The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further physiotherapy treatment. A file review was held on April 25, 2023 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

The worker has an accepted WCB claim after contracting COVID-19 at work on April 23, 2021. The worker suffered a severe reaction and was hospitalized for approximately four weeks, during which time he was intubated on a respirator. The worker sustained secondary injuries as a result of being intubated and requiring assisted repositioning. Following his discharge from the hospital, the worker experienced ongoing side effects, including fatigue, breathing restrictions and memory fog, as well as left shoulder difficulties.

On May 31, 2021, the worker attended a physiotherapy assessment for his post COVID-19 symptoms. The worker reported he felt generally weak, tired quickly, was unable to climb stairs, was limited with respect to walking and using a walker, had limited range of motion, and required assistance for activities of daily living. The physiotherapist noted a diagnosis of post-COVID-19 recovery, and that the worker required increased in-clinic care and exercise supervision, and might require a work hardening/reconditioning program for a return to work.

On June 14, 2021, the WCB approved 21 physiotherapy sessions for the worker, 10 of which could be billed as multi-site visits. At his appointment with the treating physiotherapist on June 29, 2021, the worker reported pain to his left shoulder with repetitive use and the treating physiotherapist noted reduced range of motion and left shoulder fatigue when performing overhead exercises. Additional extensions for physiotherapy treatment were approved by the WCB.

On December 13, 2021, the worker was seen by an orthopedic specialist with respect to his left shoulder. The specialist noted that the worker's presentation was consistent with a resolving frozen shoulder, which would generally resolve with non-operative management as seemed to be occurring in his case. The physician noted he had advised the worker that it was important to continue with physiotherapy treatment as well as home-based exercises to try to improve his range of motion and strength.

In a February 7, 2022 report to the WCB, the treating physiotherapist noted the worker continued to experience fatigue, muscle pain and decreased strength from the compensable injury as well as left shoulder pain which limited his ability to return to his pre-accident duties. The physiotherapist requested an additional four physiotherapy visits for the worker to continue his active based rehabilitation in-clinic and progress his exercises and the endurance of his left shoulder. The physiotherapist also recommended a TENS unit for the worker to use at home to aid in managing his symptoms. The WCB approved an extension of four physiotherapy sessions for strengthening on February 15, 2022, and coverage for a home TENS unit for the worker on February 17, 2022.

On April 7, 2022, the WCB received an application for additional treatment from the worker's treating physiotherapist. The physiotherapist reported that at his April 5, 2022 appointment, the worker complained of fatigue; that certain motions aggravated his left shoulder, such as reaching up to put on a jacket; that he had decreased strength in the shoulder and intermittent tingling to the left arm/hand; and that his shoulder was "noisy" with motion. The physiotherapist reported findings of decreased active range of motion in the worker's left shoulder with some discomfort, "popping to shoulder," and tingling in the worker's hand. The physiotherapist noted as the rationale for requesting additional treatment that the worker continued to have limitations in endurance and strength in the left shoulder which limited his ability to return to his pre-accident job duties, and provided work restrictions. On April 19, 2022, the WCB advised the physiotherapist that the requested extension was denied pending the outcome of a WCB call-in examination.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on April 21, 2022. After examining the worker, the medical advisor noted with respect to the worker's left shoulder, that inspection of the shoulder showed no difference bilaterally and that muscle strength was bilaterally equal. Impingement tests were all normal on the right and showed some signs of impingement on the left. The WCB medical advisor provided restrictions for the worker of avoid lifting more than 5 lbs above shoulder level with the left arm and avoid lifting more than 40 lbs with the left arm up to shoulder level, to be reviewed in two months.

A WCB physiotherapy advisor reviewed the call-in examination notes and discussed the examination findings with the WCB medical advisor. In a note to file on May 9, 2022, the physiotherapy advisor opined that "A review of the file and discussion with the medical consultant to the WCB does not support that an extension of in clinic therapy is likely to be associated with long term sustained functional gains beyond that which would be anticipated from adherence to an active based home program." On May 11, 2022, the WCB advised the worker's treating physiotherapist that they were unable to approve an extension request at that time.

On May 20, 2022, the worker attended a follow-up appointment with his treating family physician, reporting his left shoulder had been irritated for a "few weeks," with anterior pain/ache with simple range of motion and rapid onset of numbness to his left hand after elevating his arm. The physician noted findings of full range of motion of the worker's shoulder and that the worker could "…easily elevate above head which was not smooth previously." The physician referred the worker for a nerve conduction study to rule out a brachial plexus injury or more distal neuropathy. The physician further noted that no limitation of the worker's current duties was anticipated.

On August 2, 2022, the worker's file was reviewed by the WCB medical advisor, who noted that the worker's range of motion during the April 21, 2022 call-in examination was found to be essentially normal and the family physician reported normal range of motion of the worker's left shoulder at the May 20, 2022 appointment. No ongoing restrictions were recommended.

On August 25, 2022, the worker requested that Review Office reconsider the WCB's May 11, 2022 decision that he was not entitled to further physiotherapy treatment. The worker noted he still attended physiotherapy weekly when his schedule permitted, and he started to get discomfort and pain in his shoulder if he did not go for more than two weeks. The worker further noted that his surgeon had told him he should continue physiotherapy to heal his shoulder issue.

