The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to medical aid (shock therapy treatment). A file review was held on February 3, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to medical aid (shock therapy treatment).

Decision

The worker is entitled to medical aid (shock therapy treatment).

Background

The WCB accepted the worker’s claim for an injury that occurred at work on September 23, 2010 when their right leg and foot were run over by a piece of equipment.

At an initial assessment on November 12, 2010, the physiotherapist noted the worker’s report of mild pain with swelling and a decreased ability to walk due to foot and ankle pain, diagnosed a crush/soft tissue injury and recommended restrictions. The employer accommodated the worker with restricted duties. On November 29, 2010, the treating family physician noted the worker continued to have swelling and recommended referral to a plastic surgeon.

A WCB medical advisor reviewed the worker’s file on January 5, 2011 and provided an opinion that the diagnosis related to the workplace accident was a crush injury to the worker’s right leg but noted the current diagnosis was not clear, with indication of a possible seroma and/or chronic swelling in their right leg. The medical advisor found the swelling to be related to the September 23, 2010 workplace accident and recommended an expedited referral to a plastic surgeon.

On January 24, 2011, a plastic surgeon assessed the worker and provided an opinion that “…the [worker] has areas of fat atrophy on the right leg below the knee. This is likely the site of the crush injury…”. The surgeon recommended “…a combination of liposuction and some fat grafting to restore the contour of her leg.” The WCB approved the surgery, which took place on January 28, 2011. At follow-up with their family physician on March 8, 2011, the physician noted “swelling much improved and leg contour smooth now after surgery”. By April 6, 2011, the treating physician noted the worker had mild swelling below their knee medially and would follow up with the treating plastic surgeon. At that time, the physician was of the view the worker did not require restrictions and could return to their full duties.

The worker continued treatment with the plastic surgeon who, on May 16, 2011, recommended deep tissue massage therapy and on June 8, 2011, the WCB approved the treatment. At a further follow-up appointment on October 24, 2011, the treating plastic surgeon requested approval from the WCB for an additional fat grafting surgery, which the WCB approved on November 16, 2011. The worker underwent a second surgery on December 21, 2011.

A WCB medical advisor reviewed the worker’s file on May 18, 2012 in response to the treating plastic surgeon’s request for approval of lymphatic massage therapy. The medical advisor did not approve the request but did authorize two further deep tissue massage therapy sessions. On August 27, 2013, the WCB assessed the worker for a permanent partial impairment award which was provided on August 29, 2013.

On May 25, 2021, the worker contacted the WCB to request coverage for shockwave therapy treatment. In discussion with the WCB on May 28, 2021, the worker advised they had not had a further injury but continued to experience difficulties from the workplace accident, including pain and difficulty with stair climbing, around their right knee and lower leg. The worker advised chiropractic treatment was recommended to them, along with the shockwave therapy treatment and the worker noted they felt great improvement since undergoing that treatment.

The WCB received an initial chiropractic assessment report on May 28, 2021 for an appointment the worker attended on May 20, 2021. The chiropractor diagnosed bursitis, myofascial pain syndrome associated with fascial adhesions, and traumatic osteoarthritis of the knee. At the request of the WCB’s chiropractic advisor, the worker’s treating chiropractor provided additional information to the WCB on June 16, 2021 including a narrative report, detailing the treatment provided, and reported that after the third shockwave therapy, the worker advised they were feeling relief on a consistent basis from their difficulties. The treating chiropractor opined “Overall the scar tissue is still present, but not tender on palpation unless significant overpressure is used.”

A WCB chiropractic consultant reviewed the worker’s file on June 17, 2021 and concluded the worker’s current diagnosis was osteoarthritis of the right knee with myofascial syndrome, noting that at the time of the September 23, 2010 workplace accident, the worker’ right knee had full range of motion and there were no complaints regarding the worker’s right knee reported on the file until May 28, 2021. The chiropractic consultant provided an opinion that the worker’s current diagnosis of osteoarthritis in their knee was not related to the workplace accident and that while the shockwave treatment was providing relief to the worker, the treatment was also not related to the workplace accident.

On June 29, 2021, the WCB advised the worker that it could not relate their current difficulties and treatment to the workplace accident and as such, coverage for the treatment would not be approved.

The worker requested reconsideration of the WCB’s decision to Review Office on July 29, 2021. In their submission, the worker noted the shockwave treatment therapy provided relief to their knee pain which they had experienced since the workplace accident and improved their quality of life. On September 8, 2021, Review Office determined the worker was not entitled to medical aid benefits (shock treatment therapy). Review Office accepted and relied on the opinion of the WCB chiropractic advisor that the treatments were not related to the workplace accident. Further, Review Office noted the worker had not complained of right leg difficulties until almost eight years after the workplace accident and had not required treatment for their injury since 2012.

