The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") with respect to his compensation claim. A hearing was held on December 8, 2015 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the September 29, 2014 physiotherapy assessment;

Whether or not responsibility should be accepted for a foam roller; and

Whether or not the worker is entitled to further benefits after February 17, 2015.

Decision

That responsibility should not be accepted for the September 29, 2014 physiotherapy assessment;

That responsibility should not be accepted for a foam roller; and

That the worker is not entitled to further benefits after February 17, 2015.

Decision: Unanimous

Background

On July 29, 2014, the worker was involved in a motor vehicle accident and suffered injuries to his neck, back, right knee and left shoulder. The worker was taken to hospital and released later that day.

A Doctor First Report showed that the worker attended for treatment on July 31, 2014 and was diagnosed with soft tissue injury to the neck and left shoulder.

A physiotherapy initial assessment took place on August 12, 2014. The diagnosis outlined was a left rotator cuff and neck strain. On August 18, 2014, the WCB authorized physiotherapy treatments for up to 14 visits.

On September 19, 2014, the worker advised a WCB adjudicator that he was still off work and that physiotherapy was not going as well as planned. The worker indicated that physiotherapy was using a heat pad when working on his neck and light weights for his shoulder condition.

On September 23, 2014, a WCB physiotherapy advisor documented to the claim file that he spoke with the treating physiotherapist and it was agreed that the worker was capable of starting a graduated return to work ("GRTW") program with restrictions as outlined and that funding for 8 additional physiotherapy visits was approved in support of the GRTW plan.

By letter dated September 23, 2014, the WCB advised the accident employer that the worker was fit for work with temporary work restrictions. On September 26, 2014, the employer advised that they were able to accommodate a GRTW starting Monday, September 29, 2014.

In a September 23, 2014 doctor's progress report, it was recorded that the worker was not capable of alternate or modified work.

In Claim Notes dated September 30, 2014, the WCB case manager noted that he spoke with the worker on September 29 and that the worker was going to see another physiotherapist for a second opinion. The case manager advised the worker that seeing another physiotherapist would not override the recommendations made by the treating physiotherapist regarding the GRTW program.

In an October 2, 2014 progress report, the treating physician indicated that the worker was capable of alternate or modified work, with restrictions.

File records show that the worker returned to work on Monday, October 6, 2014.

By letter dated October 10, 2014, the worker was advised of the case manager's decision that there was no medical evidence on file to substantiate total disability for the week of September 29, 2014.

On October 21, 2014, the WCB advised the treating physiotherapist that 4 additional sessions had been authorized.

On October 22, 2014, the WCB received a note from a second physiotherapist recommending that the worker acquire a foam roller to improve his core stability, strength and rehabilitation.

On October 23, 2014, the worker was advised that the WCB was unable to reimburse him for the second physiotherapy opinion and foam roller, as these expenses were not considered related to his workplace injury.

By letter dated October 29, 2014, the worker was advised of the following WCB decisions:

On Monday, August 18, 2014 Physiotherapy treatment was approved with [the treating physiotherapy clinic].

On Tuesday, September 23, 2014 a graduated return to work…plan was agreed upon by your treating Physiotherapist and a WCB Physiotherapist consultant. Your employer was then notified and they indicated they could accommodate a GRTW commencing Monday, September 29, 2014.

On Monday, September 29, 2014, you attended [a second physiotherapy clinic] looking for a second opinion regarding your return to work suitability.

[The second physiotherapy clinic] has billed the WCB for your September 29, 2014 assessment as well as a foam roller for strengthening purposes.

Your second Physiotherapist assessment and foam roller have been denied as you were already under the care of [treating physiotherapist] for approximately 6 weeks prior to you seeking a second opinion. Your decision to seek a second opinion appears related to your GRTW plan, a plan which both your treating Physiotherapist and a WCB Physiotherapist consultant agreed to.

On November 9, 2014, the worker appealed the October 10, 21, 23 and 29, 2014 decisions to Review Office.

On December 3, 2014, the worker was seen by a WCB physiotherapy advisor for a call-in examination. Following the call-in examination, the WCB physiotherapy advisor commented that he did not recommend WCB funding of the foam roller as stretches and active exercises would be of more benefit.

On December 10, 2014, Review Office determined that the GRTW plan beginning on September 29, 2014 was not appropriate as the worker and the case manager were not able to discuss the expectations involved with the plan and the treating physician did not support a return to work at that time. Review Office determined that the worker was fit to return to work on October 3, 2014, as that date was supported by the worker's physician and treating physiotherapist, and that he was entitled to partial wage loss benefits beyond October 3, 2014.

Review Office also determined that there was no coverage for the September 29, 2014 physiotherapy assessment. Review Office noted that prior to and after September 29, 2014, the WCB provided funding for the worker to be seen at a private physiotherapy clinic. Although the worker wanted a second opinion from another physiotherapy clinic, Review Office did not find the cost associated with the second assessment should be covered by the WCB. The second assessment was not necessary in Review Office's opinion.

Review Office also confirmed the decision that no responsibility should be accepted for the foam roller based on the opinion expressed by the WCB physiotherapy consultant.

