Decision #139/12 - 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 soft tissue injections related to her compensable workplace injury. The worker's position is that the treatment was supported by the provisions of The Workers Compensation Act (the "Act") and WCB Policy 44.120.10 Medical Aid. A file review was held on November 26, 2012 to consider the matter.Issue
Whether or not the worker is entitled to further local anesthetic soft tissue injections.Decision
That the worker is entitled to further local anesthetic soft tissue injections.Background
The worker has an accepted claim with the WCB for post-traumatic stress disorder ("PTSD") due to her employment. The worker eventually returned to employment but developed intense jaw, neck and facial pain and migraine headaches in 2008.
On July 9, 2008, the worker was referred to a pain management specialist by a WCB medical advisor. The medical advisor noted that the worker was diagnosed with PTSD related to her workplace injury and subsequently was diagnosed with bruxism and cracked tooth syndrome. The medical advisor noted that the worker was reporting increased symptoms related to her jaw, ear, neck as well as bilateral shoulder pain.
On July 28, 2008, the pain management specialist reported that he saw the worker and it was his impression that she suffered from a chronic temporomandibular joint disorder ("TMJ") with both articular and myofascial components. He noted that the worker's chronic daily headaches were likely due to the ongoing myofascial hypertonicity involving both the muscles of mastication and the paracervical muscles. With respect to treatment recommendations, the specialist stated:
"…I believe that this patient should undergo one session of diagnostic local anesthetic injections including myofascial trigger point injections and nerve blocks targeting the tender and hypertonic muscles/sensory nerves identified. If temporary symptomatic relief is derived from the diagnostic local anesthetic injections, my recommendation is for this patient to subsequently pursue a series of weekly therapeutic local anesthetic injection sessions (myofascial trigger point injections and nerve blocks) over a five week period to help break the daily pain and muscle spasm cycle that has unfortunately developed."
In a note to file dated August 5, 2008, the WCB medical advisor stated, in part: "To be clear regarding the diagnosis of [the worker's] reported symptoms related to her bruxism, the diagnosis of TMJ dysfunction/syndrome would be appropriate. The diagnosis however does not necessarily specify a defined limit of reported symptoms, because as stated in the July 9, 2008 HSR response, symptoms often attributed to the TMJ are legion, and few have a well documented pathoanatomic basis. [The pain management specialist's] July 28, 2008 correspondence was reviewed. A letter has been drafted authorizing local anesthetic injections as described in [the pain management specialist] correspondence, with ongoing treatment contingent upon relevant outcome measures pre- and post injection. Authorization for Botox injections will be considered pending the outcome of the local anesthetic injections."
In a follow-up report of August 12, 2008, the pain management specialist reported that the worker underwent local anesthetic injections and that she reported a reduction in her pain symptoms. He stated: "Specifically, the pre-injection VAS score was 9 out of 10 whereas the post-injection VAS score was 4.5 out of 10…A reduction in pain intensity by 50% is considered a positive response to the diagnostic local anesthetic injections."
In a further report dated September 2, 2008, the pain management specialist reported that the worker's pain symptoms were aggravated by ongoing bruxism and anxiety and that the worker underwent further local anesthetic injections targeting the tender and hypertonic upper trapezius muscles bilaterally as well as the occipital nerves bilaterally. The specialist reported that after the injection, the worker noted a 50% reduction in her pain symptoms.
On September 16, 2008, the pain management specialist reported that the worker had completed five sessions of therapeutic local anesthetic injections however she only gained temporary relief from her symptoms. He therefore recommended that the worker undergo a trial session of Therapeutic Botox injections for more prolonged symptomatic relief. On October 17, 2008, the WCB medical advisor authorized a trial of therapeutic Botox injections.
In a follow-up report dated December 15, 2008, the pain management specialist advised the WCB that the worker did not respond favorably to the Botox injections. He therefore recommended that the worker receive funding for further local anesthetic injections at a frequency of one session every 1 to 2 weeks, given that the worker received symptomatic relief following each of the earlier treatment sessions. On January 28, 2009, the WCB medical advisor authorized a session of local anesthetic injections for the worker every 1 to 2 weeks.
