Decision #77/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further physiotherapy treatment after October 30, 2018. A teleconference hearing was held on September 29, 2020 to consider the worker's appeal and reconvened on April 21, 2021.
Whether or not the worker is entitled to further physiotherapy treatment after October 30, 2018.
The worker is entitled to further physiotherapy treatment after October 30, 2018.
The worker has an accepted WCB claim for fracture injuries to both of his feet from a workplace accident on February 6, 1984. On April 9, 2010, the WCB spoke to the worker who advised he was experiencing difficulties with his right foot/heel. The worker's file was reviewed by a WCB physiotherapy advisor and on June 7, 2010, the advisor opined the worker's diagnosis was plantar fasciitis in his right foot, which was accepted as being related to the compensable injury. Orthotics were recommended along with a course of 12 physiotherapy sessions to "…settle the plantar fasciitis…" An extension of sessions was requested by the worker's treating physiotherapist on July 28, 2010. The extension was denied by the WCB on July 29, 2010 as the WCB physiotherapy advisor opined there was no evidence further in-clinic treatment would benefit the worker.
On February 1, 2012, the worker contacted the WCB to advise that the symptoms in his right foot have continued and that he attends physiotherapy, at his own expense, once every three weeks that he found helped with the symptoms. An MRI study from March 27, 2012, an April 5, 2012 report from the worker's treating sports medicine physician and the worker's file was reviewed by the WCB physiotherapy advisor on June 18, 2012. The advisor opined the worker's current diagnosis was "advanced naviculo-cuneiform OA (osteoarthritis)", supported by the MRI findings and medically accounted for in relation to the workplace accident. The WCB physiotherapy advisor, in discussion with the worker's WCB case manager, noted the worker's report of 3 weeks of relief after attending physiotherapy and recommended a course of 12 physiotherapy sessions on a once every 3 week basis. Progress reports were to be provided after every fourth treatment. Further extensions to the physiotherapy treatment approvals were given in 2013, 2014 and 2015.
The worker's file was reviewed by a WCB physiotherapy advisor on May 5, 2016. The advisor noted that approval for treatment had been previously granted based on the physiotherapy treatment providing the worker with "…symptomatic relief to assist the [worker] with daily function." Only 4 treatments were authorized as the worker had reported "…numbness in his toes, and knee/low back pain" for which he was being seen by a neurologist. The WCB physiotherapy advisor recommended a further review of the worker's file after updated medical information was received. The updated medical was received and on July 14, 2016, the WCB physiotherapy advisor, noting the "...proposed therapy is supportive in nature and not expected to lead to sustained improvements" and "…ongoing therapy has been approved to support the worker in performing his regular duties", authorized treatments once every 3 to 4 weeks, to be reviewed annually. The worker's file was reviewed on August 17, 2017 with the WCB physiotherapy advisor opining "Ongoing supportive treatment with a frequency of 1x/3 weeks remains appropriate, and should be reviewed annually."
A WCB physiotherapy consultant reviewed the worker's file on August 23, 2018. Findings on the July 27, 2018 report from the worker's treating physiotherapist were noted to be "…pain with stress testing left sacro iliac joint. Stiff lumbar spine. Tight lumber erector spinae muscles. Decreased mobility metatarsal joints. Tight gastrocnemius" with the worker reporting stiffness in both feet, with his right being worse than the left, lower back pain due to limping and pain intensity of 4/10 on the visual analog scale and an LEF (lower extremity functional scale) score of 48/80, representing moderate disability. The consultant noted no change between the physiotherapy report of November 21, 2017 and July 17, 2018 and provided that in-clinic physiotherapy treatment has plateaued. A gym program including swimming and an exercise bike were recommended, with funding for a 3 month gym pass and 1 follow-up physiotherapy session afterwards to assess functional improvement. On October 10, 2018, the worker was advised that as it had been determined the supportive physiotherapy was not providing him with sustained medical improvement, ongoing physiotherapy sessions would not be provided after October 30, 2018.
The worker requested reconsideration of the WCB's decision to Review Office on October 26, 2018, noting his belief that without the ongoing physiotherapy treatment, his difficulties would get worse. The employer's representative provided a submission in support of the WCB's decision on January 25, 2019, and the worker provided a response on February 5, 2019. Copies of each submission were provided to all parties.
On February 6, 2019, Review Office determined the worker was not entitled to further physiotherapy treatment after October 30, 2018. Review Office found the medical evidence on the worker's file did not support the need for further physiotherapy treatment as there was little change in the outcome scores on both the numeric pain rating scale and the lower extremity functional scale between November 2017 and July 2018. Review Office further found the worker had been provided with a sufficient amount of physiotherapy treatment and should be able to continue on his own with exercises provided by the physiotherapist.
The worker filed an appeal with the Appeal Commission on March 28, 2019. A teleconference hearing was arranged and held on September 29, 2020. A reconvened teleconference hearing was held on April 21, 2021.
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.
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 to the worker by the WCB.
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."
Subsection 27(10) of the Act further states 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; and the Board may contract with health care providers, hospitals or other health care facilities for any medical aid required, and agree on a scale of fees or remuneration for any such medical aid.
Board policy 44.120.10, Medical Aid, (the Medical Aid policy) states that 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.
