The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that financial responsibility should not be accepted for a swim spa. A file review was held on January 18, 2024 to consider the worker's appeal.

Issue

Whether or not financial responsibility should be accepted for a swim spa.

Decision

Financial responsibility should not be accepted for a swim spa.

Background

This claim has been the subject of two prior appeals, as detailed in Appeal Commission Decision 107/18 of July 20, 2018 and Decision 45/22 of May 6, 2022.

The worker sustained multiple injuries in a workplace accident on September 29, 2016, resulting in the worker undergoing an open reduction and internal fixation surgery on September 30, 2016 for correction of pelvic fractures. The WCB accepted the worker's claim and provided wage loss and medical aid benefits. The WCB approved a graduated return to work plan with modified duties beginning March 14, 2017 and later determined that the worker was entitled only to partial wage loss benefits through to May 31, 2017, as the worker declined the employer’s offer of appropriate modified duties. The worker requested Review Office reconsider this decision and on March 1, 2018, Review Office upheld the WCB's decision that the worker was not entitled to further wage loss benefits for the period of March 14, 2017 to May 31, 2017 as the worker was fit to work within his restrictions, the employer had suitable work available within the worker's restrictions and the graduated return to work plan was suitable and addressed the worker's abilities. The worker's representative appealed the decision to the Appeal Commission on March 9, 2018 and the Appeal Commission determined, as detailed in Decision 107/18 that the worker was not entitled to further wage loss benefits for March 14, 2017 to May 31, 2017.

On August 18, 2017, the worker had further surgery to repair broken screws in their pelvic area.

On June 6, 2018, a WCB pain management specialist reviewed the worker's file and advised that the use of opioids was not eligible for WCB financial support.

The worker contacted the WCB on September 4, 2018 and inquired as to their eligibility for a permanent partial impairment (PPI) award. The WCB medical advisor assessed the worker on September 25, 2018, noting the worker’s well-healed scars and opined that the worker had a cosmetic impairment rating of 2%. On September 26, 2018, the WCB advised the worker that they were entitled to a PPI rating of 2.00% resulting in an award of $2,700.00.

On November 16, 2018, the worker underwent further surgery involving removal of hardware, joint fusion, and a bone graft.

On February 27, 2019, the worker raised concerns with the WCB about the September 25, 2018 PPI examination. On March 1, 2019, the WCB advised the worker that their PPI examination took place earlier than normal at the worker's request, and that other potential impairments related to the worker's compensable injuries, including other scars, could be evaluated when the worker reached maximum medical improvement.

In a decision letter dated April 4, 2019, the WCB advised the worker that as the treating physician had not completed the necessary reports, the WCB could not provide coverage for opioid medication. On review of an Opioid Management Progress Report received from the treating physician on May 14, 2019, a WCB pain management specialist noted on June 19, 2019 that the Report did not indicate a consistent and sustained benefit to the worker’s pain and function and therefore the WCB did not support the worker’s use of opioids.

On December 4, 2019, a WCB medical advisor determined the worker likely had reached maximum medical improvement and the WCB arranged an examination of the worker to assess their degree of permanent impairment, which took place on December 19, 2019. On examining the worker, the medical advisor concluded that because of the loss of range of motion in the worker’s lumbar and thoracic region, their hip and the previously determined cosmetic rating, the worker had a whole body PPI rating of 8.00 %. On December 20, 2019, the WCB advised the worker that the PPI rating of 8.00% resulted in an award of $10,800.00 less $2,700.00 which was previously issued for the 2.00% cosmetic rating.

On April 2, 2020, the WCB received an Opioid Management Progress Report from the worker's family physician. On April 8, 2020, the WCB pain management specialist requested further information on the worker's current medications. On April 15, 2020, the pain management specialist completed the review of the worker's file and concluded that the worker was not

entitled to coverage for opioid medication. A further Opioid Management Progress Report was received from the family physician on April 15, 2020, and on April 28, 2020, the WCB specialist again indicated the use of opioids did not qualify for support. By letter dated April 28, 2020, the WCB advised the worker that coverage for opioid medications would not be accepted.

On June 30, 2020, the worker requested reconsideration of the decision to deny coverage for opioid medication, submitting they were in continued pain since the September 29, 2016 accident and required the opioid medication to control that pain. On August 26, 2020, Review Office determined the worker was not entitled to coverage for opioid medication.