The worker filed an appeal with the Appeal Commission on October 5, 2021. A file review was arranged for February 3, 2022.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB's Board of Directors.

The question on appeal is whether the worker is entitled to medical aid benefits, specifically shockwave therapy treatment. Section 4(1) of the Act provides that a worker is entitled to benefits when it is established that a worker has been injured as a result of an accident at work. Provision of medical aid is addressed in s 27 of the Act which 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.

The WCB has established Policy 44.120.10, Medical Aid (the “Policy”) in relation to how it will determine a worker’s entitlement to medical aid under s 27 of the Act. The Policy defines medical aid to include treatment or services provided by a health care provider. Health care provider is further defined to include a chiropractor. The Policy sets out that the WCB will determine the “appropriateness and necessity” of medical aid provided to workers in respect of the compensable injury, outlining that the objectives of the WCB 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 Policy also sets out that the WCB “…will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.”

Worker’s Position

The worker’s position is as set out in their Appeal of Claims Decision form, filed with the Appeal Commission, which outlines that the Review Office should be overturned because it:

“Did not take into consideration that the shock therapy was ONLY performed on the scar tissue & adhesion of my [right] leg & immediately after treatment the pain was greatly minimized. If this pain was “Osteoarthritis” or “myofascial syndrome” (chronic pain disorder) or “age related” why is the pain still minimal to this day? Scar tissue adheres to muscle & tendons & limit[s] movement. My scar tissue & adhesion is directly on the area that houses 3 tendons that work with knee function. Shockwave restarts the healing in old injuries, breaks up scar tissue, alleviates pain & increases mobility. The WCB consultant’s “opine” current diagnosis “Osteoarthritis of the right knee with myofascial syndrome.” [d]oes not consider the location of scarring & the effects the adhesion has on surrounding tissue.”

The worker also provided a further written submission dated January 26, 2022 in support of their appeal, stating that the mechanism of injury to their right leg caused “…the fat to be pushed up toward the knee and causing the muscle, facia and skin to all adhere together…resulting in vast internal scarring and tissue adhesion along the inside of my calf from my ankle to my knee including directly on the area that houses three tendons that work with knee function.” The worker also noted the opinion of their treating chiropractor that the shockwave therapy administered to the scar tissue and adhesions on their right leg “greatly released the scar tissue that was causing knee pain and causing mobility issues.”

The worker concluded “It is clear to see the shockwave therapy has alleviated pain issues sustained directly from the scarring and tissue adhesion from my workplace accident of Sept. 23, 2010. Therefore, the past shock treatments and future treatments as recommended by [the treating chiropractor] should be cover[ed] by WCB.”

Employer’s Position

The employer did not participate in the appeal.

Analysis

The issue for determination by the panel is whether the worker is entitled to medical aid (shockwave therapy treatment). For the panel to grant the worker’s appeal, it would have to determine that the worker required medical aid in the form of shockwave therapy treatment to cure or provide relief from the injury the worker sustained in the compensable accident of September 23, 2010. For the reasons set out below, the panel was able to make such findings and the worker’s appeal is granted.

The question on appeal requires that the panel consider whether the recent and proposed future treatment of the worker’s current right knee condition is causally related to the compensable injury sustained more than 10 years ago. In reviewing the WCB claim file, the panel noted the significant gap in the available medical reporting with respect to the worker’s claim, specifically from August 2013 when the WCB assessed the worker for a permanent partial impairment (“PPI”) award until May 2021 when the worker sought further chiropractic treatment.

At the time of the PPI assessment in 2013, the WCB determined that the worker’s right knee was permanently impaired in terms of functional mobility, and further that there were no relevant pre-existing conditions impacting the worker’s knee. At that assessment the worker reported difficulty with kneeling and squatting motion and the assessor determined the worker had a 10-degree deficit in right knee flexion versus their left knee.

On speaking with the WCB on May 28, 2021, the worker indicated that their knee was always tight, but with inactivity would be “really tight” with pain resulting in reduced mobility. The worker also indicated in the same conversation that they had never been at 100% since the injury but had noted a great improvement with the shockwave therapy. In their July 27, 2021 submission to Review Office, the worker also stated that:

Throughout the years I have led an active lifestyle and have continued with the stretching and strengthening program advised by the massage therapist, yet, I have always had the discomfort of tightness in my inner calf, swelling and very tender scar tissue at the pes anserine bursa area of my right knee.

