Decision #64/22 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further physiotherapy treatment. A videoconference hearing was held on June 2, 2022 to consider the worker's appeal.
Whether or not the worker is entitled to further physiotherapy treatment.
The worker is not entitled to further physiotherapy treatment.
A Worker Incident Report was received by the WCB on August 24, 2021 reporting an injury to the worker's right leg/knee that occurred at work on the same date. The worker described being grabbed by a resident and trying to break free, "...causing a pull on both my right knee and leg." The worker further noted this incident aggravated an earlier back injury they had sustained, for which they had an accepted WCB claim. The worker also noted they were unable to finish their shift.
The worker was examined by a nurse practitioner on August 24, 2021 reporting their right leg and hamstring hurt, with tingling in the left leg and cramping in the left hamstring and calf. The nurse practitioner noted the worker was walking with a limp, had good range of motion with some pain at end points but did not provide a diagnosis. Rest, physiotherapy and anti-inflammatory medication was recommended. The worker attended for an initial physiotherapy assessment on August 25, 2021. The worker reported pain to their lower back, posterior right hip and constant pain to the back of their right knee, and noted walking and going down stairs increased their symptoms. The physiotherapist reported tenderness and tightness to the worker's right hamstring, right gluteal area, right greater than left paraspinals and right quadrilateral area with a slight antalgic gait. A diagnosis of a lumbar, right gluteal, and right hamstring strain was provided and home exercises were provided. Restrictions of no lifting greater than 10 pounds and breaks from prolonged walking, standing and sitting as needed were recommended.
On August 30, 2021, the employer submitted the Employer's Accident Report confirming the mechanism of injury reported by the worker and noted the worker had a previous injury and was on a graduated return to work program when the August 24, 2021 workplace accident occurred.
The WCB contacted the worker on September 1, 2021 to discuss their claim. The worker advised that prior to the incident, they felt their back was about 80% recovered from the previous injury and, after the incident, they felt their recovery went to 50%. The worker also advised their leg was much better and felt about 75% healed. The worker's claim was accepted by the WCB and on September 1, 2021, authorization was given to the worker's treating physiotherapist for up to 20 visits.
A Physiotherapy Progress Report was received by the WCB on September 10, 2021. The worker reported that prolonged walking bothered their hips, greater on the right side than the left, and behind their right knee. Forward bending and twisting aggravated their low back. The treating physiotherapist indicated tightness to the worker's right hamstring, high levels of pain on flexion of the worker's right knee and right hip. Continued home exercises were recommended and restrictions were upgraded to breaks from prolonged walking, standing or sitting as needed; no lifting greater than 15 pounds; and avoidance of repetitive or sustained forward bending. A further follow-up assessment on October 18, 2021 noted similar symptoms, provided further home exercises and updated workplace restrictions to no lifting greater than 20 pounds and allow breaks from repetitive forward bending/twisting as needed.
On November 4, 2021, a further physiotherapy progress report was received, noting the worker's reporting of discomfort across their low back and hips and tightness to the right hamstring and hip, with the right leg being weaker than the left. After examining the worker, the physiotherapist recorded tightness to the worker's right gluteus medius, right greater than left paraspinals and right hamstring and noted on right hip extension, the worker reported 4+ out of 5 on the pain scale. Back, hip and hamstring stretching, hip and core strengthening and hamstring strengthening home exercises were recommended and the physiotherapist recommended the worker could return to regular duties. On November 19, 2021, the WCB received a request for an extension of treatment from the worker's treating physiotherapist, who indicated "further strengthening, reconditioning and manual therapy to return her pre-incident function" as the rationale for requesting further treatment. A further follow-up assessment on November 29, 2021 noted the worker's reporting of feeling at 75% and "…at some point in the day pain in [the] low back gets to 3/10".
The treating physiotherapist's request for an extension was reviewed by a WCB physiotherapy advisor on December 1, 2021 who provided there was no evidence the worker required further in-clinic treatment, with continued home exercises recommended. The advisor opined "It is now 3+ months post strain type of injury with an ability to return to full duties. Further in-clinic care is unlikely to result in a sustained improvement in function or alter the natural history of recovery at this time." On December 1, 2021, the worker and the treating physiotherapist were advised the request for an extension of treatment was not approved.