On September 9, 2021, the worker requested Review Office reconsider their PPI rating and award and on September 10, 2021, Review Office returned the worker's file to the WCB's Compensation Services noting the worker was scheduled for a re-evaluation of their PPI rating and award in December 2021. On September 23, 2021, in a discussion with Review Office, the worker requested that Review Office reconsider the 2% cosmetic PPI rating from September 2018 prior to the upcoming PPI assessment. On October 26, 2021, Review Office determined that the worker's PPI rating for a cosmetic deformity had been correctly determined. Review Office noted that the upcoming and further PPI assessment might demonstrate additional entitlements which would be addressed at that time.

On November 2, 2021, the worker appealed the August 26, 2020 and October 26, 2021 Review Office decisions to the Appeal Commission, and a videoconference hearing was arranged. The Appeal Commission determined in Decision No. 45/22 that the PPI rating was correctly determined, and that the worker was entitled to further coverage for opioid medication. The worker’s file was returned to the WCB’s Compensation Services for further adjudication.

The worker contacted the WCB on April 24, 2023, requesting the WCB cover the cost of a “…medical care soaker tub with “massage” water jets” noting the tub would aid their pain management and increase their pain tolerance. The worker submitted their pain and stiffness could be relieved by use of the massage therapy provided by the water jets of the tub. On May 3, 2023, the WCB requested a WCB Rehabilitation Specialist conduct a reassessment of the worker’s home to determine if their request for a soaker tub was appropriate. On May 17, 2023, the worker provided detailed information to the WCB in support of their request.

A WCB rehabilitation specialist conducted a personal care allowance assessment on June 2, 2023, with the worker’s WCB case manager, the worker, and their spouse in attendance. The worker advised that they requested the soaker tub as they previously received great benefit from a therapeutic pool while attending physiotherapy, noting that immersion in the warm water helped their mobility and enabled them to exercise and move with minimal pain, with relief that extended to the next day.

On June 21, 2023, the WCB provided a decision letter to the worker advising that the request for a soaker tub did not meet the required criteria for funding by the WCB. On July 25, 2023, the worker requested the WCB reconsider the decision and provided the WCB with a link to a video showing the type of pool being requested, noting the nature and severity of their workplace injuries required the use of a spa pool for daily exercise. On August 1, 2023, the worker requested Review Office reconsider the WCB’s decision, outlining that having a “…spa pool will allow for daily exercise in a temperature controlled, low pressure low impact water environment to improve my health and wellness” further noting they required daily exercise, and it would be convenient to have the spa pool in their home. On August 3, 2023, the WCB provided a further decision letter to the worker advising that funding for a swim spa would not be provided. On the same date, Review Office contacted the worker to clarify the issue the worker was appealing as reference had been made to both a spa pool and swim spa. The worker advised Review Office the WCB advised that funding for a spa pool would not be covered. The WCB provided a further letter on August 3, 2023 to the worker clarifying that it would not provide coverage for either a spa pool or a swim spa.

On August 15, 2023, Review Office determined the worker was not entitled to financial coverage for a swim spa as the evidence did not support a finding that coverage for a swim spa was necessary as the result of a compensable workplace accident, and noting the WCB approved additional physiotherapy treatment, including aquatic therapy for the worker.

On August 18, 2023, the worker submitted to Review Office a letter from their treating physiotherapist dated August 17, 2023 and a letter from their treating family physician dated August 18, 2023, both in support of the worker’s request for financial coverage for a swim spa, requesting Review Office reconsider their previous decision. On August 25, 2023, Review Office advised the worker the new information was reviewed and there would be no change to the earlier decision. On September 18, 2023, the worker provided Review Office with letters supporting their request from their treating psychologist dated August 31, 2023, a physician with an interest in occupational medicine dated September 1, 2023 and their treating pain management clinic physician dated September 6, 2023. Review Office advised the worker on September 19, 2023 that the new information was reviewed but there would no change to the earlier decisions.

On September 26, 2023, the worker filed an appeal with the Appeal Commission 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 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 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 outlines that medical aid, as defined in the Act, includes treatment or services provided by healthcare providers and sets out the general principles governing the WCB's funding of medical aid, including 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 represented themself in this appeal. The worker’s position is outlined in the Appeal of Claims Decision form, dated September 25, 2023, and attached emails.