On October 6, 2022, Review Office determined the worker was not entitled to further physiotherapy treatment. Review Office noted that the medical information on file supported the worker's frozen shoulder had been resolving for the past 16 months, as would be expected. Review Office noted the worker had been provided with over 50 physiotherapy treatments to date and had been educated on how to care for himself and continue rehabbing his left shoulder. Review Office found that further in-clinic physiotherapy treatments would not likely result in any more improvement than would occur with regular home based exercises. Review Office concluded that further in-house physiotherapy treatments would be "ineffective" in addressing or providing further "relief from an injury" in relation to the worker's left shoulder difficulties and there was no entitlement to further physiotherapy treatment.

On February 2, 2023, the worker appealed the Review Office decision to the Appeal Commission and a file review 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. The provisions of the Act which were in effect as at the date of the April 23, 2021 workplace incident 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.

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."

The WCB's Board of Directors has established Policy 44.120.10, Medical Aid (the "Policy"), which defines 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 general principles governing the WCB's funding of medical aid, as outlined in the Policy, 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'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 Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

Worker's Position

The worker represented himself on the appeal.

The worker's position is that he is entitled to further coverage for physiotherapy treatment for the shoulder injury he sustained in May 2021 while he was in hospital being treated for his April 23, 2021 workplace injury, and his appeal should be granted.

The worker outlined the basis for his appeal in his February 2, 2023 Appeal of Claims Decision form, as follows:

I believe this decision should be overturned because I have seen two specialists at the [clinic name] with the more recent being [specialist's name] and my instructions from him was (sic) to continue with what I am currently doing (physio and massage therapy alternated every 2 weeks) in order to keep things comfortable as he believes that if we did surgery there is more than a 50% chance it would fail within 5 years. He also told me that should it start becoming increasingly uncomfortable/painful he would do an ultrasound guided injection into the shoulder to help with comfort. I was also told to expect to have to have surgery in the future for this injury.

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 April 23, 2021 workplace incident. The panel is unable to make that finding, for the reasons that follow.

The worker is seeking additional coverage for physiotherapy treatment for the shoulder injury he sustained in May 2021 while undergoing treatment for his April 23, 2021 workplace incident. The worker's injury in this regard has been described as a resolving frozen shoulder. Based on our review of all of the information which is before us, the panel is unable to find that further in-clinic physiotherapy treatment is necessary to cure and provide relief from the worker's shoulder injury.

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 effects of the 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 treatment is part of the rehabilitative process, as opposed to a maintenance or ongoing pain relief process.

The evidence on file shows that the worker continued to receive coverage for physiotherapy treatment through to May 2022. The evidence further shows that the range of motion in the worker's left shoulder improved to full over time. The WCB medical advisor thus found, based on the call-in examination with the worker on April 21, 2022 that the range of motion in the left shoulder was essentially normal. The worker's treating family physician similarly reported on May 20, 2022 that the worker had full range of motion at the shoulder and could "…easily elevate above head which was not smooth previously." The treating physician did not provide any ongoing restrictions at that time, noting that no limitation of current duties was anticipated.

The worker has argued that the treating specialists have instructed him to continue with what he had been doing, "in order to keep things comfortable." The panel notes that in his report dated December 13, 2021, the treating orthopedic specialist indicated that the worker's frozen shoulder appeared to be resolving with non-operative management, and found that the range of motion in his left shoulder was slightly less than in his right shoulder. The panel notes that the specialist went on to state that he felt "it is important to continue with physiotherapy as well as home-based exercises to try to improve his range of motion and strength." The panel further notes that the WCB continued to provide coverage for physiotherapy treatment for another six months after that, through to May 2022, at which time, as indicated above, the worker was found to have essentially full range of motion in the left shoulder.

The worker referred in particular to advice from his more recent specialist, a second orthopedic surgeon, noting the specialist instructed him to continue doing what he had been doing. The panel notes that in an October 7, 2022 report on file, the specialist reported that the range of motion in the worker's left shoulder was now full and symmetric and he had internal rotation behind the back. In a further report on file dated December 21, 2022, the specialist stated that they were "going to continue with conservative management with activity as tolerated…" The panel notes that there is no reference in either report to in-clinic treatment being required or recommended.

The panel notes that the worker was also referred to a physiatrist for consultation with respect to reports of tingling and numbness. In an October 6, 2022 report on file, the physiatrist indicated they had instructed the worker "to continue with his physiotherapy exercises and to follow-up with the [orthopedic surgeon]." The panel again notes that there is no indication that in-clinic physiotherapy treatment is recommended or required.

The evidence shows that the worker was provided with a home program as part of the physiotherapy treatments he received. The WCB also provided the worker with a TENS unit to assist him in keeping his shoulder active and managing his symptoms.

In the circumstances, the panel is satisfied that there is a lack of clinical findings to justify or rationalize a need for further ongoing in-clinic treatment.

Based on the foregoing, the panel finds, on the applicable standard of a balance of probabilities, that further physiotherapy treatment is not necessary to cure or provide relief from the worker's injuries resulting from the April 23, 2021 workplace incident. As a result, the worker is not entitled to further physiotherapy treatment.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 23rd day of June, 2023