Decision #125/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to coverage for massage therapy. A hearing was held on June 27, 2018 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to coverage for massage therapy.
Decision
The worker is not entitled to coverage for massage therapy.
Background
The worker has an accepted claim for a back injury that occurred on February 21, 1992. After multiple surgeries on her back, the worker was diagnosed with chronic low back pain and was deemed permanently disabled. Wage loss and other benefits have been paid since that time. The worker has received various forms of therapy since the workplace incident and had tried various pharmaceutical interventions.
In 2011, at the suggestion of the WCB, the worker participated in a weaning program involving the narcotic pain medication she was being prescribed as she was not finding long lasting effects from the medication. As part of the program, the worker began other therapies such as swimming and gym activities along with stretching and exercising at home.
On July 2, 2014, the WCB advised the worker that based on a review of her file, together with the opinion of a WCB medical advisor that medical literature supported active based treatment for the worker's diagnosis of non-specific low back pain, the WCB would pay for the cost of the worker attending a medically supported gym program for the period of twelve months.
The WCB advised the worker on May 21, 2015, that it would not be funding the renewal of her gym pass. On July 3, 2015, the worker requested that the WCB reconsider their decision not to fund her gym pass and noted that her doctor had recommended that she attend treatments for therapeutic massage. The WCB advised the worker on July 16, 2015 that it could not authorize payment for her massage therapy as there was “no sustained benefit from this type of treatment”.
The worker requested reconsideration of the WCB's decision to Review Office on February 22, 2016. The worker disagreed with the WCB's decision as she felt that the massage therapy was "part of a multi-disciplinary approach to managing, reducing or eliminating chronic pain due to my compensable injury." On February 22, 2016, Review Office returned the worker's claim file to the WCB for more investigation.
On April 6, 2016, the WCB received copies of the worker's medical records from the massage therapist. The WCB medical advisor, at the request of the WCB and after reviewing the worker's medical information, provided the following opinion:
It appears that the current diagnosis is chronic nonspecific low back pain. Treatment for this conditions (sic) favors active based exercises and participating in modified physical activities rather than withdrawal from same.
Massage therapy is a passive treatment modality. Information from the worker (April 11/16 memo) indicates that there have been no significant changes in her pain over the past year. Review of the medical literature on this subject indicates that massage therapy is not an effective long-term treatment in terms of sustained improvement in pain and function.
The WCB advised the worker on April 19, 2016 that, based on the WCB medical advisor's opinion, they were unable to provide coverage for massage therapy.
On May 9, 2016, the worker outlined her disagreement with the case manager’s decision pertaining to massage therapy and requested the Review Office review the issue. The worker noted that she had requested medication from her doctor that would help with back spasms and it was her doctor who recommended that she attend for therapeutic massage. Reports from the worker’s physician were enclosed along with the receipts for the massage therapy. The physician recommended massage therapy of the frequency of at least twelve to twenty-four (12-24) sessions per year and stating that this had to be “cheaper and healthier than all the morphine that the worker had been taking” with respect to her symptoms.
Review Office advised the worker on June 8, 2016 that they were upholding the WCB's decision to deny coverage for massage therapy. Review Office relied on the WCB medical advisor's opinion that medical evidence does not support massage therapy as an effective long-term treatment for sustained improvement in pain and function. Review Office noted that the massage therapy treatment had not provided any sustained changes to the worker's reported pain complaints or level of function. The Review Office was of the conclusion that coverage for massage therapy was not warranted as it was for an unspecified duration and was not within the parameters for approval at that time. Accordingly, Review Office concluded there was no coverage for massage therapy.
The worker filed an application with the Appeal Commission on January 10, 2018. An oral hearing was held on June 27, 2018.
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 Board of Directors.
When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to the subsection 4(1) of the Act. Provision of medical aid services to injured workers is payable in accordance with subsection 27(1) of the Act which provides as follows:
Provision of medical aid
27(1) 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.
