Decision #33/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for chiropractic treatment after June 1, 2018. A file review was held on March 5, 2019 to consider the worker's appeal.
Whether or not responsibility should be accepted for chiropractic treatment after June 1, 2018.
Responsibility should not be accepted for chiropractic treatment after June 1, 2018.
The worker, a courier driver, reported to his employer that he slipped on ice in their parking lot as he was exiting his company vehicle on November 6, 2017. He noted that he "…slipped on the ice and fell to the ground on my right side, Forearm and then my right hip." The worker advised that he continued to work but had to stop after approximately three hours and sought medical attention.
The worker was seen by a sports medicine physician on November 6, 2017. An x-ray was taken which did not indicate any breaks. The sports medicine physician queried whether the worker did have a break in his hip or pelvis and referred the worker for a CT scan. The CT scan conducted on November 8, 2017 noted: "Acute fractures of the right superior and inferior pubic rami." The worker's claim was accepted for fractures of his right ribs, numbers six and seven, and a non-displaced fracture of both the superior and inferior right pubic rami. Payment of wage loss and medical aid benefits, including chiropractic treatment for November 22, 2017 to February 14, 2018, was accepted.
On February 21, 2018, the worker attended for a call-in examination with a WCB chiropractic advisor. The WCB chiropractic advisor opined that the worker's injuries that could be accounted for in relation to the workplace injury were:
• Rib fractures right rib 6 and 7
• Right superior and inferior pubic ramus fractures
• Non-specific lower back and pelvic pain, without objective signs of radiculopathy
• Pubic symphysis sprain
• Resolved left forearm contusion
The WCB chiropractic advisor further noted that the normal anticipated recovery times from the rib fractures would be six to eight weeks for full bone healing; for the pubic rami fractures, 12 to 16 weeks for full bone healing and four to six weeks for the non-specific back pain/symphysis pubic sprain. It was noted that the worker's recovery from the non-specific back pain/symphysis pubic sprain due to conditions such as the pubic ramis fractures would occur at the same time. The WCB chiropractic advisor recommended that the worker attend a four to six week reconditioning program to help re-establish a level of function so the worker could return to work. It was further recommended that as the worker had received benefit from and had a good relationship with his treating chiropractor, that chiropractic treatment for an additional six weeks be approved, with the frequency of treatment decreasing to once per week when the worker began the reconditioning program.
On April 16, 2018, the WCB approved a further extension of chiropractic treatment to May 11, 2018.
The worker began a graduated return to work program on May 2, 2018, starting with four hours per day for two weeks, then increasing to eight hours per day with the restriction of no lifting greater than twenty five pounds.
On May 24, 2018, the worker's treating chiropractor requested an extension of the worker's treatment, noting that the treatment was helping to support the worker's spine and pelvis during his return to work. On June 1, 2018, Compensation Services advised the worker's chiropractor that WCB responsibility for the worker's chiropractic treatment would end as of June 1, 2018 as it was the opinion of the WCB that no further treatment was warranted.
The worker's treating chiropractor provided a narrative to the WCB on July 26, 2018. The worker's chiropractor set out various surgeries the worker had undergone and noted that the surgeries, in addition to the worker's age, would be factors for the worker needing additional treatment. The chiropractor further noted that the extension of treatment he had requested was for treatment required to keep the worker's spine, pelvis and extremities in proper condition so he can continue working and that the treatment would minimize the possibility of the worker getting re-injured. On August 10, 2018, the WCB advised the worker's treating chiropractor that his submission was reviewed but the decision to end responsibility for chiropractic treatment as of June 1, 2018 remained.
The worker requested reconsideration of the WCB's decision to Review Office on August 20, 2018. The worker noted his disagreement with the decision to end funding for his chiropractic treatment as he felt the continuation of the treatment was required to allow him to continue with his strengthening and stretching program. He further noted that without the treatment, his body becomes out of alignment and he experiences pain and stiffness which reduces his ability to perform his job duties.
On September 10, 2018, the worker attended for a call-in examination with a WCB sports medicine consultant. The WCB sports medicine consultant provided the opinion that he was unable to find an anatomical reason for the worker's persistent symptoms and as a result, could not recommend any further restrictions related to the worker's job duties. On September 18, 2018, the WCB advised the worker that after his call-in examination and a further review of his claim, there was no change to their previous decision to not accept responsibility for chiropractic treatment beyond June 1, 2018.
Review Office determined on October 2, 2018 that there was no coverage for chiropractic treatment beyond June 1, 2018. Review Office placed weight on the opinion of the WCB sports medicine consultant and agreed that given the amount of time that had passed since the workplace accident and the treatment the worker received, it was expected that the worker's strength and tolerance would increase over time and with activity.
The worker filed an appeal with the Appeal Commission on October 9, 2018. A file review was arranged.
