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 costs associated with a service/therapy dog. A teleconference hearing was held on July 8, 2020 to consider the worker's appeal.

Issue

Whether or not responsibility for costs associated with a service/therapy dog should be accepted.

Decision

That responsibility for costs associated with a service/therapy dog should not be accepted.

Background

On December 22, 2015, the worker filed a Worker Incident Report indicating he sustained a psychological injury on November 3, 2015. The worker related his injury to incidents which occurred while he was working at or in the area of a homeless shelter.

In a discussion with a WCB adjudicator on January 12, 2016, the worker described various incidents that occurred while he was at work, where he felt threatened by residents of the shelter, including an incident where his family was also threatened. Further information was gathered from the worker, the employer, and the worker's treating healthcare providers. By letter dated March 29, 2016, the WCB's Compensation Services advised the worker that his claim was accepted for a psychological injury, diagnosed as post-traumatic stress disorder (PTSD).

The worker continued to receive treatment from his psychologist, including Cognitive Behavioural Therapy (CBT) and Eye Movement Desensitization and Reprocessing (EMDR). On October 26, 2016, the worker attended a call-in examination with a WCB psychiatric consultant, who confirmed that the worker met the criteria for a diagnosis of PTSD and that the treatment being provided by his psychologist was appropriate. The WCB psychiatric consultant also recommended that the worker was currently not able to return to work. On April 23, 2017, the worker's file was again reviewed by the WCB psychiatric consultant, who recommended temporary restrictions of no work at the homeless shelter and no work on active calls.

On August 14, 2017, the worker attended a further call-in examination with the WCB psychiatric consultant to determine his current psychiatric function and review his restrictions. In her notes of that examination, the WCB psychiatric consultant stated that while the worker might not yet be at maximum medical improvement, she was recommending permanent restrictions of no work at the homeless shelter; no work in acute or any trauma; and no work in a position where there was a reasonable likelihood of exposure to violence. On August 23, 2017, Compensation Services advised the worker that he was considered fit for work with the recommended restrictions. On November 27, 2017, the worker began a graduated return to work with the employer in an accommodated position within his permanent restrictions.

On April 9, 2018, the employer advised the WCB that the worker was off work due to another compensable injury. On June 6, 2018, the worker's treating psychologist requested approval for further CBT treatments due to increased anxiety and fear noticed while the worker was off work. On July 7, 2018, the WCB psychiatric consultant recommended additional CBT treatments, to be delayed, if possible, until a return to work was imminent. On July 9, 2018, Compensation Services authorized six additional sessions.

On September 6, 2018, the worker contacted the WCB to advise that he had experienced a resurgence of his symptoms, specifically panic attacks and depression, which he believed occurred as a result of a change in medications, and he was sent home from work. On September 12, 2018, the WCB received a report from the worker's treating psychologist, confirming the worker's increased symptoms and recommending further treatment. The treating psychologist's report was reviewed by a WCB psychological consultant on October 11, 2018, and on October 12, 2018, eight additional sessions were approved. On October 12, 2018, the WCB's Compensation Services advised the worker that they accepted responsibility for a recurrence on his claim, and the worker was placed back on full wage loss benefits.

On January 11, 2019, the worker contacted his WCB case manager and advised that at an appointment with his family physician that day, his physician thought he would benefit from having a service dog. The worker asked whether the WCB would provide funding for a service dog. On January 20, 2019, the worker's psychologist stated that the worker had questioned whether he would benefit from having a service dog to help improve his anxiety and goal of returning to work, and noted that "…I have certainly seen clients of mine significantly benefit from having such dogs to reduce his or her reactivity to Posttraumatic Stress Disorder symptoms."

On March 18, 2019, the worker attended a third call-in examination with the WCB psychiatric consultant. In her notes of that examination, the WCB psychiatric consultant noted that the use of a service dog was discussed with the worker, and while she medically supported the usefulness of a service dog, it was the worker's own choice and she could not medically suggest the WCB be responsible for the dog or for the process of training a service dog. On March 26, 2019, Compensation Services advised the worker that they would not be responsible for funding training or costs associated with a service dog.

On December 5, 2019, the worker's union representative requested that Review Office reconsider Compensation Services' decision to deny responsibility for and support of the worker's service animal. The worker's representative noted that the worker's treating healthcare providers supported the worker's use of a service dog. The representative submitted that assuming responsibility for the worker's service animal would be consistent with the criteria under the legislation and policy relating to medical aid, vocational rehabilitation and support for daily living. The representative further submitted that the evidence demonstrated that the worker's service animal reduced the impact of the worker's compensable injury, allowing him to more readily engage in personal activities, and would facilitate a sustainable return to work.

