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 further massage therapy treatment. A hearing was held on June 19, 2019 to consider the worker's appeal.

Issue

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

Decision

That responsibility should not be accepted for further massage therapy treatment.

Background

On December 19, 2017, the WCB received an Employer's Incident Report indicating that the worker injured her right shoulder, right wrist, head and right toe in an incident at work on December 18, 2017. It was reported that the worker was providing assistance to a resident when "…she tripped on the leg of the bed, fell forward hitting her head on a wood night table beside the door and also hitting her right arm on the bathroom door frame and landed on her wrist (R)."

The worker was taken to a hospital on December 18, 2017, where she was diagnosed with a head contusion and right arm distal radius and proximal humerus fracture. The worker underwent surgery consisting of an open reduction and internal fixation of her right humerus and percutaneous fixation right radius. The worker's claim was accepted and payment of benefits commenced.

The worker attended physiotherapy sessions and follow-up appointments with the orthopedic surgeon, who recommended continued physiotherapy and occupational therapy to assist with her right shoulder difficulties. At an appointment with her family physician on March 1, 2018, the worker was referred to a massage therapy clinic as it was felt "…she could benefit from the lymphedema massages that [the massage therapist] can provide along with some mechanical massage on her mechanical neck and back pain which is also flaring up a little bit as part of the rehab…" On March 15, 2018, Compensation Services approved five massage therapy sessions for the worker.

On May 10, 2018, the worker was seen by a second orthopedic surgeon due to ongoing complaints with her right shoulder. X-rays of the right shoulder, elbow and wrist taken at that time were reviewed by the second orthopedic surgeon, who noted a non-union of the right humerus fracture, and a right shoulder arthroplasty was recommended. On May 23, 2018, the worker underwent hardware removal and a right reverse ball and socket shoulder arthroplasty.

At a follow-up appointment on June 15, 2018, the second orthopedic surgeon recommended the worker attend for physiotherapy for active assisted range of motion, progressing to active range of motion of the right shoulder, as well as range of motion of the right elbow and wrist. The orthopedic surgeon also recommended massage therapy with respect to right arm swelling and stiffness post-surgery. On June 22, 2018, Compensation Services authorized five further massage therapy sessions.

On August 20, 2018, the second orthopedic surgeon recommended that the worker would benefit from significantly more aggressive range of motion rehabilitation for her right shoulder and from some more massage therapy to help her relax her muscle prior to the exercises. On September 4, 2018, Compensation Services authorized five more sessions, but noted that further funding for massage therapy beyond those sessions would not be approved.

On October 3, 2018, Compensation Services advised that further funding for massage therapy sessions was denied as they were of the view that massage therapy was not considered to be essential in restoring a worker to function and fitness for work.

On October 17, 2018, the worker requested that Review Office reconsider Compensation Services' decision. In her request, the worker noted that "lymphedema complications continue from initial surgery and the second surgery." She further noted that her healthcare providers had advocated, supported and recommended that massage therapy was beneficial for right arm recovery, and she felt that progress, function and comfort would continue to improve with a team approach to her recovery, including therapeutic massage therapy.

On November 27, 2018, Review Office determined that the worker was not entitled to further massage therapy treatments. Review Office noted that the worker's treating orthopedic surgeon had recommended more active and aggressive therapy for the worker's rehabilitation, and while the worker felt massage therapy was beneficial to her, massage therapy was a passive form of treatment, not the active therapy recommended by her surgeon. Review Office further found that massage therapy would not likely aid the worker in her recovery any more than her other forms of therapies could provide alone.

On January 3, 2019, the worker appealed Review Office's 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"), sets out general principles regarding a worker's entitlement to medical aid. These general principles include:

• The Board is responsible for the supervision and control of medical aid funded under the Act or this policy.

• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury.

• In determining the appropriateness and necessity of medical aid, the Board considers:

o Recommendations from recognized healthcare providers;

o Current scientific evidence about the effectiveness and safety of prescribed/recommended healthcare goods and services;

o Standards developed by the WCB Healthcare Department…

• The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries. … 

• The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

A "recognized health care provider" is defined for the purpose of the Policy as:

…a health care provider who is licensed to provide health care services in Manitoba or who the Board otherwise determines to be qualified to provide health care services. The Board generally recognizes health care professions and occupations that are governed by an Act of the provincial legislature, including nurse practitioners.

Schedule C to the Policy sets out the general principles regarding the WCB funding of non-traditional treatments. Non-traditional treatments are identified for the purpose of that Schedule as treatments which are considered experimental or "lack scientific validity to the extent required for widely-held acceptance in the Manitoba community of recognized health care providers."

