medical-aid services. As it relates to acupuncture, the Policy provides as follows:
1. Medical-Aid Providers
The provision of medical aid involves the use of a wide variety of providers, mainly doctors, chiropractors and physiotherapists. From time to time the WCB approves the services offered by other healthcare providers. The WCB will establish fee schedules with healthcare providers and may use preferred providers.
This section establishes criteria to determine which practitioners are recognized by the WCB. These criteria are intended to ensure that injured workers receive quality care.
…
2. Medically Prescribed Treatments, Devices and Their Related Accessories
To minimize the impact of workers’ injuries and to encourage recovery and return to work, the WCB approves the use of many prescribed and recommended treatments and devices …
…
b. Medically Recommended Treatments
i) Other medically recommended treatments include, but are not limited to, acupuncture, massage therapies, swimming, fitness therapies, obus forms, as well as new treatment modalities constantly being introduced to the market place.
ii) The WCB may approve the use of these treatments or medications subject to pre-approval by the WCB on a case-by-case basis. All such treatments must satisfy the WCB that their use will aid in the recovery of an injured worker or minimize the impact of the injury.
C. ADMINISTRATIVE GUIDELINES
3. Medically Recommended Treatments
i) The latest edition of treatment protocols developed by Healthcare Services will guide staff.
Worker’s submission:
The worker’s written submission dated March 3, 2009 outlined the acupuncture treatments received by her and she expressed her belief that the acupuncture, in conjunction with her physiotherapy, was very effective in treating her injury. As a result of their combined care, she was able to return to work full time in her regular position. Other insurers have recognized the acupuncturist’s credentials and have approved payment for her treatments. The worker also enclosed a letter from the acupuncturist which detailed her training and expertise. The letter described the acupuncturist’s training, which included a four year full time honours program in acupuncture. This would be analogous to obtaining a masters level degree in acupuncture. The acupuncturist’s letter also queried the approval by the WCB of another acupuncturist practicing in Manitoba. It was felt by the acupuncturist that she had similar qualifications and as such, she should also be recognized by the WCB.
Analysis:
The worker has an accepted claim for a work-related injury to her left shoulder. In addition to receiving physiotherapy treatment for her injury, the worker also received treatment from an acupuncturist. The WCB has accepted responsibility for the physiotherapy, but has denied coverage for the acupuncture treatment. The issue for the panel to decide is whether the worker’s acupuncture should be covered. As the Appeal Commission is bound by the policies of the WCB Board of Directors, in order for the worker’s appeal to be successful, we must determine that there is entitlement in accordance with the Policy.
After reviewing the facts of this case, we find that there are two significant ways in which coverage of the acupuncture treatments would be inconsistent with WCB policies and guidelines:
1. The absence of a medical recommendation for treatment
As noted earlier, the Policy sets out the WCB’s approach towards delivery of medical aid services. Section 2(b) allows for coverage of acupuncture treatment where it is “medically recommended.” In the present case, acupuncture was never formally recommended by either the worker’s physician or her physiotherapist. One of the physiotherapist’s reports noted that the worker stated she was getting relief from acupuncture; however the panel feels that this comment does not go so far as to constitute a “recommendation”. The worker had been specifically instructed to have her physiotherapist provide a report to the WCB for consideration, but no report of this nature was ever provided to the WCB. The panel finds that in the absence of a medical recommendation, the requirements of the Policy have not been met.
2. Failure to meet requirements of current WCB protocol.
The Administrative Guidelines contained in the Policy provide that the latest edition of treatment protocols developed by Healthcare Services will guide staff in determining whether medically recommended treatments (such as acupuncture) will be approved. After our initial review of this matter, the panel requested clarification from the WCB as to the current protocol used by the WCB to approve acupuncture treatments. We also asked for information on how the protocol would apply to the worker’s acupuncturist and to the acupuncturist who was mentioned in the worker’s submission. The response from the WCB dated March 30, 2009 advised:
The current position of the Healthcare Department of WCB regarding acupuncture treatment is cited under “Position Statement and Policies for RACS and HMS”, last updated November 23, 2005, excerpts which read as follows:
Acupuncture is an accepted form of treatment within Manitoba and is delivered by medical doctors, physiotherapists, and chiropractors … Treatment by any professional other than those noted above is not recommended at this time.
There have been no changes to the aforementioned position. Specifically, the list of professionals authorized to provide acupuncture treatment to WCB claimants has not been expanded.
The WCB’s response also explained that the November 23, 2005 position statement is based on the requirement that all providers of acupuncture be a member of a provincially regulated healthcare profession. This ensures a standard of training and treatment, as well as accountability of the treating practitioner to their respective licensing bodies. Prior to November 23, 2005, the practice at the WCB was for acupuncture to be authorized on an ad hoc basis. Thus, under the previous practice, it was possible for the services of an acupuncturist who was not a member of a provincially regulated healthcare profession to be approved by the WCB.
With respect to the aforementioned acupuncturists, the WCB advised that as the individuals are not members of a provincially regulated healthcare profession, they would not be considered an authorized provider of acupuncture services to WCB clients.
The panel has considered the arguments put forth by the worker, and although we do not doubt her confidence in the ability of her acupuncturist to provide effective relief from her injury, we are not prepared to diverge from the WCB protocol. The acupuncture treatment protocol clearly specifies that only acupuncture delivered by a medical doctor, physiotherapist or chiropractor is an accepted form of treatment. The worker’s acupuncturist is not a registered member of any of these healthcare professions.
Because of the foregoing inconsistencies with the Policy and guidelines, we find that the worker’s acupuncture treatment should not be covered. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 5th day of June, 2009