The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") they are not entitled to additional physiotherapy or athletic therapy treatment. A hearing was held on October 7, 2024 to consider the claimant's appeal.

Issue

Whether or not the claimant is entitled to additional physiotherapy or athletic therapy treatment.

Decision

The claimant is not entitled to additional physiotherapy or athletic therapy treatment.

Background

The claimant applied to the Program for compensation on February 11, 2022 arising out of an incident on December 28, 2021 when the claimant was assaulted while waiting at a transit shelter. The claimant described that an individual grabbed them and pulled them into the shelter, causing them to strike their head and twist their back. On April 4, 2022, the Program approved the claimant’s application for compensation and began providing benefits including physiotherapy and athletic therapy. On May 13, 2022, the Program approved 8 weeks of physiotherapy, and later approved further extensions on September 26, 2022, November 17, 2022 and April 3, 2023. On September 14, 2023, the Program advised the claimant that it would not approve any further extensions of physiotherapy.

The claimant submitted a Request for Reconsideration to the Program on October 20, 2023, noting that before the incident, they were active and able to walk distances but since the incident, they need to use a walker and can walk only short distances before having to stop. The claimant further noted their healthcare providers did not fully assess the injuries from the incident and that they required ongoing physiotherapy and athletic therapy to recover from their injuries.

On January 30, 2024, the Director of the Program advised the claimant they are not entitled to further physiotherapy and athletic therapy treatment, based on a review of the claimant's file by the Program's Healthcare Department, which concluded the claimant reached maximum medical improvement and did not require further treatment in relation to the injuries sustained in the incident.

The claimant appealed the decision to the Appeal Commission on February 28, 2024 and a hearing was arranged.

Reasons

Applicable Legislation

The panel is bound to apply the provisions of The Victims’ Bill of Rights (the “VBR”) and the regulations under that law. The VBR provides in s 46(1) that for purposes of determining compensation, a person is a victim if they are injured or die because of an incident that occurs in Manitoba that is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) as specified in the regulations. Section 47 of the VBR provides that a victim who is injured as a result of such an incident is entitled to reimbursement for certain expenses as set out in the regulation if incurred as a result of the injury, as well as to compensation for related counselling services, compensation for loss of wages if the victim is disabled by the injury and compensation for impairment if the victim is permanently impaired by the injury. Section 55 of the VBR allows the Program Director to vary the amount of compensation paid based on new information or a change in the circumstances of the person receiving the compensation.

A reconsideration decision by the Program Director can be appealed under s 60(1) and the appeal panel can confirm, vary, or rescind that decision under s 64(1).

Victims' Rights Regulation, M.R. 214/98 provides in s 11.1(2) that compensation may be provided for physiotherapy services.

Claimant’s Position

The claimant appeared in the hearing on their own behalf, with the support and assistance of their adult child.

The claimant’s position is that because they continue to experience the effects of the injuries sustained in the incident on December 28, 2021, they require further physiotherapy or athletic therapy to address their ongoing symptoms. The claimant noted they were active and mobile prior to the incident but have not been able to return to their pre-injury status since the incident, despite the physiotherapy treatment provided.

The claimant confirmed they are not seeking treatment in relation to their knee symptoms. They noted their belief that they received the “wrong kind of physio” treatment initially but that after changing to another therapist, the treatment was helpful. The claimant indicated they believe the injuries sustained when they were assaulted caused or accelerated their decline in mobility, which continues and noted their belief that the initial diagnoses were not complete, in that they had injuries beyond those noted in the first medical reports following the incident.

Currently, the claimant described ongoing thigh pain that is severe on waking but improves with activity, as well as pain in their neck and both shoulders, right hip and knee concerns and balance issues.

Analysis

The question on appeal and for determination by the panel is whether the claimant is entitled to additional physiotherapy or athletic therapy treatment. For the appeal to succeed, the panel would have to find that further physiotherapy or athletic therapy is required to address the injuries sustained by the claimant on December 28, 2021. As detailed in the reasons that follow, the panel was unable to make that finding and therefore the appeal is denied.

As set out in the VBR, for an expense to be covered or reimbursed, the expense must be incurred because of the injury sustained in the incident. In other words, there must be a causal relationship between the need for the benefit and the injury that gives rise to the claim. In the present case, there is evidence that the claimant continues to experience symptoms in various areas of their body, including pain and balance concerns, that limit or impair the claimant's ability to function and move. The panel must determine whether the claimant’s ongoing concerns resulted from the injuries sustained in the incident, and if so, whether the evidence supports a need for further physiotherapy or athletic therapy to address those concerns.

The medical evidence includes reports from the two physiotherapists seen after the injury and from three physicians seen by the claimant in relation to their injuries. Initially, the reporting confirms the claimant sought treatment for neck and bilateral hip/lower back pain. After a further fall in early February 2021, which resulted in a scalp contusion and concerns about a possible concussion, the claimant was referred to physiotherapy, and the first assessment by a physiotherapist took place on May 2, 2022. The claimant indicated that treatment was not effective, with the result they switched to another physiotherapist beginning in September 2022, who provided treatment until June 2023. At that time the physiotherapist sought authorization for 6 more treatments to “maintain current [function and] perhaps improve [functional] strength [and] balance”, noting there was “good improvement” overall but there were still some areas in which the claimant may improve further, and outlining that treatment was focused on thigh and knee pain.

The panel also reviewed the report of the consulting physiotherapist who reviewed the medical reporting for the Program as detailed in their memorandum of September 12, 2023. The consulting physiotherapist concluded that typical recovery from injuries such as were reported in the early medical reports would occur in a few days to a few weeks, but that considering the claimant’s age, recovery “could be extended up to a few months.” The physiotherapist also concluded that the “…current ongoing concerns are more likely than not related to other causes” than the injuries sustained in the incident and that the 42 physiotherapy sessions already provided would be “more than sufficient”.

Having reviewed and considered the medical reports and opinions, as well as the claimant’s evidence and submissions, the panel finds that the request for further physiotherapy or athletic therapy cannot be related to the injuries initially sustained in the incident. The current complaints are primarily related to the claimant’s lower body and limbs, including the knee which the claimant acknowledged is not related to the incident. Further, as noted by the treating physiotherapist, although some additional improvement was possible, the claimant had made good progress with treatment. The panel also noted the consulting physiotherapist’s opinion that the ongoing concerns were more likely than not related to other causes.

Based on the evidence and on the standard of a balance of probabilities, the panel finds that further physiotherapy or athletic therapy treatment is not necessary or required to address the injuries sustained by the claimant on December 28, 2021 and as such, the 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 29th day of October, 2024