On February 18, 2020, the employer's representative provided a submission in support of Compensation Services' decision. On February 19, 2020, in response to a request from Review Office for clarification, the WCB's psychiatric consultant commented on the difference in definition between a service dog and a therapy dog. The consultant also clarified that her comments with respect to a therapy or service dog in her May 18, 2019 call-in examination notes were with respect to the process by which the worker's own dog could become certified as a therapy dog. The consultant stated that her intention when discussing the usefulness of a therapy dog was in relation to non-specific benefit, including comfort, nurturing, companionship, a sense of safety, calmness and improved mood, and was not intended to be interpreted as a form of treatment for PTSD. On February 26, 2020, the worker's union representative provided a further submission in response to the employer's submission and the WCB psychiatric consultant's February 19, 2020 opinion.

On March 3, 2020, Review Office determined that there would be no coverage for the costs associated with a service/therapy dog. Review Office noted that the WCB did not have specific legislation or policy related to the use of service or therapy animals in relation to compensable injuries, but found that the issue of a service/therapy animal would be considered a "non-traditional treatment for a psychological condition" and there was not sufficient reliable scientific evidence to indicate that the prescribed or recommended non-traditional treatment would promote a timely recovery and return to work for the worker, enable activities of daily living, or eliminate or minimize the impacts of the worker's injuries.

On March 10, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged and proceeded by way of teleconference on July 8, 2020.

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 states 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."

Subsection 27(10) of the Act states, in part, that "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…"

Subsection 27(20) provides as follows:

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker 

(a) could, in the opinion of the board, experience a long-term loss of earning capacity; 

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or 

(c) requires assistance in the activities of daily living.

Section 37 of the Act provides as follows:

37 Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable: 

(a) medical aid, as provided in section 27; 

(b) an impairment award, as provided in section 38; and 

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

WCB Policy 44.120.10, Medical Aid (the "Medical Aid 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.

Schedule B to the Medical Aid Policy sets out general principles for the funding of medical devices and appliances to injured workers. Schedule C sets out general principles regarding the WCB funding of non-traditional treatments.

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made a presentation to the panel. The worker was accompanied by his dog at the hearing, and responded to questions from his union representative and the panel.

The worker's position was that the WCB is responsible for the costs associated with training, certification and maintenance of his service dog, and his appeal should be allowed.

The worker's representative submit that the WCB took an overly narrow view of the issue in this case, denying the worker's request based solely on the purported lack of empirical evidence to establish the effectiveness of service and support animals in the treatment of psychological conditions. The representative submitted that neither the Act nor any WCB policy requires scientific validation to give the board authority to approve a medical treatment.

The worker's representative submitted that the worker is entitled to WCB support for his training and use of his service dog because it is consistent with the spirit and provisions of the Act and WCB policy. The representative submitted that the evidence supports that the use of a service animal is not just suitable and appropriate medical aid in the worker's case, but also as a vocational rehabilitative service and a support of his daily living.

The worker's representative submitted that while the WCB determined the use of a service animal was a "non-traditional treatment" for psychological injuries, the criteria outlined under Schedule C of the Medical Aid Policy should not be used as the basis of considering the worker's appeal. The representative submitted that those criteria reflect consideration for an experimental treatment, such as cannabis, whereas a service animal is more appropriately considered as a medical device or appliance in accordance with Schedule B of that Policy.

It was submitted that the worker's entitlement to WCB support of his service dog is consistent with the general understanding of medical aid, but does not need to be limited to that context. The representative submitted that the Act gives the WCB broad discretion to approve a wide variety of support. The representative submitted that Policy 43.00, Vocational Rehabilitation (the "VR Policy"), confirms the WCB has a broader mandate, which includes helping a worker achieve maximum physical, psychological, economic and social recovery from the effects of a work related injury or illness.

It was submitted that the worker's entitlement to support of his service dog is also consistent with Policy 44.120.30, Support for Daily Living (the "Daily Living Policy"), which provides discretion for WCB support of any reasonable request. The representative stated that the administrative guidelines of the Daily Living Policy confirm the WCB has the mandate to support specialty equipment or devices that facilitate the worker's adaptation to the permanent effects of the workplace injury. The worker's representative submitted that the WCB can and does financially support a myriad of services with the intent of minimizing the impact of a compensable injury, and that the Policy confirms the WCB may provide assistance to reduce the effects of a handicap in exceptional circumstances on a case by case basis.

