NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Worker) Participants entitled to respond to this appeal: [X] (Employer) and The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: [X] Form of Appeal: Oral hearing, held at Port Hawkesbury, NS, on April 12, 2011 WCB Claim Nos.: [X] Date of Decision: April 15, 2011 Decision: The appeal of the September 15, 2010 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner Glen Johnson.
2 CLAIM HISTORY AND APPEAL PROCEEDINGS: This is an appeal from a September 15, 2010 Hearing Officer decision. The Hearing Officer determined that the Worker was not entitled to medical aid [ MA ] in the form of 18 chiropractic treatments administered between April 2009 and July 2009, and 15 treatments between August 2009 and November 2009. The claim history and appeal proceedings have been set out in the various previous decisions rendered in the administration of this matter. The Worker sustained a back injury in April 1992, which was originally diagnosed as a lumbar sprain. Eventually, the Worker was awarded a permanent medical impairment [ PMI ] rating of 5 percent concerning the lumbar disc, a 5 percent PMI rating respecting depression and a substantial pain related impairment [ PRI ] rating of 6 percent pursuant to the Chronic Pain Regulations. The Board provided the Worker with 20 chiropractic treatments from October to December 2008, and a further 20 chiropractic treatments from January to April 2009. The Board also paid for one extra treatment in the latter time frame, for which the chiropractor had billed. On December 14, 2009, the Board received further accounts from the chiropractor, seeking payment for 18 treatments between April 2009 and July 2009, and 15 treatments from August 2009 and November 2009. There had been no preauthorization from the Board respecting the provision of these 33 treatments. A June 7, 2010 Case Manager decision denied the Worker MA in the form of chiropractic treatments from April 2009 to November 2009. The Worker appealed the Case Manager decision by means of a June 16, 2010 Notice of Appeal to Hearing Officer. That appeal led to the September 15, 2010 Hearing Officer decision which forms the subject matter of this appeal. This appeal was commenced by the Workers Representative s filing of a Notice of Appeal dated October 14, 2010 with the Workers Compensation Appeals Tribunal [the Tribunal ]. This appeal proceeded by way of oral hearing, held at Port Hawkesbury, Nova Scotia, on April 12, 2011. The Worker was the sole participant to attend the hearing, at which he provided testimony. The Workers Representative assisted the Worker by questioning him, and by providing submissions. The Workers Representative had previously filed a September 13, 2010 medical legal report from Dr. Douglas MacNeil, the Worker s treating chiropractor. This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.
3 For the sake of completeness, the Case Manager advised the chiropractor on February 16, 2011, that there would be no reimbursement for 70 chiropractic treatments provided between April 2009 and February 16, 2011. ISSUE AND OUTCOME: At issue is whether the Worker is entitled to MA in the form of the 33 chiropractic treatments provided from April 2009 to November 2009. The Worker s appeal is denied, for the reasons below. The Worker is not entitled to MA in the form of the provision of 33 chiropractic treatments from April 2009 to November 2009. ANALYSIS: I have reviewed the materials in the Board and Tribunal files. In addition, I reviewed the recording of the oral hearing. I will set out only those portions of the testimony, evidence and submissions most relevant to my reasoning and conclusion. These reasons presuppose a familiarity with the previous decisions rendered in the administration of this matter. Law, Board Policy and Procedure I refer to Decision 96 653 TAD (October 27, 1998, NSWCAT), which sets out the test concerning the provision of MA. First, there must be a link between the compensable injury and the need for MA. Second, the provision of the requested MA must be necessary or expedient. Third, there exists an overriding discretion whether to award the type of MA requested. Moreover, I have directed my attention particularly to Board Policy 2.3.1R, and to Board Policy 2.3.5 which sets out the general principles governing the award of MA. The Board has a non binding procedure concerning chiropractic treatments (Procedure 7.1.1). It indicates that generally the Board will not cover more than 20 chiropractic treatments. It indicates that 30 is the maximum that should be covered. Testimony and Submissions The Worker testified to the effect of the chiropractic treatment on his well being. The Worker stated that he has benefited from treatment by his treating chiropractor for approximately 11 years. The Worker testified that when he does not have access to chiropractic treatment, he
4 experiences numbness in his legs, back pain and a greatly restricted ability to move. However, these symptoms are greatly improved after chiropractic treatment. He can then feel his legs, the back pain is reduced and he is able to function. The Worker indicated that the benefits of chiropractic treatment last approximately seven to 10 days. The Worker visits the chiropractor generally every two weeks. He may miss an appointment due to a storm, but he makes an appointment as soon as possible afterwards. He can tell he needs new treatment because he experiences leg numbness and back pain. Further, his functionality deteriorates such that he needs his wife to put his socks on if too much time passes after a treatment. Moreover, the Worker s desire and ability to engage in any activity diminishes if he goes too long without treatment. For example, he will not attend his son s hockey game if his pain is too bad. The Worker believes he will require a wheelchair if he does not receive chiropractic treatments. The Worker has continued to pay for the chiropractic treatment, including the related travel and meal expenses, since the Board advised the Worker directly that it would no longer provide chiropractic treatments. The Worker testified that he uses OxyContin to deal with his pain, even if he is receiving chiropractic treatment. However, he indicated that the amount of OxyContin used diminishes if he is receiving chiropractic treatment. For example, he usually uses 120 mg of OxyContin, though on good days when he is receiving treatment this can be reduced to 60 mg or 100 mg. When he does not receive chiropractic treatment, the Worker uses 180 mg of OxyContin. The Worker stated that his case worker advised him, at the time of his discharge from a Tier 3 program, that the Board would provide