NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

Transcription

1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representatives: Form of Appeal: WCB Claim No.(s): [X] Oral Hearing, January 14, 2010, Bridgewater, NS [X] Date of Decision: March 25, 2010 Decision: The appeal of the August 28, 2009 Board Hearing Officer decision is allowed, according to the reasons of Appeal Commissioner David Pearson.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: The Worker fell on her right arm on November 22, The Worker lost no time from work initially, but filed a Report of Accident with the Board. The Board accepted her claim and provided medical aid ( MA ) assistance. In November 2007, the Worker started losing time from work and sought additional compensation. The Board initially denied further compensation, but later accepted that the Worker s loss of time from work in 2007 was causally related to her compensable injury in The Board provided temporary earnings replacement benefits ( TERB ) and MA assistance. The Worker returned to work on a graduated program beginning in April The Worker subsequently sought coverage for additional chiropractic treatments. The Board accepted responsibility for 30 chiropractic treatments, but refused to cover treatment beyond that level. The Worker appealed this decision to a Hearing Officer, but her appeal was denied in an August 28, 2009 decision. The Worker appealed the Hearing Officer s decision to the Tribunal. The Tribunal appeal proceeded by oral hearing in Bridgewater on January 18, Prior to the hearing, the Worker s Adviser provided an undated medical-legal report from Laurel Cowie, Chiropractor, with an attached schedule of treatment, curriculum vitae, and a study entitled, Do Chiropractic Physician Services for Treatment of Low Back and Neck Pain Improve the Value of Health Benefit Plans?, by Niteesh Choudhry, MD, PhD and Arnold Milstein, MD, MPH (October 12, 2009). At the hearing, the Worker testified, and her representative gave oral submissions. The Employer had previously indicated that it would participate in the hearing by teleconference. The hearing was late starting, and when the Employer was contacted by phone, the representative was unavailable. I contacted the Tribunal office, and was informed that the Employer representative was informed of the delayed starting time by phone earlier that morning, and that she had indicated that if she were unavailable at the new starting time, that the hearing should continue without her participation, as she only intended to listen to the proceedings in any event. With that information in hand, I proceeded with the hearing. I called the Employer representative at the start of the hearing, she was not available, and I left a message that we would proceed in her absence on the basis of her explicit instructions to Tribunal staff earlier in the day. The day following the hearing, the Employer contacted the Tribunal to indicate that we should not have proceeded in its absence at the hearing given its indication that it wanted This decision contains personal inform ation and m ay be published. For this reason, I have not referred to the participants by nam e.

3 3 to participate. To address the Employer s concern, a transcript of the hearing was provided to the Employer, with an opportunity to make written submissions. No submissions were received from the Employer. The Worker s representative indicated in subsequent correspondence that he wished to make no further submissions. ISSUE AND OUTCOME: Is the Worker entitled to medical aid assistance for additional chiropractic treatment beyond the 30 sessions provided by the Board? Yes, the Worker is entitled to additional medical aid assistance for the chiropractic treatments received by the Worker for her right arm in 2008 and The Board will conduct a permanent medical impairment assessment, following which it will address whether the Worker is entitled to additional medical aid assistance. ANALYSIS: In September, 2005, the Worker began employment with the Employer. On the day of accident in November 2005, the Worker was employed as an inventory control specialist with the Employer. Her duties were mainly in shipping and receiving. On the day in question, she stepped backward onto a co-worker s foot, causing her to fall into a stationary conveyer-type belt used in unloading trucks. Her right arm was caught in the belt, and when a co-worker attempted to help her up, she experienced a traction injury to her right arm. The Worker had her right elbow injected by Dr. Wilson, shortly after the injury, and this served to eliminate her pain and allow her to keep working. The Worker had a previous history of treatment by Dr. Wilson for her right shoulder and arm, among other problems. Dr. Wilson agreed to see the Worker on short notice, as her symptoms required. Through a series of injections, the Worker did not lose any time from work until late in At this point, her symptoms became unbearable. Dr. Wilson recommended she stop her heavy repetitive work duties and change to a lighter job. The Board initially determined that the Worker s right arm symptoms and loss of time from work in 2007 could not be related to her compensable injury. After further investigation, the Board accepted that the Worker s compensable injury had caused at least a temporary exacerbation of the Worker s pre-existing right lateral epicondylitis problem. The case worker subsequently asked a Board doctor whether the Worker s pre-existing right elbow problem had been permanently worsened as a result of her accident, and

4 4 whether a permanent impairment assessment was required. Dr. Atrchian said in a January 24, 2009 opinion that the injury definitely caused exacerbation but it was settled down by receiving the proper treatment. Dr. Atrchian did not see any evidence of permanent changes... and indicated that there was no need for PMI exam. In response to the Worker s request for coverage of chiropractic treatments she had paid for between September and December 2007, Dr. Atrchian said that there was no evidence that chiro was needed at that period of time almost 2 years after the injury. The case worker considered Dr. Atrchian s opinion, but overruled it, and allowed the Worker medical aid coverage for 30 chiropractic treatments in total for her right arm. The case worker indicated that this was all that she was permitted to provide, and that 16 had previously been provided on the claim, allowing the Worker an additional 14 treatments for a total of 30. The Worker s Adviser said that there is no statutory limit on the extent of chiropractic treatment. That assertion is correct. The provision of medical aid assistance is limited only by evidence that particular medical aid is either necessary or expedient as a result of a compensable injury, and that the proposed medical aid is otherwise in keeping with standards of healthcare practices in Canada. At this point, the Worker has not been found to have a permanent impairment as a result of her injury. It is not necessary, however, for a worker to have a permanent impairment in order to qualify for ongoing medical aid assistance. Practically speaking, the absence of a permanent impairment might make it more difficult to establish a causal relationship between the need for particular medical aid and a compensable injury. This is particularly the case as the length of time since the injury increases. Again, the question would come down to the evidence on appeal in a particular case. In the present case, the Worker said that having regular chiropractic treatment keeps her symptoms and pain at a manageable level and allows her to keep on working. She has changed jobs several times since her injury, in an effort to find work which does not exacerbate her right arm symptoms. An ideal situation has yet to be found. Dr. Cowie provided her schedule of treatment between 2001 and She separated visits related to WCB accidents from other unrelated visits. The case worker s decision to extend chiropractic coverage to 30 visits covered the Worker s treatment to the end of December In 2008, the Worker had 70 treatments, and in 2009, she had 37 treatments. Dr. Cowie stated that from August 31, 2007 onward, the Worker had ongoing complaints that were cyclical in nature. She indicated that her treatment would lead to a lessening of symptoms in that area, while other places would become worse. As to the Worker s course over time and prognosis, Dr. Cowie said,

