The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by Review Office of the Workers Compensation Board ("WCB") which determined that she was not entitled to benefits for massage therapy treatment and associated time loss to attend those treatments. A hearing was held on December 18, 2012 to consider the matter.

Issue

Whether or not the worker is entitled to massage therapy treatment; and

Whether or not the worker is entitled to wage loss benefits to attend massage therapy treatment.

Decision

That the worker is entitled to coverage for massage therapy treatment related to deep tissue massage therapy but not laser treatment; and

That the worker is entitled to wage loss benefits to attend massage therapy treatment related to deep tissue massage therapy but not laser treatment.

Background

The worker has an accepted claim with the WCB for injury to her right shoulder, neck, arm and wrist that developed over a period of time due to the nature of her job activities of keyboarding and mouse use.

On March 9, 2012, the worker met with a WCB adjudicator to discuss her claim. The worker noted that she first sought medical treatment with her family physician on March 2, 2012 when the pain increased into her neck and she had numbness in her finger/thumb. The worker indicated that she had a friend who performed massage and laser treatment and that she had received this treatment on a couple of occasions and would continue to do so. The worker was aware that the WCB did not generally cover costs related to massage therapy.

In a decision dated June 5, 2012, the worker was advised that massage therapy was a form of treatment that the WCB did not recognize and as such, the WCB would not cover the cost of the treatment or any time loss associated with the treatment.

A union representative, acting on the worker's behalf, appealed the adjudicative decision dated June 5, 2012. The representative stated:

While we recognize that the WCB does not accept the cost of massage therapy treatments; the issue of time loss to attend those appointments is completely separate.

Here are the facts: The WCB has accepted a claim for [the worker]. They have accepted her physician as the attending practitioner. That practitioner has recommended massage therapy to treat the injury. The WCB has not advised [the worker] that she cannot attend the treatment, merely that they won't pay for the treatment.

Under WCB policy (administrative guidelines) it appears that evidence of disability and/or loss of earning capacity are the considerations for paying time loss. WCB's decision whether to pay for a treatment modality does not seem to be contemplated in the policy.

Therefore, as the treatment prescribed by the attending physician has not been deemed inappropriate by the WCB; and there is medically substantiated evidence of disability and loss of earning capacity: the WCB should cover [the worker's] time loss to attend the massage therapy appointments.

In a second decision dated June 14, 2012, the worker was advised that massage therapy was a form of treatment that the WCB did not recognize and therefore the WCB would not pay for the costs of the treatment or any associated time loss. The case manager noted that the union representative's appeal did not question the decision not to cover the cost of the massage therapy treatment and only questioned the decision not to pay the time loss associated with attending for the massage therapy treatment. The case manager stated:

Given that the WCB has not authorized massage treatment as a form of treatment to cure or provide relief for [the worker] from her compensable injury; it remains the opinion of Rehabilitation and Compensation Services that the time missed from work to attend those treatments would not be considered time missed from work due to her compensable injury. As such the previous decision to disallow wage loss entitlement for time missed to attend massage therapy treatments has not been changed.

On June 19, 2012, the union representative appealed the WCB's decision to deny payment of time loss benefits to the worker to attend massage therapy treatments for her compensable injury and to deny coverage for the costs of the massage therapy treatment. The representative referred to his original appeal and said there was nothing in policy or guidelines stating that the WCB had to cover the cost of a treatment for time loss from work to be considered compensable. The policy covering wage loss did not consider the treatment modality when determining whether time loss was payable. Reference was made to point 2 of the administrative guidelines of the policy:

"Wage loss benefits are based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker's treating healthcare professionals."

The representative said it was clear that the worker's physician recommended massage therapy as part of her recovery from the compensable injury, and therefore, the burden of section 2 had been met.

With respect to coverage for massage therapy treatment, the representative noted that historically, there were cases where the WCB had covered the cost of massage therapy treatment. In the worker's case, the treatment was recommended by her physician and was enabling her to continue with work while recovering from a workplace injury. Therefore, the cost of massage therapy treatment should be covered by the WCB.

Prior to consider the appeal, Review Office met with the worker on June 26, 2012 to obtain more information related to her massage therapy treatment and associated time loss. Review Office also discussed the case with a WCB senior medical advisor on June 27, 2012.

On July 3, 2012, Review Office determined that massage therapy costs and wage loss to attend the treatments were not acceptable. With respect to massage therapy costs, Review Office referred to medical information on file to support that the worker's massage therapy treatment did not have a positive and measurable effect on improving the worker's function. Review Office did not deny that the worker obtained relief from massage therapy but was concerned that the provision of ongoing massage therapy was not curative in nature and the WCB normally did not provide unending support for programs whose goal was to provide ongoing relief.