The worker's representative submitted that while they had submitted and referenced ongoing research which supported the efficacy of service dogs in the treatment of psychological injuries, neither the Act nor WCB policy requires empirical evidence to approve a request for medical aid funding. The representative noted that the worker's treating psychologist and his family doctor had endorsed the utility of a service dog in the management of the worker's compensable injury. The representative submitted that the opinion of the WCB's psychiatric consultant, as described in the notes of her March 18, 2019 call-in examination, also supported the worker's entitlement to support from the Board.

The worker's representative submitted that the file documentation supports that the worker's use of his service dog enables him to better manage the effects of his compensable injury. The evidence demonstrates that the worker's service dog does not simply provide "non-specific" benefits. The dog provides support that enables the worker to better manage his symptoms, to have a less isolated and more active lifestyle, to interact with others in unpredictable situations, and to have a better quality of life. The representative noted that these benefits would also enhance the worker's capacity to sustain a return to alternate work.

It was submitted that the WCB's refusal to support the worker's request for a service dog, based on the view that it is a non-traditional treatment, fails to acknowledge the broader mandate of the WCB, which goes beyond simply treating the effects of a compensable injury. The representative submitted that the policies demonstrate that the WCB's mandate includes the support of services that minimize the impacts of a compensable injury and those that are intended to assist an injured worker as much as possible to function as they had prior to their accident.

In conclusion, the worker's representative asked that the panel acknowledge the value of a service dog in relation to the worker's compensable injury and accept responsibility for the costs associated with its training, certification and maintenance.

Employer's Position

The employer was represented by an advocate, who made an oral presentation at the hearing and responded to questions from the panel.

The employer's position was that the worker is not entitled to any costs associated with the purchase or training of a service or therapy dog, and the worker's appeal and request for such benefits should be denied.

The employer's representative submitted that the test in this case is not whether a service dog may or may not have value, but whether the request for such a dog meets the requirements under the Act and WCB policy as a means of treatment which the WCB accepts.

The employer's representative noted that requests for such services fall under the auspices of medical aid. The representative submitted that the Medical Aid Policy gives the WCB the authority to control the type of medical aid it funds, to determine the appropriateness of the medical aid being requested, and sets out the parameters that need to be considered with respect to the effectiveness of the goods and services being requested.

The employer's representative suggested that the WCB must evaluate all requests for medical aid based on these general principles, whether they are for traditional goods and services, such as under Schedule B of the Policy, or for non-traditional ones under Schedule C. Funding of a device or appliance under Schedule B therefore still has to meet the test that it has some medical or scientific validity and has been determined to be an effective mode of treatment. Schedule C indicates that payment for non-traditional treatments may be authorized when the WCB determines that a number of criteria have been met, including that there is sufficient reliable scientific evidence to indicate that the recommended non-traditional treatment will promote a timely recovery and return to work.

In the context of approving the costs of a service dog, the employer's representative submitted that there is no widely-held acceptance of this mode of treatment for PTSD, as a health care good or service. The representative referred to articles which they submitted to Review Office in support of their position in this regard. The representative also referred to articles which were submitted on behalf of the worker, and noted that while these refer to anecdotal accounts of the value of service dogs for treatment for military personnel and veterans with PTSD, there is a lack of empirical or scientific research to support their efficacy.

The employer's representative submitted that while the worker's representative suggested that the WCB has broad discretion to approve a wide variety of support under the Daily Living Policy, that Policy still falls within the auspices of medical aid and is subject to the guiding principles outlined in the Medical Aid Policy. The representative submitted that the WCB policies cannot be viewed in isolation, and an application of one policy must be consistent in the context of all other policies they impact.

The employer's representative stated that they did not dispute that the WCB has a responsibility to assist workers in their improvement. He submitted that this does not mean, however, that the WCB should accept any form of treatment or service that is suggested by a care provider.

The employer's representative submitted that it does not matter in this case which policy you look at. WCB policy is clear that the service being requested must be supported with sufficient, reliable, scientific evidence. In this case, such evidence has not been provided as it pertains to service dogs and the treatment for PTSD.

In conclusion, the employer's representative submitted the test required under WCB policy to consider acceptance of the worker's request has not been met. As there is insufficient empirical scientific evidence to support the effectiveness of service dogs in the treatment of PTSD, there is no basis for the WCB to support any costs associated with the purchase and/or training of a service dog in this case.

Analysis

The issue before the panel is whether or not responsibility for costs associated with a service/therapy dog should be accepted. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the use of a service dog is necessary to cure and provide relief from the worker's psychological injury resulting from his November 3, 2015 workplace accident. The panel is unable to make that finding.

