The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to laser therapy in relation to his January 17, 2014 workplace injury. A file review was held on December 15, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to laser therapy.

Decision

That the worker is not entitled to laser therapy.

Background

The worker filed a claim with the WCB for a left foot/heel injury that occurred at work on January 17, 2014. The worker reported that when coming down a ladder, he started to fall back and jumped the last two steps, landing awkwardly on his left foot.

An initial medical report showed that the worker attended a physician for treatment on January 19, 2014, with follow-up appointments on February 5 and 21, 2014, and was diagnosed with a left "calcaneal contusion."

In a doctor progress report dated March 12, 2014, the treating physician described the treatment plan as "pf (plantar fascia) stretches, laser treatment, cushioned insoles, whilst on feet."

The worker attended a physiotherapist on March 20, 2014. In an Initial Assessment Report dated March 21, 2014, the physiotherapist outlined a diagnosis of "left heel contusion, traumatic plantar fasciitis."

On April 5, 2014, a WCB sports medicine advisor reviewed the file and advised that the current diagnosis was a contusion of the heel (calcaneus), including plantar fascia which inserts into the medial calcaneus. The advisor stated that recovery would be gradual over a period of several weeks to a couple of months. Treatment recommendations included activity modification, foot stretching and strengthening, as well as over-the-counter cushioned insoles on a one-time basis only.

On April 10, 2014, a WCB physiotherapy advisor opined that the WCB did not provide funding for laser therapy. The advisor noted that laser therapy is a passive modality that a physiotherapist may use as a component of a standard physiotherapy treatment at the standard treatment rate.

On April 15, 2014, the worker was advised by Compensation Services that the WCB would pay for insoles on a one-time only basis, the WCB would not pay for laser therapy as a stand-alone treatment modality, and physiotherapy sessions were approved.

On January 26, 2015, the worker underwent a bone scan which revealed that findings within the left heel favoured plantar fascia enthesopathy over a fracture.

On April 20, 2015, a WCB sports medicine advisor opined that the diagnosis related to the mechanism of injury on January 17, 2014 was a heel contusion, from which the normal recovery time was usually 12 weeks or less. She opined that the current diagnosis of plantar fascia enthesopathy was not related to the contusion from over a year before.

In a decision dated April 20, 2015, the WCB advised the worker that new medical information from his attending physician and test results had been reviewed, and it was still the WCB's position that the diagnosis related to the January 17, 2014 mechanism of injury was a heel contusion and the normal recovery time was 12 weeks or less. The worker was further advised that given the natural history of the diagnosis and the time that had passed, it was improbable that workplace restrictions, ongoing treatment and custom orthotic inserts were required in relation to the January 17, 2014 injury, and it was reasonable to presume that there was no persisting functional impairment in relation to that injury.

On August 7, 2015, a worker advisor wrote the case manager to request a reconsideration based on additional medical information, and stated in part:

…our position is the worker's accident caused a traumatic plantar fasciitis, which with the passing of time, combined with performing the job duties…, led to a diagnosis of plantar fascia enthesopathy…Additional physiotherapy treatment was recommended to treat this condition; the cost of which we submit should be borne by the WCB.

In a decision dated August 27, 2015, the worker was advised that the new information submitted by the worker advisor had been reviewed and no change would be made to a December 23, 2014 decision which denied further physiotherapy treatment or to the April 20, 2015 decision.

On October 21, 2015, the worker advisor provided the WCB case manager with further information to support that the worker was entitled to additional physiotherapy treatment. In a response dated November 26, 2015, the case manager advised the worker that she remained of the opinion that he had fully recovered from the effects of his compensable workplace injury and that the information from his physiotherapist did not support the presence of a new injury or a recurrence of the old injury. The case manager also stated that the plantar fascia enthesopathy noted on the bone scan report was a pre-existing condition that could not be connected to his compensable injury.

On January 22, 2016, the worker advisor asked Review Office to reconsider the case manager's decisions to deny responsibility for laser therapy treatment and additional physiotherapy treatment.

On February 26, 2016, the employer's representative advised that they agreed with the WCB decision that the worker was not entitled to further physiotherapy treatments or to laser therapy.

On March 9, 2016, Review Office confirmed that there was no entitlement to further physiotherapy treatment or laser therapy. Review Office accepted that the worker sustained a bone (left heel) contusion on January 17, 2014 and the recovery expected was of short duration, with or without conservative treatment. Review Office opined that laser therapy was not required for a bone contusion.

