The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to chiropractic and/or massage treatment in relation to the November 28, 1996 accident. A hearing was held on November 5, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to chiropractic and/or massage treatment in relation to the November 28, 1996 accident.

Decision

The worker is not entitled to chiropractic and/or massage treatment in relation to the November 28, 1996 accident.

Background

The worker had an accepted claim with the WCB for an L5 compression fracture that occurred at work on November 28, 1996. The WCB advised the worker on January 19, 1998 that based on a review of his file and an opinion from a WCB medical advisor, it was determined that he had recovered from the effects of his workplace accident and could return to his pre-accident duties.

On March 9, 1998, the WCB advised the worker that after a review of his claim and consulting with a WCB healthcare consultant, the ongoing chiropractic treatments he had been receiving were determined to be of a maintenance or preventative nature and responsibility for the payment of those treatments by the WCB would end on March 16, 1998.

The worker contacted the WCB on August 25, 2017 and advised that he required chiropractic and massage treatment "due to the destructive nature…" of his workplace accident. On September 5, 2017, the WCB advised the worker that as set out in their March 9, 1998 letter, ongoing maintenance or preventative chiropractic treatment was deemed not to be essential in the improvement of a person's function and therefore, would not be covered.

The worker requested reconsideration of the WCB's decision to Review Office on November 6, 2017. The worker noted that he had ongoing back pain since his workplace accident on November 28, 1996 and required chiropractic treatment and/or massage therapy to remain at his current employment. Review Office returned the file to Compensation Services for further investigation on November 9, 2017.

On December 23, 2017, a report was received from the worker's treating chiropractor. The chiropractor provided the following opinion:

[The worker] was diagnosed with degenerative disc and joint disease of the lumbar spine. [The worker] began treatments consisting of chiropractic spinal adjustments 2-3 times per week and is currently receiving treatments once per week…

[The worker] has chronic degeneration of the lumbar spine that cannot be fixed due to the age of the injury. Drugs and surgery are not options…

The worker's file was reviewed by a WCB chiropractic consultant who, on February 22, 2018, opined, in part:

The diagnosis submitted by [treating chiropractor] in my opinion would be accurate. In my opinion there is no evidence to file to relate the degenerative disc and joint disease noted to [the worker's] lumbar spine to the compensable injury dated November 28, 1996. The lumbar spine degenerative changes more probably are a factor related to aging and any therapy at this time would be preventative and/or maintenance in origin.

On March 6, 2018, the WCB advised the worker that responsibility for massage therapy or chiropractic treatment would not be accepted.

The worker again requested reconsideration of the WCB's decision to Review Office on March 26, 2018. The worker related his current, ongoing issues to his workplace accident on November 28, 1996 and requested financial assistance for his treatments since his initial appointments in 2017.

Review Office determined on May 2, 2018 that responsibility would not be accepted for chiropractic and/or massage treatment. Review Office noted an approximate 16 year absence of medical information regarding the worker's back injury or complaints until his August 25, 2017 request for coverage. Review Office placed weight on the WCB chiropractic consultant's opinion that the worker's current symptoms were more likely a result of aging and treatment would be maintenance or preventative in nature. Review Office determined that responsibility would not be accepted for chiropractic treatment as it could not be found to be related to the workplace injury. Review Office also did not accept responsibility for massage therapy coverage as it was also not found to be related to the workplace injury and was not a treatment covered by the WCB.

The worker filed an appeal with the Appeal Commission on May 17, 2018. 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.

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.

Worker's Position

The worker was self-represented and participated by way of video teleconference. He made an oral presentation and responded to questions from the panel. He was accompanied by a friend who also provided comments to the panel.

The worker advised that his original accident involved an incredible blow to his whole body. WCB closed the door on him and he was cut off from chiropractic treatment in his community and told to go back to work. Over the years, he has had to seek treatment three times because the pain was returning. The treatments would get him back on his feet at which time he would discontinue the treatments. Each time, the severity of the episodes increased. Both his chiropractor and massage therapist have explained that his pain comes from his injury, where his right leg was pushed up over his right shoulder and he was extremely crooked.

The worker's friend elaborated on the mechanism of the original injury, where a four ton load of waste paper had fallen on the worker from above. His concern is that WCB had considered the injury as only a soft tissue injury which would heal. However, the worker, now in 2017, cannot function, even with an employer who has allowed him to work as best as he can. It was only in 2017 that the worker contacted WCB indicating that he could no longer cope. He now needs medical intervention, including massage therapy. The worker submitted receipts for massage therapy, but was told that WCB does not ever cover massage therapy.