After four months of twice weekly massage therapy, Review Office noted there was some reported symptom improvement but very little evidence of any measurable improvement in the worker's level of functioning. The moderate level of disability expressed at the physiotherapy assessment was consistent with the work arrangements and level of functioning demonstrated through continued work accommodations. The work accommodation had changed very little since the start of the claim. Although the worker was now attending physiotherapy treatment, it was the worker's understanding that she was not yet ready for a strengthening program and this was based on the advice of her massage therapist. Given the lack of any functional improvement despite four months of massage treatment, and in light of the April 4 treatment recommendations by the specialist, Review Office was unable to approve the cost of massage therapy.

Regarding the issue of wage loss to attend treatment with her massage therapist, Review Office referred to Medical Aid Policy 44.120.10. Review Office noted that wage loss was one of the listed expenses that would be reimbursed when an injured worker attends compensable medical treatment. For wage loss to be considered, the treatment must be determined to be compensable. Therefore wage loss benefits would only be paid for reasonable expenses related to treatment considered appropriate and approved by the WCB. Given that massage therapy was not approved as a compensable medical treatment, Review Office was unable to accept responsibility for wage loss related to these appointments.

On September 18, 2012, the treating therapist reported that the worker was treated in the clinic for issues pertaining to her right shoulder and neck area and that the worker suffered from stretch weakness due to her job and the ergonomics of her workstation. The treatment protocol was massage therapy once a week to eliminate trigger points via trigger point release massage treatments as well as active release technique. The worker also received laser therapy twice per week to increase cell metabolism to aid in healing or damaged tissue and pain management. The therapist noted that the worker was doing well with the treatments when she was able to commit to 2 times per week. Her progress was 70% better when she stopped the treatments due to lack of time and funds. The therapist stated: "I understand the condition has now regressed back to near original state of injury, which is understandable if ergonomics of workstation has not been corrected adequately. My recommendation is first and foremost to adjust workplace ergonomics and then continue treatment as listed above until 100% corrected. The condition should not return if all of these protocols have been met."

On September 19, 2012, the worker appealed Review Office's decision of July 3, 2012 to the Appeal Commission and a hearing was arranged.

Reasons

Chairperson Choy and Commissioner Walker:

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

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 Act. Provision of medical-aid services to injured workers is payable in accordance with subsection 27(1) of the Act which provides as follows:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers 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 massage therapy, the Policy provides as follows:

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

1. Medically Recommended Treatments

i) The latest edition of treatment protocols developed by Healthcare Services will guide staff.

With respect to massage therapy, the latest edition of the WCB Healthcare Services Treatment Protocol provides as follows:

Massage therapy is only accepted on an individual case basis and should always be pre-approved. Massage therapy is not considered to be essential in restoring a worker to function and fitness for work. In some cases, it may be complementary to other treatment and may be approved on a limited basis. It is highly recommended that RACS staff consult with a Medical Advisor or Physiotherapy Advisor before approving massage therapy.

Worker’s submission:

The worker was assisted by a union representative at the hearing. It was submitted that when compared to the Policy, the Health Services Treatment Protocol exceeded its mandate. There was no mention in the Policy of treatment needing to be "essential." The Policy stated that use of treatments may be approved if: "their use will aid in the recovery of an injured worker or minimize the impact of injury." Information from the worker's family physician and from the treating massage therapist indicated that the massage therapy was in fact aiding in the worker's recovery and minimizing the impact of the injury. A tangible example was the fact that the worker was able to return to the workplace once she started receiving intensive massage therapy. This was in conjunction with ergonomic changes to her desk area and a modified work situation. Initially, the worker had attended a physiotherapist who administered some massage (10 minutes per session) and Tens machine. The worker stopped attending for physiotherapy treatment as the 10 minutes of massage and Tens were not providing any relief of symptoms. It was not until the worker began attending a licensed massage therapist for 80 minute deep tissue massages that she began to notice decreased pain and improved muscle function and mobility.

With respect to the claim for wage loss, it was submitted that if the panel accepted the cost of massage therapy treatment, then the worker's wage loss to attend the treatment should also be covered. If the panel did not accept coverage of massage therapy, it was submitted that the wage loss to attend the treatments should still be covered. The rationale was that the medical aid policy should not be used to disallow the wage loss claim. It was submitted that the claim for wage loss should be considered under WCB Policy 44.40.10, Evidence of Disability, if the wage loss was not due to treatment covered by the medical aid policy. According to point 2 of the Administrative Guidelines under WCB Policy 44.40.10: "Wage loss benefits are based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker's treating healthcare professional." As the worker was attending treatment to assist in the recovery from a workplace injury, her loss of earning capacity was a result of that injury. The worker's treating healthcare professional (i.e. her massage therapist) could attest to the necessity and efficacy of the treatment. The argument was that the worker was still suffering the effects of her compensable injury and if she needed to miss time from work for that compensable injury, she should still receive wage loss benefits, regardless of whether the WCB was covering the cost of the treatment. She should not have to use her own sick time to treat the effects of the compensable injury.

