The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further physiotherapy treatment. A hearing was held on August 15, 2018 to consider the worker's appeal.

Issue

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

Decision

That the worker is not entitled to further physiotherapy treatment.

Background

The worker injured her left thumb/wrist on October 2, 2014 when she caught a person who fell off the top of a play structure.

The worker attended a medical clinic on October 7, 2014, and was diagnosed with an ulnar collateral ligament sprain. An MRI completed November 13, 2014 indicated that the worker had a "Definite complete tear scapholunate interosseous ligament" and "Strain thumb MCP ulnar collateral ligament." The worker's claim was accepted, and wage loss and other benefits were paid.

On February 4, 2015, a plastic surgeon recommended that the worker undergo a reconstruction or repair of the left scapholunate ligament, for which surgery was performed on February 26, 2015. The worker underwent two more surgeries to her left wrist on November 4, 2015 and September 7, 2016, respectively. The worker received occupational therapy and physiotherapy treatments throughout the claim and following surgery.

On April 4, 2017, the worker was seen at a follow-up appointment with the treating plastic surgeon, who reported that the worker was "probably at where she is going to be. I have told her she may have some mild improvement however, overall she will not make any huge gains of improvement." The plastic surgeon further recommended that the worker be assessed for permanent restrictions by a WCB medical advisor.

On May 17, 2017, a WCB plastic surgery consultant reviewed the worker's claim and noted that the treating plastic surgeon and treating physiotherapist had not recommended further treatment. The plastic surgery consultant recommended that the WCB fund up to four physiotherapy treatments to support a return to work, with progression to a home-based program. On May 18, 2017, Compensation Services advised the worker that funding of up to four physiotherapy treatments and an initial assessment was approved.

On July 5, 2017, the worker attended a call-in examination with the WCB plastic surgery consultant. In response to questions posed by the WCB, the plastic surgery consultant opined that the worker had likely reached maximum medical improvement in relation to her left wrist and recommended permanent restrictions.

On June 30, 2017, the worker's treating physiotherapist requested an extension of treatment to progress upper extremity and strengthening, at a frequency of two times a week for four weeks. The request was reviewed by a WCB physiotherapy consultant, and on July 25, 2017, Compensation Services advised that they were unable to approve the extension request at that time. Compensation Services stated that the basis for their decision was that there was no evidence that further in-clinic treatment was warranted and that a home program and/or self-pain management techniques should suffice.

On August 10, 2017, the worker requested that Review Office reconsider Compensation Services' decision to deny further physiotherapy treatment.

On September 27, 2017, Review Office determined that the worker was not entitled to further physiotherapy treatments. Review Office stated that they were unable to find that there was a continuing need for in-house physiotherapy treatments in relation to the compensable injury or that further treatments were likely to aid in curing and providing relief from the injury. Review Office noted that it was expected that the worker would adapt to her injury while using the tools and education gained through previous physiotherapy and occupational therapy treatments to help herself in continued and sustained functioning. Review Office found that further in-house physiotherapy treatments were not, on a balance of probabilities, going to provide the worker with additional improvement in her condition.

On November 22, 2017, the worker appealed the Review Office decision to the Appeal Commission 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.

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") provides a comprehensive and coordinated approach to delivery of medical-aid services to injured workers. As it relates to medically prescribed treatments, such as physiotherapy treatment, 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 Policy provides that medical aid for medically prescribed treatments will generally be paid for by the WCB when required by reason of a compensable injury, and where the treatment "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. The worker provided letters of support from her treating physiotherapist and a chiropractor in advance of the hearing and made a presentation to the panel.

The worker outlined the history of her October 2, 2014 accident, the treatment she has received for her injuries and the impact her injuries have had on her life. She noted that her injury and the three invasive reconstructive surgeries on her left wrist have left her with a decreased range of motion. As a result, she cannot properly move or stretch out her arm. This causes hard knots to form in the tissue from the top of her hand and thumb all the way up to her elbow. After she uses her arm for approximately three weeks, the knots become unbearable, causing significant pain and discomfort, and resulting in a reduced work capacity.

The worker stated that use of her wrist and arm at work is imperative. A physiotherapy appointment every three weeks or every month enables her to be more productive and keep functioning. She wants to be able to use her wrist and to keep her arm and wrist moving for as long as she can. The worker submitted that if she is not moving or using her wrist, it will become completely arthritic and she will not be able to do anything. Her plastic surgeon has told her that she will inevitably require joint fusion, but she wants to avoid that for as long as possible.

The worker submitted that her quality of life, both at work and in her personal life, hinges on these simple physiotherapy sessions. She said she does not want to ask for more than is necessary. All she is looking for is to be able to seek relief every three weeks or every month, so that she can continue to function and be a productive worker in her workplace.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further physiotherapy treatment. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that further physiotherapy treatment is necessary to cure and provide relief from the worker's October 2, 2014 compensable injury.

After a careful review of all of the evidence on file, as well as the worker's submission and evidence presented in advance of and at the hearing, the panel is unable to make that finding.

The panel notes that the original request for further physiotherapy was based on therapeutic potential or improvement, while the worker's focus at the hearing was on physiotherapy for maintenance purposes.

With respect to the original request for further treatments, the panel notes that in her June 30, 2017 report, the treating physiotherapist indicated that the worker had not reached her "therapeutic potential" and requested eight further sessions over a period of four weeks to progress upper extremity and strengthening.

From our review of the evidence, the panel is unable to find that there is any basis to approve further physiotherapy treatment based on therapeutic potential or improvement.

The panel finds that the medical evidence on file, including reports from the worker's original treating physiotherapist, her treating surgeon and the WCB plastic surgery consultant, all support that the worker was at maximum medical improvement at that time. Permanent restrictions were determined to be appropriate and were applied.

The worker further acknowledged at the hearing that she had basically plateaued and she knew there were no further gains to be made from any treatment they could foresee at that particular time. The worker agreed that there was no more potential for improvement at that time, and stated that she was not asking for physiotherapy to improve but to maintain the condition of her wrist.

With respect to the worker's request for physiotherapy treatment for maintenance purposes, the worker acknowledged at the hearing that she had been provided with physiotherapy treatments and given exercises, including exercises for strength and mobility, which she did at home. The problem, however, was that those exercises did not relieve the tightness or knots that she felt. She stated that "to even maintain that plateau, there's knots that form in the muscles" and she needs "the release from somebody who knows what they're doing."

As indicated previously, the Policy states that the purpose of medical aid is to minimize the impact of a worker's injury and enhance the worker's recovery to the greatest extent possible. Medical aid is approved where it is expected or likely to improve, as opposed to maintain, a worker's functioning and recovery. The panel has previously found that the worker has attained maximum medical improvement, and the worker has acknowledged that there is not likely to be any improvement. In the circumstances, the panel is satisfied that the worker's request for further physiotherapy treatments for maintenance purposes is not consistent with or acceptable under the Act and Policy.

In conclusion, the panel finds that the request for physiotherapy treatment would be for maintenance purposes only, which is not covered by the Policy. The panel therefore finds, on a balance of probabilities, that further physiotherapy treatment is not necessary to cure and provide relief from the worker's October 2, 2014 compensable injury.

The worker's appeal is dismissed.

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 October, 2018