The worker was also seeking coverage for his chiropractic treatments, and it was noted that the WCB chiropractic advisor agreed with the worker's diagnosis, but WCB would not cover it.

The friend also spoke to the gap between medical treatments that were discussed in the claim decisions, noting that the worker did in fact contact the WCB about his back problems in 2005. Their position was that the worker's current problems are related to his injury, not to a degenerative condition, and that "we're all degenerating, every one of us is, but this is a different kind of degenerative type problem, where it's due to an injury."

In response to questions from the panel, the worker confirmed that the WCB cut off his chiropractic treatment as of March 16, 1998. The worker then returned to his job where he worked until 2006. He returned to his physically demanding labour position, doing everything except handling 45 gallon barrels, then bid out into other positions with the employer including product testing and eventually security, until he left his employer in 2006. He then worked in various property management jobs, which combined office and maintenance duties, including fixing toilets and leaks.

Employer's Position

The employer is a finalled firm.

Analysis

The issue before the panel is whether or not the worker is entitled to chiropractic and/or massage treatment in relation to his 1996 accident. For the worker's appeal to be successful, the panel must find that the requested treatments are required by reason of the worker's original compensable low back injury. The panel is not able to make that finding.

In making this decision, the panel places particular weight on the following considerations:

• The panel notes that the diagnosis originally accepted by the WCB was a compression fracture of the L5 vertebra.

• An April 15, 1997 report by an orthopedic surgeon noted that the worker was following a normal course for this type of injury, had no neurological deficits, and that he anticipated the worker could be gradually rehabilitated back to regular work duties. No further investigations or more active treatments were indicated at that time.

• The worker commented to an adjudicator on October 2, 1997 that he was feeling much better and his recovery was going fine.

• A December 17, 1997 x-ray notes a healing minimal compression fracture of L5, with no further compression since the previous films, as well as slight degenerative changes and a scoliosis convex to the right which was again present.

• On January 19, 1998, the WCB advised the worker that he was considered to be recovered from the effects of his injury and was recovered sufficiently to return to his pre-accident employment, based on an opinion provided by a WCB medical advisor. On January 22, 1998, the worker discussed his return to work to regular duties with the WCB, and he only referenced some problems with his hip. In the panel's view, the worker had achieved a full recovery of his L5 compression fracture in early 1998, as had been anticipated by the WCB medical advisor and the orthopedic surgeon.

• The worker relies on an October 25, 2018 letter from his chiropractor, who notes that "a large bundle of paper was dropped on him causing back injuries. These injuries have now resulted in mechanical back pain and more significantly degenerative disc and joint disease. Prior to the injury, [the worker] did not have low back pain, but has had chronic low back pain since November 25, 1996." The chiropractor further notes that the worker had a number of x-rays in 2017 that showed moderate right convex scoliosis with mild multilevel changes, multi-level degeneration in the thoracic spine, and moderate degenerative disc disease in the thoraculombar junction. His opinion was that these changes were not age-related but from trauma.

• The panel has considered this report but places little weight on it. The chiropractor refers to unspecified and apparently multiple back injuries in the November 1996 incident, and attributes the worker's scoliosis and multi-level degenerative changes throughout his thoracic and lumbar spine to his 1996 work injury. The panel notes, however, that the worker had a specific compression fracture injury at L5, near the bottom of his lumbar spine, for which full recovery was anticipated. The panel finds that the chiropractor does not provide a reasonable pathoanatomic basis to connect the worker's multi-level issues to the specific work injury at L5 that he suffered in November 1996.

• Further, the chiropractor describes the worker as having chronic low back pain since November 25, 1996. The panel finds that this history is inconsistent with the early file evidence, which indicates that the worker's condition had improved steadily until his claim was closed in 1998, in keeping with the anticipated recovery for this type of compression fracture injury. The panel further notes that the worker had not sought treatment for his back for many years following the completion of chiropractic treatment in March 1998, and that there was no further contact with WCB until 2005, seven years later. The panel does not place any weight on the history relied upon by the chiropractor which formed the basis of his medical opinion.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's current back difficulties are not related to his 1996 workplace injury. The Act and Policies provide that medical treatment will only be provided for a compensable medical condition. As such, there is no basis for the WCB to pay for the worker's current chiropractic or massage therapy treatments.

The worker is therefore not entitled to coverage for these treatments.

The worker's appeal is denied.

Panel Members

M.L. Harrison, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of December, 2018