WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION 6 Mt. Carson Ave., Dorset Building Mt. Pearl, NL A1N 3K4 DECISION 13028 Lloyd Piercey Review Commissioner February 2013
WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION DECISION - 13028 Review Proceedings WHSCRD Case No.: 12076-03 WHSCC Claim No.: 655718 Review Commissioner: Decisions Under Review: Lloyd Piercey Workplace Health, Safety and Compensation Commission decision dated February 24, 2012 Date & Place of Hearing: January 15, 2013 Boardroom Greenwood Inn and Suites Corner Brook, NL Attendances at Hearing: Worker Present Worker s Representative Mel Strong, Appeals Officer Government Members Office (via teleconference) Observer Steve Willar, LL.B., WHSCRD Issues Under Review 1. The worker is requesting the Review Commissioner find that he is entitled to a follow-up appointment with Dr. Woolfrey. The parties agreed to the use of the file materials for the purpose of this review. 1
Case Summary On October 19, 1998, while employed as a Heavy Equipment Operator, the worker injured himself. The diagnosis was left rotator cuff tear and physiotherapy was prescribed. At that time, the claim was accepted for medical benefits only, since the worker did not lose any time from work. In May 2007, the worker filed for a recurrence. Chiropractic and physiotherapy treatments were prescribed. On November 9, 2010, the worker saw Dr. Woolfrey, and received trigger point injections to treat his pain. A follow-up appointment was arranged with Dr. Woolfrey on December 14, 2010, and on both occasions the worker reported improvement. There were follow-up appointments with Dr. Woolfrey on December 21, 2010, February 8, 2011, May 24, 2011 and November 29, 2011, with reported similar findings. In March 2012, Dr. Woolfrey requested another assessment for the worker. At that time, the worker s file was submitted to the Medical Consultant to review the request for any further appointments with Dr. Woolfrey. The Medical Consultant, after reviewing the file evidence, concluded that it did not support that the trigger point injections from Dr. Woolfrey were providing any significant improvement in the worker s condition. Therefore, it was recommended that no further appointments be approved with Dr. Woolfrey, and that the worker would try physiotherapy treatments. On December 22, 2011, the Extended Services Adjudicator advised the worker that, based on the opinion of the Medical Consultant, and the medical evidence, any further appointments with Dr. Woolfrey were denied. This decision was upheld by the Internal Review Specialist in her decision dated February 24, 2012. 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 26.1. Also relevant and considered in this case are Sections 2(1), 84(1) and 85(1) of the Act, along with Policy HC-13: Health Care Entitlement. Positions Considered Worker s Position: Mr. Strong gave a brief history of the worker s employment and workplace injury. He noted that the worker was first injured in 1998, and since that time has received considerable medical investigation and treatment. Mr. Strong referenced a report from the Medical Consultant, dated December 14, 2011, in which it is stated that the trigger point injections were not working. Mr. Strong submitted that the worker does receive benefits from the injections and the Medical Consultant s conclusions are not accurate. 2
Mr. Strong noted that the worker, because of the pain being experienced due to the workplace injury, chose to retire from his employment. Mr. Strong stated that the worker was not willing to go through surgery and it was reasonable for the worker to expect approval for the trigger point injections. Mr. Strong noted that the pain and discomfort that was being experienced by the worker has greatly affected his quality of life. Mr. Strong referenced a report from one of the Medical Consultants who, on June 3, 2011, wrote that the worker was receiving trigger point injections from Dr. Woolfrey and planned to receive Botox as well. Mr. Strong highlighted the comment from the Medical Consultant who wrote I would, therefore, suggest that you approve this follow-up visit for Botox injection as this is a new therapeutic modality in the management of this injured worker s case. Mr. Strong referenced reports from Dr. Woolfrey, dated December 23, 2010, and November 22, 2010, noting that in each, Dr. Woolfrey indicated that the worker experienced improvement after the injections. Mr. Strong referenced a decision by the Internal Review Specialist, dated August 13, 2007, in which it was determined that the worker s symptoms were a recurrence of the 1998 injury. Mr. Strong referenced the Case Worksheet note dated November 1, 2011, in which the Physiotherapy Consultant reviewed the worker s file and concluded that the worker s history did not support long term benefits, and symptom control, from the physiotherapy sessions. Mr. Strong stated that this further supports the approval of continued appointments with Dr. Woolfrey for the injections. The worker testified that he had worked for 40 years and had lost very little time from work over that period. He stated that, since his injury, he has had to continually fight with the Commission for treatment and benefits. He stated that he retired at the age of 57 because he could not work any longer with the neck injury. The worker noted that he had retired on his work pension, rather than rely on the EEL benefits from the Commission. He submitted that the cost of the injections would not be great on the Commission. The worker advised that he received the injections at approximately four month intervals. He noted that he would benefit from the injections for about three months before his condition would deteriorate. The worker advised that he would have retired for two years this coming April. He also stated that his last injection was nearly four months ago. The worker advised the Review Commissioner that he received a call from the Commission, a couple of days prior, on January 13, 2013, advising that he had been approved to see Dr. Woolfrey on February 4, 2013. Commission s Position: The Commission referenced Sections 2(1), 84(1), and 85(1) of the Act, along with Policy HC-13 and Procedure 58 as being relevant to the issue. 3
