Decision #57/18 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to further medical aid benefits for physiotherapy and/or vestibular treatment in relation to his compensation claim. A hearing was held on October 24, 2017 to consider the worker's appeal.
Whether or not the worker is entitled to further medical aid benefits for physiotherapy and/or vestibular treatment.
That the worker is entitled to further medical aid benefits for physiotherapy and vestibular treatment.
On September 24, 2014, the worker was in the course of his employment as a truck driver when another driver cut him off and he rolled the truck. His claim with the WCB was accepted based on the following diagnoses:
• Contusion/strains of neck, back, hips, right hand
• Abrasion/contusion of left shoulder.
On December 8, 2014, a WCB medical advisor was asked to review the file and answer questions related to the worker's medical status. The case manager noted that the worker rolled his truck into a ditch at 2:45 p.m. on September 24, 2014 and had no recollection of the events of that day until about 10:45 that night. The worker stated that currently his symptoms had only improved about 20% and he complained of dizziness, headaches, nausea, and issues with his vision. Based on her review of the file information on December 15 and 16, 2014, the WCB sports medicine advisor stated:
…The current reported headaches may be medically related to the workplace injury as either post-concussive or cervicogenic (neck) effects.
The first mention of dizziness/vertigo is in an Oct. 31/14 MD report - thought to be a result of increasing workload at physiotherapy. There are no reported dizziness/vertigo symptoms prior to this in the file.
In a Nov. 25/14 memo on file documenting a conversation between the worker and the CM [case manager], he indicated that he had been experiencing low grade dizziness since the DOA [date of accident]. Unfortunately, this is not documented in the initial medical reporting or adjudicative conversations.
With regards to dizziness/vertigo - these types of symptoms are non-specific in nature and can be multi-factorial. If the symptoms occurred immediately following the injury, they would probably be post-concussive in nature, or they could be related to a vestibular injury or neck injury both as a result of MOI [mechanism of injury]. If they occurred remotely after the workplace injury, they are less likely to be related medically to a post-concussive, vestibular, or cervicogenic (neck) condition as a result of the MOI. This matter may require further adjudicative review.
On December 17, 2014, Compensation Services advised the worker that the WCB was unable to relate his vestibular symptoms to his claim and no responsibility would be accepted for vestibular treatment or time loss in relation to these symptoms. The case manager noted that the first mention in any medical report of dizziness or vertigo was in an October 31, 2014 doctor's report, more than one month following the worker's accident of September 24, 2014. The case manager stated that on consultation with a WCB medical advisor, it was noted that if these symptoms occur remotely after a workplace injury, they are less likely to be related medically to a post-concussive, vestibular or cervicogenic condition as a result of the injury. Based on these findings, Compensation Services was unable to substantiate that the worker's vestibular symptoms were directly related to his workplace injury, and vestibular treatment would not be funded by the WCB.
In a memorandum to file dated January 22, 2015, a WCB physiotherapy consultant noted that the treating physiotherapist had submitted a physiotherapy extension request as "vestibular issues are still of concern." The consultant stated: "The criteria to be met to fund treatment beyond the initial course of therapy are measurable evidence of a sustained improvement of function as determined by validated outcome measures and the movement towards return to work. Based on the medical information on file the criteria has not been met." On January 26, 2015, Compensation Services wrote to the treating physiotherapist to advise that the WCB was not able to approve additional funding for physiotherapy treatment.
By letter dated January 29, 2015, the treating otolaryngologist reported that the worker had significant vertigo and instability since the accident lasting anywhere from half an hour to a couple of hours a day and intermittent nausea, particularly with motion. The specialist suspected that the worker had a significant form of post-concussive vestibulopathy, and stated that he should actively continue vestibular physiotherapy and physical therapy for his neck and possibly his arm.
A WCB medical advisor reviewed the file on February 26, 2015 and stated that based on the report from the treating otolaryngologist, there was a probable diagnosis of post-concussive vestibulopathy. Medical findings to support this diagnosis were nystagmus, some abnormal saccadic eye movements and poor visual tracking. Further testing was pending. The medical advisor stated that the compensable injury involved concussion and the vestibular findings were, on balance, accounted for by the mechanism of injury.
On April 22, 2015, the WCB sports medicine advisor outlined the view that a diagnosis of post-concussive vestibulopathy was not supported by objective tests on file. As there was no evidence of a vestibular cause for symptoms, a significant improvement in symptoms/function with vestibular therapy was not anticipated. No further treatment beyond resumption of usual activity was recommended.
In a further decision dated May 5, 2015, Compensation Services advised the worker that it was unable to accept that his vestibular symptoms were a direct result of his work injury and the WCB was unable to substantiate that there was any need for work restrictions related to his compensable injuries that would preclude him from resuming work activity.
On May 5, 2015, the worker appealed the WCB decisions that his vestibular symptoms were not directly related to his workplace injury and that further physiotherapy treatments were denied. The file was then referred to Review Office to consider the worker's appeal.