Schedule C provides that the WCB does not generally authorize payment of non-traditional treatments. Payment for non-traditional treatments may, however, be authorized on a case-by-case basis when the WCB determines that certain conditions are satisfied, including that:

1.) The non-traditional treatment will be used for a medical condition that results from a compensable injury;

2.) Traditional treatments have not been, and will likely not be effective;

3.) The prescribing or recommending health care professional has outlined the number of appointments and treatments required for the non-traditional therapy and the period of time over which the non-traditional treatment is required;

4.) There is sufficient reliable scientific evidence to indicate that the prescribed or recommended, non-traditional treatment will promote a timely recovery and return to work, enable activities of daily living or eliminate the impacts of the worker's injuries…

Worker's Position

The worker was self-represented, and submitted additional documentary evidence in advance of the hearing. The worker made a presentation at the hearing, and responded to questions from the panel.

The worker's position was that further massage therapy is appropriate and necessary to cure and provide relief from the serious injuries she suffered as a result of her December 18, 2017 workplace accident and subsequent surgeries and complications.

The worker noted that the Policy states that the WCB considers recommendations from recognized healthcare providers in determining the appropriateness and need for medical aid. The worker submitted that she had many recommendations from her doctors, occupational therapist, physiotherapist and massage therapist, all of whom have said that massage therapy was beneficial to her recovery.

The worker further noted that the objective of the Policy is to promote and enable activities of daily living and minimize the impact of a worker's injury, as well as to provide relief from an injury resulting from an accident. The worker stated that she has had numerous complications due to her injuries and surgeries, resulting in significant problems. These complications and problems include lymphedema, brachial plexus nerve damage, scarring and scar tissue, limited range of motion and function and chronic pain to her right arm, and anxiety and depression.

The worker said that the massage therapy started as lymphedema therapy, plus massage for other tight muscles. She said that the lymph system restores balance to the body and submitted that the trauma from the fall and multiple surgeries has affected her body's lymphatic system. The worker said that lymphatic circulation problems or lymphedema is a chronic lifelong problem that can be managed by therapists, but gets worse if not treated. Lymphedema has been a problem because when the lymphatic system does not drain properly, it can cause joints not to function properly. She submitted that after exercise, part of her arm gets shiny and taut, that nobody is able to say why, but it is probably because her lymphatic system gets congested with all the activities her muscles are doing. The worker said that treatment goals of therapy are to treat and reduce the swelling and to maintain that reduction.

The worker stated that she also has a brachial plexus, ulnar nerve damage, which leads to paralysis of the shoulder and is a further complicating factor. She said that the right shoulder joint is not moving, and the third orthopedic surgeon has told her it is very important that she keep trying to move that joint, as the lack of movement is preventing the nerves from regrowing. She said she is using every accessory muscle in her back because of the nerve damage, which causes fatigue. Massage therapy is important for the rest of the muscles in her neck and would assist with pain relief and improved circulation to fatigued muscles. She said she wants to make the best situation for herself and for her nerves to regenerate.

The worker said that she has scar tissue and scarring which is caused by the surgeries. She submitted that scar tissue is less elastic and flexible, and that scar massage helps by re-aligning scar tissue and helping it become more flexible and elastic.

The worker stated that she has always done her part, including attending physiotherapy, occupational therapy and massage therapy, following her home exercise program, and going to the pool and doing aquatic exercises almost every day. After her funding for massage therapy was cut off, she continued to see the massage therapist on her own, as she felt she could benefit from that therapy. The worker noted that the massage therapist's reports, including the therapist's ongoing clinical report provided in advance of the hearing, are on file, and submitted that the massage therapist still feels there is lot she can do that would be helpful to the worker.

The worker submitted that massage therapy has grown as a profession, and the massage therapy association is anticipated to become a regulated body under Manitoba legislation in 2021. She submitted that medical information on the internet indicates that massage therapy is part of integrative medicine, and being offered as a standard treatment for a wide variety of medical conditions and situations. She submitted that studies demonstrate that it is an effective treatment and has a positive effect on every medical condition of the body, and a growing body of research supports massage therapy as an evidence-based and therapeutic modality.

In conclusion, the worker stated that she was aware of the Policy wording and purpose, but submitted that a strict reading of the Policy ignores the personal and human healing approach to a serious injury such as she has suffered. The worker said she has been consistent with other modalities of treatment that the WCB has advised her to continue, but that is not enough for her to live her life to the fullest with her disability. She said she wants quality of life, and is seeking a sufficient number of massage therapy treatments over a sufficient period of time to provide relief from pain and enable changes and improvements in the structure, function and mobility of her dominant upper limb.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for further massage therapy treatment. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that further massage therapy treatment is required to cure and provide relief from an injury resulting from the worker's December 18, 2017 workplace accident. The panel is unable to make that finding, for the reasons that follow.

Based on our review of all of the information which is before us and the submissions of the worker, the panel is satisfied that the medical evidence does not support that further massage therapy is required or necessary.

The panel notes that massage therapy was covered by the WCB in the course of the claim for narrow and specific reasons, for a total of 15 sessions. In this regard, medical reports between the worker's first and second surgeries refer to significant edema. In a March 6, 2018 report, the treating occupational therapist mentioned persistent edema and autonomic changes. A WCB medical advisor reviewed the file and noted concerns with respect to the edema and potential signs of complex regional pain syndrome ("CRPS"), and recommended that five sessions of massage therapy and a compression glove/sleeve would be reasonable, with the hope this would decrease symptoms and increase function. The worker acknowledged at the hearing that it was under these auspices that the WCB funding for the initial massage therapy sessions was approved.