The Internal Review Specialist noted that Section 2(1) is permissive and not mandatory in that it allows the Commission discretion when providing medical aid. Section 84(1) is permissive and not mandatory, and Section 85 is mandatory as it provides that the supervision and control of medical aid shall be determined by the Commission. The Internal Review Specialist stated, in accordance with the legislation, in this case, the Commission has the discretionary authority and the mandate to determine whether or not the approval of the followup appointment with Dr. Woolfrey was warranted. The Internal Review Specialist stated, as per policy, the worker s request was reviewed in consultation with the Medical Consultant who, in a memo dated December 14, 2011, indicated that he had reviewed the medical evidence in the file and concluded that it did not support significant benefits from the trigger point injections. The Medical Consultant had recommended another modality of treatment, that being physiotherapy. Therefore, the follow-up appointment with Dr. Woolfrey was not considered warranted. The Internal Review Specialist concluded that the denial of the appointment in question, namely with Dr. Woolfrey, was both reasonable and in accordance with policy and procedure. Reasoning and Conclusions The worker submitted that the trigger point injections he receives from Dr. Woolfrey are very beneficial in that it helps him deal with his pain that has resulted from his 1998 compensable injury. Therefore, he feels that the Commission should approve continued coverage for this treatment. The Commission has determined that the medical evidence does not support that the trigger point injections the worker receives from Dr. Woolfrey are providing any significant improvement to the worker s condition. The Commission has consulted with its Medical Consultant and weighed the file information, and concluded that there is very little value to the treatments, and has recommended a formal program of physiotherapy. In arriving at a decision on the issue before me, I have reviewed the file information, assessed the medical evidence and opinions of the health care providers, and considered the testimony and submissions, as well as the relevant legislation and policy. I have reviewed the reports from Dr. Woolfrey, dated December 21, 2010, February 8, 2011, May 24, 2011 and November 29, 2011 and noted appointment dates for examination of the worker. I have assessed the comments of Dr. Woolfrey and the pertinent information, relative to the benefits of the trigger point injections for the worker s symptoms. On December 21, 2010, Dr. Woolfrey wrote: was seen in follow-up today regarding complaints of dizziness related to his neck and shoulder girdle pain. I saw him on October 14, 2010 and, at that time, did trigger point injections into the neck and shoulder girdle region. He notes he had good relief with the trigger point injections has noted worsening neck pain, stiffness, and dizziness with extension of his neck. 4
Dr. Woolfrey stated in this report He did note improvement in his neck symptoms, as well as the dizziness, initially with the trigger point injections. In his February 8, 2011 report, following his examination of the worker, Dr. Woolfrey wrote: He notes good relief of his symptoms with trigger point injections, noting his headaches and neck pain improved with the occipital nerve blocks. Dr. Woolfrey wrote that the worker continued to have occasional dizziness that became worse with the extension of the neck. In reference to the ongoing symptoms, Dr. Woolfrey indicated: He notes he continues to have some neck and shoulder girdle pain; however, it is much improved with the trigger point injections He continues to have some limitations in range of motion of the left shoulder with some lateral shoulder girdle pain with movement. In my review of the May 24, 2011 examination of the worker, I find that Dr. Woolfrey notes that the worker indicates that he does experience improvement of his symptoms, however, the ongoing symptoms are present and continue to cause pain and discomfort for the worker. In the May 24, 2011 report, Dr. Woolfrey wrote: He continues to have ongoing neck pain that does radiate up into the base of his skull and into the shoulder girdle region, bilateral, sometimes worse on the left His main problem today, again, continues to be some ongoing neck and shoulder girdle pain, at times associated with dizziness and headaches, worse on the left. Dr. Woolfrey goes on to state that because the worker indicates some relief with injections, he decided to administer them again, at that time. The final report from Dr. Woolfrey that I have reviewed indicated that he had seen the worker on November 29, 2011. Dr. Woolfrey wrote: was seen in follow-up today regarding his ongoing neck and shoulder girdle pain, having chronic degenerative disc disease of the neck and a central disc herniation Other problems include left shoulder impingement syndrome and an element of rotator cuff tendonitis. Dr. Woolfrey indicated that the worker stated that his headaches were back and there was increased pain in the upper shoulder girdle region. Dr. Woolfrey also noted that the worker stated he was experiencing decreased range of motion of the left shoulder. Dr. Woolfrey concluded As he had relief with injections, I elected today to repeat them. In my analysis of the reports from Dr. Woolfrey, I find that following factors to be significant: (1) The supporting evidence for the benefits of the trigger point injections is subjective in nature. 5
