DECISION Lloyd Piercey. Review Commissioner

Transcription

1 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION 6 Mt. Carson Ave., Dorset Building Mt. Pearl, NL A1N 3K4 DECISION Lloyd Piercey Review Commissioner July 2013

2 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION DECISION Review Proceedings WHSCRD Case No.: WHSCC Claim No.: Review Commissioner: Decisions Under Review: Lloyd Piercey Workplace Health, Safety and Compensation Commission decision dated February 15, 2013 Date & Place of Hearing: June 19, 2013 Boardroom Hotel Gander Gander, NL Attendances at Hearing: Worker Present WHSCC s Representative Kathy Fry, Hearings Officer (via teleconference) Observer Worker s Spouse Steve Willar, LL.B., WHSCRD Issues Under Review 1. The worker is requesting the Review Commissioner find the Commission erred in denying her claim for an extension of physiotherapy. The parties agreed to the use of the file materials for the purpose of this review. 1

3 Case Summary On January 12, 2011, the worker injured her left shoulder and arm, as well as her left rib cage, when she fell on an icy walkway. She was diagnosed with a rotator cuff injury to her left shoulder. The worker remained at work, while receiving physiotherapy. On July 2011, Dr. Tumilty, Orthopedic Specialist, diagnosed a moderate frozen shoulder syndrome. The worker continued with physiotherapy to treat the injury and to increase her range of motion. On December 6, 2012, the worker s physiotherapist submitted a request for an extension of the physiotherapy treatments, at the frequency of once per week. On December 18, 2012, the Extended Services Adjudicator denied the request, stating that the Commission was now recommending independent management. The worker objected to this decision, but it was upheld by the Internal Review Specialist on February 15, Relevant Legislation and Policy The jurisdiction of the Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2) and Also relevant and considered in this case are Sections 2(1)(r), 84(1) and 85(1) of the Act, along with Policy HC-01: Physiotherapy Services Private Clinics and Policy HC-13: Health Care Entitlement. Positions Considered Worker s Position: The worker stated that both her family physician and her treating physiotherapist have recommended that she continue with her physiotherapy. She advised that her last physiotherapy session was on December 11, 2012, at which time the Commission ceased to approve her sessions. She has been doing home therapy since that time. The worker advised that she is still working, but without the physiotherapy the range of motion in her shoulder has decreased. She stated that the recommendation of her health care providers should be accepted by the Commission and approval for physiotherapy should be reinstated. The worker referenced a letter from Dr. Tumilty, dated February 10, 2012, in which he stated that she had frozen shoulder syndrome. The worker contended that the Commission has placed too much weight on the content of the letter. The worker referenced the Internal Review decision dated February 15, She does not agree with the determination that home therapy would be sufficient to improve her symptoms. She stated that it helps, somewhat, but is only effective in conjunction with the physiotherapy treatments. The worker noted that her physiotherapist had stated that she had plateaued. However, she stated that he also indicated that this is typical in the ups and downs of this type of injury. 2

4 The worker stated that the Commission should place more emphasis on the opinion of her family physician and physiotherapist, rather than that of the Medical Consultant who has never seen her. The worker stated that she has only had one or two cortisone shots, not several, as was stated by Dr. Tumilty, and reiterated by the Internal Review Specialist. The worker stated that, without physiotherapy, she does not expect to recover her full range of motion. She feels that she has regressed over the last three months. Commission s Position: The Commission referenced Sections 2(1)(r), 84 and 85(1) of the Act, as well as Policy HC-01 as being relevant to the issue. The Internal Review Specialist noted that the worker s family physician, Dr. Button, in a referral note dated January 11, 2012, to Dr. Tumilty, had stated that the worker received physiotherapy on a regular basis, but was not experiencing any significant improvement from the treatment, particularly in her range of motion, and the pain was getting worse. The Internal Review Specialist noted that Dr. Tumilty, on August 26, 2011, advised the worker that the natural history of a frozen shoulder would indicate a complete recovery over an 18 month period. The Internal Review Specialist stated that in a report from Dr. Tumilty dated February 10, 2012, however, Dr. Tumilty wrote that there had been little change in the worker s condition since August 26, The Internal Review Specialist referenced several reviews on the worker s claim, relative to the physiotherapy, that included November 14, 2011, February 22, 2012, May 7, 2012, July 11, 2012, August 22, 2012 and January 17, The Internal Review Specialist stated that the Physiotherapy Consultant had determined that a transition to a home program only was appropriate since it was now two years post injury. The Internal Review Specialist acknowledged that both the worker s family physician, Dr. Button, and the treating physiotherapist, had recommended continued physiotherapy treatments. The Internal Review Specialist noted that Policy HC-01 states that requests for continuation for physiotherapy beyond 12 treatments will only be considered where evidence indicates that functional improvement has occurred, further functional improvement is likely, and continued treatments will enable the worker to return to the workforce, or allow the worker to continue being employed. The Internal Review Specialist referenced a report from the treating physiotherapist, dated December 6, 2012, in which he states that the worker s progress has plateaued over the past month, but that had occurred before, and then the worker would experience further gains. The Internal Review Specialist stated that, given the passage of time and the significant improvements noted in the December 6, 2012 physiotherapy report, it would be reasonable to trial a period of home treatment only, at this time. The Internal Review Specialist noted that, if the family physician 3

