The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to further physiotherapy treatment. A teleconference hearing was held on March 22, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further physiotherapy treatment.

Decision

The worker is not entitled to further physiotherapy treatment.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 8/21 dated January 19, 2021. The background will therefore not be repeated in its entirety.

On February 21, 2019, the worker reported to the WCB that she injured her right knee, shoulder, hip and back when she slipped on an icy surface while walking towards her car on February 20, 2019. The worker sought treatment that same day with a sports medicine physician, who examined the worker and diagnosed contusions to her knee, hip, buttock, lumbar spine and rib, as well as shoulder strain. The physician recommended physiotherapy and that the worker remain off work for 7 -10 days.

The worker attended for an initial physiotherapy assessment on February 25, 2019 and reported constant severe pain in her right hip/low back area and difficulty with activities of daily living. The physiotherapist noted the worker's altered gait but recorded that a full assessment was not possible due to the worker's pain. The worker was diagnosed with a right hip contusion. At a follow-up appointment with the worker's treating sports medicine physician, the worker's diagnosis was changed to right hip bursitis. On March 5, 2019, the WCB accepted the worker's claim.

An MRI study of the worker's right hip, conducted April 11, 2019, indicated tendinosis and partial thickness tearing of the gluteus minimus tendon at the greater trochanter as well as degenerative changes at the worker's right hip joint.

A WCB medical advisor reviewed the worker's file and the MRI study on April 24, 2019 and provided an opinion that "An injury (contusion/strain) involving the gluteus minimus muscle at its attachment to the hip could be accounted for by effects of the [compensable injury] involving a fall onto the right hip."

The worker saw an orthopedic specialist regarding her right hip on May 30, 2019. At a follow-up appointment on July 16, 2019, the specialist noted the worker was "significantly disabled from this right hip pain" and that her pain "…may in fact be coming from the hip joint itself, in keeping with hip arthritis secondary to cam impingement." The specialist recommended an ultrasound guided pain injection, and this took place on August 30, 2019.

On September 10, 2019, the worker saw an orthopedic surgeon for follow-up. The surgeon noted the worker reported a small amount of pain relief from the injection but was still experiencing significant pain in her right hip. The surgeon was of the view the diagnostic imaging indicated mild degenerative changes in the right hip joint along with a partial thickness abductor tendon bulk tear and "significant peritrochanteric bursitis" and recommended a right hip open abductor tendon repair, fractional lengthening of the IT band, and debridement of the trochanteric bursa.

On December 4, 2019, a WCB orthopedic consultant reviewed the orthopedic surgeon's report and concluded the diagnosis related to the workplace accident was a contusion of the right hip with the diagnostic imaging indicating degenerative changes not related to the injury caused by the workplace accident. As such, the WCB orthopedic consultant opined the proposed surgery was directed at the worker's pre-existing degenerative condition and not "…any pathology caused by the workplace injury." In a WCB file note of December 4, 2019 the WCB orthopedic consultant further opined that the worker's accepted diagnosis of a right hip contusion was considered to be resolved and her current right hip difficulties were related to the pre-existing degenerative condition.

On December 4, 2019, the WCB wrote to the orthopedic surgeon denying funding for the proposed surgery, and on December 5, 2019, the WCB advised the worker that it had determined she was recovered from the right hip contusion caused by the February 20, 2019 workplace accident and was not entitled to further benefits.

On January 7, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker provided a submission outlining her concerns with the management of her claim and providing copies of photographs, a witness statement and incident report from the date of the accident. She noted in her submission that her treating healthcare providers agreed she did not have issues with her right hip prior to the workplace accident, providing letters of support from her providers. On January 24, 2020, the worker also provided a letter from her treating rheumatologist indicating the worker did not have issues with her right hip prior to the workplace accident.

At the request of Review Office, the worker's file was reviewed by the WCB orthopedic consultant on February 20, 2020. The consultant opined that the worker's ongoing difficulties in the right hip region were the result of the natural history of degenerative conditions and not the result of the contusion sustained on February 20, 2019. The WCB provided a copy of the orthopedic consultant's opinion to the worker on February 20, 2020. A response was provided to Review Office by the worker's treating physiotherapist on March 4, 2020.

On March 24, 2020, Review Office found the worker was not entitled to further benefits related to the right hip and responsibility should not be accepted for the proposed right hip surgery. Review Office relied upon the opinion of the WCB orthopedic consultant that the diagnosis related to the workplace accident was a right hip contusion that did not structurally alter the worker's pre-existing degenerative right hip condition. Further, Review Office found the worker's current right hip difficulties were not related to the workplace accident as it had been determined the worker had recovered from the compensable right hip contusion.

The worker's representative filed an appeal with the Appeal Commission on April 30, 2020 and a hearing took place on December 17, 2020. On January 19, 2021, the Appeal Commission determined the worker was entitled to further benefits in relation to her right hip and that responsibility should be accepted for the proposed right hip surgery, and returned the worker's file to the WCB's Compensation Services.

