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 further physiotherapy treatment. A file review was held on January 28, 2019 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 filed a Worker Injury Report indicating that he injured his left elbow on November 8, 2017 while transferring a client to a table. The worker stated that he felt a "pop" in his left elbow while pulling the client onto the table.

On November 9, 2017, the worker saw his family physician, who noted that the worker had pain in his lateral elbow, decreased range of motion and tenderness. The physician diagnosed the worker with an elbow sprain and took him off work.

The worker's claim was accepted, and wage loss and other benefits were paid.

At a follow-up appointment on November 15, 2017, the family physician recommended physiotherapy, and the worker attended an initial physiotherapy assessment on November 28, 2017. The therapist provided a diagnosis of "biceps tendon @ radial head" and "annular ligament sprain." On December 1, 2017, Compensation Services authorized physiotherapy treatment, including the initial assessment and up to 20 visits.

The worker's treating therapists provided updates to the WCB on December 13, 2017 and January 4 and February 5, 2018.

On February 8, 2018, the worker had an MRI of his left shoulder.

On February 12 and March 22, 2018, the treating therapist requested an extension for additional treatment. The requests were reviewed by a WCB physiotherapy advisor and funding was authorized for four additional sessions in response to each request. On April 20, 2018, the therapist requested another extension, and funding for two additional treatments was authorized. On May 9, 2018, the worker's therapist requested a further extension of treatment.

On May 17, 2018, a WCB physiotherapy advisor reviewed the worker's file and provided the following opinion, in part:

File reviewed to address physiotherapy extension request for additional sessions. There is no evidence that further in clinic treatment is warranted…Majority of exercises can be done at home including daily stretching and functional strengthening exercises. Function will continue to improve with restoration of normal activities.

On May 17, 2018, Compensation Services advised the worker and his treating therapist that they were unable to approve the extension request. Compensation Services stated that there was no evidence further in-clinic treatment was warranted, and a home program and/or self-management techniques should suffice.

On June 4, 2018, the worker requested that Review Office reconsider Compensation Services' May 17, 2018 decision. The worker said he felt his recovery had been slowed without therapy treatments and he noticed the most improvement when he was being treated twice a week. The worker submitted that the treatment sessions complemented his home exercise program by providing types of care that could not be administered in a home setting.

On July 11, 2018, Review Office upheld Compensation Services' decision to deny further physiotherapy treatment. Review Office accepted the opinion of the WCB physiotherapy advisor and noted that the evidence did not support that the worker required further direct input from, or monitoring by, a physiotherapist.

Review Office noted that the medical evidence on file indicated the worker had attended 31 physiotherapy/athletic therapy treatments and suggested the worker had experienced a continued and progressive recovery from his compensable injury. Review Office found that the worker had a definite benefit from the care he had received, but the evidence did not support that additional in-clinic treatment would provide any further significant or sustained therapeutic benefit.

On July 17, 2018, the worker appealed the Review Office decision to the Appeal Commission and a file review 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"), 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:

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…

Worker's Position

In his Appeal of Claims form dated July 17, 2018, the worker noted that the diagnosis which Review Office referred to in their July 11, 2018 decision was "biceps tendon radial @ head" and "annular ligament strain" based on the November 28, 2017 initial physiotherapy report. He submitted that the findings from the February 8, 2018 MRI subsequently indicated, however, that "there is thickening and heterogeneity of the common extensor tendon origin, in keeping with tendinosis. There is a small low grade partial intrasubstance tear at the common extensor tendon origin that measures 3 mm." The worker stated that nowhere in further communication from the WCB was the MRI test or the new diagnosis of a tear mentioned.

The worker submitted that starting in November 2017, and up until the further diagnostic information was presented, in February 2018, he was being treated for the wrong injury. Accordingly, he submitted, his injury had taken longer to heal, and the need for continued therapy treatment was warranted.

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 November 8, 2017 compensable injury. The panel is unable to make that finding.

Based on our review of all of the information on file, including the submissions of the worker, the panel finds that there is a lack of any direct or specific clinical findings which would demonstrate a need for further physiotherapy treatments.

The panel notes that the worker's treatments were extended on three occasions. The panel notes that the requests for extensions were made and granted subsequent to the February 8, 2018 MRI. The worker attended a total of 31 therapy sessions, ten of which were after the results of the MRI were known. The worker was also provided with a home exercise program.

The worker has argued that his injury took longer to heal because he was being treated for the wrong injury up until February 2018. The panel is unable to accept that argument. The panel notes that a memorandum to file of a telephone conversation on April 12, 2018 shows that the worker indicated to his case manager that the therapist changed the treatment method after she became aware of the results of the MRI, but did not indicate how the treatments changed. The memorandum shows that the case manager advised the worker at that time that the therapist could request an extension, and if she did, she should be specific as to how the treatment had changed. The subsequent requests from the therapist for additional treatment were silent in this regard.

The panel notes that the May 9, 2018 Application for Additional Treatment indicates that the worker had returned to "full duties with brace." The therapist noted that the worker was making good progress and "would benefit from in-clinic care to wean off brace." The panel is not satisfied that in-clinic treatment was required due to the use of the worker's brace or to wean him off the brace.

The panel also notes that in a Progress Report from the treating physician dated May 23, 2018, the physician wrote that the worker was using a brace and "getting better but physio is helping a lot. [Worker] has a sore elbow when not working." The physician went on to state "I think [worker] has a major risk of relapse. I would strongly advice (sic) another 6 sessions of PT (once per week)." (emphasis in report)

The panel finds the treating physician's comments in this regard to be speculative, given the absence of any specific findings with respect to the use of physiotherapy at that time and a lack of evidence to support a direct need for further physiotherapy treatments in relation to the compensable injury. The panel finds that the physician's recommendation for further physiotherapy, based on a "major risk of relapse" or flare-up of his injury, is not supported by the evidence and is not consistent with the requirements of the Act or Policy.

Based on the foregoing, the panel finds, on a balance of probabilities, that further physiotherapy treatment is not necessary to cure and provide relief from the worker's November 8, 2017 compensable injury. The panel therefore finds that the worker is not entitled to further physiotherapy treatment.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 29th day of March, 2019