On March 10, 2009, the pain management specialist reported that the worker returned for local anesthetic injections on February 3, 19, and 26, 2009 but due to another medical condition, he was holding off further injections for the time being.
On September 21, 2010, the pain management specialist responded to the WCB's request for information dated September 13, 2010. The specialist reported that the worker consistently reported that her head and neck pain intensity drops from a pre-injection 10 out of 10 level on a visual analogue scale to 5 out of 10 within minutes following the injections. He noted that the effectiveness of the treatments was significant in that it helped reduce the daily pain intensity being experienced by the worker for approximately one week. He noted that the worker consistently reported that the persistent nausea that was associated with high pain intensity levels virtually disappeared immediately following the injections. There had been no significant adverse side effects relating to the local anesthetic injections reported by the worker. The specialist concluded that the ongoing local anesthetic injections were beneficial for the worker and was medically required.
On March 23, 2012, a WCB medical advisor reviewed the file and stated that authorization of soft tissue injections beyond an initial trial phase, required the following criteria to be met: 1) a sustained improvement in patient symptoms and 2) a sustained improvement in patient function in relation to a reported improvement in symptoms. He stated: "Notwithstanding [the worker's] subjective reports of temporarily decreased neck pain following the soft tissue local anesthetic injections, the medical information on file over the past 3 ½ years, including reports submitted in close proximity to the injections does not substantiate either a sustained symptomatic or functional improvement in response to the injections…". He said the criteria for provision of further soft tissue injections were not met and that further injections were not approved.
On March 26, 2012, a WCB case manager wrote the worker to advise that the WCB was unable to accept further financial responsibility for her soft tissue injections effective March 30, 2012.
On March 26, 2012, the worker advised the WCB that the soft tissue injections she received allowed her to have a normal life for the 4 or 5 days after the injections; otherwise she would be living on pills and her stomach would not be able to handle it. The worker stated that she would have to get something to replace the injections and mentioned Botox treatments.
A worker advisor, acting on the worker's behalf, appealed the adjudicative decision of March 26, 2012 to Review Office. The worker advisor submitted that the worker was entitled to coverage for further local anesthetic injections because the medical evidence supported that they were a medically-recommended treatment for the ongoing and significantly disabling effects of the compensable injury.
On September 11, 2012, Review Office determined that the worker was not entitled to further local anesthetic injections. Review Office referred to subsection 27(1) of the Act and WCB Policy 44.120.10, Medical Aid in its decision. Review Office stated, in part, that the temporary pain relief received from the local anesthetic injections followed by severe worsening of the condition had not provided any long term "aid in the recovery" of the worker nor had the injections helped to "minimize the impact of the injury." Review Office felt that the injections most likely hindered the worker's ability to adapt and move beyond her current cycle of pain and dependence. Without sustained functional improvement over the last three and a half years, Review Office indicated that it was not able to say that the local anesthetic injections would "cure" or "provide" relief from the worker's compensable injury now or any time in the future. On September 17, 2012, the worker advisor 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 Act, regulations and policies of the Board of Directors.
The worker has an accepted claim and is seeking approval for further local anesthetic soft tissue injections. Under subsection 27(1) of the Act, the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from any injury resulting from an accident.
The WCB Board of Directors enacted WCB Policy 44.120.10, Medical Aid. The policy is to provide a comprehensive and coordinated approach to delivery of medical-aid services to injured workers so as to minimize the impact of the worker's injury and enhance an injured worker's recovery to the greatest extent possible.
Worker's Position
The panel received a written submission on behalf of the worker.
