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 coverage for additional athletic therapy treatment. A file review was held on November 30, 2022 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to coverage for additional athletic therapy treatment.

Decision

The worker is not entitled to coverage for additional athletic therapy treatment.

Background

On February 25, 2022, the employer submitted an Employer’s Accident Report to the WCB reporting the worker injured their left hip, pelvis and abdomen as the result of an incident at work on February 23, 2022, reported to them on February 24, 2022. The employer described the worker’s report of injury as follows:

Crouched down, reached arms and stepped sideways prepping equipment for animal procedure, unable to stand on leg, shooting pain, painful in hip and lateral abdomen following. Later stood and reached to the left and felt pain. The following day painful when walking and sitting in hip and lateral abdomen.

The employer noted they could accommodate workplace restrictions for the worker.

The worker attended an initial physiotherapy assessment on February 25, 2022, reporting sharp pain with a burning sensation to the front of their leg, numbness and tingling in their hip. The treating physiotherapist diagnosed a sprained left sacroiliac joint and labral irritation, noted the injury was acute and recommended the worker contact their treating physician to discuss a return to work. In discussion with the WCB on February 28, 2022, the worker confirmed the mechanism of injury and described “…intense shooting pain down left leg, and pain in pubic area and hip. Pain scale 10/10. When the shooting pain was gone pain scale 5/10”. The worker advised of an appointment scheduled with their physician on March 8, 2022. The WCB confirmed that the claim was accepted, and payment of various benefits began.

On March 15, 2022, the worker attended a follow-up physiotherapy appointment and was provided workplace restrictions until March 28, 2022 of no lifting greater than 8 kg; pushing and pulling max 60 kg; walking and standing no more than 66% of day; sitting 33% of day; squatting 65% of day; kneeling 33% of day; and no repetitive low back movements. The restrictions were provided to the employer on the same date and the worker returned to full duties with restrictions on March 22, 2022.

The worker continued to receive medical treatment for the workplace injury and attended for initial assessment with an athletic therapist on March 28, 2022. In the initial report, the athletic therapist noted the worker was recovering from left hip/low back pain but aggravated the area on March 27, 2022 and felt their low back “lock up”, with increasing pain throughout that day. The therapist recorded the worker’s complaints of extreme low back pain, right anterior hip deep throbbing pain, difficulty sitting/standing/walking and bending, sciatic pain down their left leg, left abdominal muscle pain/throbbing and difficulty with the activities of daily living, and recommended the worker be off work due to constant pain with minimal relief. At follow-up on April 11, 2022, the athletic therapist provided workplace restrictions and a graduated return to work schedule. On April 21, 2022, the WCB received a Doctor First Report from the worker’s treating physician who offered a diagnosis of a left hip and low back strain and recommended restrictions as noted by the treating athletic therapist. Prior appointments on March 15, 2022 and March 21, 2022 were also noted.

On May 11, 2022, the treating athletic therapist requested an extension of treatment noting the worker’s job duties required them to be at “…full strength and confidence when lifting objects heavy in weight and multiple shapes/sizes” and to build the worker’s strength, continued slow progressions were recommended. A WCB physiotherapy advisor reviewed the claim on June 2, 2022, and concluded that the mechanism of injury reported, of standing up from a crouched position, “…would be considered a minor force…” and treatment 8 weeks post injury would not be required; therefore, the extension requested was not supported.

On June 3, 2022, the WCB advised the treating athletic therapist by letter that the request for an extension of treatment was not approved. A further report from the therapist dated June 20, 2022

indicated the worker could lift 70 lbs. from their knees and 50 lbs. from the floor. In a July 14, 2022 opinion, the WCB physiotherapy advisor noted this represented “…normal lifting abilities as per age and gender normal values.”

The worker requested reconsideration of the WCB’s decision to Review Office on June 13, 2022, noting they continued to experience difficulties from the workplace injury and required ongoing treatment to deal with their symptoms. On July 19, 2022, Review Office determined the worker was not entitled to coverage for further athletic therapy treatment. Review Office found the worker had functionally recovered from their left hip sprain and the medical evidence did not support the worker required further athletic therapy treatment.

The worker filed an appeal with the Appeal Commission on July 29, 2022 and a file review was arranged.

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.

Section 4(1) of the Act provides that compensation is payable under the Act when it is established that a worker has been injured as a result of an accident arising out of and in the course of employment. When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act.

Section 27 of the Act allows the WCB to provide “any medical aid the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker”.

The WCB has established Policy 44.120.10, Medical Aid (the “Policy”) to define key terms and sets out general principles regarding a worker's entitlement to medical aid. The Policy notes that medical aid, as defined in the Act, includes treatment or services provided by healthcare providers. The Policy goes on to set out that the general principles governing the WCB's funding of medical aid include the following:

• 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 promotes timely and cost-effective access to medical aid. 

• Workers are entitled to select their own health care provider, subject to the Board's control and supervision of medical aid. 

• 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.

Worker’s Position

The worker represented themself in respect of the appeal. The worker’s position is as outlined in the Appeal of Claims Decision form filed with the Appeal Commission on July 26, 2022. In that document the worker set out that:

I remain on light duty at work and am affected by the injury both in and out side (sic) of work. This is an injury that was sustained while at work. I am improving while going to athletic therapy and am on a program of once per week and additional sessions when flare ups occur. I have been paying for these treatments since the decision to stop by WCB was made. The hands on therapy provided is a key component in recovery. Until I am able to function at full capacity I believe I should be supported financially in this treatment. I am investing time and money in a treatment that is working to allow me to completely recover, a treatment that is needed due to an injury that occurred at work. The treatment plan is also supported by my physician.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question on appeal is whether the worker is entitled to coverage for additional athletic therapy treatment. For the worker’s appeal to be granted the panel would have to determine that the worker requires medical aid in the form of additional athletic therapy to cure or provide relief from the injury sustained in the compensable workplace accident. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore, the worker’s appeal is denied.