On June 15, 2018, following the second surgery, massage therapy was recommended by the second treating orthopedic surgeon for "right arm swelling and stiffness post surgery." Physiotherapy was also recommended on that date "ASAP for Active Assisted ROM [range of motion] progressing to Active ROM Right Shoulder…" The WCB medical advisor reviewed this request and noted, on June 22, 2018, that:

Massage therapy is not an evidence based treatment for this injury or surgery. However, given the extent of the worker's injuries and the stiffness the specialist has indicated, massage therapy may provide some benefit to her recovery. If WCB policy allows, it would be recommended to fund a trial of 5 treatments…It is expected that this will improve her pain and stiffness and improve her ROM/function.

The panel is satisfied that the medical evidence indicates that lymphedema became less of an issue following the second surgery. The panel notes and accepts the findings of the worker's family physician reported in his chart notes of September 7, 2018 that the worker was starting to do increased exercises and "there are no red flags for lymphedema."

The panel finds that there is no actual diagnosis of lymphedema on file. At the hearing, the worker stated that she remembered her family physician saying that he did not know if it was lymphedema, as she had not had any surgery to her lymph nodes. The worker stated that when you read about lymphedema, however, it can come from trauma. The worker subsequently acknowledged that she did not see any ongoing comment or diagnosis of lymphedema as she described, but added that people like her occupational therapist and compression garment suppliers had all called it lymphedema.

The worker also agreed that it was fair to say that CRPS, which had been mentioned earlier, did not appear to have developed.

The panel is further satisfied that the evidence does not show that additional massage therapy is required to aid in the worker's recovery from his compensable injuries. The evidence on file and at the hearing does not support that there has been any sustained benefit or improvement from the massage therapy treatments the worker has received. Moreover, she has continued to attend physiotherapy to treat her shoulder injury and increase her function and range of motion.

The worker acknowledged in her evidence that her physicians have no idea why her shoulder is not working, but it is not. She said that there have been so many things tried, to see if they will work, without success.

The panel notes that the worker referred at the hearing to physical symptoms or issues all over her body as well as to psychological issues which she believed would benefit from massage therapy. When asked if it could be said that the massage therapy had not been helpful, as her situation seemed static if not worse even though she continued to see the massage therapist, she responded that:

But the massage therapy helps the rest of my body. I told one of the doctors, like I had costochondritis for a number of weeks, and that is, I'm trying to do so many exercises to pull my arm up, that the cartilage in between your ribs gets very irritated…

And then I said to the orthopedic surgeon…when I try and swim or do exercises, when I put my arms out like this, my whole body is tight…right down into my groin. And my torso is twisted…

When I look down like this I'm crooked. And so the massage therapy, right now it's -- she does some on the arm and a little bit on the lymphedema, or does some lymphedema, but it's the rest of my right side that's the worse and the most painful. It's all the other symptom management to just…to keep my body on the right side comfortable.

Based on the evidence, the panel is unable to identify a compensable injury or diagnosis which supports a need for massage therapy in these circumstances.

The panel also notes that no specific or sustained benefit has been identified which further massage therapy treatments would provide or be expected to provide. When asked what benefit she had derived from her massage therapy treatments to date, the worker said that when she comes out of a session, she can turn her head, and just feel a lot more comfortable. The first day after the session she is a little sore, but she can get relief for three to four days. The worker said treatments give her relief in her back muscles and neck, and on the right side of her neck. There was no indication of any sustained benefit, and the panel is satisfied that any benefit which the worker might derive from massage therapy in respect of her compensable injuries is speculative, and not supported by medical or scientific evidence.

The panel is further unable to find that massage therapy treatment would provide any benefit to the worker beyond what is or might be provided by other modalities. The panel notes that the evidence indicates that issues which the worker has raised have been and could also be addressed through another modality. In this regard, the treating physiotherapist advised on January 4, 2019 that they had been using a lymphatic drainage machine for lymphatic drainage and flushing of the worker's right upper extremity post treatment, and that the worker had better use of her arm immediately afterwards. There was no complaint or indication that this machine or treatment was not working or performing that function.

The panel notes the worker's evidence at the hearing that she continues to receive wage loss benefits and to be treated by her physiotherapist through the WCB. The worker agreed that it was fair to say that her position is that massage therapy is in addition to the physiotherapy and other modalities, including home exercises.

Based on the foregoing, the panel is satisfied that the criteria under the Policy for non-traditional treatments have not been met. Further, or in any event, the panel is satisfied that the additional massage therapy treatment is not appropriate or acceptable in these circumstances under the general principles of the Policy or under subsection 27(1) of the Act.

The panel therefore finds, on a balance of probabilities, that further massage therapy treatment is not necessary to cure or provide relief from the worker's December 18, 2017 workplace accident or compensable injury, and responsibility for further massage therapy treatment should not be accepted.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of August, 2019