The worker relies upon the opinion of the treating pain management specialist who reported positive results for treatment and argued that ongoing local anesthetic injections are both effective and medically necessary. The pain management specialist explained that "[worker] has consistently reported that her head and neck pain intensity drops from a pre-injection 10 out of 10 level on a visual analogue scale to 5 out of 10 within minutes following the injections." The specialist added that the relief lasts for about a week, after which the pain returns to its previous intensity. He also advised that the worker had no adverse side effects from the injections. The specialist advised that when treatments were withheld, to manage her pain, the worker would consume more oral medications which caused negative side effects such as heart palpitations and gastrointestinal upset.
The submission states:
"We submit the evidence supports the provision of local anesthetic injections is consistent with requirements of the Act and WCB policy. This treatment was recommended by a pain management specialist, who has found it effective in addressing the ongoing physical effects of a compensable injury, and endorsed it as a preferred option given the lack of adverse side effects. While relief is temporary, neither the Act nor policy mandates that the effect of treatment be permanent to be supported. While other modalities have been trialed, a few with some benefit, and others without any, WCB support for all alternatives has been discontinued. Given no other reasonable options have been identified, we submit the WCB is responsible for the worker's ongoing local anesthetic injections."
Employer's Position
The employer did not participate in the appeal.
Analysis
The panel is asked to determine whether the worker is entitled to further local anesthetic soft tissue injections. For the worker's appeal to be successful, the panel must find that the provision of the injections is permissible under the Act and WCB policy. The panel has determined that the injections are permissible, consistent with the Act and WCB policy, and accordingly, the worker is entitled to further injections as recommended by the treating pain management specialist.
In reaching this decision, the panel relies upon the following facts:
- The worker suffers from severe temporomandibular joint difficulties (TMJ/TMD) disorder.
- The WCB has accepted responsibility for the worker's TMJ/TMD as being related to her compensable workplace injury.
- The treating pain management specialist has recommended the continuation of the local anesthetic injections.
- The injections are not a cure but are helping to control the worker's chronic pain symptoms (treating pain management specialist June 25, 2009).
- An oral surgeon provided the opinion that a "course of treatment consisting of diagnostic local anesthetic injections and therapeutic Botox injections are recognized in the oral and maxillofacial surgery literature as legitimate forms of treatment for temporomandibular joint pain dysfunction syndrome and myofascial pain dysfunction syndrome." (November 23, 2009)
- The WCB has refused to accept responsibility for orthodontic treatment plans for the worker's TMJ/TMD condition.
- The worker reports that she receives immediately relief from the injections and that the relief lasts for about a week.
The panel finds that while the injections are not a cure, they do provide relief from an injury as contemplated in subsection 27(1) of the Act and are consistent with paragraph A.2.(b)(ii) of the Medical Aid policy which provides that the WCB will pay for treatments that aid in the recovery of an injured worker or minimize the impact of the injury. (italics added)
The panel notes that the injections were originally authorized on a diagnostic basis but as there have been no more effective treatments identified and there is no treatment plan in place, the continued use on a therapeutic basis is appropriate. The panel finds that the treatments are not "maintenance care" but rather provide effective relief from the worker's severe pain resulting from her compensable injury. The panel sees the treatment in this case as being similar to oral drug therapies for chronic pain.
The WCB case manager discontinued coverage for the injections in March 2012. In the decision letter the case manager notes that "Authorization beyond an initial trial phase requires the following criteria to be met: a sustained improvement in patient symptoms and a sustained improvement in patient function in relation to a reported improvement in symptoms". The case manager found that "medical information on file over the past three and one half years does not substantiate either a sustained symptomatic or functional improvement in response to the 64 injection sessions…" The Review Office decision noted that within a week of injection, the worker is so bad or pain focused that she is requiring further injections in order to perform functions of daily living. The decision goes on to state "This pattern of treatment does not encourage any sustained progress and will not "cure and provide relief" from an injury in the long term." Review Office also comments that it feels the injections have most likely hindered the worker's ability to adapt to and move beyond her current cycle of pain and dependency.
The panel disagrees with these assessments and notes that at the current time there is no alternative plan for dealing with the worker's condition and that the most effective treatment identified to date has been the injections.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 10th day of December, 2012