The worker was represented by a worker advisor who made an oral presentation at the hearing and who responded to questions from the panel.
It is the worker’s position that his physiotherapy treatments provide relief for the permanent symptoms that he suffers as a result of the compensable accident and therefore these physiotherapy treatments should be covered.
Following an MRI obtained in 2012, physiotherapy was approved with the note that it would not lead to sustained improvement, but it would allow for improved function and pain relief. Extensions to the original physiotherapy treatments were granted based on the determination that they were providing pain relief and increased function. Further extensions to the physiotherapy treatments approval were given in 2013, 2014 and 2015. It is the worker’s position that the opinions on file recognized the supportive nature of the physiotherapy treatments and ongoing therapy was approved to support the worker in performing his regular duties.
In 2016 it was noted that the physiotherapy treatments were supportive in nature and not expected to lead to sustained improvement. It was again determined that supportive physiotherapy treatments every three to four weeks would be appropriate and ought to be reviewed annually.
The 2017 annual review determined that the physiotherapy treatments were appropriate to improve pain and function. Treatments once every three weeks were again authorized.
At the 2018 annual review it was determined that the physiotherapy treatments would cease as it was concluded that the worker was not showing any sustained improvement. The case manager indicated their opinion that supportive physiotherapy treatments were not providing the worker with any medical benefit.
It was ultimately determined that the worker had been provided a sufficient amount of physiotherapy treatments and should be able to continue on his own with exercise given by the physiotherapist. However, the worker continued the physiotherapy treatments paying out of his own pocket.
With regards to all of the annual reviews, it is the worker’s position that what they have in common is that the physiotherapy treatments were not expected to provide sustained improvement. They focus on short term improvement and functioning that allows the worker to continue with his activities of daily living, one of which is to attend work on a daily basis. The worker’s submission is that the evidence on the file clearly shows that physiotherapy treatments eliminate or minimize the impact of his injury and enable performance of regular duties.
The employer was represented by a case management specialist who made oral submissions and who responded to questions from the panel.
It is the employer’s position that the worker is not entitled to further physiotherapy treatments after October 30, 2018 as noted by the WCB Physiotherapy Consultant Report on August 24, 2018.
The employer also points to the Act, in particular section 27(1) on the provision of medical aid and section 27(10) which indicates that medical aid is under the supervision of the Board. In that regard, the employer submits that the Act gives the WCB the ability to determine whether or not coverage for physiotherapy would be provided. The employer also points to the Medical Aid policy, which provides guidance with respect to the provision of medical aid. In sum, it is the employer’s position that the Board is responsible for the supervision and control of medical aid, and determines the appropriateness and necessity of medical aid.
The employer submits that the worker does not require physiotherapy treatments to return to work. It is the employer’s position that the physiotherapy treatments are a “neutrally beneficial accommodation” which have not eliminated or minimized the impact of the compensable injury.
The employer underscores the fact that on August 24, 2018 the WCB physiotherapy consultant reviewed the file and determined that there was no assisting benefit with the physiotherapy treatments. In particular, the WCB physiotherapy consultant compared the physiotherapy reports between November 21, 2017 and July 17, 2018 to see if it was beneficial to continue coverage. It is submitted that this revealed no change in the subjective complaints of stiffness in both feet, right worse than left, lower back pain, stiffness in limping. As well, the pain level remained constant and did not improve.
The employer also points to the fact that the worker received coverage for much more than what is typically the norm. Coupled with the determination that there really is no sustained improvement, the employer suggests that this leads to the conclusion that the workers’ appeal ought to be dismissed.
The issue before the panel is whether the worker is entitled to coverage for physiotherapy beyond October 30, 2018.
For the worker’s appeal to be successful, the panel must find that additional physiotherapy treatments comply with the Act and the Medical Aid policy, in that they minimize the impact of the worker’s injury and enhance the worker’s recovery to the greatest extent possible.
In the present circumstances, the panel is able to make this finding.
In coming to its conclusion, the panel accepts the evidence on the file that physiotherapy treatments eliminate or minimize the impact of the worker’s injury and enable performance of regular duties.
Conversely, the panel also accepts the evidence on the file that the physiotherapy treatments have not lead to sustained improvement. However, the panel notes that since the resumption of his physiotherapy treatments in 2012, further extension approvals were given in 2013, 2014 and 2015. Following which, updated medical was received and on July 14, 2016, the WCB physiotherapy advisor indicated that the proposed therapy is supportive in nature and not expected to lead to sustained improvement. Nevertheless, ongoing physiotherapy treatments were approved to support the worker in performing regular duties. The 2017 annual review also found that that these treatments were appropriate to improve pain and function.
However, the panel acknowledges the 2018 review’s determination that the physiotherapy treatments should cease based on the determination that the worker was not showing any sustained improvement.
In sum, the panels' determination is that the physiotherapy treatments should not have been discontinued by the WCB as of October 30, 2018. Further, the panel finds that the physiotherapy treatments should be reinstated and continued to be provided until such time that the medical evidence no longer supports that this type of treatment meets the criteria outlined in the Medical Aid Policy.
As a result, the worker’s appeal is accepted.
C. Monnin, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
C. Monnin - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of June, 2021