DECISION Keith G. Barry Review Commissioner

Transcription

1 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION 6 Mt. Carson Ave., Dorset Building Mt. Pearl, NL A1N 3K4 DECISION Keith G. Barry Review Commissioner October 2013

2 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION DECISION Review Proceedings WHSCRD Case No.: WHSCC Claim No.: Review Commissioner: Decision Under Review: Keith G. Barry Workplace Health, Safety and Compensation Commission decision dated November 1, 2012 Date & Place of Hearing: July 2, 2013 Hearings Room Workplace Health, Safety and Compensation Review Division Mount Pearl, NL Attendances at Hearing: Worker Present Worker s Representative Mel Strong, Appeals Officer Governments Members Office WHSCC s Representative Kathy Fry, Hearings Officer Observer Worker s Spouse Issues Under Review 1. The worker is requesting the Review Commissioner find that the Commission erred in denying her request for an extension of physiotherapy treatments. The parties agreed to the use of the file materials for the purpose of this review. Case Summary The worker sustained a compensable injury to her right hip and leg on October 27, 2008 that was initially diagnosed as a disc injury. She underwent chiropractic treatments and in September 2009, she began physiotherapy treatments. The Commission continued to approve the physiotherapy extension requests to July 2012 which totaled 168 treatments. 1

3 On July 6, 2012, the Commission received another request from the worker s treating Physiotherapist for an additional six treatments, at a frequency of one per week, which was reviewed by the Commission s Physiotherapy Consultant. Following this review, as well as the other medical evidence on file, the worker was advised, in a decision dated August 10, 2012, that her request for further physiotherapy was denied. The worker appealed and in a decision dated November 1, 2012, was advised by the Internal Review Specialist that her appeal was denied. The worker disagreed. 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 19(1), 84(1) and 85(1) of the Act, along with Policy HC-01: Physiotherapy Services Private Clinics. Positions Considered Worker s Position: Mr. Strong began his presentation with a brief description of the mechanism of injury and subsequent medical investigation and treatment, (i.e. participated in Early and Safe Return to Work (ESRTW), Empower Multidisciplinary Team Assessment, etc.). He referenced a Case Worksheet note dated February 25, 2010, wherein the worker s Case Manager stated, in part, that Physio is helping her stay at wrk and slowly increase her hours He also referenced another Case Worksheet note dated March 23, 2010, wherein the Case Manager stated that EMPOWER CC today indicated more physio and CBOR to strengthen the core muscles. The worker described the stretch exercises that she does at physiotherapy which she noted she was unable to do at home. She noted that they were very beneficial, since they took the pressure off the nerve. She noted that since she stopped doing physiotherapy in August 2012, her condition has deteriorated, requiring her to have to take more medication. She also noted that she has lately had problems with her right hand and arm. Mr. Strong referenced the Internal Review Specialist s decision, specifically her recounting of the number of treating professionals that have assessed the worker, particularly two Neurologists and an Orthopedic Surgeon. Mr. Strong also referenced Form 8/10 s from the worker s Physiotherapist and treating physicians dated September 10, 2009 and October 20, 2009 respectfully, wherein they list under Objective Findings, abnormal sensation/gait, atrophy, decreased range of motion, etc. Mr. Strong referenced an EMPOWER Multidisciplinary Team Assessment report dated March 30, 2010, specifically, in the Recommendations section, the Return to Work comments stated, The prognosis to return to the preinjury job is good. It is anticipated with physiotherapy and strengthening that the right leg symptoms will improve over time He noted that the worker went through a weaning process which she found beneficial and steadily increased her hours of work attendance. 2

4 Mr. Strong referenced a Form 8/10 dated June 21, 2010, wherein the Physiotherapist listed the same Objective Findings as almost one year earlier, but indicated moderate improvement. He referenced a number of other Form 8/10 reports from the worker s Physiotherapist in 2011 and 2012 which continued to report mild/moderate improvement leading up to the July 6, 2012 request for six additional treatment sessions. Mr. Strong referenced the worker s letter of appeal dated August 14, 2012, wherein the worker noted the problems she was having with her home exercises and her desire to be at work. Mr. Strong referenced the Commission s obligation under Sections 84(1) and 85(1) of the Act, along with Policy HC-01. Commission s Position: The Commission s position was presented by Ms. Fry and contained in the Internal Review Specialist s decision dated November 1, The Internal Review Specialist began her decision with a reference to the worker s letter of appeal. Specifically, the worker s assertion that the stretching exercises she received at physiotherapy were the only thing that relieved the pressure off her sciatic nerve. The Internal Review Specialist referenced various reports submitted by the worker s treating physician which included: March 6, 2009 The Orthopedic Surgeon reported the worker s complaint of pain was around the right buttock and into the groin region, with radiation down into the right leg to foot level and ordered an MRI. In a further report, dated April 24, 2009, after reviewing the MRI results, the Orthopedic Surgeon noted that there was no evidence of any significant L5 nerve root compression. He did note that there was some lateral stenosis in that area. August 27, 2009 The Neurologist indicated that there was no evidence to suspect spinal cord or lumbosacral nerve root disorder, suggesting physiotherapy. An EMPOWER Action Plan- Multidisciplinary Program report dated March 23, 2010 recommended sessions of a Clinic Based Occupational Rehabilitation (CBOR) program, as well as 8-10 sessions of active physiotherapy. February 24, 2010 A second Neurologist indicated that the worker s primary problem was an L5 radiculopathy which he expected would continue to improve. The Internal Review Specialist referenced the July 6, 2012 report from the Physiotherapist, requesting six additional treatment sessions over and above the 168 treatments the worker had received to date. She noted that the request had been reviewed by the Commission s Physiotherapy Consultant, who reported, in a Case Worksheet note, dated August 8, 2012: I have reviewed the report and the history of payments on file. The worker has attended routine care weekly for an extensive period of time. It is reasonable to discontinue professional level care and proceed with self management techniques. If not provided already, you may consider getting her a heating pad or TENS. Patients are typically well educated on self management techniques and there is no need for weaning here. 3