5 5 By the beginning of 2009, the frequency of chiropractic care was diminishing and it appears that [the Worker] had reached a plateau in recovery. The treatments of manipulation (to restore joint function) and soft tissue therapy with phototherapy (to reduce pain and restore motion) provide therapeutic benefit. It is my opinion that such treatment permits [the Worker] to function at the current level. There was a two month hiatus in treatment through November and December of When [the Worker] returned for treatment on December 29, 2009, she reported significantly increased pain levels; the intensity and the number of tender and/or trigger points as well as the number of joint restrictions on examination was significantly greater that at the end of October, The Board determined that the Worker had a pre-existing right elbow problem (lateral epicondylitis), which was at least temporarily exacerbated by the November 22, 2005 workplace injury. With respect to the request for additional chiropractic treatment in 2007, Dr. Atrchian, Board doctor, said that there was no evidence indicating a need for chiropractic treatment at that point, almost two years post-injury. Dr. Cowie also addressed the pre-existing problem. She said that there were a few instances of shoulder or arm pain prior to November 22, 2005, but that with appropriate treatment, the issues were resolved. She indicated that the noted complaints before the injury were infrequent. Dr. Cowie said that [b]eginning in August of 2007, a pattern of significant problems in the shoulders, arms and cervicothoracic area emerges. She thought that it was probable that the Worker s injury could result in the constellation of symptoms and findings revealed in October of 2007 and subsequently. Dr. Cowie s medical-legal report was not before the Hearing Officer or Dr. Atrchian at the time of his opinion. Dr. Cowie indicated that the treatment had allowed the Worker to maintain function and continue working. This is consistent with the Worker s testimony. Dr. Atrchian s opinion followed a decision that recognized the Worker s time loss in October 2007 as causally related to her November 2005 compensable injury. To then offer an opinion that chiropractic treatment for the very right arm symptoms that caused the stoppage of work would not be required at that time, two years after the injury is inconsistent with the decision to compensate for the time loss. In my view, it would have been entirely consistent for the Board to approve the chiropractic treatment offered at the time of the compensable time loss from work. The case worker saw the merit in that approach, and allowed 14 additional treatments. The Worker s treatment, however, continued much longer. I accept the opinion of Dr. Cowie that the ongoing chiropractic treatment in 2008 and 2009

6 6 was required in order to allow the Worker to continue working. I find that chiropractic treatments in that time period ( ) were expedient, and the Worker is entitled to reimbursement of the Board s usual rate for those services, and any associated travel costs. As for whether the Worker suffered a permanent impairment, the case worker requested an opinion of Dr. Atrchian on that issue, but did not address it in any decision. The Hearing Officer cited Dr. Atrchian s opinion, and found that the Worker had not suffered a permanent worsening of her pre-existing right arm problems. The Hearing Officer said that the Worker s ongoing right problems were due to the pre-existing problem, not the compensable injury. Looking at the schedule of treatments by Dr. Cowie, I note that in 2008, the Worker sought out chiropractic treatment twice as often as she did in Dr. Cowie s evidence is consistent with this account, noting that the Worker s recovery plateaued in Still, even with her recovery plateauing, the Worker still required chiropractic treatments about three times a month, on average. In the period before the Worker s injury, there is certainly evidence of right arm and shoulder impingement symptoms, as well as the diagnosis of lateral epicondylitis. There is also evidence of treatment by Dr. Wilson, who performed a series of nerve blocks in 2004 and early The Worker s evidence, however, was that following this treatment, she started working out and building muscle, and that by the time she started work with the Employer in September 2005, she was in very good shape. I accept the Worker s testimony that the right upper extremity symptoms she experienced prior were less than those that she experienced after that injury. The chiropractic treatment schedule supports that finding. That fact suggests that the injury may have caused a permanent worsening of the Worker s right arm symptoms. I find that the Worker should be assessed for permanent impairment stemming from her November 2005 injury. While the evidence of ongoing treatment needs suggests the presence of a permanent impairment, I make no finding in that regard, and leave that decision to the Board, following an assessment. I award the Worker medical aid assistance for chiropractic treatment she had in 2008 and I leave the question of ongoing medical aid assistance to the Board, following its permanent impairment assessment.

7 7 CONCLUSION: The Worker is entitled to medical aid assistance for chiropractic treatments received for her right arm in 2008 and The Board will conduct a permanent impairment assessment, after which it will address whether the Worker is entitled to any additional medical aid assistance. TH DATED AT HALIFAX, NOVA SCOTIA, THIS 25 DAY OF MARCH, David Pearson Appeal Commissioner