Workplace Health, Safety & Compensation Review Division WHSCRD Case No: WHSCC Claim No: Decision Number: 15240 Bruce Peckford Review Commissioner The Review Proceedings 1. The worker applied for a review of the Commission s decision of March 9, 2015. He was notified a hearing into his application was to be held on November 4, 2015. He was also informed at that time, if he did not participate the application would be reviewed based on the contents of the file. No response was received, nor was he able to be contacted on the date of the hearing. Consequently, the review of the worker s application was conducted under Section 28(7) of the Act as a review of the claim file information only. 2. Neither the employer nor the Commission attended or participated in the hearing process. Introduction 3. The worker sustained a left shoulder effusion and rotator cuff tear, while employed as a crane operator, in June 2014. His claim for compensation was accepted. 4. He began physiotherapy treatment shortly thereafter. In October 2014, the worker began to a see a different physiotherapist, who requested additional physiotherapy treatments. Later he changed physiotherapy providers again, where a request for further additional treatment was received. The Commission sought additional information regarding these requests. 5. Following a review of the information by the Commission s physiotherapy and medical consultants, it was determined entitlement to further treatment was not present. 6. The worker, in his appeal of the decision to deny further coverage of physiotherapy, indicated he was incorrectly notified of the denial decision. He submits he was informed by telephone to disregard the written denial notification, which he did. The Commission in review of the matter submits the worker was not incorrectly notified and that the denial of additional physiotherapy and massage treatments was communicated correctly. 1
Issue 7. The worker seeks a review of the internal review decision of the Commission dated March 9, 2015 and seeks payment for an outstanding bill for physiotherapy treatment and entitlement to further treatments. Outcome 8. I find the Commission s decision of March 9, 2015 to be in accordance with the Act and applicable Policy. With respect, this review is denied. Legislation and Policy 9. The jurisdiction of the Chief Review Commissioner is outlined in the Workplace Health, Safety and Compensation Act (the Act), Sections 26(1) and (2), 26.1 and 28. 10. Also relevant and considered in this case are Sections 84(1) and 85(1) of the Act, along with Policy HC-01: Physiotherapy Services, Private Clinics; Policy HC-13: Health Care Entitlement and Policy EN-20: Weighing Evidence. Relevant Submissions and Positions 11. The worker, in his application for a review of the Commission s decision to deny extended physiotherapy treatment, submits the Commission approved him for an extension of physiotherapy treatments. 12. He submits that he was visiting with his psychologist, and the psychologist spoke with the case manager at the Commission concerning the approval of same. He states the Commission requested further medical information on his case, and when the psychologist faxed the required data to the case manger, she stated the letter of denial had already been received and the worker was told to ignore it. 13. The worker indicates from this, he understood the case manager then had all the information that was needed to revisit the issue and consequently, this direction to the psychologist to ignore the decision amounted to an approval for continued physiotherapy. 14. Later, the worker submits, the physiotherapy clinic informed him that they were notified by the Commission continued physiotherapy was not approved. He also submits his physiotherapy and massage therapy are beneficial in helping him to cope with the symptoms resulting from his injury. The worker states he now has incurred charges of over $1,770. 15. The Commission in reviewing the worker s request that he was notified to ignore the letter of denial states in part, I am unable to confirm from the evidence your account of events 2
occurred in the same manner as you have relayed them. It goes on to state 12 physiotherapy sessions, plus 6 massage sessions were approved initially. It further notes the worker was spoken to and was told his move to a third clinic was not supported. His discharge from the previous clinic had occurred and he was working full time hours in the schedule. 16. The Commission s decision next discusses the process that occurred in determining entitlement to the request for additional physiotherapy treatments. The Commission s physiotherapy consultant reviewed the file and determined there was not sufficient information available on which to recommend further treatment. Subsequently, a report was received where it was reported that physiotherapy had failed to result in any improvements. She (the provider) also noted further medical intervention was required and indicated the additional treatment was for maintaining strength etc. while awaiting further medical evaluation. 17. The request for an extension of physiotherapy was further reviewed by the Commission s physiotherapy consultant who noted in his January 31, 2015 claim note: I have reviewed this file again. The client has had extensive physio for his shoulder and has not improved. This has been verified by the treating provider in a letter of Jan 14/15. Ultrasound has confirmed a full thickness rotator cuff tear and the client is scheduled to see a surgeon. I would concur with the comments of the medical consultant of Jan 21/15 the extensive physio to date has not had significant objective benefits. The worker should be able to maintain his status with home exercises while he awaits the outcome of his specialist consult. I see no indication for continuing with clinic-based physio at this stage 18. In considering this evidence and, in recognition of the Act and policy giving the Commission the authority to control a supervise physiotherapy, entitlement to continued physiotherapy was not approved. Analysis 19. I have considered the worker s submission, the evidence contained in the file and the reasoning provided by the Commission in denying the claim. 20. There are two parts to the worker s appeal of the decision to deny him extensions of physiotherapy treatment. First, he states he was informed by the Commission their denial of continued treatment was to be ignored, since they had received the additional information required. And as a result, he proceeded to receive treatment, for which he now submits he should be compensated. Second, he submits, not directly but by implication, continued physiotherapy was necessary and required to treat his workplace injury. 21. On the first point I will provide, with reference to the Commission s claim notes, a chronology of events: 3