The worker stated their position that a spa pool “is the most appropriate type of equipment which could provide me with the best opportunity to improve my physical health and control my chronic pain.” The worker noted their poor physical health is the result of two invasive surgical procedures in relation to their compensable injury and the WCB’s premature decision to have the worker return to work when they were not medically able or physically fit to do so, against medical advice. The worker submitted that the consequences are that they live with “…extensive damages to my pelvis area and supportive structural injuries in the core area of my body including internal muscle and organ damages, chronic pain, and urinating issues and the weakening (of) my core strength.”

The worker submitted that their request for a spa pool is within the guidelines and policies of the WCB and failing to follow these policies further harms their health and any chance of improving their quality of life. In their submission, the worker outlined that a spa pool at their home is the most practical plan for them and makes the most financial sense. The worker stated that the provision of such a pool should be part of the comprehensive rehabilitation plan. The worker submitted the spa pool would allow for daily physical exercise, which is essential for their mobility, pain management and strengthening of their core, and will assist in improving their mental health as exercising in a zero gravity environment reduces the extreme pain the worker feels when standing or walking. The worker further noted that this makes financial sense because they require daily ongoing therapy and their therapy service providers have limited availability of aquatic services. The worker also noted their weight gain since the accident because of being inactive and submitted that being able to exercise more will aid in weight loss and improving their overall fitness, with multiple benefits.

The worker noted that their medical care providers support the provision of a spa pool as detailed in the letters previously submitted to the WCB.

Employer’s Position

The employer did not participate in the appeal.

Analysis

This appeal arises from the worker’s request that the WCB should provide coverage for the worker to obtain a swim spa at their home for use by the worker. For the worker’s appeal to be granted, the panel would have to determine that the swim spa purchase is necessary to “cure and provide relief from” the effects of the compensable injury sustained by the worker in relation to the accident of September 29, 2016. 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 considered that s 27 of the Act allows the WCB to fund medical aid that the WCB considers necessary to cure and provide relief from the effects of a compensable injury. The WCB’s 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 that the WCB 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 outlines that the WCB will refuse or limit funding of any medical aid it considers excessive, ineffective, inappropriate, or harmful.

The panel considered the worker’s submission that the provision of a swim spa pool will support their rehabilitation from the effects of the compensable injury in providing the worker with access to daily physical exercise in a zero gravity environment that minimizes the worker’s pain while doing those exercises. The worker submitted that this would improve their mobility and strength, provide pain relief, and support the worker’s mental health, in a cost effective way and as such, is consistent with the Policy provisions.

The panel reviewed whether the medical reporting supports the worker’s position that they require a swim spa at their home to provide ongoing and accessible relief from the continuing symptoms of their compensable injury. The panel noted, especially, the following and most recent reports:

• June 2, 2023 report from the treating pain management physician to the treating family physician which indicates the worker was receiving short term benefit (up to a few weeks) from the injections provided and that the worker had limited ability to do any physical activity due to pain in their back, hip, and groin. 

• July 21, 2023 chart note from the treating pain management physician which outlines that the worker found their previous pain management injections of 6 weeks earlier to be helpful for 1.5 weeks. The physician further noted the worker reported they do stretches regularly and find this helpful and are waiting for WCB approval of physiotherapy and massage therapy. 

• August 17, 2023 note from the treating physiotherapist indicating that there are many benefits to aquatic therapy including pain management, relaxation, improvement in mobility and function, reduced joint stress, reduced swelling, and improved ease of movement. The physiotherapist noted that for the worker, daily access to an at home swim spa would allow the worker to complete some of their exercises in the pool and have access to the pain control provided by use of the pool, which “is likely to improve [their] overall function and tolerance for exercise.” 

• August 18, 2023 note from the treating family physician indicating their belief that the worker “would significantly benefit from aquatic exercises and having ready access to a spa pool for regular exercises is highly recommended” in view of the nature of the worker’s injuries and their chronic pain. 

• August 31, 2023 letter from the treating psychologist who noted they cannot speak to “the physiological impact of this treatment or its likely efficacy in treating pain” but states that they believe the impact on the worker’s mental health would likely be significant as the possible pain relief and increase in mobility that use of the pool could provide would be “a significant antidote to hopelessness and helplessness.” 

• September 1, 2023 letter from the treating pain management physician to the WCB indicated their support for the worker’s request, noting that the worker has found “meaningful benefit from attending physiotherapy and utilizing their warm pool for exercise but is only able to attend 1-2x/week due to the limited appointment time available” and that the worker requires low impact exercises and cannot tolerate land based exercise due to chronic structural changes in their pelvis. The physician stated that “the combined effect of ease of access, warmth and accessibility would provide significantly more benefit” to the worker than either a pool or hot tub alone. 