The worker requested reconsideration of the WCB's decision to Review Office on December 7, 2021. In their submission, the worker noted the physiotherapy treatments they had been undergoing "…markedly decrease my pain and stiffness, and allow me to perform the physiotherapist prescribed exercises that should get me back to my normal self. My physiotherapist told me that he thinks I will be back to normal with continued treatments and workouts." The worker also noted they continue to perform the stretching recommended by their treating physiotherapist throughout their work day; however, they continue to feel stiff and require ongoing treatment.
Review Office determined on January 18, 2022, the worker was not entitled to further physiotherapy treatment. Review Office acknowledged the worker had two WCB claims in the same year but noted that by November 2021, the worker's functional improvement allowed them to return to regular duties, with the treating physiotherapist noting reduced symptoms, which was within a normal recovery period from a strain type injury. Review Office noted the worker did report some ongoing symptoms but found those symptoms would not require further in-clinic physiotherapy treatment.
The worker filed an appeal with the Appeal Commission on January 26, 2022 and a videoconference hearing was arranged.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies of the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker's accident are applicable.
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. Under subsection 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
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(20) of the Act provides that the WCB may provide academic, vocational and rehabilitative assistance to injured workers, and reads as follows:
Academic, vocational, rehabilitative assistance
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.
WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy") sets out general principles regarding a worker's entitlement to medical aid. The Medical Aid Policy states 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. The Policy further provides that the WCB will refuse or limit funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.
The worker made a submission to the panel and responded to the panel’s questions. The worker appealed the WCB’s decision on the basis that the WCB’s obligation under subsection 27(1) of the Act to provide medical aid had not been met. The worker felt unable to do all day-to-day activities without restrictions, primarily due to lower back pain. They did not feel fully recovered and had not been discharged by their physiotherapist. The worker found that physiotherapy improved their ability to undertake daily activities, beyond what they were able to achieve with in-home therapy.
The employer did not participate in the appeal hearing.
Following the workplace accident on August 24, 2021, the worker saw a nurse practitioner who completed a Doctor First Report, noting the subjective complaints as right leg and hamstring hurt, left leg tingling, left hamstring and calf cramped. There is no mention in the Report of injury to the worker’s back, other than a reference to the worker receiving physiotherapy for a prior workplace injury.
The WCB advised the treating physiotherapist that the worker’s claim for an injury to the right knee/leg was approved and physiotherapy treatment authorized for the initial assessment and up to 20 visits. Following completion of these physiotherapy treatments, on November 4, 2021, the physiotherapist recommended home exercises for back, hip and hamstring stretching, hip and core strengthening and hamstring strengthening. The physiotherapist indicated that the worker could return to regular duties. However, on November 19, 2021, the WCB received the physiotherapist’s request for coverage for additional treatments. The panel was not provided with any clinical medical evidence as to why further physiotherapy was warranted.
The worker’s prior accepted claim was for lumbar strain as a result of an accident on April 26, 2021. Following that injury, the worker saw a physician on May 4, 2021 and the physician noted the worker’s lower back pain and reported “sounds mechanical”. The worker was receiving physiotherapy treatment for that injury. The worker was deemed by the WCB to have recovered from the April 2021 injury and, despite the worker continuing to report back discomfort and a continuing need for physiotherapy, no appeal of that decision was made. No evidence was provided to the panel of any follow-up on the physician’s note concerning a possible mechanical issue.
The worker felt that the August accident aggravated the lower back injury suffered in the April, 2021 accident but did not see a physician until February 2022 thus there is no medical evidence in support of this conclusion.
The panel notes that the worker’s description of on-going discomfort and restrictions with respect to activities of daily living that involve the worker’s back would not be expected to arise from a strain which was the basis for acceptance of this claim. The panel was not provided with sufficient medical evidence to support the need for on-going physiotherapy treatment as a result of the August 2021 injury. The physiotherapist’s report of November 3, 2021 stated that the worker could perform regular duties. Accordingly, the panel concludes that the worker is not entitled to further physiotherapy treatment for this injury.
The worker’s appeal is dismissed.
K. Gilson, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Gilson - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of June, 2022