Decision #124/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further coverage for chiropractic treatment. A file review was held on September 5, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to further coverage for chiropractic treatment.
The worker is not entitled to further coverage for chiropractic treatment.
On January 4, 2013, the worker filed a claim with the WCB for an injury described as a pinch in her right low back that she felt when sliding a chair across a room at work on October 24, 2012. The worker sought medical attention on October 29, 2012 and a CT scan of her lumbar spine on November 20, 2012 identified a suspect right paracentral disc extrusion at L4-5 likely compressing the traversing right L5 nerve root.
The worker's claim was accepted by the WCB in early April 2013 and coverage was retroactively approved for physiotherapy treatments undertaken between November 2012 and April 2013.
The worker's treating physiotherapist requested approval of additional treatments related to the compensable injury on May 10, 2013. WCB declined this request on May 23, 2013. The worker appealed the decision to the Review Office. On October 30, 2013, the Review Office determined that there was no entitlement to further physiotherapy treatment. On November 26, 2013, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.
On March 21, 2014, the Appeal Commission determined that the worker was entitled to six additional physiotherapy treatments based on the medical findings identified in the May 10, 2013 application. Those treatments were completed by October 23, 2013.
On August 21, 2015, the worker contacted the WCB to advise that she had been receiving chiropractic care for relief and improvement of her ongoing symptoms since April 2015 and was seeking approval for coverage of chiropractic treatment.
In a report from the worker's treating chiropractor received September 28, 2015, the chiropractor reported the worker had undergone physiotherapy treatment but felt she had only minimally improved as a result of the treatment. The treating chiropractor further noted that the worker reported "…more relief from her complaints that she had during the entire time frame with her medical doctor and physiotherapy treatment."
A report was received on March 3, 2016 from the worker's new treating chiropractor who diagnosed the worker with a possible disc herniation as a result of the workplace accident.
On June 13, 2016, the worker attended for a call-in examination with a WCB chiropractic advisor. The WCB chiropractic advisor stated the view that the worker's diagnosis at that time was "chronic right L5 or S1 radiculopathy." The WCB chiropractic advisor noted the worker reported improvement in her symptoms with chiropractic treatment but queried whether the improvement may have been associated with a change in workplace activities in the same time period. The WCB chiropractic advisor also recommended referring the worker to a physiotherapist for reconditioning.
The WCB approved chiropractic treatment for three additional months, at which time the worker's progress would again be assessed.
On September 16, 2016, the WCB chiropractic advisor recommended that further chiropractic treatment be provided for a period of six months to support the worker's retention of function and keeping her at work. On April 10, 2017, the WCB again extended approval of chiropractic treatment to July 28, 2017.
On July 12, 2017, the worker's treating chiropractor requested a further extension of treatment. As a result, the WCB chiropractic advisor requested the worker's chiropractor provide a narrative report, together with pain diagrams completed after the worker's remaining treatments, which were to be reviewed along with the request for an extension of treatments.
The worker attended for another call-in examination on October 18, 2017. The WCB chiropractic advisor at that time was of the view that the worker's diagnosis was of residual radiculopathy involving the L5 nerve root. The WCB chiropractic advisor stated, on the basis of the clinical findings, that the worker had reached maximum medical improvement. Because further improvement to the worker's lower back was not expected, there would be limited or no benefit to continuing chiropractic treatment on a weekly basis.
On October 31, 2017, the WCB advised the worker that chiropractic treatment was no longer deemed beneficial and would not be covered after July 28, 2017.
On January 26, 2018, the worker requested the Review Office reconsider the WCB's decision, noting she continued to suffer symptoms of her workplace accident and that the chiropractic treatment assisted in her ability to go to work.
Review Office determined on February 20, 2018 that the worker was not entitled to further chiropractic treatment, accepting the WCB chiropractic advisor's opinion that the worker had reached maximum medical improvement and further chiropractic treatment would not provide any long term improvement.
The worker filed an appeal with the Appeal Commission on March 5, 2019. 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 s 4(1) of the Act.
Medical aid is defined in s 1 of the Act as follows:
"medical aid" includes
(a) transportation to a hospital or other place where medical care can be given,
(b) services provided by a hospital or other health care facility,
(c) treatment or services provided by a health care provider,
(d) diagnostic services,
(e) drugs, medical supplies, orthotics and prosthetics, and
(f) any other goods and services authorized by the board;
Compensation for medical aid expenses, such as chiropractic treatment, is payable under s 27(1) of the Act which 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.
WCB Policy 44.120.10, Medical Aid, (the "Policy") sets out general principles regarding a worker's entitlement to medical aid as follows:
• 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 promotes timely and cost-effective access to medical aid.
• Workers are entitled to select their own health care provider, subject to the Board's control and supervision of medical aid.
• 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 WCB will give preference to funding medical aid that is available in Manitoba. The Board may fund medical aid outside Manitoba in exceptional circumstances, subject to Board preapproval.
