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 reimbursement for an annual swimming pool pass. A teleconference hearing was held on October 19, 2023 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to reimbursement for an annual swimming pool pass.

Decision

The worker is not entitled to reimbursement for an annual swimming pool pass.

Background

This claim was previously addressed in Appeal Commission Decision No. 86/96, dated April 25, 1996, and as such the complete claim history will not be repeated here.

The WCB accepted the worker’s claim for injury to their left knee that occurred on June 11, 1993 when they slipped at work. Initially, the WCB accepted a left medial meniscus tear as arising from the injury. After several surgeries to repair the worker’s injury, the worker underwent a total knee arthroplasty on February 26, 2010. Following a November 3, 2011 review of the worker's file by a WCB medical advisor, the WCB accepted that the worker sustained a secondary injury from a September 8, 2009 fall, after their left knee gave away, resulting in a tear of the supraspinatus portion of the right rotator cuff. The WCB established permanent restrictions and offered vocational rehabilitation services.

On February 22, 2008, the worker submitted a receipt to the WCB for an annual swimming pass, indicating it helped their knee and shoulder to do their exercises in the water and requesting reimbursement. In discussion with the worker on February 25, 2008, the WCB advised it would authorize reimbursement for the swimming pass on a one-time only basis. The WCB subsequently reimbursed the worker for an annual swimming pass on January 13, 2009 and January 13, 2010. When the worker submitted a receipt for a 2012 swimming pass on December 12, 2011, the WCB advised that reimbursement would not be provided as the worker was no longer in the acute phase of injury and the fitness pass “…will not help promote recovery at this time and will do little to minimize the impact of [the worker’s] injury…” as they were not employed or participating in any type of return to work program at that time.

On June 12, 2012, the worker's representative requested Review Office reconsider the WCB's decision, noting the treating healthcare providers recommended aquacise as therapy for the worker's rotator cuff injury, among other conditions. On August 28, 2012, Review Office overturned the WCB's decision and recommended the worker be reimbursed for a one-year pool pass for 2012 related to the worker's right shoulder injury. Review Office noted the decision to approve reimbursement beyond 2012 was left to the WCB's Compensation Services.

The WCB authorized reimbursement for an annual swimming pass for the worker for the years 2013 - 2017. On January 14, 2019, the WCB advised the worker that it would reimburse the worker for 2019 but that would be the last year reimbursement would be provided.

The treating nurse practitioner provided a report received by the WCB on January 23, 2019, in support of the worker being provided with continued reimbursement for an annual swimming pass. The treating orthopedic surgeon noted in their April 3, 2019 report that the worker reported improvement in their shoulder difficulties from "water/swim physiotherapy". On April 16, 2019, the orthopedic surgeon who undertook the worker's left knee replacement surgery also provided a letter in support of the worker's reimbursement for an annual swimming pass. The worker's treating nurse practitioner provided a chart note on March 4, 2020 indicating the worker would benefit from continued water therapy for their "…chronic knee/shoulder pain/past surgeries of same." A report from the worker's treating orthopedic surgeon received on April 24, 2020 noted the worker's report that "…a pool-based exercise physiotherapy regime…" kept their symptoms under control and recommended the WCB continue to reimburse the worker for same.

On May 28, 2020, the WCB received a letter from the worker requesting reconsideration of the decision not to reimburse them for an annual swimming pass, including a receipt for payment of that pass and a letter in support from the treating physiotherapist. On May 29, 2020, the WCB provided the worker with a copy of the January 14, 2019 letter disallowing continued reimbursement for an annual swim pass and noting that decision remained unchanged. The worker again requested the WCB reconsider the previous decision on June 15, 2020. On June 23, 2020, the WCB advised the worker that a WCB medical advisor and physiotherapy advisor reviewed their file on June 18, 2020 and did not recommend reimbursement for a swimming pool pass.

On September 11, 2020, the worker requested that Review Office reconsider the WCB's decision, noting that the WCB paid for their annual swimming pass for several years and the physiotherapy they perform in the water provided relief of their ongoing symptoms for both their left knee and their right shoulder injuries.

On October 6, 2020, Review Office determined the worker was not entitled to reimbursement for an annual swimming pool pass. Review Office accepted the opinion of the WCB medical and physiotherapy advisors that although continued activity and exercise were encouraged for both the worker's left knee and right shoulder, those exercises did not need to be carried out in a pool and could be done at home, with no substantial improvements anticipated by the worker continuing with the water therapy.