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 subsection 4(1) of the Act.
Medical aid payments for expenses, such as chiropractic treatment, are payable in accordance with subsection 27(1) of the Act. This section authorizes the WCB to makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident.
Subsection 27(10) provides that:
Medical aid to be under supervision of board
27(10) Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board; and the board may contract with health care providers, hospitals or other health care facilities for any medical aid required, and agree on a scale of fees or remuneration for any such medical aid.
The WCB has established WCB Board Policy, 44.120.10, Medical Aid, which sets out general principles regarding a worker's entitlement to medical aid.
The worker was self-represented. He provided a written submission to the Appeal Commission for consideration by the panel. He advised:
My injury resulted in 5 areas of my body being affected; right knee contusion; right hip joint traumatized, 2 non-surgical fractures of right pelvis, pelvic joint strained/bruised, and right ribs #6 & #7 pan (?) handle fractures. As well as strains to the connective tissue to these areas. These injuries have not healed congruently as they are all different in nature but connected. As I have been healing a combination of chiropractic body adjustments, strengthening and stretching have worked in unison to allow me to returned (sic) to slightly modified full-time duties. The continuation of the chiropractic body adjustments is crucial to allow me to maintain my strengthening and stretching programs. Without the chiropractic adjustments I would certainly not be able to fulfill by (sic) daily commitment to purposeful work as I experience daily pain and stiffness. If my body is out of alignment I cannot stretch, strengthen, and am with pain which reduces my ability to perform my daily duties and return to being a productive human being. Being in structural alignment is the basis of the 5 areas being healed in balance and completely.
The treating chiropractor wrote to the WCB Chiropractic consultant on June 25, 2018. He noted, in part, that:
[Worker] has followed his chiropractic and physiotherapy program and is a highly motivated claimant when it comes to the healing process. He has followed his return to work program and in spite of pain, continues to work. [Worker's] work demands continue to compromise progress. He can perform his tasks and has demonstrated steady ongoing progress when receiving his weekly chiropractic adjustments.
My findings indicate pelvic instability and surrounding significant soft tissue swelling when [worker] goes beyond a week of care. [Worker] states that his pelvic range of motion becomes restricted and pain can, at times be intolerable. The adjustments along with laser and muscle work has helped [worker] in both work and recreational activities; without it, his level of activity diminished. I would recommend 1 visit/week for June, July and August.
The chiropractic care is not maintenance care, but care required to keep [worker's] spine, pelvis and extremities at its optimum while performing work.
The worker is seeking coverage for chiropractic treatment beyond June 1, 2018.
For the worker's appeal to be approved, the panel must find that the worker had not recovered from his workplace accident and required additional chiropractic treatment after June 1, 2018. The panel is not able to make this finding. For the reasons that follow, the panel finds that worker is not entitled to chiropractic treatment beyond June 1, 2018.
In reaching this decision, the panel attaches weight to the opinion of the WCB chiropractic consultant dated May 25, 2018. The WCB chiropractic consultant opined:
In comparing the chiropractic reports dated April 13, 2018 and May 17, 2018 there is no material difference in the claimant's clinical condition or in the frequency of recommended treatment. It is now almost 7 months from the date of the injury. It is improbable that additional chiropractic treatment will result in objective improvement in function. Function is expected to improve as strength and tolerance increases over time and with activity. In clinic treatment is not required to facilitate this process.
In my opinion there is no demonstrated requirement for additional chiropractic treatment. An extension of funding beyond the present date has not been authorized.
The panel also attached weight to the opinion of the WCB sports medicine consultant who examined the worker on September 10, 2018, and answered the following questions:
1. On a balance of probabilities, is the worker's current presentation medically accounted for in relation to the work place injury? What are the medical findings to support your opinion?
Given today's examination and given today's assessment, at approximately 10 months post-injury, the writer is unable to find an anatomical reason for persisting symptoms
2. If the worker has not recovered, please outline restrictions and time frames?
Given the lack of a pathoanatomical diagnosis at this time, the writer would not recommend further restrictions.
3. Is the recovery of the compensable injury within the normal recovery range at this point in time? If not, is there a pre-existing condition that is significantly prolonging the worker's recovery from the compensable injury? If yes, what is the diagnosis of this pre-existing condition?
At nearly 10 months post-injury fractures of the ribs or osteitis pubis as was opined, would have healed given the typical recovery range. Rib and pubis fractures have a typical recovery range of six to 12 weeks. [Worker's] will be longer than expected.
4. How is it contributing to a delay at this time?
At this time, there is no noted pre-existing condition that the writer can demonstrate that would cause a delay in recovery.
In conclusion, the panel finds, on a balance of probabilities, that responsibility should not be accepted for chiropractic treatment after June 1, 2018.
The worker's appeal is dismissed.
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 28th day of March, 2019