The worker attended for an initial physiotherapy assessment on January 25, 2021, reporting constant shoulder and hip pain, with significantly limited range of motion in both areas and significant strength deficits. After assessing the worker, the treating physiotherapist diagnosed her with a third degree rotator cuff tear and gluteus minimus tear. On January 29, 2021, the worker's physiotherapist provided the WCB with a physiotherapy treatment plan and recommended a course of therapy. On February 2, 2021, the WCB authorized a course of 20 physiotherapy visits for the worker.

On March 29, 2021, the worker's treating physiotherapist provided the WCB with a progress report and requested a treatment extension. The treating physiotherapist noted the worker's reporting of continued constant pain in her shoulder and hip, significantly decreased range of motion and weakness throughout. It was noted the worker needed surgery and required the physiotherapy treatment for pain relief.

The treating physiotherapist's request, along with the worker's file, was reviewed by a WCB physiotherapy consultant on April 6, 2021. In a memorandum placed to the worker's file, it was noted "…there has been no evidence of improvements in pain and function (rather decreased functional gains)…" and as such, the consultant opined the criteria to authorize an extension of physiotherapy treatment had not been met. It was further noted the worker's treating physiotherapist was to provide the worker with a home based program and the worker should be encouraged to participate in that program. On April 12, 2021, the worker and her treating physiotherapist were advised that an extension for further treatment was not approved.

On May 10, 2021, the worker's representative requested that Review Office reconsider the WCB's decision to deny the worker coverage for additional physiotherapy treatment. The representative noted the evidence provided by the treating physiotherapist indicated the worker's symptoms were improving with the treatment. On June 16, 2021, the worker's treating physiotherapist provided a letter to the WCB which indicated the worker had returned for treatment as her physical status had worsened since treatment stopped and supported the need for the worker to continue her treatment.

On June 23, 2021, Review Office determined the worker was not entitled to further physiotherapy treatments. Review Office agreed with the opinion of the WCB's physiotherapy consultant that the worker's progress had shown little improvement in her function or condition and had not helped the worker in her return to work. Review Office therefore found the worker was not entitled to further physiotherapy treatment at this time. Review Office noted the decision was a point in time decision, and the WCB could approve additional post-surgery physiotherapy if the worker had surgery.

On August 30, 2021, the worker's representative appealed the Review Office decision to the Appeal Commission and a teleconference 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 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) 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..."

WCB Policy 44.120.10, Medical Aid ("the Policy"), sets out general principles regarding a worker's entitlement to medical aid, which is defined to include treatment or services provided by a health care provider. The Policy provides that the WCB determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. The Policy also provides that the WCB'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.

Worker's Position

The worker appeared at the hearing represented by a worker advisor. The worker advisor provided a written submission in advance of the hearing, and made an oral submission to the panel. The worker responded to questions from the worker advisor, and the worker and the worker advisor both responded to questions from the panel.

The worker advisor noted that they were relying on their previous written submission to Review Office, in addition to their oral comments at the hearing. The worker's position was that she required and was entitled to further physiotherapy treatments in respect of her compensable injuries, and her appeal should be granted.

The worker advisor submitted that their primary position was that the WCB erred in declining the request for an extension of the worker's physiotherapy treatments, and her treatments should have continued from the time they were discontinued in the spring of 2021 through to surgery for each of her compensable shoulder and hip injuries.

It was submitted that in deciding to decline the request for further physiotherapy treatments, the WCB applied more restrictive criteria than the criteria under the Policy. The worker advisor noted that on April 6, 2021, the WCB physiotherapy consultant referred to the criteria for authorizing an extension of physiotherapy funding as measurable evidence of a sustained improvement in function as determined by validated outcome measures and the movement towards a return to work. The worker advisor stated that he was not aware of the existence of such criteria, but that in any event, they would be subordinate to the provisions of the Act and the Policy.

The worker advisor noted that while they did not actually see sustained improvement in function as an objective under the Policy, in their submission to Review Office they had nevertheless pointed to functional improvement having occurred between the beginning of February 2021, when physiotherapy treatment for the worker's hip had been approved, and the end of March 2021. The worker advisor submitted that the WCB used the wrong dates in considering whether her symptoms were progressing with physiotherapy, having included several months prior to February 2021 in their calculations, during which physiotherapy was not approved. The measured or functional improvement over the period of time when the physiotherapy was approved was therefore minimized.

The worker advisor submitted that the criteria for funding of physiotherapy treatment under the Policy includes pain relief, which the evidence shows the worker obtained through her physiotherapy treatments, especially when she was going to physiotherapy twice a week. It was noted that the worker continued to attend physiotherapy in anticipation of the upcoming surgeries at her own expense, after the extension was denied by the WCB, but could only afford to go once a week. The worker advisor submitted that the evidence also showed mobility and functional improvement with physiotherapy treatments, but that this was again limited after the request for extension was declined.