On June 25, 2015, Review Office determined that the worker was not entitled to medical aid benefits to treat a vestibular condition. Review Office referred to the medical reports on file from the worker's treating practitioners dated October 29, 2014, November 14, 2014, January 29, 2015 and May 7, 2015, and the opinions expressed by the WCB sports medicine advisor. Review Office stated that it accepted the WCB sports medicine advisor's opinions that there was insufficient medical or anecdotal evidence to establish a cause and effect relationship between the worker's subjective reports of vestibular problems and this claim.
Review Office also determined that there was no further entitlement to physiotherapy coverage based on the opinion from the WCB physiotherapy consultant provided January 22, 2015.
On April 5, 2016, the Worker Advisor Office wrote to Review Office requesting reconsideration of the June 25, 2015 decision based on new medical information dated September 11 and 28, 2015 and March 24, 2016 which was said to support the worker's entitlement to further regular physiotherapy treatments as well as vestibular treatments for the symptoms of dizziness/vertigo.
Prior to considering the appeal, Review Office returned the case to Compensation Services to consider the new medical information provided by the worker advisor.
On June 27, 2016, the case manager asked a WCB physiotherapy advisor to comment on whether the accepted physiotherapy materially contributed to the development of the new diagnosis of vestibular issues. On July 4, 2016, the advisor opined:
On a balance of probabilities, the physiotherapy treatment did not materially contribute to the development of the new diagnosis of vestibular issues.
In the May 20th 2015…physiotherapy report, the author indicates that vestibular disorders may result from high forces generated by whiplash mechanisms. The entire vestibular system is potentially at risk following blunt trauma to the head and neck region.
The September 28, 2015 progress report…indicated that on October 14, 2014, the therapist attempted to progress chin tuck exercises (neck flexion) by having the worker performing them in standing against the wall. He reported dizziness so it was discontinued and he was able to continue with the rest of the program. Chin tuck is an active physiological motion. The worker performed the movement at his own rate without external force being applied. Although the worker complained of dizziness, this movement would not cause trauma to the vestibular system.
The movement of lumbar spine flexion of October 28, 2014 is again a normal physiological movement performed within tolerance. It would not result in trauma to the vestibular system.
Based on the file information, including the July 4, 2016 opinion from the WCB physiotherapy advisor, Compensation Services advised the worker on July 12, 2016 that the WCB was not able to establish that the approved physiotherapy treatment that commenced on October 7, 2014 resulted in vestibular issues or a secondary injury. As such, a secondary injury as a result of the approved physiotherapy treatment had not been approved. On August 25, 2016, the worker advisor appealed the decision to Review Office.
On November 7, 2016, Review Office determined that there was no further entitlement to medical aid benefits for physiotherapy or vestibular treatments. Review Office stated that it considered the new medical reports from the worker's physiotherapist and chiropractor and found that the new submission(s) did not provide any new information that substantiated a change to its previous determination that the worker's vestibular symptoms and dizziness were unrelated to the accident.
On December 14, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission, and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On March 6, 2018, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
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 states 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"), allows for the provision of prescribed treatments and devices. The Policy sets out 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.
The worker was assisted by a worker advisor, who made a presentation to the panel on his behalf. The worker responded to questions from the worker advisor and the panel.
The worker's position was that he is entitled to further medical aid benefits for physiotherapy and vestibular treatments which were required as a result of his compensable injuries and related symptoms that arose out of his September 24, 2014 workplace accident.
It was submitted that the worker’s symptoms of dizziness and vertigo were related to his compensable neck and/or head injuries from his workplace accident. The worker advisor further submitted that the WCB-approved physiotherapy treatments for the worker's compensable injuries, including the injury to his neck, triggered the increase in the worker’s symptoms of dizziness and vertigo. In their view, the WCB therefore had a further responsibility to accept treatments to minimize the impact of those symptoms.
It was further submitted that the WCB accepted the diagnosis of post-concussive vestibulopathy by their own medical advisor on February 26, 2015. The WCB medical advisor stated that the compensable injury involved a concussion with the probable diagnosis of post-concussive vestibulopathy, and that the vestibular findings of vertigo were, on the balance of probabilities, accounted for by the mechanism of injury.
The worker advisor noted that in its initial decision, Review Office stated that the criteria to be met when considering entitlement to fund treatment were whether there was measurable evidence of sustained improvement in function, as determined by validated outcome measures and the movement towards a return to work. It was submitted that new medical information which was provided after that decision confirmed there was a measurable improvement in function as a result of the treatment, and that the criteria which had been identified were met.
The worker advisor further noted that the Policy states that 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. The worker advisor submitted that the medical information provided by the treating medical practitioners indicated that their treatments were specifically directed to the compensable areas of injury to minimize the impact of the worker's workplace injuries, and showed that the treatments resulted in measurable improvement in the worker's vestibular symptoms and difficulties.
The employer did not participate in the appeal.