WCB Policy 44.120.10 Medical Aid (the “Policy”) sets out a coordinated approach to delivery of medical aid services. As it relates to massage therapy, the Policy provides 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
[…]
b. Medically Recommended Treatments
i) Other medically recommended treatments include, but are not limited to, acupuncture, massage therapies, swimming, fitness therapies, obus forms, as well as new treatment modalities constantly being introduced to the market place.
ii) 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.
[…]
Workers Submission:
The worker was self-represented and participated in the hearing via telephone.
The worker’s submissions at the hearing can be summarized as follows:
• There have been no significant changes over the last twenty (20) years, as the worker still has a twenty-four percent (24%) permanent impairment, chronic pain, numbness and tingling in the lower extremities, back spasms and mobility challenges.
• The worker uses cannabis to primarily manage pain. The cost of this is covered by the worker.
• The worker swims three to five (5) times a week. The cost for this gym pass is covered by the WCB.
• The worker attends therapeutic massage every two (2) weeks, approximately twenty-six (26) times a year. According to the worker this has and is providing benefits and it allows her to maintain a drugfree level of mobility and flexibility independence with her back spasms being reduced in severity and her muscles being relieved - albeit temporarily.
• The worker uses daily heat to management pain and spasms.
• In summary, the worker is not only relying on therapeutic massage to manage symptoms, she is also relying on swimming/fitness, diet and use of cannabis. Combined, this is a more comprehensive multi-disciplinary approach to the worker’s condition and it is supported by the worker’ physician.
• Despite the forgoing, the worker feels that her level of disability is increasing and things are becoming more difficult to manage on her own, such as hauling groceries, sweeping, vacuuming and changing sheets, etc.
On the issue of narcotic pain medication, the worker submitted that she spent approximately sixteen (16) years taking such medication and that she has successfully managed to ween off of same with the help of cannabis. Further, the worker’s position is that given that massage therapy is only accepted on an individual case basis, in her case, massage therapy is the far better option than narcotic pain medication.
Further, the worker submitted that as there appears to be some requirement to limit the amount of treatment with respect to massage therapy as per the WCB position statement, it therefore seems reasonable, given her narcotic pain medication history, that at least an equivalent amount of time be spent on massage therapy. In that regard, massage therapy should be approved at a rate of twenty-six (26) times per year for sixteen (16) years or until the worker returns to work or retires.
Employer’s Submission:
The Employer did not appear at the hearing. However, on February 5, 2018 the Employer wrote to the WCB to advise that upon review of the file it had “no further information to add and is aligned with the Review Office’s conclusion” in Decision 381/2016.
Analysis:
The issue before the panel is whether or not the worker is entitled to massage therapy treatment.
In order for the worker’s appeal on this issue to succeed, the panel must be satisfied that, on a balance of probabilities, massage therapy treatment is determined to be necessary to cure and provide relief from the injury resulting from an accident.
For the following reasons the panel is unable to make this finding.
Indeed, the test set out by subsection 27(1) is whether the medical aid is “necessary to cure and provide relief”. Further, the Policy provides further direction where it acknowledges that the provision of medical aid involves the use of a wide variety of providers. In that regard, the WCB relies mainly on doctors, chiropractors and physiotherapists. However, from time to time, services offered by other healthcare providers may be approved.
With respect to massage therapy, the treatment protocol regarding massage therapy provides that this form of treatment is not considered to be essential in restoring the worker to function and fitness for work and may be complimentary to other forms of treatment. Part of the concern addressed by the treatment protocol is that massage therapy is a passive treatment modality which provides only temporary relief. In sum, it is not thought to be curative.
In the present matter, on a balance of probabilities, the panel finds that there is no satisfactory evidence in order to allow it to find that the massage treatment that is being sought by the worker provides any long-term or sustained benefit. This finding leads the panel to the conclusion that responsibility should not be accepted for the costs of massage therapy as the legislative mandate of the WCB does not extend to the provision of maintenance massage therapy treatment.
The panel therefore finds that the worker is not entitled to coverage for massage therapy. The worker's appeal is denied.
Panel Members
C. Monnin, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
C. Monnin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 24th day of August, 2018