The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for massage therapy. A file review was held on March 13, 2019 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for massage therapy treatment.

Decision

Responsibility should not be accepted for massage therapy treatment.

Background

On July 28, 2017, the worker reported to the WCB that he injured his left shoulder and right knee in an incident on July 26, 2017 described as:

I finished checking my mask on the truck and I was going to step down off the apparatus. There are 2 steps. I stepped down onto the first platform. I went to turn to leave backwards and I had my left arm on the handrail. I stepped down with my left foot and planted, but my foot slipped off of the metal step. It happened quickly and all of my body weight was basically jarred from the left shoulder. I fell out of the truck but was holding on. My leg landed on the ground and my right leg was pretty much still in the truck.

The worker sought medical attention on July 28, 2017. He reported hearing a sound in his shoulder after slipping and grabbing a bar. The treating physician noted that there were no abnormalities indicated on an x-ray taken that day and diagnosed the worker with a rotator cuff strain. He was referred for physiotherapy and it was further noted that the worker could return to work on sedentary duties only.

At a follow-up appointment on August 15, 2017, the worker reported to his physician that he thought the labrum in his shoulder could be torn. The physician referred the worker for an MRI and recommended that he continue with the physiotherapy. The MRI of the worker's left shoulder conducted on August 31, 2017 noted:

1. Type 2 SLAP (superior labrum anterior and posterior) tear. 

 2. Widening of the acromioclavicular joint distance with fluid within the joint space. The findings are most in keeping with an acromioclavicular joint injury. 

3. Subacromial/subdeltoid bursitis.

On October 13, 2017, the worker met with an orthopedic surgeon who recommended a "left shoulder scope and SLAP lesion repair". The surgery was scheduled for January 18, 2018.

The worker was seen on February 21, 2018 for a follow-up appointment after the surgery. It was recommended that he begin physiotherapy. At his initial physiotherapy assessment after the surgery on February 23, 2018, restrictions for the worker's return to work were noted to be minimal use of his left arm with no lifting, pushing or pulling. On February 28, 2018, the employer was advised that the worker's temporary restrictions were minimal use of his left arm, no reaching outside of his body envelope with his left arm, no lifting, pushing, pulling or carrying.

The worker returned to work on modified duties on April 9, 2018. The worker continued attending physiotherapy and on July 19, 2018, his temporary restrictions were amended to:

Lift/carry at waist level up to 40 lbs 

Push up to 60 lbs, pull up to 45 lbs 

No continuous or repetitive overhead reaching, lifting overhead restricted to 15 lbs

On July 16, 2018, the worker's treating physiotherapist requested funding for massage therapy, noting that due to the worker's increased duties and intensity of his workouts, he had "…increased tightness and tone in the musculature surrounding the shoulder." The physiotherapist advised that during the worker's treatment, they had conducted "…some soft tissue release, as well as Shockwave, joint mobilization, stretching, strengthening, acupuncture and other modalities (as needed)." and that the worker reported significant improvement in his mobility and decreased pain when the massage therapy was added. The request was reviewed by a WCB physiotherapy consultant on July 19, 2018 who opined on July 31, 2018:

Do not recommend funding massage therapy as soft tissue techniques will likely only provide temporary relief of the tight muscles. These muscles are tight to protect the injuries soft tissues (sic). Once the flexibility and strength returns the protective muscle tightness should resolve. Exercises and regular stretches is the recommended treatment. Goal is home based/gym exercise program.

The WCB advised the worker on July 31, 2018, that his physiotherapist's request for coverage for massage therapy was not accepted.

The worker requested reconsideration of the WCB's decision to Review Office on August 27, 2018. The worker presented the argument that the massage therapy treatment he had been receiving had helped his healing process and enabled him in his return to work process.

On October 9, 2018, Review Office upheld the WCB's decision that responsibility should not be accepted for the worker's massage therapy treatment. Review Office found that the clinical findings on the worker's file provided by the treating physiotherapist supported that the worker was making satisfactory recovery and that additional sessions combined with a home exercise program was a sufficient treatment plan. Review Office also relied on the opinion of the WCB physiotherapy consultant that the addition of massage therapy would have enhanced the worker's recovery beyond the level that it was already progressing.

The worker filed an appeal with the Appeal Commission on November 7, 2018. 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 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.

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.

Worker's Position

The worker was self-represented. He provided a Worker's Appeal of Claims Decision form which was received at the Appeal Commission November 7, 2018. The worker was provided an opportunity to make a written submission to the Appeal Commission. He did not provide any further information.

The panel notes that the worker had filed Request for Review with the Review Office. In his Request for Review he advised:

I disagree with the WCB's decision for the following reasons:

The Massage Therapy was recommended by two of my health care provides (sic) that are, and where (sic) seeing me as well as treating me through my injury process. I provided the WCB with written reasons as well as incite (sic) into the clinical benefits and differences between what my Physio therapist could provide me, as well as why she thought that I would benefit from Massage Therapy. I provided exactly what was asked of me from my case manager, so I do not understand why this Therapy was denied. It was "opined" by the WCB that with "continued exercises and stretching" that my "muscle tightness should resolve". I have included and provide assessment / symptoms that I was having + experiencing as well as detailed treatments provided etc. from [name of RMT].

I strongly believe that Massage Therapy has been another valuable resource + asset in my healing and return to work process.

I also do not understand why I am having to pay money out of my own pocket or using my Blue Cross benefits when this was a work place injury, and as such should one set of treatments is covered and another is not. I believe my healing process has drastically improved and may even be shortened with Massage Therapy. I am attempting to speed up my recovery times, using all available treatments and therapies to ultimately reduce my time away from work. Thank you!

The worker had also provided the Review Office with a letter from his treating massage therapist. In her correspondence the massage therapist advised that the worker has received five treatments from two different therapists. She outlined the services provided and progress being made. She noted that the worker has stated that his ease of movement has been progressively getting better throughout the treatment period.

Employer Position

The employer did not participate in the appeal.

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, the provision of massage therapy will aid in the recovery of an injured worker or minimize the impact of the injury. For the following reasons, the panel is unable to make this finding.

Subsection 27(1) of the Act provides that the WCB may provide a worker with such medical aid as the board considers is "necessary to cure and provide relief".

Section 2(b) (ii) of the Medical Aid Policy provides that the WCB will authorize massage therapy treatments if it is satisfied that the use of the massage therapy will aid in recovery of the injured worker or minimize the impact of the injury.

Accordingly, in this case, the panel must find that the provision of the massage therapy will aid in recovery of the injured worker or minimize the impact of the injury.

The facts in this case are that the worker was receiving significant physiotherapy treatment. His treating physiotherapist also recommended that the worker receive massage therapy. The WCB obtained an opinion from its Physiotherapy Consultant which indicated:

Do not recommend funding massage therapy as soft tissue techniques will likely only provide temporary relief of the tight muscles. These muscles are tight to protect the injuries soft tissues. Once flexibility and strength returns the protective muscle tightness should resolve. Exercises and regular stretches is the recommended treatment. Goal is home based/gym exercise program.

The panel accepts the opinion of the WCB Physiotherapy Consultant and finds, on a balance of probabilities, that the evidence does not establish that the massage treatment will provide any long-term or sustained benefit. The panel concludes that responsibility should not be accepted for the worker's massage therapy.

The worker's appeal is dismissed.

Panel Members

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 9th day of April, 2019