As set out in a December 8, 2020 memorandum placed to the worker's file, a WCB physiotherapy consultant reviewed the worker's file regarding continued physiotherapy treatment, including pool exercise. The WCB physiotherapy consultant contacted the treating physiotherapist and discussed the home exercises provided to the worker due to the closure of gyms and pools due to the Covid-19 pandemic. The treating physiotherapist advised they provided the worker with instructions for at-home shoulder exercises. The WCB physiotherapy consultant advised there would likely be no benefit from in-clinic physiotherapy beyond the worker continuing with the active home-based program provided and noted there was no "…specific requirement for pool therapy in relation to a diagnosis of a small right shoulder rotator cuff tear."

On December 11, 2020, the WCB advised the worker that they were not entitled to further physiotherapy treatment. The treating physiotherapist reported to the WCB on January 3, 2021 that the worker was having difficulty in managing ongoing symptoms with just their home program and was continuing to receive treatment at their clinic with significantly improved functioning and reduced pain.

On February 1, 2021, the worker requested Review Office reconsider the WCB's decision to end their entitlement to physiotherapy. In their submission, the worker noted that they "miss the pool walking" they performed as physiotherapy for their left knee and that exercising in the pool also helped their right shoulder. On March 24, 2021, Review Office upheld the WCB's decision the worker was not entitled to further physiotherapy, noting the WCB orthopedic consultant's February 10, 2021 opinion that physiotherapy prior to the worker's recommended surgery would not provide any sustainable benefit.

On March 23, 2021, the worker's representative requested Review Office reconsider the earlier decision to end the worker's entitlement to reimbursement for an annual swimming pool pass, noting that additional information was added to the worker's file since the decision including an October 24, 2020 right shoulder MRI, reports supporting the worker's need for a swimming pool pass from the treating orthopedic surgeon and physiotherapist, and the worker's description of their attempts to perform the home exercises provided by their treating physiotherapist.

On April 19, 2021, Review Office upheld the previous decision the worker was not entitled to reimbursement for an annual swimming pool pass. Review Office relied on and accepted the opinions of the WCB medical advisor and the WCB physiotherapy consultant that there was no requirement for the worker to perform the home physiotherapy exercises they had been provided with in a pool. Review Office also noted the WCB had covered the cost of various exercise equipment for the worker's use at home.

The worker's representative filed an appeal with the Appeal Commission on June 19, 2023 and a hearing 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 been injured 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 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. 

• 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 appeared in the hearing, represented by a worker advisor. The worker advisor made an oral submission and relied upon the written submission provided to the Appeal Commission in advance of the hearing. The worker offered testimony through answers to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position is that the worker should be entitled to reimbursement for an annual swimming pool pass for 2020 and 2021 as the evidence confirms that the worker derives benefit from attending a pool to exercise and that this mode of exercise is cost effective, results in symptomatic improvement and is supported by the worker’s treating medical care providers.

The worker advisor submitted that the evidence confirms the worker’s function decreased and symptoms increased during the period when pools were closed due to the global pandemic, and that as a result the worker was prepared to proceed with an elective surgical procedure to repair their shoulder, but that after the worker resumed pool-based exercises in 2021, the worker’s symptoms and function improved such that the surgery was not pursued.

The worker advisor noted that the WCB’s willingness to fund the surgical procedure but not the cost of a pool pass was “penny wise and pound foolish” and inconsistent with the provisions of the Medical Aid Policy promoting cost effective access to medical aid and limiting funding of medical aid that it considers excessive, ineffective, inappropriate, or harmful.

The worker provided testimony indicating that prior to March 2020, they attended a pool 4-5 times weekly to exercise in the pool and sometimes in the gym. The worker described doing a variety of exercises of their arms and shoulders as recommended by their treating physiotherapist, both standing in the shallow end and while supported by a flotation device in the deep end. The worker also described doing squats to exercise their knees. The worker indicated they find that they feel less pain, move more easily, and sleep better after exercising in the pool, with the pain reduction lasting approximately 4 hours. The worker indicated that the use of the recommended exercise bands hurt their wrists and their treating physician told them to stop doing those exercises. The worker stated that the home exercise program did not help their symptoms.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal relates to the question of whether the WCB should reimburse the worker for the cost of an annual swimming pool pass. For the worker’s appeal to be granted, the panel would have to determine that the pass is necessary to “cure and provide relief from” the effects of the compensable injury sustained by the worker in relation to the accident of June 11, 1993. As outlined in the reasons that follow, the panel was not able to make such a finding, and therefore the worker’s appeal is denied.