The panel reviewed and considered the medical reporting in support of the request for coverage of additional athletic therapy. Following the initial injury on February 23, 2022, the WCB approved a course of 18 physiotherapy treatments. In the course of that treatment, the worker switched from the initial physiotherapist to another physiotherapist focused on athletic therapy. The March 28, 2022 assessment by the athletic therapist noted the worker could not perform daily tasks without pain or lift even light objects and could not stand or sit for prolonged periods. The athletic therapist outlined a treatment plan of 2 visits weekly for 6 weeks followed by 1 visit weekly for 6 weeks, with a home program provided. In the first progress report, the athletic therapist noted the worker’s pain and inflammation were decreased and that the worker could perform passive and non-weighted active range of motion exercises with “minimal discomfort.” They recommended alternate or modified duties with restrictions and a graduated return to work over a two week period. The treating family physician agreed with this plan on April 21, 2022 and noted the worker was “significantly better” with normal range of motion, ability to squat and walk heel/toe, but some mild left hip discomfort.

When requesting approval for additional treatment in early May 2022, the athletic therapist noted the worker was walking with a normal gait, could squat to 90 degrees pain-free and touch toes with only slight low back tightness. Further, they noted the worker’s passive range of motion was normal and that “In a controlled environment and with proper bracing, [the worker] is able to lift 30-40 lbs off the floor, 40-50 lbs if lifting from the waist but keeping load close to body. [The worker] is still weak and unstable lifting objects while reaching or twisting. [The worker] is able to push/pull 50-60 lbs using whole body in a straight line.” The athletic therapist requested 12 further treatments noting that due to the nature of the worker’s job, it is important “…to restore full strength and confidence when lifting objects heavy in weight and multiple shapes/sizes. In order to build up [their] strength and low back resiliency, slow progressions are needed in a controlled environment.” The worker’s treating physician on May 12, 2022 endorsed the athletic therapist’s May 9, 2022 recommendations in respect of continued modified duties with restrictions for 4 more weeks; however, the panel noted that the physician did not assess the worker on May 12, 2022 with respect to the compensable injury.

In conversation with the WCB on May 26, 2022, the athletic therapist explained that the request was based on the worker’s specific job demands which require heavy lifting and reaching in awkward positions at random times, noting again that the worker needed to get stronger and accustomed to the randomness and that it was difficult for the worker to rely only on the provided home program to build up their strength. While this request was being assessed, the WCB approved 4 further treatments on an interim basis.

When the WCB physiotherapy advisor reviewed the file on June 2, 2022, they concluded that these additional 4 sessions should be adequate with the worker continuing their home based program and that in clinic treatment should not be needed beyond 8 weeks post-accident for “a minor force” injury as occurred here. In a further request for additional treatment of June 24, 2022, the athletic therapist noted the worker’s recent numbness down their lateral left leg and into their tibia, and that the worker’s overall strength had improved, but also noted signs of weakness/instability with anti-rotation movements and forward reaching under load, with sciatic pain that decreases with exercise but returns when fatigued or standing/sitting for extended periods. The therapist again stressed the need for in clinic therapy, including manual therapy “to help recover from work week and manage sciatic pain.” On July 25, 2022 the treating family physician noted normal range of motion in the worker’s back with tenderness in the right lower lumbar region and that the worker’s injury was “almost resolved.”

The panel also considered the further opinions provided by the WCB physiotherapy advisor and the WCB medical advisor. The physiotherapy advisor again reviewed the file on July 14, 2022 and noted that the recommended restrictions outlined by the athletic therapist on June 20, 2022 permitted the worker to lift 70 lbs. from their knees and 50 lbs. from the floor which would be considered “normal lifting abilities as per age and gender normal values” and that expected recovery from the compensable diagnosis of a soft tissue left hip injury was expected within 2–8 weeks. The WCB medical advisor, on October 5, 2022 expressed the view that at 7 months post-injury, a relationship between the worker’s current diagnosis and the accident of February 23, 2022 was unclear, noting the July 25, 2022 findings of the treating family physician. In the report from the October 12, 2022 call-in examination, the medical advisor noted the worker indicated that “the athletic therapy has helped the feeling of congestion in [their] left anterior inguinal region and has reduced the frequency of [their] complaints. In addition, [the worker] now feels stronger despite intermittent flares, which occur somewhat at random.” The medical advisor concluded that “The relatively minimal objective findings today (and as reported by the family physician on July 25, 2022) do not appear to correlate with the complaints and functional limitations as described today.”

The panel is not convinced by the rationale for additional treatment provided by the treating athletic therapist and finds that the proposed athletic therapy treatments appear to be more for maintenance of function than for rehabilitation or increase of the worker’s function. The evidence supports that the worker had recovered significant function by June 2022 as demonstrated by the clinical findings and the relatively limited restrictions proposed beyond that time. Further, we find that the evidence does not support a need for ongoing in-clinic treatment. The panel accepts and relies upon the opinions of the WCB physiotherapy advisor and the WCB medical advisor in this respect, noting as well that the treating physician did not report any concerning findings that would support the need for further treatment.

The panel is satisfied that the worker did not require further treatment for this sprain type of injury sustained in the workplace accident of February 23, 2022 as the available evidence supports the worker had regained significant functional ability by June 2022.

On the basis of the evidence before the panel and on the standard of a balance of probabilities, the panel is satisfied that the worker does not require additional athletic therapy to cure or provide relief from the injury of February 23, 2022. Therefore, the worker’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 13th day of January, 2023