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 additional physiotherapy treatment. A hearing was held on November 15, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to additional physiotherapy treatment.

Decision

The worker is entitled to five additional physiotherapy treatments, as indicated herein.

Background

On December 20, 2016, the worker was walking in a parking lot when he slipped and twisted his right knee. He advised his employer of the accident the day it occurred.

The worker saw a physician on December 21, 2016 and was diagnosed with a patella subluxation and medial patellofemoral avulsion, and was referred to physiotherapy. The physiotherapist's initial report dated January 5, 2017 also confirmed the diagnosis as "RT patellar tendon avulsion fracture, patellar subluxation."

At a follow-up assessment on January 19, 2017, the treating physician noted: "knee is variable, at times seems better but will then worsen, 2 weeks ago started to have back and R leg issues from back, not comfortable sitting, knee still swells, seen own MD as calf was hard but not swelling told no DVT and has improved."

A physiotherapist's report of February 1, 2017 noted decreased stability in one leg and difficulty with stairs and that the worker was not capable of modified work until he was re-assessed by his doctor on February 9, 2017. At the February 9 assessment, the treating physician noted "rom [range of motion] back and knee full, minimal tender PF, click at patella…" and the worker was deemed able to return to modified work. The worker returned to work on modified duties on February 13, 2017.

On March 3, 2017, the treating physiotherapist submitted a request for further funding for the worker, noting a rationale of "avulsion #, continual strengthening/stability."

On March 7, 2017, a WCB medical advisor opined that the diagnosis medically accounted for by the December 20, 2016 workplace accident was a right patellar subluxation. The medical advisor further opined that as physiotherapy reports had indicated improvement in the worker's lower extremity function scale scores, it would be expected that the worker would need to continue restrictions for one to two weeks more.

On March 9, 2017, the treating physician noted: "back doing well, no issues, knee is doing well and only occ [occasional] pain, using brace prn [as necessary]" and the worker was cleared to return to regular duties.

On March 13, 2017, Compensation Services advised that no further funding would be approved, stating there was no evidence further in-clinic treatment was required and a "…home program and/or self pain management techniques should suffice."

On March 20, 2017, the worker filed a Request for Review stating, in part: "I have returned to full duties on March 13, 2017. However, I am not 100% fully recovered."

On May 10, 2017, Review Office determined that there was no entitlement to additional physiotherapy treatment. Review Office found that the evidence demonstrated a progressive recovery from his knee injury, and noted that the WCB medical advisor suggested a typical recovery period for this type of injury would be approximately six to eight weeks. The worker had attended 21 in-clinic physiotherapy treatments, and Review Office felt that this was adequate.

The worker appealed Review Office's decision to the Appeal Commission on June 25, 2017, and an oral hearing 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.

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.

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."

WCB Policy 44.120.10, Medical Aid (the "Policy"), presents a comprehensive and coordinated approach to delivery of medical aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible.

As it relates to the provision of medically prescribed and recommended treatments, devices and related accessories, the Policy provides, in part, 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) and standard prostheses when required by reason of a compensable injury, and the treatment or device 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 was self-represented, and provided a written submission in advance of the hearing. The worker made an oral presentation at the hearing and responded to questions from the panel.

The worker's position was that he should be entitled to coverage for five additional physiotherapy treatments which he received between June 12, 2017 and August 2, 2017.

The worker noted that he suffered his injury late in the evening on December 20, 2016, and went to see a doctor first thing the next morning. He was given crutches and a leg brace, and his leg was immobilized for the next two weeks. At a follow-up appointment with his doctor on January 4, 2017, he was referred to physiotherapy. He saw the doctor again on January 19, 2017 and was told at that point to start using a different brace.

The worker stated that due to the immobilization of his leg, his back started acting up, and the physiotherapist had to work on his back as well as his knee, which prolonged the healing process of his knee. On March 2, 2017, the physiotherapist informed the worker that he was at approximately 80%, and that she believed he would benefit from additional treatment beyond the 21 treatments which had been authorized. The worker said that on March 9, 2017, his doctor cleared him to go back to work, but the doctor also acknowledged that he was still having pain and needed to use the brace.

The worker stated that he attended the last of his 21 authorized physiotherapy appointments on March 31, 2017. He attempted the home exercise program from March 31 to May 2017, but it did not work and his knee got progressively worse. On May 25, 2017, he went back to see his doctor, who said that he needed further physiotherapy treatments. The worker attended five additional physiotherapy treatments between June 12 and August 2, 2017.

The worker said that his knee has been much better since August 2, 2017, although he still gets occasional pain. He submitted that the five additional treatments clearly helped his recovery. He referred to a letter from his physiotherapist dated October 27, 2017 which had been provided in advance of the hearing, where the physiotherapist indicates that the worker definitely benefitted from the five additional physiotherapy treatments.