On January 29, 2015, a sports medicine specialist saw the worker for an assessment and stated:

This gentleman suffered cervical, thoracic and lumbar strains. He appeared to have strained his left shoulder but these symptoms are resolving. His main problems continue to be moderate discomfort, sleep disturbance, and possible mood changes. We discussed hurt versus harm and I have advised him to increase his activities and challenge even though there is some discomfort.

The specialist outlined treatment recommendations for the worker which included a formal reconditioning program.

The worker's file was reviewed by a WCB medical advisor on February 6, 2015, who stated:

The dx (diagnosis) related to the C/I (compensable injury) would be neck/mid back non-specific pain. The clinical findings of variable ROM (range of motion) and tenderness do not support a structural abnormality. The treatment for this type of pain initially is to treat the pain with medication, modification of activity, modalities, etc. Once the acute pain settles, the active based therapy, even in the presence of non-specific pain complaints, will return the patient to full function. So return to normal activity is part of the treatment plan. In terms of return to work, risk, capacity, and tolerance are considered...

Based on this review, the setting of restrictions 6 months after this accident would be counter-productive to full recovery. This is consistent with the physio consultant and the sports medicine physician's recommendations of return to normal activity.

On February 10, 2015, the WCB advised the worker that his claim had been reviewed by a WCB medical advisor, and based on this medical opinion, work restrictions were no longer required in relation to the July 29, 2014 workplace injury. Based on WCB policy, partial wage loss benefits would be paid up to and including February 17, 2015.

The worker appealed the February 10, 2015 decision to Review Office, and on May 1, 2015, Review Office rendered a decision. Based on its review of the evidence, including the sports medicine specialist's January 29, 2015 clinical assessment and the WCB medical advisor's opinion dated February 6, 2015, Review Office determined that there was no further requirement for workplace restrictions and the worker was not entitled to benefits beyond February 17, 2015. In June 2015, the worker appealed Review Office's decisions to the Appeal Commission and an oral hearing was arranged.

Following the hearing, the appeal panel met to discuss the case and requested additional medical information prior to rendering decisions on the issues under appeal. On March 22, 2016, the additional medical information was forwarded to the worker for comment. On April 11, 2016, the panel met further to render its decisions.

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.

Subsection 4(1) of the Act provides that 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 27(1) of the Act provides that the WCB "...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."

Subsection 27(10) states, in part, that medical aid provided by the WCB shall at all times be subject to the supervision and control of the WCB.

Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, or the worker attains the age of 65 years.

The WCB Board of Directors has adopted Policy 44.120.10, Medical Aid (the " Policy"). The stated purpose of 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 to enhance an injured worker's recovery to the greatest extent possible."

Subsection A.2. of the Policy provides that 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.

Under the heading of "Medically Recommended Treatments", subsection A.2. of the Policy states that:

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.

Worker's Position

The worker attended the hearing with his mother, who assisted him with his presentation.

The worker's position with respect to the September 29, 2014 physiotherapy assessment, was that he went because he felt he was not getting better. He had been in a severe accident and needed to be sure that nothing had been missed. He believed that he had the right to a second opinion, and did not think this would be a problem. He was not "doctor shopping." The worker's mother said that getting a second opinion was important, and she would not have a problem paying for this, but that was not what this was about. It was about the principle of the thing, not the money.

With respect to the foam roller, the worker said that it had been prescribed for him by the second physiotherapist on September 29. The worker said that his treating physiotherapist had used a foam roller at every one of his treatments, and he also had requested a roller for the worker, but was denied. The worker said that the roller helped him loosen up before treatment, and he continues to use a heating pad and the foam roller every morning to "get things moving" before he leaves for work.

With respect to the issue of his benefit entitlement, the worker submitted that he should be entitled to further benefits after February 17, 2015 because he is "still going through things" and is still in pain. He is worse than he used to be. Nothing is really getting better and he feels like things have not been properly addressed. He was cut off by the WCB on February 17, 2015 and the next day he went back to working fulltime, 8 hours a day, with restrictions. He has continued working fulltime since then, doing the same job, with modified duties, but it has been very difficult. He submitted that he went back to fulltime work too early. His treating physician had ordered that he continue working 6 hours a day, on modified duties, until February 25, 2015. In closing, he said that his daily routine is very discouraging and he has no real life.

Employer's Position

The employer did not participate in the appeal.

Analysis

ISSUE 1. Whether or not responsibility should be accepted for the September 29, 2014 physiotherapy assessment.

For the worker's appeal on this issue to be successful, the panel must be satisfied that the September 29, 2014 physiotherapy assessment was properly approved and necessary to cure and provide relief from the injury sustained in the July 29, 2014 accident. The panel is unable to make that finding.

Subsection 27(10) of the Act stipulates that medical aid provided by the WCB is subject to the supervision and control of the WCB. The worker had been receiving ongoing treatment from the treating physiotherapist, which was pre-authorized and funded by the WCB. The worker decided, on his own, to seek an assessment and second opinion from another physiotherapist. That assessment was neither approved nor solicited by the WCB.

