WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1414/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1414/15 BEFORE: L. Bradbury: Vice-Chair HEARING: July 7, 2015 at Toronto Written DATE OF DECISION: August 5, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1725 DECISIONS UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decisions dated March 14, 2014 and February 3, 2015 APPEARANCES: For the worker: For the employer: Interpreter: S. Hart, Office of the Worker Adviser Not participating Not required Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1414/15 REASONS (i) Introduction [1] The worker appeals two ARO decisions. The ARO decision of March 14, 2014 concluded that the worker was not entitled to ongoing chiropractic treatments. The ARO decision of February 3, 2015 concluded that the worker was not entitled to a home personal ultrasound unit. (ii) Issues [2] The issue is whether the worker is entitled to health care benefits in the form of ongoing chiropractic treatments after December 2011 arising from the workplace accident on July 16, The worker also seeks entitlement to a home ultrasound unit. (iii) Background [3] The following are the basic facts. [4] The worker started as a registered practical nurse with the accident employer in She was injured on July 16, 2006, when she experienced an immediate onset of pain in the left side of her neck and right scapula while she was lifting a patient. The worker did not lose time from work but sought treatment from a chiropractor. She was 54 years old at the time of her injury. [5] The Board granted entitlement for the worker s condition which was diagnosed as a cervical/thoracic strain. In December 2007 the worker was granted a 25% non-economic loss (NEL) award for her permanent impairment. [6] The worker stopped working for the accident employer in July 2007 due to her non-workrelated conditions of fibromyalgia, scleroderma, Raynaud s disease and cervical spondylosis. [7] The Board paid for the worker s chiropractic treatments from the date of her injury until December 21, 2011, when it accepted the opinion of Dr. Malcolm, an orthopaedic surgeon at Sunnybrook Hospital s Back and Neck Specialty Clinic, that no further recovery was anticipated and no further medical or conservative treatment was indicated. The Board gradually decreased the worker s chiropractic treatments over 16 weeks and then discharged her to an independent home exercise program in [8] The worker appealed the decision and also asked for entitlement to a home personal ultrasound unit. The 2014 ARO decision denied ongoing chiropractic treatment on the basis that the preponderance of objective information supported a finding that the treatment was not having any significant impact on the worker s compensable condition. The 2015 ARO decision denied entitlement to a home ultrasound unit on the basis that the unit would not likely benefit the worker who was then eight years post-accident and seven years post-maximum medical recovery (MMR) determination. (iv) Relevant law and policy [9] Under the Workplace Safety and Insurance Act, 1997 (the WSIA), section 33(1), every worker who sustains a compensable injury is entitled to such health care as may be necessary,

3 Page: 2 Decision No. 1414/15 appropriate and sufficient as a result of the accident. A worker is also entitled to make the initial choice of health care professional. [10] In accordance with subsection 33(7) the Board, and on appeal, the Tribunal, shall determine questions concerning payment for health care. [11] Section 32 of the WSIA defines health care. The definition includes services provided by health care professionals. The definition also includes assistive devices. [12] The Board has adopted various policies on health care. Operational Policy Manual (OPM) Document No Entitlement to Health Care states that health care professionals include chiropractors. OPM Document No Choice and Change of Health Professional states that initial treatment by a chiropractor/physiotherapist is limited to a maximum of 12 weeks. Any treatment beyond the 12-week mark must be pre-authorized by the WSIB. [13] With respect to chiropractic treatment, treatment beyond the 12-week stage is generally referred to as maintenance treatment. Board policy does not address maintenance chiropractic or physiotherapy treatment. Tribunal decisions have considered whether the treatment is necessary as a result of the accident and whether it is useful in reducing the pain and allowing the worker to remain employed. See, for example, Decision Nos. 4/89, 791/98, 328/99, 1298/99, 174/00, and 2255/00. In December 2005 the Board adopted a Best Approaches document entitled Maintenance Treatment. It sets out the following principles: In determining whether to authorize treatment beyond 12 weeks, the decision-maker must be satisfied based on objective medical findings, that the treatment is necessary to achieve one or more of the following objectives: Enables the worker to continue working at regular or suitable work Leads to reduction in the worker s pain and/or decreases the worker s medication use Increases the worker s level of functioning or prevents a deterioration in the worker s level of functioning Teaches the worker independent management of their condition The decision-maker must decide each request on its own merits, which includes assessing all objective medical evidence in reaching a decision. Entitlement for other forms of maintenance treatment provided by health professionals will also be determined on their own merits, applying the criteria set out previously. [14] While the Tribunal is not required to apply the Best Approaches document, it may consider the document if it provides relevant and helpful guidance. (v) Evidence [15] The worker in this case received chiropractic treatment for six years following her workrelated injury. Her treatment provider is Dr. M. Pion Robin who is a chiropractor and a physiotherapist. [16] There is information in the Case Record that the Board became concerned about the worker s ongoing treatment by January 25, The Nurse Case Manager asked a Board medical consultant to review the file since there have not been any longstanding physical gains

