The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A file review was held on March 19, 2014 to consider the matter.

Issue

Whether or not the worker is entitled to coverage for physiotherapy treatment beyond November 18, 2013.

Decision

That the worker is not entitled to coverage for physiotherapy treatment beyond November 18, 2013.

Decision: Unanimous

Background

The worker suffered a work-related injury to his low back on July 16, 2013 when he tripped on a torch hose. His claim for compensation was accepted based on the diagnosis of a low back strain in the environment of an L4-L5 and L5-S1 degenerative disc disease (pre-existing).

On September 30, 2013, the treating physiotherapist submitted a physiotherapy application requesting additional funding for the worker's treatment.

On October 7, 2013, the worker was seen by a physical medicine specialist who recommended that the worker undergo a left S1 transforaminal injection. This procedure was later carried out on November 19, 2013.

On October 9, 2013, a WCB physiotherapy advisor reviewed the request from the treating physiotherapist and was of the opinion that the worker was not receiving any sustained benefit or functional gains from the treatment and therefore he denied the request for a physiotherapy treatment extension. On October 10, 2013, the worker appealed the decision to Review Office.

In its decision dated December 5, 2013, Review Office determined that the worker required further coverage for physiotherapy treatment as a result of his compensable back injury. Review Office noted that the worker experienced little to no functional improvement or pain relief to his back after he attended 21 approved physiotherapy treatments. His treating physician, however, acknowledged that although the worker's progress was slow and pain remained an issue, the physiotherapy treatment had eventually alleviated the worker's symptoms and did provide him with a sustained level of function. The physician supported ongoing coverage of physiotherapy treatment while awaiting alternate treatment options.

Between the date when the WCB denied coverage for physiotherapy treatment and the date of the injection, Review Office indicated that the file evidence supported the worker had achieved improvement with his function, strength and pain relief through the collective therapeutic modalities of traction, exercise and medication. Physiotherapy treatment was accepted, on a limited basis, to November 18, 2013. On January 30, 2014, the worker appealed Review Office's decision to the Appeal Commission and a file review was held on March 19, 2014.

Reasons

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 physiotherapy, 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 …

a. Medically Prescribed Treatments and Prosthetic Devices

i) The WCB will generally pay for medically prescribed treatments (cosmetic, physical or psychological)

...when required by reason of a compensable injury, and the treatment ...is likely to improve function or minimize the chance of aggravating the existing injury or of causing further injury.

Worker's Position

In his appeal form dated January 30, 2014, the worker wrote:

"I am writing to appeal WCB's decision to deny more physiotherapy treatments. I would like to continue with physiotherapy as it helps to keep my muscles, joints and nerves active. I feel that I am benefitting from the treatment each time I go and will continue to benefit from them. I would greatly appreciate my physiotherapy treatments be re-instated based on my doctor's and my physiotherapist's opinions as well as on my own benefits (sic) being received from attending the sessions. My doctor has even requested that WCB's doctors meet with me to evaluate me as she has been so they can observe first hand my injury. I am still awaiting to hear from WCB regarding this. Thank you for taking the time to consider my request..."

A February 6, 2014 memo to file, from the Appeal Commission Assistant Registrar, notes the worker's advice that he is still receiving physiotherapy under his employment benefit plan but is quickly reaching the maximum that his plan will cover. A November 14, 2013 memorandum from the case manager notes that the treating physician advised that the worker is attending physiotherapy and is having traction done to his back which is helping with his fitness and strength.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to coverage for physiotherapy treatment beyond November 18, 2013. For the worker's appeal to be successful, the panel must find that the treatment complies with the provisions of the Medical Aid Policy, in that it minimizes the impact of the worker’s injury, encourages recovery and return to work, and is likely to improve function. The panel was not able to make this finding.

By way of background, the panel notes that the WCB physiotherapy advisor declined to authorize further treatments on October 9, 2013. He found that "There is no evidence of sustained benefit or functional gains on the medical reports." The Review Office, in dealing with the worker's appeal, found that "the file evidence supports the worker had achieved improvement with his function, strength and pain relief through the collective therapeutic modalities of traction, exercise and medication." Review Office extended physiotherapy benefits to November 18, 2013.

In dealing with the worker's appeal, the panel has reviewed the worker's file and notes:

• the worker continued to receive physiotherapy treatments after November 18, 2013 under his employment benefit plan
• the worker has been treated by a physical medicine specialist who gave the worker a spinal injection
• the worker's pain medication has increased and he has been provided with different medication
• the worker has been seen by a neurosurgeon who has recommended surgery which the WCB has approved
• the worker's pain increased significantly requiring attendance at the emergency ward of a local hospital on January 23, 2014
• an MRI was performed on an urgent basis
• the worker's physician reported on February 10, 2014 that the worker is still getting physiotherapy. She noted "exercising at home - gets on the bike but pain with extending leg, can only do 5-10 min before was able to do 30-60 min before christmas." She also noted that the worker is now walking with a cane.

The panel notes that although the worker continued to receive physiotherapy, the evidence does not show that the impact of the worker's injury was lessened or that the worker's function has improved. The worker's condition appears to have worsened despite the physiotherapy treatments. This is in marked contrast to the earlier authorization by Review Office of an extension of physiotherapy treatment, when the evidence suggests improvements in the worker's condition at that time. The panel is not able to find a basis to authorize a further extension of physiotherapy treatments under the Policy at this time.

The panel notes the February 5, 2014 memorandum from the WCB medical advisor. The medical advisor noted that "If there is no surgical treatment proposed, then conservative treatment would need to be optimized and consideration could be given to enrolling [the worker] in a PT based program (reconditioning). This could be discussed with the WCB PT advisors if ultimately surgery is not deemed appropriate." The panel accepts the medical advisor's opinion. If surgery does not proceed, consideration should be given to further physiotherapy treatment under the circumstances described.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 2nd day of April, 2014