The Act allows the WCB to fund medical aid that it determines is necessary to cure or provide relief from the effects of a compensable injury, and the Medical Aid Policy outlines the factors that the WCB will consider in determining “the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury.” The Policy requires the WCB to consider recommendations from healthcare providers, among other factors in meeting its medical aid funding objectives, which are to promote 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 also provides that the WCB will refuse or limit funding of any medical aid it considers excessive, ineffective, inappropriate, or harmful.

The panel considered that the WCB previously funded the worker’s pool-based exercise program through reimbursement of an annual swimming pool pass until 2019, at which point the WCB indicated to the worker that it would no longer support such funding. At that time, the WCB pointed to the worker’s reported injury in September 2018 while doing their pool-based exercises, in support of its decision.

The panel reviewed the June 18, 2020 opinion of the WCB medical advisor who concluded that “While exercise and activity are encouraged in relation to both the shoulder and knee injuries and their subsequent surgical treatments, exercises need not necessarily be carried out in a pool…. Most patients carry out home exercises at home.” The panel also noted that the WCB physiotherapy advisor, on December 8, 2020, agreed that while pool exercise “may be a form of exercise in support of a healthy lifestyle there is not a specific requirement for pool therapy in relation to a diagnosis of a small right shoulder rotator cuff tear.”

The panel also noted the September 28, 2020 request by the treating physiotherapist for additional physiotherapy which they indicated provided benefit to the worker’s right shoulder function and symptoms. Shortly thereafter, on November 18, 2020, the treating orthopedic surgeon outlined in their chart note that: 

“…yes, continued exercises were recommended…. I would only recommend against heavy lifting overhead. Pool exercise would be good as [the worker has] found that this will be very effective however if not possible, I encouraged [them] to perform on land exercises…. Certainly, I outlined that although the aquacise has been most effective…performing home exercises properly would not put [the worker] at any risk of increased injury. I have outlined the importance of proper physiotherapy to demonstrate a Safe Home Program as well as strengthening below shoulder level.”

The panel also noted that the treating physiotherapist outlined in a report dated January 3, 2021 that the worker used their gym facility “to perform exercises which are supplemented by a home program…. [The worker] reports that the above-mentioned treatments have greatly aided in pain management and increase [their] function. [The worker] also reports that the home program has been insufficient to manage [their] symptoms; but that the home program combined with attending physiotherapy has significantly improved [their] function and reduced [their] pain.”

The panel considered that the treating medical providers support the worker’s request for reimbursement of a swimming pool pass, but we also note that their support is based on the worker’s subjective reports that this mode of exercise provides relief of their symptoms and increases their function while other modes of exercise are less effective. On our review of the medical reporting on file, including the reports referenced above, the panel noted that none of the treating care providers offered any evidence to support the worker’s belief that their participation in water-based exercise or therapy is necessary to enable their activities of daily living and to minimize the impact of their injuries. Rather, the panel finds that the medical reporting indicates the worker’s functional abilities are supported by exercise in general and the therapeutic exercises in particular, and that ongoing participation in any appropriate exercise program may reduce the worker’s symptoms arising from the compensable injuries.

The panel is satisfied that the evidence supports a finding that the worker’s exercise program including both water-based and land-based exercises has helped to maintain the worker’s mobility and function over the past 10 or more years, but we do not accept the worker’s submission that this means it is medically necessary for the worker to undertake their exercise program in water. Rather, the panel finds that while exercise in a swimming pool may be appropriate and effective in achieving the goals of enabling the worker’s activities and function, and minimizing their symptoms, the evidence does not establish that it is medically necessary for the worker to undertake their therapeutic exercise program only in a swimming pool. In other words, the panel is satisfied that there is more than one option available to the worker to continue with an exercise program in relation to their compensable injuries.

The panel considered that the Policy provides the WCB with a structure within which it must exercise its discretion in funding requests for medical aid and we are satisfied that the WCB has, in this case, exercised its discretion in accordance with the Policy.

Based on the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that the worker is not entitled to reimbursement for a swimming pool pass as the

evidence does not establish that this is a medical necessity. 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 3rd day of November, 2023