• The Board determines the fees or charges payable for all medical aid. The Board will not pay any cost in excess of what it considers reasonable for the service or good provided to a worker.
• The Board will recognize only those accounts for medical aid that are submitted within 12 months from the date the medical aid is provided to the injured worker.
• The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.
The worker set out her position in writing in a document dated August 23, 2019. She noted that she continues to experience back pain, while managing her symptoms through weight loss, massage therapy and physiotherapy, and use of home exercise equipment. She stated that her "…back still hurts from [her] work injury" and noted that she has incurred significant expense to address the effects of that injury and cannot also afford to pay for chiropractic treatment.
In the Request for Review to the Review Office, dated December 15, 2017, the worker also indicated that she requires chiropractic treatment "…to relieve the pain."
The employer did not participate in the appeal.
The issue for determination is whether or not the worker is entitled to further coverage for chiropractic treatment. In order for the panel to find that the worker is entitled to further coverage for chiropractic treatment, it must determine that continuing chiropractic care is necessary to cure and provide relief from the injury the worker sustained in the accident of October 24, 2012. The panel was not able to do so.
The Act clearly sets out 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. The definition of medical aid includes treatment or services provided by a health care provider, such as those provided by a chiropractor.
In determining whether further chiropractic treatment is necessary to cure and provide relief from the injury the worker sustained as a result of an accident in the workplace on October 24, 2012, the panel must apply the provisions of the Policy and consider recommendations from recognized healthcare providers to determine whether the medical aid promotes a safe and early recovery and return to work, enables activities of daily living, and eliminates or minimizes the impacts of a worker's injuries, and whether it is excessive, ineffective, inappropriate or harmful.
The panel reviewed the worker's file information and medical reports and considered the following factors:
• Initially, following the injury, the worker was provided with physiotherapy treatment from November 2012 through October 2013.
• In August 2015, the worker advised the WCB that she had been receiving chiropractic treatment to relieve her ongoing symptoms since April 2015, and requested that WCB approve coverage of chiropractic treatment going forward.
• A report from the worker's treating chiropractor received September 28, 2015 set out that the worker felt that chiropractic treatment provided her with greater relief from her symptoms than other previously attempted treatments.
• At the time of the first WCB call in exam in June 2016, the WCB chiropractic advisor noted the worker reported improvement in her symptoms with chiropractic treatment and recommended further treatment of three months.
• In September 2016, the WCB chiropractic advisor recommended a further extension of 6 months chiropractic treatment to support the worker's retention of function and keeping her at work.
• Approval for chiropractic treatment was again extended in April 2017 to the end of July 2017.
• The worker's treating chiropractor requested a further extension of treatment in mid-July 2017, indicating that the worker's active range of motion was improved to approximately 85% of normal, with pain present mostly at the end range.
• In response, the WCB chiropractic advisor requested the worker's chiropractor provide a narrative report, together with pain diagrams completed after the worker's remaining treatments, which were to be reviewed along with the request for an extension of treatments. These were received by the WCB on September 7, 2017.
• The worker's treating chiropractor, in a narrative report dated September 7, 2017 outlined the worker's subjective complaints of pain, stating that the worker is treated at least one time each week and "…still experiences all the symptoms that she had previously claimed." The chiropractor noted that the worker's main objective "…is to 'be on top of' her symptoms and stay ahead of them, so they do not worsen and debilitate her from her work, and her every day life."
• The worker attended for another call-in examination on October 18, 2017 at which time the WCB chiropractic advisor was of the view, on the basis of the clinical findings from that assessment and considering the worker's subjective reports, that the worker had reached maximum medical improvement. Because further improvement to the worker's lower back was not expected, there would be limited or no benefit to continuing chiropractic treatment on a weekly basis.
The panel considered that the evidence supporting chiropractic treatment in 2017, until the time of the second call-in examination, was based primarily upon the worker's reports to her treating chiropractor. But, when the worker was assessed by the WCB chiropractic consultant, the examination findings supported a conclusion that, after more than two years of ongoing chiropractic treatments and more than five years since the compensable injury was incurred, there were no further gains to be made in terms of benefit from chiropractic treatment.
The panel noted as well that the WCB chiropractic advisor's assessment is supported by the September 7, 2017 report from the worker's treating chiropractor who noted that the worker continued to experience symptoms despite receiving weekly chiropractic treatment and further, that the worker's objective in seeking chiropractic treatment was to stave off and prevent symptoms from occurring rather than to treat them.
The panel accepts the WCB chiropractic advisor's finding of October 18, 2017, that the worker was at that time, at a point of maximum medical improvement such that continuing with chiropractic treatment was of limited or no medical benefit.
On the basis of the documented evidence on the worker's file and having carefully considered the medical findings, the panel finds, on a balance of probabilities that further chiropractic treatment is not required to cure and provide relief to the worker from the compensable injury of October 24, 2012.
The worker is therefore not entitled to further coverage for chiropractic treatment and the appeal is dismissed.
K. Dyck, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 7th day of October, 2019