a. October 16, 2014 case manager reviewed physiotherapy progress report. The clinic reports the worker is making slow progress as he is unable to attend sessions during work out of the Province. Home exercise program is reported to cause flare-ups. b. October 20, 2014 worker advised he needs aggressive physiotherapy. c. October 22, 2014 worker advised he would like to attend an alternate clinic that provides more services. He indicated he would have the clinic call the Commission directly. d. November 17, 2014 twelve physiotherapy sessions approved. e. November 19, 2014 extension of physiotherapy requested by telephone. A formal extension request was indicated as needed. f. December 2, 2014 physiotherapy clinic notes worker presents for massage therapy. g. December 4, 2014 a discussion with worker regarding the status of a physician s report. Worker was to call the physician s clinic to have same forwarded to the Commission. h. December 8, 2014 2 nd physiotherapy clinic called the Commission indicating that the worker presented at the clinic. This clinic recommended psychology services were needed also. Worker called later to state this new clinic can better meet his needs. The worker was told the physician s report has not been received. Worker indicated he will call about this again. i. December 9, 2014 worker was left a message by the case manager indicating a change in clinics to receive psychological services is not supported. j. December 10, 2014 worker called and confirmed physician s report not sent previously. Confirmed the report has now been sent relative to workplace injury. k. December 10, 2014 reviewed discharge report with physiotherapist. It was noted worker could not receive consistent treatment due to his work schedule. l. December 12, 2014 received Form 8/10 from physician. It recommended continuing physiotherapy to left shoulder and not to work for a period of 12 weeks. Also, received a report for further medical services but without reference to compensable injury. m. December 30, 2014 physiotherapy consultant advises she is unable to recommend further physiotherapy due to lack of information on the success of previous treatments. n. January 8, 2015 advised physician that physiotherapy extension request of Dec 7/14 has been denied and the therapist had been advised with letter confirming the same to follow. 4
o. January 8, 2015 called worker and left a message confirming extension of physiotherapy denial, and related this information has been sent to the clinic. p. January 9, 2015 spoke with the worker and informed him the extension of physiotherapy had been denied. He was told it is uncertain he is obtaining a benefit from it. Worker advised he will have ultrasound report and update status of physiotherapy forwarded to Case Manager. q. January 13, 2015 Commission contacted the clinic to advise the updated status report on physiotherapy still not received. Clinic advised having difficulties completing form. Also, noted a further extension of sessions is being requested from a maintenance perspective, as there had been limited gains so far. r. January 28, 2015 Case manager spoke with the worker concerning denial where he stated he was not aware therapy coverage had ceased. He was reminded of the earlier (January 9) conversation on this. He stated he was told to ignore the denial but was told by the case manager this was not the case. Details of the earlier conversation on denial were provided. s. January 31, 2015 physiotherapy consultant further reviews file again including additional medical information. She advises there is no indication for continuing with clinic-based physiotherapy at this stage. t. February 2, 2015 Case Manager called worker to review the decision to deny entitlement to further physiotherapy. 22. The above lengthy interaction between the worker and the Commission shows there were many matters associated with his claim occurring at the same time, in addition to the physiotherapy treatments and their approval. This interaction was further complicated by the worker living outside the province, while working in the province and making several (three) changes in physiotherapy providers. There were also several reports of treatment results, and diagnoses which were delayed. Also, the above shows there were several occasions when the worker could not be contacted by telephone and a message was left. All of this paints a picture where it would be understandable to find a misunderstanding could occur. 23. I note the worker in his February 2, 2015 request for a review of the Commission s January 7, 2015 decision noted he was seeing his psychologist at the time the information concerning his physiotherapy approval request was being processed. He states in his account of the matter as follows: my physio therapis (sic) says she did forward copy of ultrasound to present to you to make the physio and massage extension happen. So my psychologist forwarded a copy of my ultrasound right away via fax and she further spoke to [the case manager] regarding my case. Once [the case manager] had the required information she needed she told [the psychologist s name] to tell me that the letter denying the physio and massage 5