5 As a result of this opinion, and other evidence in the file, the Internal Review Specialist noted that the worker s request for the six additional treatments was denied. Ms. Fry began her presentation with two questions for the worker, namely: 1. What transpired after the physiotherapy was discontinued? The worker replied that she remained working, but had to rely on increased medication (i.e. Robaxacet). 2. Was the worker aware that the Commission s decision to discontinue her physiotherapy treatments was to see how she would do without the treatments? The worker noted that she was not aware why her request was denied. She noted that she did take advantage of the Commission s offer of a heating pad and TENS unit. Ms. Fry noted that the worker is approximately five years removed from her injury and, after approving 168 treatments during that time, the Commission was correct in their determination that the worker had reached the maximum benefit. She noted that the EMPOWER Multidisciplinary Team Assessment report dated March 30, 2010 had only recommended that she: Continue with current ESRTW with occupational rehabilitation involvement CBOR at two days per week x sessions 8-10 sessions of active physiotherapy once weekly Ms. Fry pointed out that treatment modalities such as physiotherapy are intended to be an early intervention approach to treating the injury and are not meant to be long term. She noted that the worker was advised to go back to her treating physician/empower if her home exercise program was not giving her the benefit she needed. Ms. Fry pointed out that the Commission had a responsibility to look at how many treatments were availed of by the worker, what was originally recommended, etc., and if significant progress was not evidenced, then alternate approaches should be investigated. She noted that it was not the Commission s intent to save expenses, but to investigate what was in the worker s best interest. She noted that the physiotherapy provided no long term benefit or any significant reduction in the worker s symptoms. Ms. Fry acknowledged that the physiotherapy was helping the worker to remain on the job, but pointed out that after approximately five years and 168 treatments, the Commission was bound by Section 85(1) of the Act to explore a different approach. Worker s Rebuttal: Mr. Strong acknowledged that perhaps going back to her treating physician/empower was a good idea, but noted that this was not communicated properly to the worker. The worker also acknowledged the Commission s recommendation to going back to her treating physician/empower, but she was of the understanding that this would be initiated by the Commission, since they made the recommendation. The worker concluded by describing the difficulty she has in performing the activities of daily living. 4

6 Reasoning and Conclusions After listening to the presentations of Mr. Strong and the worker, I find that their primary argument for continuing the worker s physiotherapy treatments was that it helped her to remain at work. Specifically, it was the worker s contention that the only exercises she found beneficial were the stretching exercises she could only get at physiotherapy which alleviated the pressure on her sciatic nerve. The Commission s primary reason for denying the worker s request for additional physiotherapy was that given the extensive period of time and the number of treatments received, it was reasonable for the worker to proceed with self-management techniques or explore alternate approaches. My role as a Review Commissioner is to review the decision of the Commission and determine if the Commission, in making that decision, acted in accordance with the Act, regulations and policy. After reviewing all of the evidence on file and listening to the presentations by both parties, I find that the weight of evidence favors the Commission s position over that of the worker. I note that Section 85(1) of the Act states: 85(1) 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 further note that this provision is mandatory, thereby placing a legal obligation on the Commission to ensure that the provision of medical aid is administered both efficiently and effectively. There is no question that the Commission has ultimate oversight on questions of medical aid. The Commission has a responsibility to manage claims on a case by case basis and decide accordingly. The Commission has wide discretion in its management powers, and while it exercises discretion, it must be exercised reasonably. As previously stated, the role of the Review Division is to review the decisions of the Commission to determine whether the Commission was correct. However, it is not the role of the Review Division to displace the role of the Commission in making medical determinations or to make decisions in the first instance. The Review Division s function is to ensure that the legislation and policies surrounding medical aid are identified and applied properly, and in accordance with the true spirit and intent of the Act and related policy, specifically in this case, Policy HC-01, which states, in part: 2.4 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. I find that the issue in this case is the worker s claim that the physiotherapy treatments allow her to continue working, while the Commission has determined that their decision was made in accordance with both Section 85(1) of the Act and Policy HC-01. I note as Ms. Fry pointed out, the worker is approximately five years removed from the date of her injury and that she received her first physiotherapy treatment on February 10, During that period, I note that the worker has received 168 treatments without any significant functional improvement, as reported by her Physiotherapist. 5

7 I note that in initial Physiotherapist s Report dated February 10, 2009, the Physiotherapist indicated that the objective findings were abnormal sensation (dermatomal), Range of motion ( =25%), spasm. I further note that in his next report dated March 9, 2009, the Physiotherapist indicates that the worker has shown mild to moderate improvement from previous reports. I note in the next report dated April 7, 2009, the Physiotherapist indicates moderate to significant improvement under Objective Findings and has continued to provide the same update status, (i.e. mild/moderate improvement) in reports leading up to his request for six additional treatments in his July 6, 2012 report. As a result, I find that the Commission was correct to consider an alternate approach that would be in the worker s best interest. I find that not only is this determination in accordance with Policy HC-01, with respect to functional improvement, but it satisfies the Commission s responsibility to supervise and control issues related to medical aid, as required under Section 85(1) of the Act. Accordingly, I find that the Commission s decision to deny the worker s request for an extension of her physiotherapy sessions to have correctly been made in accordance with legislation and policy. Decision With respect, the review is denied. Review Denied Keith G. Barry Review Commissioner October 16, 2013 Date /cv 6