4 Page: 3 Decision No. 1414/15 made with chiro treatment over the last 6 months. Dr. Pritchett responded on February 6, 2007 in Memo #18, and suggested that the worker be referred to a REC or seen by a specialist. [17] The initial REC assessment was conducted on April 17, 2007 by Dr. Malcolm, an orthopaedic surgeon, and by a physical therapist. Their diagnosis was that the worker had a cervicothoracic sprain superimposed on a constellation of pre-existing rheumatological conditions, including scleroderma, Raynaud s and fibromyalgia. They recommended four to six weeks of physiotherapy and on completion of this program she should be able to continue with her own self-directed care. Their prognosis was that the worker is likely to experience symptoms on an ongoing basis. [18] On June 13, 2007, Dr. Pion Robin wrote to the Board stating that the worker was continuing to experience severe pain and requested physiotherapy maintenance treatment once a month to reduce her pain and help her to keep working. [19] The Board initially approved an extension of monthly treatment for five years. As noted above, the worker stopped working in July 2007 due to her non-compensable conditions. [20] In June 2011, Dr. Pion Robin asked for an increase in chiropractic treatments to one to two times per week. As a result of this request, the Nurse Consultant asked the Board s chiropractic consultant for an opinion about the proposed maintenance plan. Dr. R. Friedman reviewed the entire file and reported on January 13, Dr. Friedman noted that since the worker was no longer at work, the treatment was not supporting work endeavours. Dr. Friedman wrote that an injury of this nature should have resolved within 3-4 months. Dr. Friedman was concerned that the worker had received treatment long beyond what is typically required for injuries of this nature and noted that the effect of the treatment had not been properly tested. He recommended a gradual withdrawal of treatment over the next six months and then a discharge to see how the worker would do without treatment. [21] Dr. Friedman reviewed the file again in October 2011 and recommended a referral to the neck and back specialty program to determine whether the worker s ongoing symptoms were due to her injury or to her comorbidities. [22] The worker was assessed on December 5, 2011, at the Back and Neck Specialty Clinic at Sunnybrook Hospital. Once again, the worker was seen by Dr. Malcolm and his team. Their diagnosis was Chronic cervical thoracic strain. The prognosis was Partially recovered now. No further recovery is anticipated. Under treatment, Dr. Malcolm wrote: No medical or conservative treatment is indicated, from a facility based musculoskeletal prospective, which is not to say that (the worker) does not get short term relief from her chiropractic. We explained to her that this is no different than pain relief or escape from pain related to the use of analgesic and/or spirits, etc. [23] Based on Dr. Malcolm s report, the Board found that ongoing treatment was not considered reasonable or necessary at this stage. The worker was transitioned off treatment and treatment was discontinued in June Dr. Pion Robin wrote to the Board on July 18, 2012, stating that the worker was experiencing increased pain and problems with daily functioning following the cessation of her treatments. Further treatment was denied by the Board on the basis that there were no objective findings in support of Dr. Pion Robin s request.