The issue before the panel is whether or not the worker is entitled to further medical aid benefits for physiotherapy and/or vestibular treatment. For the worker's appeal to be successful, the panel must find that further physiotherapy and/or vestibular treatment were required by reason of the worker’s September 24, 2014 workplace accident. The panel is able to make that finding, for the reasons that follow.
Based on the evidence before us, the panel finds, on a balance of probabilities, that vestibular symptoms which the worker experienced, including symptoms of dizziness and vertigo, were a result of his September 24, 2014 workplace accident.
In arriving at that conclusion, the panel notes that the worker suffered significant trauma and injuries as a result of his September 24, 2014 workplace accident which lead to a number of ongoing issues. He complained of difficulties with focusing and concentration immediately following the accident and had a significant loss of memory. The WCB accepted the claim on the diagnoses of concussion, contusion, strains of the neck, back, both hips, and right hand, as well as an abrasion/contusion of the left shoulder.
The worker's evidence at the hearing was that he was in intense pain after the accident, and for the next few weeks he did nothing; he just stayed home and slept as much as he could. He started suffering from severe headaches immediately after the accident, and was very sensitive to light and noise. When the headaches happened, he basically locked himself in his room, in complete darkness, with the blinds shut, and just lay there trying to sleep.
With respect to dizziness, the worker stated that:
So within the first few weeks I get dizzy here and there, but the amount of activity that I was undergoing in that first few weeks but prior to the physio was, I would say slim to none…I would sleep a lot…I didn't even have anything going on that I would have to actually get up and leave my apartment for…My wife…would help me a lot. But even associated with the dizziness, like the memory loss, I had trouble speaking…trying to find the words, all that kind of stuff, so there was a lot going on at the time…
It wasn't until I actually started doing things with my neck, so if I had to move it at all, like turn to the left, turn to the right, up, down, that kind of thing, I would get dizzy. Basically moving my head at any point from…normal… If I…sharply looked over to him, or sharply looked over to them I would get dizzy, and it would be any…kind of flexion on my neck.
On October 7, 2014, the worker went for an initial physiotherapy assessment. The worker's evidence was that at the initial assessment, they said they were not going to touch his head or neck because of the pain he was in, and would start slowly with other things. As the treatments progressed and further exercises and movements were added, he started feeling increasingly dizzy and experienced persistent headaches.
Following the hearing, chart notes were obtained from the treating physiotherapist. The panel notes that the first reference to the worker experiencing dizziness appears in the chart note from October 14, 2014, less than three weeks after the workplace accident, when the therapist sought to have him do a new "chin tuck" exercise.
The panel places significant weight on the January 29 and May 7, 2015 reports of the treating otolaryngologist. Based on his examination of the worker, the otolaryngologist stated in his January 29 report that:
Since his accident, he has had significant vertigo and instability lasting anywhere from half an hour to a couple of hours a days and intermittent nausea particularly with motion. He has had intermittent headaches and imbalance and ongoing ear pain and tinnitus…he scored quite poorly on the dizziness handicap index…
I suspect he has a significant form of postconcussive vestibulopathy.
I will be testing him in the lab using and (sic) ENG and rotatory chair. He should actively continue vestibular physiotherapy and physical therapy for his neck and possible even his arm. This will likely take another 4-6 months and I would strongly advise that he carry on seeing a physiotherapist for this portion.
In his May 7, 2015 report, the treating otolaryngologist noted that while the results of subsequent ENG and vestibular testing were normal, this was inconclusive, and the worker:
…continues to have ongoing issues related to post concussive vestibulopathy...He continues to be symptomatic and likely will improve over the next 3-4 months' time, but this will not occur in a timely fashion without physiotherapy to retrain his vestibular mechanisms as well as physical therapy to recovery (sic) from his injuries….I would also suggest that his benefits for physiotherapy, particularly vestibular physiotherapy be reinstated as this will accelerate his recovery.
The panel also places weight on the February 26, 2015 opinion of the WCB medical advisor, who opined that there was a probable diagnosis of post-concussive vestibulopathy and that the vestibular findings were, on balance, medically accounted for in relation to the mechanism of injury.
The worker stated that after the WCB advised that they were not accepting his vestibular condition, he decided to go forward and paid for the treatments himself. The worker said he also went to physiotherapy at that time, but only when he needed to do so. He said he tried to do as much as he could afford, in order to get better. He indicated that things were slowly improving with the treatments, particularly with the vestibular therapy; every time he went he would feel slightly better.
The worker said that he continued going for vestibular therapy until shortly after he was involved in another motor vehicle accident in August 2015, at which time he started going for chiropractic treatments which were covered by his insurance. He further noted that the vestibular therapy treatments ended at that time because:
Basically [the therapist] felt that my condition was at a point that it was getting better, I continued the exercises and the things that she suggested, but it also got to the point where I couldn't afford it anymore.
Based on the foregoing, the panel finds that the worker required further physiotherapy and/or vestibular treatment to cure and provide relief from his September 24, 2014 workplace injuries. The panel therefore finds that the worker is entitled to further medical aid benefits for physiotherapy and vestibular treatment.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 4th day of May, 2018