The panel also notes that the September 29, 2014 assessment provided no new information of value. Based on the evidence, the panel is satisfied that the assessment by a second physiotherapy clinic was not necessary for the management of the worker's claim or to cure and provide relief from the injury sustained in the July 29, 2014 accident.

Accordingly, the panel finds that responsibility should not be accepted for the September 29, 2014 physiotherapy assessment.

The worker's appeal on this issue is dismissed.

ISSUE 2. Whether or not responsibility should be accepted for a foam roller.

For the worker's appeal on this issue to be successful, the panel must be satisfied that the use of a foam roller was pre-approved by the WCB and would aid in the worker's recovery or minimize the impact of his compensable injury. The panel is unable to make that finding.

The Policy provides that a recommended treatment is subject to pre-approval by the WCB. The worker's purchase of a foam roller was not pre-approved. The panel notes that the foam roller was not "prescribed" for the worker. The acquisition of the foam roller was suggested by the physiotherapist he had consulted on September 29, who subsequently forwarded a copy of the receipt for the roller with a request that the WCB consider covering the cost of this item.

The worker submitted that his treating physiotherapist also requested a foam roller. Information on file shows that request was not made until a month and a half after the worker had in fact purchased the roller.

The panel also notes that there is no information on file to support that the foam roller would aid in the worker's recovery or minimize the impact of his injury. On the contrary, the WCB physiotherapy consultant concluded, based on objective testing of the worker at the call-in examination on December 3, 2014:

In regards to the foam roller, this is a device used to help decrease muscle tightness, however, active exercises in the form of stretches and resisted exercises would be more of a benefit, therefore I would not recommend WCB funding of the foam roller.

Encouragement to resume his normal activities incorporated with daily stretches and exercises within his pain tolerance should be encouraged.

The panel accepts the physiotherapy consultant's conclusions in this regard.

The panel therefore finds that responsibility should not be accepted for a foam roller.

The worker's appeal on this issue is dismissed.

ISSUE 3. Whether or not the worker is entitled to further benefits after February 17, 2015.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity and/or required medical aid benefits after February 17, 2015 as a result of his July 29, 2014 workplace injury. The panel is unable to make that finding.

The diagnosis which was accepted as compensable as a result of the July 29, 2014 accident was neck and left shoulder strain.

Having been cleared to return to work by his treating physician, the worker started back to work on a GRTW program with modified duties on October 6, 2014. He was provided with additional physiotherapy sessions to support his return to work and with home strengthening exercises. Medical information on file shows steady progress. On December 3, 2014, the physiotherapy consultant found that the worker had "a resolving neck, left shoulder and mid-back strain/sprain" and encouraged him "to resume his normal activities." On January 29, 2015, the sports medicine specialist noted that the worker's symptoms "are resolving" and that he had "advised him to increase his activities."

The panel places considerable weight on the February 6, 2015 opinion of the WCB medical advisor who, based on her review of the medical information on file, stated that "active based therapy…will return the patient to full function" and "return to normal activity is part of the treatment plan." The medical advisor concluded that "the setting of restrictions 6 months after this accident would be counterproductive to full recovery" and noted that this conclusion was consistent with the physiotherapy consultant's and the sports medicine specialist's "recommendations of return to normal activity."

The panel considered the reports from a physiatrist and a neurologist which were received following the hearing. The panel notes that the physiatrist refers in his letter, dated March 6, 2016, to a single consult on April 7, 2015 and findings related to injuries to different areas of the body. The panel is not satisfied, on a balance of probabilities, that the findings of the physiatrist are causally related to the compensable injury.

The worker underwent an MRI of the cervical and thoracic spine on June 3, 2015. The worker was referred to a neurologist by his treating physician, and the report from the neurologist, dated December 8, 2015 recorded that the worker:

…has an MRI scan, which shows a small syrinx most prominent in the lower cervical region but extending down into the upper thoracic spine. There is no evidence of edema and no evidence of anything that resembles a tumor.

The neurologist wrote that the nature of the syrinx and its origin were unclear, and that the syrinx was "asymptomatic with respect to neurologic symptoms." The neurologist concluded that "At this point, there is nothing worrisome on the history or physical exam for me to investigate further..."

Having carefully considered the evidence in its totality, the panel is unable to find, on a balance of probabilities, that the worker had a loss of earning capacity or an ongoing need for medical aid benefits as a result of the July 29, 2014 accident beyond February 17, 2015. The worker is therefore not entitled to further benefits after February 17, 2015.

The panel notes that at the hearing, the worker also raised the matter of his entitlement to an ergonomic assessment. The worker had previously referred to this as an issue in his notice of appeal, and was advised on September 14, 2015 that his position in this regard could be advanced and argued within the primary issue of benefit entitlement after February 17, 2015. Given our finding that the worker is not entitled to any further benefits after February 17, 2015, there would be no entitlement to an ergonomic assessment after that date.

The panel further notes that the worker referred to a number of other issues during the course of the hearing. Those issues had not been considered by Review Office. As such, they were not properly before the panel and were not addressed.

In the result, the panel finds, on a balance of probabilities, that the worker is not entitled to any further wage loss or medical aid benefits after February 17, 2015.

The worker's appeal on this issue is dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 6th day of June, 2016