In conclusion, the worker confirmed that he was only seeking coverage for the five additional treatments he had received between June and August 2017, as being related to and required as a result of his compensable injury. He noted that two medical professionals had stated that these treatments would be a good idea: his treating physician, who prescribed the treatments, and his treating physiotherapist, who said that they would be and were beneficial, and submitted that the treatments should be covered.

Employer's Position

The employer was represented by its Workers Compensation Coordinator. The employer's position was that the circumstances do not meet the requirements of the Act and Policy with respect to allowing medical aid, and the appeal should be dismissed.

The employer's representative submitted that the clinical evidence prior to March 2017 showed that the worker had made a satisfactory recovery. By March 9, 2017, the treating physician had cleared him for full unrestricted duties. In his report, the physician indicated that the worker's knee was doing well, with occasional pain. According to the WCB physiotherapy consultant, the home exercise program was by all accounts considered sufficient. In the employer's submission, there were no issues and really no suggestion that additional therapy would have provided any form of permanent relief at that point in time or that any additional follow-up was needed.

The representative noted that there was a gap between the end of March and May 2017, and it was later apparent that the worker started suffering or developing some additional problems. In his appeal, the worker had mentioned experiencing daily pain at that point. The representative submitted that this was not much different from what the treating physician had previously described and what was going on at the end of March 2017, where the worker was experiencing occasional pain.

The representative referred to the October 27, 2017 letter, where the treating physiotherapist mentioned that the worker underwent five additional treatments between June and August 2017. The representative noted that the last of those treatments was August 2, but the physiotherapist was still saying in her letter that the worker needed additional treatment. In the representative's view, it was unclear whether the physiotherapist was suggesting that the worker needed continued therapy beyond August 2017.

The representative submitted that under the Policy, the WCB may approve treatments subject to pre-approval by the WCB, and that all such treatments must satisfy the WCB that their use is related to the recovery of the injured worker and minimizing the impact of the injury. The representative characterized the request for additional physiotherapy in this case as being more in the nature of maintenance and prevention, rather than active treatment to reach the goal of full recovery, and submitted that maintenance treatment is not provided for under the Act or Policy.

Analysis

The issue before the panel is whether or not the worker is entitled to additional physiotherapy treatment. The worker is seeking coverage for five additional physiotherapy treatments which he received between June and August 2017. For the worker's appeal to be successful, the panel must find that the additional treatments were required by reason of the worker's compensable right knee injury. The panel is able to make that finding.

Based on our review of the information on file and at the hearing, the panel is satisfied that the five additional treatments were required to treat the worker's compensable injury.

The panel notes that information on file and at the hearing indicates that the worker's leg was immobilized for an extended period of time following the workplace incident. He was in a leg cast for approximately three weeks, then switched to a brace which he wore all the time, except at bedtime, until approximately the end of March 2017. The panel finds that the worker's recovery was progressing, but he had not yet recovered at the time of his last authorized treatment on March 31, 2017.

The evidence also indicates that the worker's knee had not been fully tested in the workplace or otherwise by the end of March 2017. While the worker was back at his regular duties by mid-March, his evidence at the hearing was that his duties were basically sedentary at the end of March and over the next two months, and he did not have to become more physically involved during that period of time.

The worker's evidence at the hearing was that through April and May 2017, he was doing his best to get the home exercises done and trying to maintain a normal lifestyle. The panel accepts that the worker was diligent in his efforts to do the home exercise program. In spite of that, the evidence indicates that his leg was becoming progressively worse. Medical information on file shows that the worker was symptomatic on May 25, 2017 when he saw his treating physician, and that the symptoms were the same and in same area as previously. Based on the information which is before us, the panel is satisfied that the worker's symptoms and condition were exacerbated between March 31 and May 25, 2017, when the treating physician referred him back to physiotherapy.

The panel places weight on the October 27, 2017 letter from the treating physiotherapist, who wrote, in part:

As of March 31st, 2017 [worker] was doing well with treatment and was progressing. His right knee range of motion and knee strength had improved considerably. When [worker] presented to the clinic on June 12th, 2017, he had been experiencing increasing pain in his right knee. He was getting pain in his knee at night and swelling in the knee. [Worker's] knee was also getting sore by the end of his shifts at work…[Worker] came for 5 additional physiotherapy treatments from June 12th, 2017 to August 2nd, 2017 and improved greatly.

The panel notes that the worker indicated at the hearing that he has ongoing pain, but stated that it is not the same as it was six months previously, in March 2017. He noted that from the end of March to mid-May 2017, he was just doing normal daily routines and was experiencing pain on a daily basis. Since August 2, 2017, his pain is not daily, it only comes up here and there. He can do more physical activities now, and the pain now comes from playing hockey or doing other things, and reminds him that he did have a knee injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the five additional physiotherapy treatments between June 12, 2017 and August 2, 2017 were necessary to minimize the impact of the worker's injury and further promote his recovery from the workplace accident.

The worker is therefore entitled to coverage for these treatments.  

The worker's appeal is allowed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of January, 2018