(2) While the worker stated that the trigger point injections are beneficial, Dr. Woolfrey continues to note that ongoing and persistent pain experienced by the worker, notwithstanding any improvements he indicates he experiences. (3) Over a year has passed since Dr. Woolfrey first injected the worker on October 14, 2010, and, in the November 29, 2011, the same symptoms are present, even though the trigger point injections were administered to the worker over that period of time. At issue is whether the medical evidence supports the worker s position, or the Commission s determination that there is very little evidence to support any significant improvement in the worker s condition as a result of the trigger point injections. I refer to a Form 8/10, Physician s Report from Dr. Morris, the family physician, dated October 6, 2011. In that report, Dr. Morris wrote, No improvement in signs or symptoms. Severe problems would benefit from physiotherapy. In the subjective report it is noted that there is no change in the headaches, pain (severe) stiffness and interrupted sleep. The objective report noted that there was a decreased range of motion and this was noted to have not changed over time. It is important to note that, at this time, the worker had continued to receive the trigger point injections from Dr. Woolfrey. I note that the worker had a Permanent Functional Impairment (PFI) assessment completed on September 9, 2011. It is noted in that report that the worker had only a 50% abduction of the left shoulder and that he experienced marked spasm and tenderness in the paravertebral muscles of his C-spine and his trapezius border went rock hard. The Evaluator noted that the worker always got neck pain. The results noted that the forward flexion of the neck was 25% of normal and the extension was 10% of normal. Rotation was 50% of normal in either direction and activity caused marked spasm. Again, I note that at the time of the PFI, the worker had been receiving trigger point injections and there does not appear to be any significant improvements to the compensable injuryrelated symptoms. I note, also, that the worker s physiotherapist reported on December 13, 2011, that the worker still reported, relative to the left cervical region, burning, dizziness, pain and stiffness. Objectively, it was indicated that the worker suffered from hypertonicity, hypermobility and the range of motion was at 25% of normal with reduced strength. The Case Manager requested that the Medical Consultant review the file information and offer an opinion on the merits of continuing with the trigger point injections. In a memo dated December 14, 2011, the Medical Consultant indicated that he had reviewed Dr. Woolfrey s reports, as well as the report from Dr. Morris, the worker s physician, dated October 6, 2011. The Medical Consultant noted that Dr. Morris had stated that the worker was not showing any improvement in his signs and symptoms. The Medical Consultant concluded: In my opinion, at this time, the evidence derived from reviewing the medical information on file does not support significant benefits from trigger point injections and the family physician, in his latest report suggests physiotherapy treatment. As such, I am unable to see a reason for keeping the follow-up appointment with Dr. Woolfrey at this time. Policy HC-13, Health Care Entitlement explains the types of factors that the Commission considers when determining coverage for medical aid provisions. Under the Prescribed Treatment, Devices, and Accessories of Policy HC-13, it states: 6
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. In my review of the file information, and in assessing and weighing the medical evidence, I find that the worker has not demonstrated that the trigger point injections meet the criteria for entitlement as set out in Policy HC-13. I find that the Commission has weighed the medical evidence, and the opinions available to it on this issue, and has arrived at a reasonable and correct decision in accordance with legislation and policy. I note that the worker, during his testimony at the hearing on January 15, 2013, advised that a couple days previously he had been contacted by his Case Manager and told that there had been an appointment approved for him to see Dr. Woolfrey on February 4, 2013. I am not aware of the evidence that may have emerged, in the meantime, which would have led to that decision. This would be a new entitlement decision, presumably based on new information which was not before me at the review. Any issues arising out of the newly approved treatment would have to be reviewed once the Commission makes its next decision. I am only reviewing the existing decision based on the evidence the Commission had available to it at the time. There is nothing in my present decision that would have any direct bearing on the worker s next treatment, or series of treatments, from Dr. Woolfrey. Decision With respect, the review is denied. Review Denied Lloyd Piercey Review Commissioner February 15, 2013 Date /dho 7