The worker has asked that the WCB accept responsibility for the costs associated with the training, certification and maintenance of his service/therapy dog. The worker's representative has relied on a broad interpretation of the Act and WCB policies in arguing that the worker is entitled to funding for the costs of his dog to minimize the impacts of his compensable injury and assist him as much as possible to function as he had prior to his accident.

As indicated above, the WCB and the panel are bound by the Act and WCB policies. 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." In deciding whether such medical aid is necessary, the WCB must assess the evidence in each case against the applicable criteria as set out in the Act and policies.

The panel understands that there are no standardized definitions of the types of dogs that are used to provide emotional support to their owners. The panel accepts the distinction as noted by the WCB psychiatric consultant, that within that limitation:

• A therapy dog/certified therapy dog is a dog that is accredited/certified as a therapy dog by a recognized accrediting/certifying agency... These organizations evaluate prospective dogs to ensure their ability/behaviours are conducive to therapy work. Once accredited/certified, therapy dogs are able to serve in a variety of meaningful positions including personal emotional support 

• A service dog is typically considered to be a dog that has been specially trained to perform work or tasks for the benefit of an individual with a disability (e.g. blindness) who cannot perform the work or task independently for him or herself.

The panel is of the view that the worker's dog in this case is more in the nature of a therapy dog than a service dog, as described above. The evidence indicates that the dog provides comfort and support to the worker, as opposed to being specially trained to perform work which the worker cannot perform himself.

In response to questioning from his representative and from the panel at the hearing as to what his symptoms are and what the dog does to help him, the worker thus stated that:

I have panic attacks, and they can come on at any time. If I'm in crowded areas, such as shopping, I, I get very anxious, and then I'll have these periods of dissociation where I just blank out, but [the dog] is there and he'll nudge me and get me straightened away again. And no matter what happens I know that [the dog] is there for me.

The worker further stated that the dog:

…gives me the confidence to go out. He, people want to interact with me, and want to learn about a service dog, so I always, I try to spend some time to educate. He is a calming effect on me.

When I'm really, really upset or having negative thoughts [the dog] is there nuzzling me. Or if I, if I drift off again and sort of disassociate he will, he will come to me, he will nudge me and break me out of that.

The worker noted that:

…there's a command that's called cover me, and that's where he will lie in the opposite direction of where I'm facing, and he will make sure that nobody gets too close behind me. And he keeps people a distance from me because that is really sort of a trigger for me. I don't like people too close to me.

The worker also said that the dog sleeps with him most of the time, that he will sometimes reach out and hold his paw. He said that just the dog's weight and having him there is a calming effect for him.

With respect to the dog's training, the worker said that this consisted of obedience training, with the standard commands; group training, so that the dog is not startled amongst other dogs; and training for his own situation. The worker said that the dog has to meet certain criteria and pass an exam, and has to be recertified every five years. The worker said that his dog has not completed his training and is still too young to be certified, as dogs cannot test until they are two years old.

Based on the evidence, the panel is not satisfied that the worker's dog and the role the dog plays is necessary to cure and provide relief from his compensable injury. The panel accepts that the dog provides a meaningful and genuine benefit to the worker in terms of allowing him to cope with various things and calming or comforting him, but is unable to find that the use of the dog meets the requirements for the provision of medical aid under the Act and WCB policies.

In arriving at our conclusion, the panel considered the Medical Aid Policy, and in particular Schedules B and C to that Policy, and is not satisfied that the requirements of either Schedule has been met. Schedule C, which refers to non-traditional treatments, specifically provides that there must be "sufficient reliable scientific evidence" to indicate that the non-traditional treatment will promote a timely recovery and return to work, enable activities of daily living or eliminate or minimize the impacts of the worker's injuries." While Schedule B does not specifically refer to a need for reliable scientific evidence, the general principles of the Policy indicate that the WCB will consider "current scientific evidence about the effectiveness…of the goods and services" and the Schedule notes that the WCB determines whether the medical device and/or appliance will likely be or has been effective in the treatment or ongoing care of a compensable injury.

Based on the information which is before us, the panel finds that there is a lack of sufficient reliable evidence to support that the use of a therapy or service dog is an accepted modality for treating PTSD.

The panel has also considered the worker's arguments with respect to the VR Policy and the Daily Living Policy, and is satisfied that the worker's request for funding for his dog does not meet the requirements of those policies.

Based on the foregoing, the panel finds, on a balance of probabilities, that the use of a service dog is not necessary to cure or provide relief from the worker's psychological injury resulting from his November 3, 2015 workplace accident. Responsibility for costs associated with a service/therapy dog should therefore 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 4th day of September, 2020