• September 6, 2023 letter from the physician specializing in occupational health who outlined the worker’s status and noted the worker sought twice weekly “rehab therapy” including “Aqua-therapy for pain relief and as an exercise environment” which has proved to be “very beneficial in diminishing pain for several hours to improve and build muscle”. The physician noted their support for the worker’s requested spa pool at home “to optimize [the worker’s] dependent physical activities and wellbeing” in a gravity-free environment that allows the worker to perform movements and exercises not possible in standing and floor exercises. 

• September 18, 2023 report from the treating physiotherapist to the WCB indicates a request for a 3rd weekly aquatic therapy session for the worker and outlines that the worker has a home-based program of stretches and strengthening exercises. 

• December 8, 2023 chart note from the treating pain management physician outlining that pain is limiting the worker’s movement and that the worker is reporting a “new clicking in back and hip with activity” that “can be painful”.

The panel also reviewed the findings from the June 2, 2023 personal care allowance assessment conducted by a WCB occupational therapy consultant in the worker’s home. The panel noted the worker’s request at that time for a soaker tub. The worker reported “having received great benefits from a therapeutic pool in the past” and noted that being immersed in warm water allowed them to exercise and move with minimal back pain, and that this pain reduction would last through the day and at times, into the next day. The panel also noted the consultant’s findings that the worker is independent in relation to personal care activities of bathing and showing, grooming/hygiene and dressing, can ambulate independently up to 15 minutes, and can independently undertake community outings and grocery shopping and errands.

The panel noted the claim file indicates the worker advised the WCB that during their pool activities during physiotherapy, they were generally accompanied by a trainer or physiotherapist. Further, the panel noted that the WCB approved an ongoing course of physiotherapy including pool-based therapy for the worker, on August 3, 2023 and that on reviewing the reports from the physiotherapist, the WCB physiotherapy consultant noted in their opinion of October 18, 2023 that “The combination of in clinic physiotherapy, aquatic therapy and pelvic floor therapy has not been associated with improvements in pain and function” for the worker.

The panel considered that the support offered by the treating and consulting medical providers for the worker’s request for an at-home swim spa is largely founded upon the worker’s subjective reports that they find benefit in such activity, both in terms of pain relief and ease with which they can do their exercises. On our review of the medical reporting on file, including the reports referenced above, the panel noted that the treating medical providers do not offer any objective or clinical findings to support the worker’s belief that they require daily access to a swim spa at home to enable their activities of daily living and to minimize the impact of their injuries. We noted that the treating physiotherapist, who provided the aquatic therapy to the worker, on September 26, 2023 requested an increase in frequency to the in clinic aquatic therapy from twice weekly to three times, and also indicated that the worker has a home-based program of stretches and strengthening exercises, which are presumably land-based. We further noted that on review of the physiotherapy findings, the WCB physiotherapy consultant indicated that there was no evidence of improvement in the worker’s pain and function with the treatment provided from July through October 2023.

The panel finds that the medical reporting indicates the treatment providers support the worker’s participation in daily exercise, including both aquatic and ground exercises, and that the worker’s ongoing participation in appropriate physical therapy and exercises may provide some short term benefit to the worker in reducing symptoms arising from the compensable injuries. While exercising in a pool is appropriate and may be effective in enabling the worker’s functional mobility and in providing short term pain relief, the evidence does not establish that it is medically necessary for the worker to undertake their therapeutic exercise program only in a swimming pool, nor that the worker needs to do so daily and on demand. The panel further finds the evidence does not support it is medically necessary for the worker to have daily and ongoing access to a pool for pain relief.

The panel noted the worker’s position that the provision of an at-home swim spa is a cost-effective option and as such, supported by the Policy provisions. The panel noted however that the worker’s proposal does not consider ongoing maintenance costs and insurance. Further, the cost of the proposed therapy is but one factor to consider and we do not find this to be a persuasive argument in this case.

The Policy provides the WCB with a structure within which it must exercise its discretion in funding requests for medical aid and the panel finds that the WCB has, in this case, exercised its discretion in accordance with the Policy in addressing the worker’s request.

Based on the evidence before us and on the standard of a balance of probabilities, the panel is satisfied that WCB should not accept responsibility for a swim spa. 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 16th day of February, 2024