5 determined findings of a subsequent deterioration in the worker s condition, it could be submitted for further consideration. Ms. Fry, the Commission s Hearings Officer, was present at the hearing and noted that the worker did not lose a lot of time from work due to the injury. She noted that the file information confirmed that surgical intervention was not recommended. Ms. Fry stated that Dr. Tumilty, in his assessment, did not indicate that physiotherapy would alter the course of the recovery. Ms. Fry stated that the worker was relying on the physiotherapy treatments for symptom control. However, the onus was on the worker to keep up the home therapy to assist in maintaining her range of motion. Ms. Fry noted that Sections 84 and 85 of the Act give the Commission the authority to decide medical aid, in this case physiotherapy. She also referenced Policy HC-01 that covered the treatments at private clinics and added that criteria set out in the policy had to be met in order for physiotherapy to continue. Ms. Fry referenced the following documents: A letter dated May 6, 2011 from Dr. Button noting the diagnosis and treatment. A letter dated July 15, 2011 in which Dr. Tumilty noted no surgical intervention required. A letter to the worker from the Intake Adjudicator dated August 5, 2011 in which the worker is advised that the Medical Consultant noted that a home exercise program would be beneficial. A letter dated August 26, 2011, in which Dr. Tumilty advised that he spoke to the worker and discussed her frozen shoulder syndrome and treatment. A Form 8/10 from Dr. Button dated September 14, 2011, in which he stated that the worker could benefit from home physio. A letter dated January 11, 2012 in which Dr. Button wrote that the worker claims there has not been any significant improvement in her ROM. Ms. Fry referenced several other reports from the worker s treating physicians, including the physiotherapist s report dated December 6, 2012, in which it is indicated that the worker s progress has plateaued over the past month but we have seen this over the course of her treatment. Ms. Fry referenced a letter from Dr. Button to the Commission, dated January 14, 2013, in which he advised that the worker continue with her physiotherapy and ROM exercises. He noted that she had experienced significant improvement over the months in her strength and range of motion. He expressed concern that to discontinue her physiotherapy would lead to loss of strength and result in decreased ROM. Ms. Fry submitted that, notwithstanding the opinion of Dr. Button, it was the position of the Commission that the worker, being two years post-injury, would understand the benefits of home therapy and would continue with it. 4

6 Ms. Fry advised the worker that if the objective findings supported a deterioration of her condition, and it was confirmed by her physician, the Commission would then revisit the request. Reasoning and Conclusions It is the position of the worker that the Commission erred in denying her extensions to her physiotherapy treatments. She contended that physiotherapy allows her to maintain her range of motion and control the symptoms related to her workplace injury. She noted that the continuation of the physiotherapy treatments is supported by both her family doctor and her physiotherapist. The Commission has determined that the worker, who is now two years post injury and has received numerous physiotherapy treatments, should participate in a home therapy program only. It has concluded that the worker has experienced significant improvement and, consequently, the Physiotherapy Consultant has indicated that the worker would benefit from a trial period of home therapy treatment in the absence of the physiotherapy sessions. The Commission has advised the worker that, should there be a deterioration in her condition that is supported by objective medical evidence and confirmed by her family physician, then the findings can be submitted to the Commission for further consideration. In arriving at a decision on the matter before me, I have reviewed the file information and considered the testimony and submissions, as well as the relevant legislation and policy. I note that Policy HC-01, Physiotherapy Services Private Clinics states, in part: Physiotherapy continuation requests beyond 12 treatments will only be considered where evidence from outcome measures data indicates that functional improvement has occurred and further functional improvement is likely, and the continued treatment will result in the worker remaining in or returning to the workforce. All requests for extensions require approval from Compensation Services, following consultation with the Commission's Physiotherapy Consultant. I have reviewed the reports, relative to this file, from the Physiotherapy Consultant for the period November 14, 2011 to January 17, I note that over that period of time he goes from concurring with the request from the worker s physiotherapist to concluding that the worker would be best served, at this time, by the home therapy program only. I reference, particularly, comments from the Physiotherapy Consultant in a Claim Note dated August 22, 2012 that states, I have reviewed this file once again and can re-state that this injury is most appropriate for self management This is similar to an opinion offered on July 11, 2012 in which the Physiotherapy Consultant stated since this is a chronic issue and these injuries do really well with home programs. The injury has benefited from extensive care in the past and now is appropriate for independent management. I note that the Physiotherapy Consultant, on January 17, 2013, in a Claim Note had indicated that the worker s treating physiotherapist had acknowledged that the worker had plateaued. The Physiotherapy Consultant, following the report, had stated that given the lengthy course of treatments to date it is quite reasonable that patients move on from professional services towards self management. The 5