Review Office noted that the WCB authorized an initial physiotherapy assessment and up to 14 further visits. It concluded that this amount of therapy was appropriate given the diagnosis of a bone contusion. Review Office also noted that the diagnosis of plantar fasciitis was not considered compensable by Compensation Services. As such, it found the physiotherapy treatment and laser therapy would not be covered in relation to this diagnosis.

On June 2, 2016, the worker advisor provided Review Office with a report from the treating physician dated May 18, 2016. The worker advisor noted that the physician:

…relates the worker's plantar fascial injury to his workplace accident. We believe significant weight should be attached to [the physician's] opinion because he examined the worker two days following the accident; his opinion is based on an accurate understanding of the accident and the worker's post-accident activity (i.e. immobilization followed by physiotherapy treatment combined with laser therapy); and because he provides, what we consider to be, a persuasive medical explanation as to how the plantar fascial injury was not immediately apparent.

Prior to considering the appeal, Review Office sought medical advice from a WCB orthopedic consultant. On August 10, 2016, the consultant opined that the injury to the left foot on January 17, 2014 was a contusion of the undersurface of the heel area, causing a bone contusion of the calcaneum. He noted that this opinion was supported by the clinical report of the treating physician of heel pain, lateral bruising and normal plantarflexion and dorsiflexion. The orthopedic consultant also referred to the results of an x-ray of the worker's heel on January 19, 2014. He said that the x-ray changes were of enthesopathy of a longstanding nature and did not indicate acute pathology. He stated the clinical and x-ray findings did not support a diagnosis of an injury to the plantar fascia.

On August 23, 2016, Review Office confirmed there was no entitlement to further physiotherapy treatment or to laser therapy. Review Office placed more weight on the WCB orthopedic consultant's August 10, 2016 opinion than the May 18, 2016 opinion from the treating physician. It confirmed that the worker sustained a bone contusion of the calcaneum at work on January 17, 2014 and that this would involve a short term recovery period. Review Office found that the worker attended physiotherapy beginning March 20, 2014, that the amount of approved physiotherapy (initial assessment and up to 14 visits) was suitable, and that laser therapy was not required for a bone contusion injury.

On September 12, 2016, the worker advisor appealed Review Office's decision regarding laser therapy treatment to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

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 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."

Worker's Position

The worker was assisted by a worker advisor, who provided a written submission for the panel's consideration.

The worker's position, as set out in the November 30, 2016 submission, was that his plantar fascial injury, in addition to the accepted bone contusion of the calcaneum, was caused by the January 17, 2014 workplace accident. The worker advisor referred the panel to the worker's January 22, 2016 and June 2, 2016 submissions to Review Office as detailing their position in this regard and setting out the evidence they were relying on to support the compensability of these conditions.

The worker advisor went on to submit that laser therapy was recommended not just for the worker's plantar fascial injury, but also for his compensable heel contusion. Accordingly, even if the panel did not accept that a plantar fasciitis injury arose out of the workplace accident, the panel should still grant the appeal, as this treatment was also directed at the accepted heel injury. The worker attended this form of treatment, which he paid for himself, and the combination of laser therapy and physiotherapy treatment helped him return to work. The laser therapy was therefore a form of medical aid intended to cure and provide relief, and the worker should be reimbursed for this medical expense.

The worker advisor noted that although laser treatment was recommended early in the claim, no WCB medical advisor addressed the necessity or inappropriateness of that therapy to treat a bone contusion. In fact, the recommendation against funding the treatment came from a WCB physiotherapy consultant, who stated that the WCB does not fund this form of treatment, but then acknowledged that the WCB may fund it when it is provided by a physiotherapist as a component of therapy.

It was submitted that the second part of the consultant's statement was consistent with the worker's position. Specifically, the worker advisor stated that in his experience, passive forms of therapy, as laser had been classified, were more likely to be supported by the WCB when provided concurrently with more routinely approved, active-based treatment. In this case, the worker's attendance to laser therapy overlapped with and complemented WCB-sponsored physiotherapy, and he attended the same medical clinic for both forms of treatment. Attending both forms of treatment resulted in a clear symptomatic and functional improvement such that the worker was authorized to return to regular duties on May 19, 2014. The laser therapy therefore played a role in minimizing the impact of the worker's injury and enhancing his recovery, and his appeal should be allowed.

Employer's Position

The employer was represented by an advocate, who provided a written submission in response to the worker's appeal.

The employer's position was that based on the diagnosis, medical evidence, WCB policy, and the opinions of the WCB sports medicine advisor, the WCB physiotherapy consultant and the WCB orthopedic consultant, they did not believe the worker was entitled to laser therapy for his non-compensable plantar fasciitis condition or the pre-existing enthesopathy which was evident on the x-ray and bone scan.

