Decision #53/12 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by Review Office of the Workers Compensation Board ("'WCB") which determined that she was not entitled to further physiotherapy treatment in relation to her compensable injury of March 22, 2007. A file review was held on February 21, 2012 to consider the matter.Issue
Whether or not the worker is entitled to further physiotherapy treatment.Decision
That the worker is entitled to further physiotherapy treatment.Decision: Unanimous
Background
The worker has an accepted claim with the WCB for a work-related injury to her low back and tailbone region that occurred on March 22, 2007 after a slip and fall on ice. Under Appeal Commission Decision No. 111/09, the appeal panel confirmed that the fall caused a long term aggravation of the worker's pre-existing condition of spondylolisthesis. On May 8, 2009, the worker underwent the following surgical procedures which were accepted as a WCB responsibility: "L4-5, L5-S1 fusion and fixation using SSCS screws. Bone graft left pelvis. Laminectomy L5."
On January 5, 2011, a WCB medical advisor noted to the file that the worker was at maximum medical improvement ("MMI") and that an assessment for a permanent partial impairment award was appropriate.
The worker was assessed by a WCB physiotherapy consultant on March 24, 2011 for the purposes of establishing a permanent partial impairment ("PPI") rating resulting from the March 2007 accident. During the interview portion of the assessment, the worker noted that she had residual pain in her low back which became worse with increased activity.
On October 7, 2011, the worker attended a physiotherapist for complaints of left-sided low back and hip pain. The physiotherapist's diagnosis was: "Flare-up of pain resulting from her previous workplace injury and surgery, nerve root impingement possibly from scar tissue."
On October 20, 2011, primary adjudication requested a medical opinion from the WCB physiotherapy consultant as to whether a course of physiotherapy at this point would be considered appropriate. In a response dated November 3, 2011, the consultant opined that the worker was at MMI and had numerous extension requests with no sustained benefit. A home exercise program was suggested. On November 8, 2011, the treating physiotherapist was advised by the WCB that further physiotherapy treatment would not be authorized and that a home exercise program was suggested.
On November 16, 2011, the worker appealed the above decision to Review Office on the grounds that physiotherapy had greatly helped her condition. The worker stated:
"Before this last round of treatments I could barely get out of bed. My back felt so heavy and constant aching. My legs and buttocks going numb countless times throughout the day. Shooting pains in my legs and hips. I have had about 4 or 5 treatments and it has make (sic) a huge difference in my quality of life. The numbness and shooting pains have been drastically reduced. I am continuing with my home exercise program every day. I am now walking on the treadmill over a mile a day and able to do 20 reps of both my strength and stretching exercises."
On January 5, 2012, Review Office determined that there was no entitlement to further physiotherapy treatment. Review Office stated that the worker received 63 physiotherapy treatments from April 5, 2007 to October 7, 2011. The worker was provided with a home exercise program upon her discharge from physiotherapy treatment and file information noted that the worker was exercising regularly and was managing with her home program. Review Office pointed to medical evidence on file to support that the worker reached her MMI which resulted in a PPI award with respect to her low back condition. It agreed with the medical opinions on file that there were no further treatment recommendations.
Review Office felt that the worker had been given ample in-clinic treatment and instruction for a home program for strengthening and stretching since she first began physiotherapy. Given the worker's position that she continued with her home exercise program every day and was now walking on the treadmill for over a mile a day, Review Office did not find the evidence to support the need for further supervised in-clinic treatment. In January 2012, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), its regulations and the policies of the Board of Directors.
Pursuant to subsection 27(1) of the Act, medical aid benefits will be paid by the WCB for as long as is necessary to cure and provide relief from injury. Physiotherapy treatment is considered to be a medical aid benefit.
WCB Policy 44.120.10, Medical Aid, (the “Medical Aid Policy”) sets out a co-ordinated approach to delivery of medical-aid services. It provides in part as follows:
Policy Purpose
The Medical Aid Policy presents a comprehensive and co-ordinated approach to delivery of medical-aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker’s injury and to enhance an injured worker’s recovery to the greatest extent possible.
1. Medical-Aid Providers
a. Medical-Aid Services Provided by Accredited Healthcare Providers
The WCB will engage the services of doctors, chiropractors, physiotherapists, dentists, psychiatrists and other healthcare providers who belong to organizations that have a formal certification and licensing or registration process, only if they are in good standing with their licensing body.
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 …
a. Medically Prescribed Treatments and Prosthetic Devices
i) The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological) and standard prostheses when required by reason of a compensable injury, and the treatment or device is likely to improve function or minimize the chance of aggravating the existing injury or of causing a further injury.
Worker’s Position
The worker’s position was set forth in her letter of November 16, 2011. She acknowledged that there has not been a sustained benefit to her from her ongoing physiotherapy treatments. She stated that she is continuing with her home exercise program every day. She was walking on the treadmill over a mile a day and was able to do 20 repetitions of both her strength and stretching exercises.
The worker was not seeking an ongoing continuation of benefits, but instead, was seeking physiotherapy to deal with a “flare-up” of her injury that occurred in October 2011. She stated that the four or five treatments that she undertook to address the flare-up drastically reduced the “numbness and shooting pains” that she was experiencing and made a huge difference in the quality of her life.
Employer’s Position
The Employer did not participate in this appeal.
Analysis
For the worker’s appeal to be successful, the panel must find that the physiotherapy treatment that was rendered was intended “… to minimize the impact of the worker’s injury and to enhance [the] injured worker’s recovery to the greatest extent possible” as provided by the Medical Aid Policy. It must be treatment that is likely to improve her functioning.
The file establishes that the worker’s condition was stable during the period from November 2010 to October 2011. She then suffered a major flare-up immediately prior to October 7, 2011. Her physiotherapist’s report of that date assessed her condition as a “flare-up of pain resulting from previous workplace injury and surgery and nerve root impingement possibly from scar tissue.”
A distinction is to be drawn between treatment sought to address chronic or ongoing pain, where there is no reasonable prospect of improving the worker’s baseline condition, and treatment sought to address an acute flare-up that may be resolved by further treatment. In the latter case, the treatment is intended to return the worker to the baseline position that he or she had previously achieved. It therefore falls within the Medical Aid Policy and is generally considered to be an eligible treatment.
In this case, the panel finds that the worker suffered an acute flare-up, and that the flare-up was resolved following a short course of physiotherapy treatment rendered during October and November of 2011. On that basis, the panel concludes that the worker is entitled to physiotherapy treatments rendered during that time period.
Any request for treatment for a subsequent flare-up shall be subject to adjudication under the WCB's established claim procedures.
The worker’s appeal is allowed.
Panel Members
D. Kells, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
D. Kells - Presiding Officer
Signed at Winnipeg this 18th day of April, 2012