7 Physiotherapy Consultant concluded in the review of the worker s file on January 17, 2013 in a Claim Note that: there is no justification for protracting care for this diagnosis. It is my professional opinion based on the diagnosis, the duration of care, the ratings for the present outcomes and functional ability profile that this should not be continued on with more physiotherapy. I have reviewed the reports from the worker s treating physiotherapist. On August 7, 2012, while there are lifting restrictions noted, the information indicates that the worker had reported significant improvement in her symptoms. Likewise, the objective findings also indicated that there were significant improvements in her range of motion, the spasms were resolved and the worker s strength also showed significant improvement. On December 6, 2012 the Physiotherapist s Report, again, indicated significant improvement in both the subjective and objective findings. I note that in this report the physiotherapist wrote that the worker had plateaued. This was noted by the Physiotherapy Consultant on January 17, 2013 and, subsequently, it was concluded that the home therapy program, after two years and numerous physiotherapy sessions, would now be most appropriate. The worker testified that she has not had any physiotherapy since December of However, I find it is significant to note, also, that since this time, the worker has been on the home therapy exercise program only, and has not lost any time from work. She did testify that she feels that she has loss of range of motion, but I find there is no objective medical evidence to support that claim. I find that it is important for the worker to be cognizant of the fact that the Internal Review Specialist, in the February 15, 2013 decision, and Ms. Fry in her submission advised that, if the worker s condition deteriorated and there was medical evidence to support same, then the Commission would consider the information and possibly revisit the claim. Policy HC-13: Health Care Entitlement states, in part: Prescribed Treatments, Devices and Accessories The Commission will pay for treatments, devices and accessories prescribed by licensed health care providers, as long as the treatment, device or accessory, in the opinion of the Commission: a. will improve or maintain the worker's functional abilities; b. will improve the likelihood of early and safe return to work; c. will minimize the risk of further injury or aggravation of the original injury; or, d. will reduce the severity of symptoms where the work injury has a significant impact on the activities of daily living. I find that the evidence indicates that to continue with physiotherapy will not necessarily improve the worker s condition. As a matter of fact, after noting significant improvement, the worker s physiotherapist had indicated that the worker had plateaued. The worker testified that she felt that her condition had regressed with the cessation of the physiotherapy, however, I find there is no medical evidence in the worker s file to support this. Furthermore, the worker has continued to work after the 6

8 physiotherapy sessions ended. I also find that there is no evidence in the worker s file to indicate that her quality of life or her daily activities have been negatively affected. The worker testified that both her family physician and her treating physiotherapist have indicated that it would be beneficial to continue with the physiotherapy sessions. The file information confirms that this is the case. This is in conflict with the opinion of the Physiotherapy Consultant who offers the professional opinion that home therapy exercises would be most appropriate, at this time. I find the following to be applicable in this instance. I reference Paragraph (137) of Osmond v. Workers Compensation Commission (NFLD) (2001), specifically the following: (v) It does not follow, however, that where there is conflicting evidence which could permit the drawing of more than one rational and reasonable inference relating to the issue, there is an automatic presumption raised in favour of a claimant simply because he or she can point to some medical or other evidence supporting his or her position; (vi) The adjudicator is perfectly at liberty, after weighing conflicting evidence and considering the complete record, to decide against the claimant and to reject the evidence and opinions that are in his or her favour, if the evidence, viewed as a whole, calls for that result. In this case, I have reviewed and analyzed the file and in viewing the evidence as a whole, I find it supports the Commission s position. Section 85(1) of the Act states: The supervision and control of medical aid and questions as to the necessity, character and sufficiency of medical aid which is provided shall be determined by the commission. I find the Commission has exercised its authority and arrived at a decision that is reasonable, supported by the evidence, and in accordance with the Act, regulations and policy. Decision With respect, the review is denied. Review Denied Lloyd Piercey Review Commissioner July 31, 2013 Date /dho 7