extension had already been sent, but for me to disregard the letter, because she now had the information she needed now. This is inconsistent with the record of claim notes made by the case manager. Also, while there were direct discussions between the case manager and the worker on the denial of therapy, and the reasons for the denial, this account alleges that the communication that was interpreted by the worker as an approval was not received by the worker directly, but through his psychologist. 24. I note the Commission s physiotherapy consultant had found, upon the first review of the worker s request for an extension of treatment, that an ultrasound was needed to determine if such an extension was warranted. However, I would have to find that the Commission represented to the worker that the approval of the treatments would occur upon receipt of the ultrasound, with nothing further to be done, if I am to accept his argument. 25. My review of the file record, the Commission s decision and the worker s letters disputing the denial of the extension of physiotherapy, presents a confusing picture of the overall matter. However, given the extensive nature of the claim notes in documenting interactions with the worker and his medical providers, I cannot find evidence to support the worker s contention he was told by the case manager to disregard the letter denying an extension of physiotherapy treatments. The file does not support this, and the worker himself was never party to such a discussion. Any such representation, if I were to accept that one was made, would have been made by the case manager to the worker. I further repeat that this information was reported by the worker as not being received first-hand, consequently introducing the possibility he misunderstood, or the psychologist misunderstood the case manager s comment on this matter if there was one, concerning the extension of physiotherapy. 26. What is beyond question, I find, is there was no reliance by the worker on a ruling by the case manager, written or otherwise, that the therapy was approved by virtue of the Commission having received the additional information. Furthermore, even if there was a suggestion to ignore the existing denial letter upon the Commission receiving the new information, this is not inconsistent with what already in the file, which is that while the Commission had formally denied the extensions, it was willing to re-evaluate the request once it received the additional information. I cannot accept that there was an automatic approval of extensions upon this new information being provided, or that this was communicated directly or indirectly. 27. I note in January 2014, the Commission was having difficulty evaluating the worker s need for continued physiotherapy treatment. In the first review by the physiotherapy consultant, it was noted the worker had 30 sessions and was not improving. There was the comment also that the recommended treatment for his shoulder injury was usually strengthening and exercises for this condition these could be performed at home. 28. Then, a year later, the physiotherapy consultant, following receipt of additional information, concluded physiotherapy to date had not provided continued benefits and therefore an extension of clinic based physiotherapy was not recommended. These reviews by the consultant point to a conclusion that physiotherapy, after the initial sessions showed no 6
significant evidence of producing continued benefits to the worker. As a result of all this information tending not to support an extension of treatment, it is not reasonable to expect the case manager would express that a denial decision for extension of physiotherapy letter be ignored, on the basis that the case manager was simultaneously deciding an approval was appropriate, without even having the material reviewed, as was the intent reflected by the record. All that was on the record up to this point and afterwards was that the extensions were denied, and the reasons for this are expressed. From this, I conclude the evidence based on the balance of probabilities, favours the Commission s decision and does not support the worker s position that approval for an extension of physiotherapy was granted, but subsequently not honoured. 29. I cannot conclude that the Commission is obligated, by virtue of having made a suggestion to the worker, to accept treatment. It was not reasonable for the worker to rely on the reported conversation between the psychologist and the case manager as a positive statement of approval by the Commission, when the direct discussions with the case manager had been to the contrary. It was presumptuous for the worker to assume this, especially as he was already aware that the Commission provides written decisions on entitlement. Taking the worker s recounting of the conversation between the case manager and the psychologist to be completely accurate, the most that could be reasonably inferred from this is that the Commission would be issuing a subsequent decision once it had reviewed the new information, not that the Commission had just issued an oral approval of treatment, not to the worker, but to the worker s psychologist. 30. Finally, I note that Policy HC-01: Physiotherapy Services: Private Clinics address many aspects of the relationship between the Commission and service providers, as well as some considerations on entitlement. It states, in part; 2. Treatment Authorization and Duration 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. (emphasis mine) 31. Whatever about the worker, the clinic, if a party to a memorandum referred to in the Policy, would have been aware of this. More importantly, the Commission was following its Policy and the Act by refusing to accept responsibility. Neither the clinic nor the worker had a reasonable basis to assume the Commission had authorized the extensions. The worker has no basis to claim reimbursement against the Commission. 32. I find that the entitlement cannot be based on the Commission having made an approval of the treatment which the worker could rely on. This was the worker s major argument, and I cannot allow the review on that basis. The Commission issued a denial and did not change its position. 7