Analysis:

The first issue before the panel is whether or not the worker is entitled to massage therapy treatment. In order for the worker's appeal on this issue to succeed, the panel must be satisfied that the massage therapy treatment received by the worker was necessary to cure and provide relief from the injury resulting from an accident. The majority is able to make this finding in part.

The test set out by subsection 27(1) is whether the medical aid is "necessary to cure and provide relief". The Policy and Administrative Guidelines then provide further guidelines. The Policy acknowledges that the provision of medical aid involves the use of a wide variety of providers and that the WCB relies mainly on doctors, chiropractors and physiotherapists. From time to time, services offered by other healthcare providers will be approved.

The Treatment Protocol applicable to massage therapy notes that this form of treatment is not considered to be essential in restoring a worker to function and fitness for work and may be complementary to other forms of treatment. The panel understands that part of the concern addressed by the Treatment Protocol is that massage therapy is a passive treatment modality which provides only temporary relief. It is not thought to be curative. In keeping with the Treatment Protocol, we would not be supportive of the provision of massage therapy treatment on an indeterminate ongoing basis.

In this case, the massage therapy treatment which was received by the worker from March to June 2012 consisted of two parts. According to the massage therapist, the worker received deep tissue massage which included trigger point release massage treatments as well as active release techniques. The worker also received laser therapy twice per week to increase cell metabolism to aid in healing of damaged tissue and pain management. The worker's evidence was that the effects of this treatment were not temporary and she felt that the treatment assisted her in achieving gradually increased function at work. It is notable that while the worker was receiving the massage therapy, she was not receiving any other treatment from a physiotherapist or chiropractor in conjunction with the massage therapy.

Notes on the WCB file dated June 27, 2012 record that the WCB senior medical advisor indicated that some forms of treatment provided by massage therapy (deep tissue massage, ART) are also provided by other healthcare providers that are governed by regulatory bodies (e.g. physio for massage as part of a treatment plan, chiro for ART). He also noted that while massage therapy should normally be reviewed on a prospective basis, in looking at massage therapy on a retrospective basis, there needs to be measurable and sustained improvement noted and an injured worker's functioning should also be improved.

The worker in this case does not have a definitive medical diagnosis. This makes it more difficult to assess whether massage therapy was needed to cure and provide relief from her injury. Given that the deep tissue massage techniques which were provided to the worker overlap with the types of treatment which the WCB would normally approve if administered by a physiotherapist or chiropractor, and given the evidence of both the worker and her massage therapist that the treatments did result in sustained functional improvement, the majority accepts on a balance of probabilities that the deep tissue massage was necessary to cure and provide relief from the injury resulting from an accident and that the worker ought to have received coverage for same. In making this decision, the majority is not authorizing coverage for massage therapy on an ongoing basis, but when taking a retrospective view, we are prepared to allow coverage for the deep tissue treatments received by the worker from March to June 2012. We feel that the treatment was reasonable to address the symptoms complained of by the worker, despite the fact that she did not receive pre-approval for the treatment.

This decision is limited to the deep tissue massage treatments only. The majority does not accept responsibility for the laser treatments administered as there is not sufficient medical support for this treatment modality.

With respect to the claim for wage loss, the majority finds that the worker is entitled to wage loss benefits for any time lost from work for attending deep tissue massage treatments. With respect to the time lost for attending laser therapy treatments, we find that the worker is not entitled to wage loss benefits as the time loss is not related to the provision of medical aid authorized by the WCB. We have considered the union representative's argument that the time loss is still related to the compensable injury, however we do not accept this position. Wage loss benefits under subsection 39(1) are payable for loss of earning capacity. In this case, the worker did not have a loss of earning capacity when she attended the laser therapy treatments. The worker acknowledged that during the times when she attended the treatments, she was still able to perform the usual functions of her employment. The majority views the worker's absences from work as resulting from her own personal decision to have laser therapy, which was a treatment not authorized by the WCB. In the circumstances, she is not entitled to coverage for that portion of her time loss.

For the foregoing reasons, the worker's appeal is allowed in part.

Panel Members

L. Choy, Presiding Officer
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 14th day of February, 2013

Commissioner's Dissent

A. Finkel

Commissioner

Signed at Winnipeg, this 14^th day of February, 2013.