The worker advisor submitted that the WCB also erred in applying a different approach to coverage for physiotherapy for her compensable hip injury as compared to her shoulder injury. It was noted that the WCB had approved 44 sessions for the shoulder injury, but only allowed 20 sessions, with no extensions, for her hip injury. The worker advisor noted that the worker was therefore limited to the initial 20 sessions only, even though the goal with respect to physiotherapy was to assist the worker to regain what had been lost due to the disruption in medical care, in advance of eventual hip surgery.

The worker advisor submitted that in denying the extension of funding for physiotherapy, the WCB disregarded the goal to achieve a better surgical outcome and the goal to obtain pain relief.

The worker advisor submitted that the need for the surgeries and the view of healthcare providers that in-clinic physiotherapy will or should help achieve a better surgical outcome should be part of the analysis in terms of whether the WCB should fund more physiotherapy treatment.

The worker advisor submitted that the best judge as to whether the worker required more physiotherapy would be her sports medicine physician and physiotherapist who provided her with hands-on treatment, and asked that the panel prefer the opinion of the worker's treating healthcare providers over that of the WCB physiotherapy consultant.

The worker confirmed at the appeal that she was scheduled for surgery on her shoulder on April 14, 2022. The worker advisor agreed that there were two potential phases involving physiotherapy, a rehabilitative phase for an injury and a rehabilitative phase from surgery and that the question of what happens post-surgery is completely separate and not part of the appeal. The worker advisor indicated that what they were really looking at on this appeal was reimbursement for the treatments the worker herself paid from June 2021 forward.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to further physiotherapy treatment. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that further physiotherapy treatment is necessary to cure and provide relief from the worker's injuries resulting from the February 20, 2019 workplace accident. After a careful review of all of the evidence and submissions, on file and as presented at the hearing, the panel is unable to make that finding.

While the worker advisor has argued that the treating healthcare providers have recommended physiotherapy, the panel is satisfied that there is a lack of clinical findings to justify or rationalize a need for further or ongoing in-clinic treatment in the circumstances.

The worker indicated that the physiotherapy treatment has helped in reducing pain, and in keeping her mobile in advance of upcoming surgery. In terms of mobility, the worker said it allowed her to perform daily functions in her home, to cook, keep moving and helped a bit with her sleep.

The evidence shows that the worker continued to attend physiotherapy sessions at her own expense after WCB funding for further physiotherapy was denied. When asked at the hearing what treatment she was receiving at in-clinic physiotherapy sessions that could not occur at home, the worker referred to acupuncture and ultrasound, and confirmed that this covered everything.

The panel finds that the evidence shows that any pain relief the worker obtained through in-clinic physiotherapy treatments is temporary only and not sustained. In response to questions from the panel, the worker indicated that the pain in her shoulder is very constant, probably around 9 or 10, and that after physiotherapy, when the physiotherapist does acupuncture "…which really helps kind of control the pain, and the ultrasound, and then what I find is it helps with sleeping…" and goes down to maybe 7 or 6. The worker also indicated that her hip is in constant pain, at 9 out of 10, and then after physiotherapy, "…maybe an 8." With respect to how long that pain relief lasts, the worker stated that:

Well, the thing is I only go once a week, so when I was with the WCB, when they were treating me, it was twice a week, so I have better pain management when it was twice a week, so I have a bit of relief, a day or two.

The evidence shows that the worker was provided with a home program as part of the physiotherapy treatments she received. The worker confirmed at the hearing that the physiotherapist had provided her with a home program and instructions as to things she could do at home. The expectation would be that the worker would have developed the basic knowledge to continue with core exercises on her own. The worker indicated at the hearing that she continues with her home-based program as much as she can, depending on how she feels, and tries to do her stretches daily.

The Policy states that the purpose of medical aid is to promote a safe and early recovery and return to work and eliminate or minimize the impacts of a worker's injury. Medical aid is generally approved where it is expected or likely to improve, as opposed to maintain, a worker's functioning and recovery.

The panel understands that physiotherapy is part of a rehabilitative process, as opposed to a maintenance or ongoing pain relief process. The panel further understands that in-clinic physiotherapy is generally a relatively short-term process. In the circumstances of this case, including given the need for surgery in respect of the worker's injuries, the panel is of the view that the request for further in-clinic physiotherapy treatment would be for maintenance purposes, which is not covered by the Policy.

Based on the foregoing, the panel finds, on a balance of probabilities, that further physiotherapy treatment is not necessary to cure and provide relief from the worker's injuries resulting from the February 20, 2019 workplace accident. As a result, the worker is not entitled to further physiotherapy treatment at this time. The panel notes that, as indicated above and in the Review Office decision, this is a point in time decision, and does not preclude the WCB from approving additional therapy post-surgery.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 20th day of May, 2022