The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")to deny responsibility for further chiropractic treatment in relation to hiscompensable back injury.   

A file reviewwas held on December 7, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to furtherchiropractic treatment.

Decision

That the worker is entitled to further chiropractictreatment.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a low back injury that occurred on August 15, 2014 when he slipped off a ramp at work while carrying electrical supplies. The claim for compensation was accepted and benefits and services were paid to the worker.

In a memo to file dated October 31, 2014, a WCB adjudicator documented that she spoke with the worker who indicated that his treating physician recommended that he attend physiotherapy treatment for his back condition. The worker asked whether he could still attend chiropractic treatment at least once per week as it "helped to keep everything in line." The adjudicator advised the worker that the WCB would not cover both treatments but she would await receipt of the next chiropractic report and a further review would be done at that time.

On November 4, 2014, a WCB chiropractic consultant stated:

"...The claimant has attended a physiotherapist for a conditioning program for core musculature. In my opinion concurrent therapy, physical/chiro would not be required. The claimant should choose what discipline he wishes to pursue for therapy for his lower back."

On November 4, 2014, the WCB case manager advised the worker that concurrent treatment could not be approved and that he needed to decide which treatment he wished to undergo. The worker stated that at the present time he would choose physiotherapy treatment.

In his appeal submission dated November 12, 2014, the worker stated:

"Chiropractic care and Physio are both important and I believe that both avenues should be pursued with goal in mind to get me better and back on the job...Chiropractic to help keep my back healing and prevent further injury and Physio to help keep muscles to strengthen and from becoming dormant and causing another problem from occurring. I am very worried and concerned with numbness and weakness of my left leg, and at times Physio has caused my back to flare back up, I have again had to seek help from my Chiropractor, to help relieve the cramping and pain."

On January 27, 2015, Review Office determined that the worker was not entitled to further chiropractic treatment. Review Office accepted the opinion expressed by the WCB chiropractic advisor dated November 4, 2014 that the worker would not likely benefit any more from concurrent care than he was with one form of therapy at six months post accident. As the worker chose physiotherapy over chiropractic care and as concurrent treatments are not, on a balance of probabilities, going to support further curative aid or help the worker return to work any sooner, he was not entitled to further chiropractic care. On April 30, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

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 WCB's Board of Directors.

The worker has an accepted claim and is seeking approval for further chiropractic treatment. 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 established WCB Policy 44.120.10, Medical Aid. The policy intent 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.

The WCB has also adopted guidelines to assist chiropractors in treating injured workers, and provide the chiropractor with an understanding of the expectations regarding chiropractic treatment provided to workers.

Worker's Position

In a submission to the Appeal Commission dated March 21, 2015, the worker advised that:

· since his injury his chiropractor has been working with him to help the pain, discomfort and care of his back.

· he has continued to see his chiropractor and has been paying out of pocket for treatments.

· he is requesting that his chiropractic care is re-picked up by WCB.

· the only treatment he has had since discontinuation of physiotherapy has been chiropractic care.

· a neurosurgeon had indicated that treatments were on track for his condition and should be continued and has suggested that aqua therapy treatment and conditioning would be beneficial to aiding recovery.

· his recent visit at a clinic left him with increased pain from a treatment from the physiotherapist.

· he is requesting more chiropractic treatments

· with the current state of his back he is not able perform duties as a electrician, the medication he has to take impairs his judgment and causes dizziness.

· he is not able to stand on a ladder and work over head, pull wires, or lift the basic equipment and materials needed to do electrical work.

· he would be a major safety issue on site.

· he still has reoccurring issues with weakness and cramping in his left leg.

Employer's Position

The employer was represented by an employer advocate. On May 12, 2015 the employer's representative advised that the employer wished to participate in the appeal. The employer's position, as set out in a letter from its representative, was that it opposed providing any further chiropractic treatment to the worker.

The employer's representative submitted that the worker has a degenerative condition which pre-existed the current WCB claim and was caused by the cumulative effects of the worker's prior work injuries. The representative advised that the employer believes:

"...that the longstanding chiropractic treatment is no longer due (if it ever was) to the effects of this 2014 work injury. On a balance of probabilities, the ongoing treatment is the expected long-term result of the claimant's pre-existing degenerative spinal narrowing."

Analysis

The panel was asked to determine whether the worker is entitled to further chiropractic treatment. For the worker's appeal to be successful, the panel must find that the provision of further chiropractic treatments is necessary treatment for the worker's back injury. For the reasons that follow, the panel has determined that the worker is entitled to further chiropractic treatments. The panel approves reasonable chiropractic treatments related to the worker's accepted claim to be approved, modified and supervised by the WCB Healthcare in accordance with WCB Policy 44.120.10, Medical Aid.

The worker's request for additional chiropractic treatment was denied on the basis that the worker would not likely benefit from additional concurrent care, both physiotherapy and chiropractic care. The worker was asked to indicate which modality he preferred and chose to receive physiotherapy rather than chiropractic care.

The panel notes the Review Office statement that Compensation Services technically did not disallow chiropractic treatments, rather it informed the worker that concurrent treatments would not be approved. The panel agrees with this assessment by the Review Office.

However, the panel finds that the decision was limited to a specific time. The panel considered that this choice was applicable to the circumstances at that time. The panel does not view the selection at that time to be a final selection. Rather, as circumstances changed and there was a lack of improvement with physiotherapy treatment, it is reasonable that the worker be allowed a further choice between the type of service he is provided. Accordingly, the panel finds that the worker is entitled to elect to receive chiropractic care rather than physiotherapy.

The panel approves a limited, reasonable course of chiropractic treatment to increase the worker's functionality, to be approved and monitored by a WCB chiropractic consultant.

The worker's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
R. Campbell, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 13th day of January, 2016