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 further physiotherapy treatment. A file review was held on March 30, 2023 to consider the worker's appeal.

Issue

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

Decision

The worker is entitled to further physiotherapy treatment.

Background

This claim has been the subject of a previous appeal. Please see Appeal Commission Decision No. 9/99, dated January 19, 1999. The background will therefore not be repeated in its entirety.

The worker sustained injury to their left lower back on November 28, 1996 and made a claim to the WCB, which was accepted in relation to the diagnosis of discogenic back pain with nerve root effect and left L5 facet mechanical pain in an environment of pre-existing degenerative changes. The worker received various conservative treatment, including extensive physiotherapy and permanent restrictions were imposed. The worker received wage loss benefits from the WCB until they reached the age of 65 in 2007.

On August 30, 2016, the WCB received a physiotherapy initial assessment report in which the physiotherapist noted the worker was experiencing lower back pain and requested approval for further treatment. The WCB approved 12 sessions to help with the worker’s reported difficulties. The Physiotherapy Discharge report received on January 23, 2017 noted the worker reported no leg pain and improved lower back pain.

On March 14, 2018, a further physiotherapy initial assessment report was received, requesting 12 sessions as the worker was experiencing a flare-up of their symptoms, including tightness in their lower back that limited their movement. At the request of the WCB, a WCB physiotherapy advisor reviewed the worker’s file on March 15, 2018 and provided an opinion on March 27, 2018 that, given the worker’s accepted diagnosis, they would experience waxing and waning of their symptoms and further in-clinic physiotherapy treatment was unlikely to help the natural history of recovery. The WCB approved 8 additional sessions. In the May 7, 2018 discharge report, the physiotherapist noted the worker continued to experience some pain, but their range of motion had improved.

On August 17, 2022, the worker contacted the WCB with complaints affecting their low back including shortness of breath when standing, tightness and pain as well as a loss of mobility. They requested approval of further physiotherapy. The WCB received a report from a physiotherapist reporting the worker’s recent flare-up of symptoms affecting the low and mid back and complaints of the right leg going numb on occasion. This report and the worker’s file were reviewed by a WCB physiotherapy consultant on October 5, 2022. The physiotherapy consultant concluded that based on the available information, the current diagnosis was mechanical back pain affecting the mid and low back that they indicated was age related, as well as right leg radicular type symptoms. The consultant noted it was unlikely the worker’s current symptoms would be related to the original injury, referring to an August 2007 report that noted the worker presented with lower back pain with radicular symptoms affecting the left leg and not the right. The physiotherapist noted the current symptoms were inconsistent with the original accepted WCB diagnosis.

On October 6, 2022, the WCB advised the worker they were not entitled to further physiotherapy treatment.

On December 8, 2022, the worker requested Review Office reconsider the WCB’s decision. In their submission, the worker noted they continued to experience pain and had not recovered. They noted physiotherapy helped with the pain and that their pain on the left side had increased, making it difficult for them to sleep. Review Office determined on December 16, 2022 that the worker was not entitled to coverage for further physiotherapy treatment. Review Office accepted the opinion of the WCB physiotherapy advisor and could not establish a relationship between the worker’s current difficulties, the need for further physiotherapy and the original 1996 workplace accident.

The worker filed an appeal with the Appeal Commission on January 11, 2023 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. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

Section 4(1) of the Act provides that a worker is entitled to benefits under the Act when it is established that a worker has sustained an injury as a result of an accident at work. 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 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”) to define key terms and set 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’s position is set out in the Appeal of Claims Decision form signed on January 8, 2023 as well as in their written submissions to Review Office dated November 27, 2022.

The worker’s position is that they are entitled to further physiotherapy because the symptoms for which they are seeking treatment are in the same region as previously, being low back, mid back, and left leg and with shooting pain that makes it difficult to sleep. The only difference, the worker explained, is that they now also have increased right leg pain. The worker noted that they require treatment to address these symptoms and cannot afford to pursue treatment without WCB support.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The question for determination on appeal is related to the worker’s request for approval of further physiotherapy treatment. For the worker’s appeal to succeed, the panel would have to determine that the worker requires such treatment to cure and provide relief from symptoms related to the compensable workplace injury of November 28, 1996. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The WCB file record confirms that the worker has a chronic condition arising from the compensable accident of 1996 and was not recovered when their most recent physiotherapy treatment concluded in 2018. As noted in the file, the WCB placed permanent restrictions on the worker in March 2003 and the worker was deemed unemployable at that time. At the time of the permanent partial impairment assessment in 2007, the WCB determined the permanent impairment of the worker’s lumbar and thoracic regions at 6.9% of whole body impairment. The panel noted as well that at the time of the permanent impairment assessment, the worker reported “continued pain in the low back with shooting pain into the left leg” with pain controlled by medication and use of a TENS machine and exercise.

On requesting authorization for physiotherapy in August 2016, the physiotherapist indicated clinical findings including positive bilateral straight leg raise, with pain noted on the left and the diagnosis of chronic low back pain. On discharge from physiotherapy on January 23, 2017, the physiotherapist noted the worker had returned to the level of function and symptoms they had “prior to this flare-up.” The March 13, 2018 physiotherapy request was based on another flareup of the worker’s left-sided low back pain. At that time, the WCB physiotherapy advisor noted “In consideration of the natural history of the diagnosis accepted on file, there will likely be periods of waxing and waning of symptoms to the lower back. Further in clinic care is unlikely to alter the natural history of recovery. Any funding would be adjudicative in nature.” The physiotherapy discharge report of May 7, 2018 indicated the worker’s acute symptoms were settled but the worker reported continued central pain and the left sided range of motion was limited in terms of flexion.

Similarly, the present request for physiotherapy was based upon the worker’s report of a “recent flare up of symptoms in low and mid back with increasing intensity. Worse with prolonged standing. Pain sometimes takes [their] breath away. R[ight] leg goes numb on occasion and looses (sic) power.” The physiotherapist recorded lumbar spine reduced range of motion, worse on the left than the right with all movement painful, a positive slump test, bilateral “low back and post leg pain” bilaterally, as well as positive bilateral straight leg testing at 65-70 degrees. The recommended treatment was for a total of 16 visits, with two visits weekly for 6 weeks followed by one visit weekly for 4 weeks, with a home exercise program also recommended.

The panel noted that the prior requests in 2016 and 2018 were approved on an adjudicative basis, in each case authorizing a limited course of physiotherapy to provide relief to the worker from an occasional acute flare up, which was found to be related to the worker’s compensable injury. Although the WCB physiotherapy consultant, in their October 5, 2022 report noted some new findings in the most recent request for treatment, they also concluded that “The diagnosis of mechanical lower back pain would likely be related to the compensable injury, however the osteoarthritis changes and right radicular pain would not likely be considered related to the compensable injury.” The panel accepts that the proposed treatment is not intended to cure the worker from their chronic low back condition, it is likely, based on the recent history, to provide relief to the worker from the acute flare up of symptoms related to that condition.

Based upon the prior physiotherapy discharge reports and the present request, including the recent assessment findings, the panel is satisfied that the proposed physiotherapy is intended to provide relief from the worker’s low back symptoms which are related, at least in part if not wholly, to the compensable workplace low back injury sustained in 1996.

Therefore, the panel determines on the basis of the evidence before us and on the standard of a balance of probabilities, that the worker is entitled to further physiotherapy treatment, and we refer the claim back to the WCB to adjudicate the nature and extent of that entitlement. The worker’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
D. Rhoda, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 1st day of May, 2023