Decision #47/24 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to further physiotherapy treatment. A hearing was held on March 26, 2024 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 for a cumulative right thumb injury that was reported to the WCB on January 25, 2018. The worker noted on their Worker Incident Report since July 30, 2013, they had been experiencing pain with their thumb, which they related to their job duties.

Medical information was requested by the WCB, including chart notes from the worker's treating family physician from July 2013 to January 2018. On March 3, 2018, the worker's file was reviewed by a WCB medical advisor who opined the worker's diagnosis was carpometacarpal osteoarthritis of the thumb and was medically accounted for in relation to the worker's job duties. It was noted the worker's treating orthopedic surgeon has recommended a trapezectomy and a ligament reconstruction and tendon interposition surgery to treat the worker's osteoarthritis. The surgery was authorized by the WCB on March 12, 2018 and performed on May 9, 2018. A course of post-operative physiotherapy was approved, with the final appointment on November 21, 2018.

On January 6, 2022, the worker contacted the WCB to advise they were experiencing increasing pain in their right hand and attended an appointment with their treating orthopedic surgeon on November 29, 2021 and had x-rays taken. The worker further advised the treating surgeon referred them to a hand specialist, which appointment had been arranged for January 17, 2022. 

The WCB requested and received a copy of the report from the orthopedic surgeon on January 6, 2022. The surgeon noted the worker's reporting of "…several months if not years of stiffness and pain…" in their right thumb along with cupping of their hand. On examining the worker, the surgeon noted stiffness to their thumb, particularly in the area of their small finger and some discoloration in their hand. Minimal discomfort was noted with a grind test of their thumb with limited motion secondary to pain. An x-ray taken that day found "…some subsidence of her thumb metacarpal into the trapezial void." The surgeon opined the worker may have an element of chronic regional pain syndrome in their hand and recommended a second opinion from a hand specialist. The worker was seen by the hand specialist on February 11, 2022, reporting pain around their right thumb with increased sensitivity to their whole hand resulting in decreased function. The worker also reported difficulty opening medication bottles or doors. The specialist indicated on examining the worker, they found the worker was hypersensitive to touch on the right side compared to the left, had pain at the base of their thumb, pain with axial loading and passive movement of their first carpometacarpal joint, pain at the ulnar border of their right index finger and had difficulties making a full fist. It was also noted the resting posture of the worker's hand was "…with the fingers in a flexed position." The treating hand specialist opined the worker had a component of chronic regional pain syndrome given the worker's hypersensitivity and the resting posture of their hand. Treatment from a hand specialist for desensitization exercises for the chronic regional pain syndrome was recommended, after which the worker's thumb pain could be reassessed. On March 9, 2022, the worker's file was again reviewed by a WCB medical advisor who recommended a trial of hand therapy for the worker.

An initial physiotherapy assessment took place on March 8, 2022. The worker reported decreased range of motion and weakness in their right thumb, hand and forearm since the 2018 surgery, with pain in their dorsal hand, volar thumb up to the flexor tendons and into their radial forearm and aggravated with lifting. The physiotherapy recommended ongoing treatment and restrictions of limited use of the right hand. The WCB authorized six additional treatments on March 22, 2022.

In a discussion with the WCB on June 29, 2022, the worker advised their thumb was not getting any better and felt that they lost strength since starting physiotherapy. A follow-up report from the hand specialist for an appointment on July 8, 2022 was received by the WCB on July 14, 2022. The specialist noted the worker's pain with axial loading of the carpometacarpal joint and their little finger was placed in the flexed posture. It was further noted the worker could not fully abduct all of their fingers. Treatment suggestions of a possible revision surgery or a corticosteroid injection were made, with the worker opting to take time to consider the options. On July 10, 2022, the worker's treating physiotherapist requested additional treatment, noting the worker had "No measurable progress made, unable to explain why." A WCB physiotherapy advisor reviewed the worker's file on July 15, 2022 and provided no additional treatment would be authorized by the WCB as "There is no evidence of sustained improvement in pain or function." The treating physiotherapist and the worker were advised of the WCB's decision on July 15, 2022.

The worker requested reconsideration of the WCB's decision to Review Office on August 25, 2022. In their request, the worker noted their compensable thumb injury was getting worse and they continued to require physiotherapy. On October 6, 2022, Review Office determined the worker was not entitled to further physiotherapy treatment. Review Office found the worker was not receiving measurable evidence of a sustained improvement in function in their right thumb from the physiotherapy treatment, nor were further gains in function and/or strength expected. As such, Review Office found the evidence did not support the worker required further supervised treatment for their compensable injury.

The worker filed an appeal with the Appeal Commission on December 7, 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 Section 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 states that in determining the appropriateness and necessity of medical aid, the Board considers the following:

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.

Worker's Position

The worker represented themselves at the hearing. The worker’s position is that they are entitled to further physiotherapy treatment for the right thumb/hand injury sustained at work.

The worker stated that their symptoms have increased and submits that if they had continued with physiotherapy the symptoms may not have progressed to where they are now.

The worker is seeking that their appeal be granted.

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 July 29, 2013 workplace incident. The panel is unable to make that finding, for the reasons that follow.

The worker has had a long history of issues relating to their right thumb and hand as a result of a workplace injury in 2013. The worker has had surgery and numerous physiotherapy appointments to this point.

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 right thumb 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.

In coming to its decision, the panel relies on the notes of the treating orthopedic surgeon which states that there are "not much other alternatives that I can offer her and think will reliably take the pain away for her…" The panel specifically notes that it does not have evidence before it that the treating orthopedic surgeon is recommending continued physiotherapy.

The panel also places weight on the physiotherapy application which states "No measureable progress made, unable to explain why." The panel also acknowledges from the worker's evidence at the hearing and the physiotherapy application that the worker has a significant home program in place, which includes desensitization, laterality training, mirror therapy and range of motion/light strengthening.

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 physiotherapy treatment.

Based on the foregoing, the panel finds, on a balance of probabilities, that further physiotherapy treatment is not necessary to cure or provide relief from the worker's injuries resulting from the July 29, 2013 workplace incident. As a result, the worker is not entitled to further physiotherapy treatment.

The worker's appeal is dismissed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of May, 2024

Back