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 concurrent physiotherapy and chiropractic treatment for his low back.

A file review was held on May 12, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to concurrent physiotherapy and chiropractic treatment.

Decision

That the worker is not entitled to concurrent physiotherapy and chiropractic treatment.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a low back injury that occurred on August 7, 2015 during the course of his employment.

Medical reports on file showed that the worker initially sought treatment from a physiotherapist, a chiropractor and then his family physician for the injury to his low back.

On September 18, 2015, a WCB chiropractic consultant was asked by the WCB adjudicator to comment on whether concurrent care was appropriate in this case. In a response dated September 22, 2015, the consultant stated:

…He attended a physiotherapist who noted a diagnosis of L2-L5 disc injury. The claimant attended a chiropractor August 17, 2015…who reported a diagnosis of acute L5 disc syndrome. On September 16, 2015 treating chiropractor was sent a letter of initial authorization of therapy for 14 weeks up to November 24, 2013. On September 17, 2015 in conversation with case manager the claimant requested that WCB cover physiotherapy treatments and that he would place his chiropractic therapy on his insurance. Following this a letter was sent to the treating chiropractor benefits for therapy were terminated. In my opinion concurrent therapy is not required. Both disciplines physiotherapy and chiropractic are well suited to treat the claimant's lower back situation.

By letter dated October 1, 2015, the WCB advised the worker that chiropractic care in conjunction with physiotherapy had not been approved. On October 14, 2015, the worker appealed the decision to Review Office.

On December 1, 2015, Review Office confirmed that the worker was not entitled to concurrent physiotherapy and chiropractic treatment.

On January 3, 2016, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation and Policy

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 27(1) provides that 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.”

Delivery of medical aid services to injured workers is addressed by the WCB in its Policy 44.120.10, Medical Aid (“the Medical Aid Policy”). That policy sets out that the “…provision of medical aid attempts to minimize the impact of the worker’s injury and to enhance the injured worker’s recovery to the greatest extent possible.” Medical aid for medically prescribed treatments, such as physiotherapy or chiropractic treatments, will generally be paid when required by reason of the compensable injury and where the treatment 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 is that he is entitled to receive medical aid for both physiotherapy and chiropractic treatment of the compensable injury paid for by the WCB. He states that each kind of treatment provides different benefits that, taken together, contributed to his recovery from the workplace injury.

The worker, in his submission stated that the WCB chiropractic advisor’s view that each practice is fully adequate to treat his injury “…is nonsense as each practice fulfills different purposes, i.e.: spinal alignment versus muscular therapy.” The worker indicated that on September 23, 2015, the WCB adjudicator pressured him to choose between the practices and he chose physiotherapy as his physiotherapist is located near his workplace and may serve him better during the return to work phase and thereafter. He indicated at that time his intention to continue with both forms of treatment.

The worker, in his written submission, stated his view that:

Just as the soft tissues: muscles, ligaments, and tendons support the skeleton, so also do these two disciplines support or complement each other towards the healing of my injury…In order to achieve the quickest and longest lasting healing for my injury I employed both practices, as they indeed work together in perfect harmony.

He noted that he started treatments with both physiotherapy and chiropractic as soon as practical following the injury and that each treating practitioner was aware that both therapies were being used and assumed coverage was available through the WCB.

Employer's Position

The employer did not participate in the appeal.

Analysis

In order to find that the worker is entitled to concurrent physiotherapy and chiropractic treatments, the panel must find on a balance of probabilities that the medical aid requested is necessary to cure and provide relief from the workplace injury.

Section 27(1) of the Act sets out that the WCB has discretion to provide medical aid if it determines that aid is necessary to cure and provide relief. These provisions of the Act give discretion to provide medical aid only where necessary in order to cure or provide relief from a compensable injury.

In this case, the worker’s accepted compensable injury was a lower back strain, as diagnosed by his family physician on August 21, 2015. By the time he was diagnosed by his physician, the worker had already sought treatment for that injury from a physiotherapist on August 13, 2015 and from a chiropractor on August 17, 2015. His physician’s first report does not reference either treatment, nor recommend any specific treatment.

Based upon the reports received from the treating physiotherapist and the treating chiropractor, the WCB determined that medical aid, in terms of either physiotherapy treatment or chiropractic treatment, was necessary to cure and provide relief from the worker’s injury. The worker had an opportunity to provide his input into which form of treatment would be provided and indicated his choice of physiotherapy to the WCB, but also indicated that he would continue with both forms of treatment.

The WCB exercised its discretion to provide necessary medical aid in the form of physiotherapy, but did not exercise its discretion to also provide concurrent chiropractic treatment.

The worker’s position is that because he perceives benefit from both therapies in his recovery from the compensable workplace injury, the WCB should provide medical aid for both therapies.

The worker’s chiropractor, in his letter of December 27, 2015 advocates for the worker to receive concurrent treatment, but does not provide or reference any medical findings regarding specific treatment deficiencies or medical needs that could potentially provide a basis for concurrent treatment in this case. The worker’s chiropractor suggests that both treatment methods are well suited to treat the worker and argues that the worker should therefore receive both treatments. He notes that the treatments are not duplicative, but complementary and provide different benefits.

The WCB chiropractic consultant, in providing his opinion, had access to the worker’s full file. He stated unequivocally that “In my opinion concurrent therapy is not required. Both disciplines physiotherapy and chiropractic are well suited to treat the claimant's lower back situation."

We note that the worker’s chiropractor did agree with this aspect of the opinion of the WCB chiropractic consultant, namely, that both treatment methods are satisfactory here.

While there may be, in some cases, circumstances where concurrent physiotherapy and chiropractic treatment would be necessary to cure and provide relief, there is no evidence to suggest it is necessary that the worker receive such concurrent treatment in this case.

Having considered the evidence before us, we find on a balance of probabilities that medical aid, in the form of concurrent physiotherapy and chiropractic treatment, is not necessary to cure and provide relief from the worker’s compensable injury. Therefore, the worker is not entitled to concurrent physiotherapy and chiropractic treatment.

Panel Members

K. Dyck, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

K. Dyck - Presiding Officer

Signed at Winnipeg this 6th day of June, 2016