5 Page: 4 Decision No. 1414/15 [24] In a letter faxed to the Board on October 16, 2014, Dr. Pion Robin requested that the worker be given a home ultrasound unit to assist with her home treatment program. Dr. Pion Robin listed the benefits of an ultrasound machine in general. The Board denied the request on the basis that the unit was not scientifically proven to be effective and the Board had already provided the worker with a TENS machine. [25] The worker s representative filed a submission with the Tribunal dated April 21, The representative submitted that the worker s ROM is only maintained with treatment and is lost when treatment is discontinued; thus, ongoing treatment reduces the worker s pain and increases her level of functioning, in line with the Board s Best Approaches document. With respect to the ultrasound machine, the representative noted that Dr. Pion Robin, the worker s long-time physiotherapist/chiropractor, recommended the machine and, as such, it should be granted as part of the maintenance treatment the worker is requesting. (vi) Analysis [26] As noted above, the WSIA does not set a limit on chiropractic treatment. The Board s Best Approaches document, however, sets out some factors for decision-makers to consider when deciding issues concerning chiropractic maintenance treatment. They include: Does current medical information support the treatment? In this case, Dr. Malcolm, an orthopaedic surgeon, examined the worker in 2007 and again in When I compare the two reports it is clear that the worker s condition did not significantly improve during that period, while she was receiving regular chiropractic treatment. Her cervical range of motion (ROM) in 2011 shows a slight decrease in extension and very minor gains in the other ROM. Has the treatment resulted in a decrease in the worker s pain or dosage of medication? Again, a comparison of Dr. Malcolm s 2007 and 2011 reports show that the worker was on an extensive list of medications in 2007 and Her reports of pain remained very similar. Dr. Pion Robin also noted that the worker continued to experience ongoing neck pain. Has treatment prevented an aggravation of symptoms? The Case Record shows that the worker continued to have periods of aggravation. For example, in 2009, the Board increased the number of treatments when the worker experienced additional pain. Will the treatment enable the worker to continue working at regular or suitable work? The worker in this case did not lose time from work for the work-related injury but she did stop working in July 2007 as a result of her non-work-related conditions. The worker continued to receive chiropractic treatment for five years after she stopped working but has been unable to return to any type of work. Is it expected that the ongoing treatment will increase the worker s level of function? Dr. Malcolm s opinion is that the worker is partially improved but her condition is chronic and no further improvement can be expected. [27] When I consider all of these factors, I find that the evidence does not support granting ongoing chiropractic treatment. Although the worker reports short-term pain relief from the treatments, Tribunal decisions are clear that when considering whether treatment is necessary, appropriate and sufficient as a result of the injury, short-term relief of symptoms does not satisfy

6 Page: 5 Decision No. 1414/15 the intent of the Act (see Decision No. 2255/00). In addition, the treatment to date has not been useful in reducing the worker s pain overall, nor has it allowed the worker to remain employed. [28] I conclude that the worker is not entitled to ongoing chiropractic treatments. [29] With respect to a home ultrasound unit, I agree with the ARO that the evidence does not establish that the unit meets the WSIA requirement for health care that is necessary, appropriate and sufficient. The worker was granted a TENS unit in June 2011 on the recommendation of Dr. Pion Robin and the unit continues to be maintained by the Board. The rationale for granting the TENS unit, as set out in Memo # 63, was improved pain management. The Board accepted evidence from the chiropractor that the TENS unit provided the worker with an improved pain tolerance and decreased her use of analgesics. There is no evidence from Dr. Pion Robin that the TENS unit is not sufficient or that it does not meet the original goals. Dr. Pion Robin s letter of October 2014 sets out general information only about an ultrasound machine. I conclude, therefore, that the evidence does not support entitlement to a home ultrasound unit.

7 Page: 6 Decision No. 1414/15 DISPOSITION [30] The appeal is denied. DATED: August 5, 2015 SIGNED: L. Bradbury