On April 6, 2021, I had a major surgery resulting in me having to take 2 ½ weeks off work (physical job) and refraining from physical activity for at least one month. During this sedentary time, I developed the knee pain in question. I had limited mobility and a lot of pain.

The panel noted that the evidence of the treating chiropractor outlines a similar history as provided by the worker. The worker reported to the chiropractor their belief that they would have to live with the pain and flareups and work through them on their own, based on prior healthcare provider advice. The worker further reported that when they are less active, pain increases directly over the area of injury and that they had managed this pain on their own for the previous 7 years.

In their initial report to the WCB, the treating chiropractor outlined that the worker presented with “Very stiff and painful knee”, difficulty with stairs and grinding in their knee, with tenderness on the medial knee. Objective findings include crepitus evident on flexion and extension, pain on pes anserine and bursitis testing, trigger points along the medial knee and flexor pain on the knee. The chiropractor diagnosed pes anserine bursitis and myofascial pain syndrome associated with fascial adhesions and traumatic osteoarthritis of the knee and noted that the injury was long-standing. In a follow up narrative report provided to the WCB on June 16, 2021 at the request of the WCB chiropractic advisor, the treating chiropractor stated they observed the worker to have an antalgic gait, reduced knee extension and walking stairs “gingerly.” On physical examination the treating chiropractor recorded:

• Painful over the medial joint line of the knee with friction rub. 

• Medial pocket over the pes anserine bursa swelling evident with scar tissue puckering from previous surgeries. 

• Squatting was performed and unable to properly perform squat without compensating to the left side due to both the crepitus and pain in the knee.

The chiropractor went on to describe the details of the shockwave treatment provided, noting that it was applied directly over the area where the worker had fat grafting performed and was “run over.”

After speaking with the treating chiropractor and receiving the additional information requested, the WCB chiropractic advisor offered an opinion that the current diagnosis for the worker “would include osteoarthritis of the right knee with myofascial syndrome.” The chiropractic advisor further stated that the PPI assessment revealed a deficit of 5 degrees of flexion of the right knee and that at the time of the original injury the worker’s knee was noted to have “a full range of motion.” They concluded that the “arthritic condition of the knee in all probability would be age related and not related to the incident noted September 23 2010.”

The panel noted that the WCB chiropractic advisor did not offer any rationale to support their conclusion that the worker’s condition at that time was not related to the compensable workplace accident and does not address the reported continuity of symptoms since 2013 as described by the worker.

The panel finds that the conclusions reached by the chiropractic advisor are not supported by the file evidence. As noted above, the PPI assessment revealed a 10-degree deficit in range of motion of the worker’s right knee and the WCB provided a PPI award to the worker based upon a permanent loss of range of motion in that knee arising out of the compensable accident. Further, we note that the treating chiropractor diagnosed traumatic, not age-related osteoarthritis. As noted by the worker in their submission, if the osteoarthritis were age-related, it would be expected to be evident in both knees to a more or less equal extent, but the worker’s current knee problems are evident only in the injured knee, consistent with the conclusion that the arthritis is related to the past trauma to that joint. The panel also noted that the treating chiropractor provided treatment directly to the area of the compensable injury, noting the “swelling evident with scar tissue puckering from previous surgeries” at that site and reported the treatment to the WCB initially on the basis it was related to the 2010 workplace injury.

Given that the WCB chiropractic advisor did not examine the worker, the panel prefers and relies upon the opinion of the treating chiropractor that the worker’s current (as of June 2021) right knee condition is related to effects of the 2010 compensable injury. In coming to this conclusion, the panel relies as well upon the uncontroverted evidence of the worker in respect of the continuity of their right knee symptoms in the period since 2013.

The panel considered that the treating chiropractor reported in detail as to the nature and benefits of the three treatments provided to the worker from May through June 2021, noting improvement in the worker’s range of motion, ambulation and reduction in pain and crepitus. The panel also noted that the WCB chiropractic advisor allowed that the treating chiropractor’s treatment “…may have benefit to the knee situation resulting in a reduction of the discomfort level….” The panel finds this evidence to support a conclusion that the shockwave therapy treatment enabled the worker’s activities of daily living and minimized the impacts of the worker’s injuries, which is one of the stated goals of the provision of medical aid as set out in the Policy.

The panel therefore finds, on a balance of probabilities, that the past and proposed shockwave therapy treatment of the worker’s right knee causally relates to the continuing effects of the compensable injury sustained on September 23, 2010 and that it provides relief to the worker from the ongoing effects of that injury. Therefore, the worker is entitled to medical aid (shock therapy treatment) and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
W. Skomoroh, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 8th day of February, 2022