33. With regard to the second question, the basis of the denial, does the evidence support the Commission was correct in denying an extension of physiotherapy services? 34. The worker did not press this argument as much as the argument that he had already been approved and was entitled to be compensated. However, and to the degree that his argument suggests the clinical therapy was required because it was helpful for his symptoms, this alone does not establish entitlement under the Act and Policies. 35. The internal review specialist noted sections 84(1) and 85(1) of the Act, plus Policies HC-01 and HC-13 provide the Commission discretion in determining the provision of physiotherapy and the obligation to supervise it. I will reference the relevant parts of these for convenience in discussing the overall process established; 84.(1) The commission shall provide a worker who is entitled to compensation under this Act or who would have been entitled had he or she been disabled longer than the day of the injury with the medical aid that in the opinion of the commission may be necessary as a result of the injury 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. (emphasis mine) 36. The Act leaves these questions to the Commission, on a case by case basis. The Commission decides, in its opinion, whether the treatment is necessary. What is necessary is left to the Commission. The Act does not determine necessity, but the Commission has adopted certain policies that structure its decision making and discretion in this area. These are the review criteria, in the context of the above. 37. Policy HC-13: Health Care Entitlement, states, in part; Determining Appropriate Health Care When determining what constitutes appropriate health care, the Commission will consider: i. The recommendation of the treating health care provider; and, ii. The intended benefit of the treatment, service or device in relation to the compensable injury. Where the intended benefit of the treatment, service or device is unclear, the Commission may then consider, in consultation with the treating health care provider: 8
i. Current scientific evidence with respect to the demonstrated effectiveness of the treatment, service or device; ii. The opinion of the appropriate Commission Health Care Consultant(s); and iii. The professional accreditation of the licensed health care provider. 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. 38. These provisions affirm that the Commission must first determine that the treatment is appropriate, and then it has to determine whether it will accept the costs of the treatments relative to the four listed benefits. 39. I have already referred to the provisions of Policy HC-01: Physiotherapy Services: Private Clinics which address the extensions of physiotherapy. It is clear that the Commission must authorize these payments, based on an assessment of the progress to date. 40. The question is whether the Commission followed the Act and policies. I was not persuaded there was an error, nor could I detect one myself. The Commission is to extend medical aid if the Commission considers it necessary, based on the above. The Commission is not obligated to extend medical aid solely on the recommendation of the treating provider or the opinion of the worker. It is clear that the recommendation of the treating provider is one of the factors the Commission may consider, but it is not binding on the Commission. The Commission has to satisfy itself what the benefit is. It may consult with its own consultants for this purposes and it did so here. 41. As noted above, the Commission s physiotherapy consultant has determined the extensions of this treatment were not supported by the evidence physiotherapy, to date, had resulted in a continued benefit to the worker. And the injury the worker sustained, furthermore, in the physiotherapy consultant s opinion is not usually treated extensively with clinic based physiotherapy. In addition, the Commission s medical consultant concurs with this opinion. This is the basis for the Commission s conclusion that the medical aid is not necessary. There is another recognized method of treatment which is appropriate. 42. I repeat that the Commission is not bound by the provider s suggestion that the treatment is beneficial. It is to determine for itself that the treatment is necessary, and the costs of this 9
are justified, based on the demonstration of one or more of the factors above. Symptom relief alone, in the absence of evidence of significant impact on the activities of daily living is not one of them. 43. Under the Act, the discretion to approve medical aid belongs to the Commission, not the Review Division. The Review Division cannot simply exercise the Commission s discretion for it, on a plea from a worker to intervene and make a different conclusion. Nor can the worker exercise the Commission s discretion for it by presenting the Commission with a fait accompli. 44. The Review Division reviews the Commission on the basis of error, which is to say whether the Commission can make the decision that it did and remain compliant with the Act. Where there is a basis for the Commission s decision in the evidence, under the Act, and Policy, the Commission does not commit an error in how it exercises its discretion. Unless I was to find the Commission really had to exercise its discretion in a certain way, its decision must stand. 45. However, the evidence in this case supports the Commission s decision, as there was ample evidence on the question of medical effectiveness and necessity, which is the primary question under Policy HC-13: Health Care Entitlement. Also, the evidence supports its conclusions under the extension provisions of Policy HC-01: Physiotherapy Services: Private Clinics. From this I find the Commission has examined the evidence and reached a decision within parameters of the Act and policy. I must therefore deny the review. Decision 46. I find the Commission s decision of March 9, 2015 to be in accordance with the Act and applicable Policy. With respect, this review is denied. Review Denied Bruce Peckford Review Commissioner December 29, 2015 Date 10