The advocate noted that the injury was diagnosed as a left heel contusion, which had an expected recovery of a matter of weeks. The initial medical reports did not indicate a plantar fasciitis condition. It was not until two months later, on March 12, 2014, that the treating physician made note of plantar fascia pain. In the employer's view, if the plantar fasciitis condition was caused by the January 17, 2014 workplace injury, the worker would have felt pain at the time, but there were no reports of this.

It was submitted that the medical reports from the treating practitioners indicated complete resolution of the effects of the January 17, 2014 workplace injury by May 2014. Even if laser therapy was needed for treatment of the contusion injury, which the employer did not believe to be the case, the worker had largely recovered from his compensable contusion injury when laser therapy was requested.

It was submitted that the WCB physiotherapy consultant indicated on April 10, 2014 that the WCB does not fund modalities such as laser therapy as stand-alone treatment. The treating physiotherapist could have provided laser treatment as part of the regular course of physiotherapy treatment which had already been approved.

In conclusion, it was submitted that the injury was a heel contusion, for which the worker was provided physiotherapy and from which he recovered, and that laser treatment for plantar fasciitis was not the responsibility of the WCB.

Analysis

The issue before the panel is whether or not the worker is entitled to laser therapy. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the laser therapy treatment which the worker received was necessary to cure and provide relief from the injury resulting from his January 17, 2014 workplace accident. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for a calcaneal contusion. The worker advisor submitted that the diagnosis of a plantar fasciitis should also be accepted as resulting from his January 17, 2014 workplace accident. Based on our review of the information before us, the panel finds, on a balance of probabilities, that the worker's plantar fasciitis was not related to his January 17, 2014 workplace accident.

The panel notes that initial reports from the treating physician provide findings and a diagnosis of "calcaneal contusion." The reports show that the treating physician was specifically looking for, but not finding, signs of plantar fasciitis at that time. In his initial report on January 19, 2014, the treating physician specifically noted a finding of "pf (plantar fascia) no pain." The panel also notes that the treating physician did not recommend physiotherapy or other treatment at that time or at subsequent visits on February 5 and 21, 2014.

The first positive finding with respect to plantar fasciitis appears in the treating physician's report of March 12, 2014, where his findings included "mild pf pain." The report also contains the first reference to laser treatment, with the treatment plan being described as "pf stretches, laser treatment…"

The worker then attended for physiotherapy on March 20, 2014, and in addition to the diagnosis of a left heel contusion, the physiotherapist provided the new diagnosis of "traumatic plantar fasciitis."

In light of the foregoing, and given the significant separation in time of almost two months between the workplace accident and these first findings and diagnosis of plantar fasciitis, the panel is unable to relate this diagnosis to the workplace injury.

In arriving at our conclusion, the panel reviewed and considered the treating physician's May 18, 2016 letter in which he opined that the worker's "non-initially evident plantar fascial injury…would be accountable by his injury." The panel is unable to place much weight on that opinion which, in our view, is inconsistent with and not supported by the medical evidence on file.

The panel places significant weight on the August 10, 2016 opinion of the WCB orthopedic consultant who, having reviewed the medical reports as well as the imaging disc and report of the x-ray of the worker's heel dated January 19, 2014, opined that the injury to the worker's left foot on January 17, 2014 was a contusion of the undersurface of the heel area, causing a bone contusion of the calcaneum, and that the clinical and x-ray findings did not support the diagnosis of an injury to the plantar fascia. The panel accepts the orthopedic consultant's opinion as confirmation of our view of the information on file.

The panel further finds that the recommendation for laser therapy was aimed at treating the worker's plantar fasciitis. As indicated above, the recommendation for laser therapy was made at the same time as the first finding of plantar fasciitis. As we have found that plantar fasciitis was a non-compensable injury, the worker would not be entitled to laser therapy for that injury.

In his submission, the worker advisor seems to suggest that, in any event, laser treatment was required for the bone contusion. Notwithstanding the submissions by the worker advisor, the panel notes that no one has said that laser treatment was necessary to cure and provide relief from a bone contusion, and we are unable to find any support for such a suggestion in the evidence.

Based on the foregoing, the panel finds, on a balance of probabilities, that laser therapy was not necessary to cure and provide relief from the injury resulting from the January 17, 2014 workplace accident.

The panel therefore finds that the worker is not entitled to coverage for laser therapy.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of February, 2017