him with a back brace, pain medication and therapy (meaning chiropractic treatment) to manage his pain and preserve his quality of life. Thus, the Worker believes he should be provided with the chiropractic treatment. The Worker confirmed that Dr. MacNeil advised him to walk, as a form of long term management. The Worker stated that he makes efforts to walk and to engage in his prescribed home exercises when he is not in too much pain to do so. In response to Dr. MacNeil s stated expectation that the required frequency of chiropractic treatment would diminish over time, the Worker indicated he continues to require a chiropractic treatment every two weeks and that he expects this need to continue. The Workers Representative argued that the Worker s need for the chiropractic treatment flows from his workplace injury. He argued the chiropractic treatment is necessary for the Worker, to maintain the Worker s functionality and independence. The chiropractic treatment has been recommended by the Worker s family physician, in addition to the chiropractor himself. The cost of the treatments is not great, and therefore the Tribunal
should find that the Worker is entitled to ongoing chiropractic treatment. Reasoning 5 I have reviewed previous Tribunal decisions respecting the award of MA in the form of chiropractic treatment, in addition to the pertinent law, policy and procedures. Of the previous Tribunal decisions, it appears that my colleagues decisions in Decision 2009 292 AD (August 5, 2010, NSWCAT), 2010 CanLII 44849 (NS W.C.A.T.) and Decision 2009 417 AD (December 21, 2009, NSWCAT) are the only ones to note the Board s nonbinding Procedure 7.1.1. In connection with Procedure 7.1.1, I also refer to Board Policy 2.3.5, section 2 (e), which states in part The WCB may limit the number of visits to health care service providers to what is appropriate for the injured worker s compensable condition. Thus, in addition to any implied authority on the Board s part to develop non binding guidelines, current Board Policy would also appear to contemplate the development of such non binding guidelines as part of the Board s provision of MA. Board Policy 2.3.5 applies to all decisions made on or after February 25, 2011. The treating chiropractor did not file ongoing reports as required by the Board, which is one reason for which the Board frontline decision makers denied further coverage, and also one basis of the Hearing Officer s decision. The Worker apparently only learned of the treating chiropractor s non filing of these reports on January 27, 2010. As a result, the Case Manager decided to reimburse the Worker for his travel and meal expenses up to that date, including the 33 chiropractic treatments which are under consideration in this decision. This is notable because the Worker s travel and meal expenses per visit greatly exceed the actual cost of the chiropractic treatment itself. Dr. MacNeil s September 13, 2010 medical legal report states that he treated the Worker on previous occasions in 2003, 2005 and 2006. On those occasions, the Worker reported improvements following a series of treatments. The most recent course of treatment commenced on October 10, 2008. The Worker s symptoms were similar to those exhibited during the previous flare ups, though the resolution of symptoms was taking longer than previous occasions. Dr. MacNeil stated that the Worker reported improvement in his pain levels. He further stated that the frequency of treatments was gradually tapering off, and that the Worker at that time was able to go two to three weeks between treatments. Dr. MacNeil anticipated that... we will be able to continue reducing this frequency over the upcoming months. Dr. MacNeil also stated he had been encouraging the Worker... to get out walking in an attempt to help improve his overall strength and conditioning. Dr. MacNeil concluded: The goal of treatment for [the Worker] should be to try to reduce his pain level, maximize functional capacity and try to reduce his reliance on heavy
6 analgesic medications. To date we have seen a definite improvement towards these goals. The severity of his condition is such that he will need to take some strong medications to deal with his bad days, but taking advantage of more conservative approaches to help him deal with his average level of pain is definitely in his best interest. The Worker s family physician Dr. Sturmy filed a number of Form 8/10s setting out the Worker s subjective symptoms, and recommending a course of chiropractic treatments. I have reviewed the evidence in the light of Board Policy, Procedure 7.1.1 and the previous Tribunal decisions. I deny the Worker s appeal for the reasons below. The evidence does not warrant departing from the non binding guideline of 20 chiropractic treatments with a further 10 treatments provided in unusual circumstances, particularly in the light of the previous Tribunal decisions. The Worker s testimony indicates that this is no longer a situation of treating a flare up with chiropractic treatment, but it appears that the Worker now requests to have chiropractic treatment on an ongoing, permanent basis. In his decision, the Case Manager had noted that chiropractic treatment could be prescribed to treat flare ups. Moreover, in Decision 2009 417 AD, the worker could go several months without treatment, and then require two to three treatments per week for two to three weeks to address a flare up. Further, in Decision 2009 417 AD, the treatment enabled that worker to remain in the workforce, and it reduced that worker s pain levels from an 8 to a 2. My colleague awarded that worker additional chiropractic treatment notwithstanding the non binding guideline. In this appeal, Dr. MacNeil states that the Worker reports a 25 percent reduction in his pain level with treatment, which is not as great as the worker s pain relief in Decision 2009 417 AD. Further, the Worker cannot return to work, and is in receipt of a full extended earnings replacement benefit. Finally, I reiterate that the Worker apparently seeks ongoing, permanent chiropractic treatment, not treatment for flare ups. Thus, I find that the Worker s situation is not analogous to that of the worker in Decision 2009 417 AD. In Decision 2009 292 AD, the Board had provided the worker with 20 treatments. In that case, the worker had received 70 chiropractic treatments until August 2009. My colleague awarded that worker an additional 10 sessions per Procedure 7.1.1, but he concluded that 70 treatments appeared excessive given the evidence to support the treatments. My colleague noted that the worker s perception of pain relief from the treatments was impacted by psychological and social factors. In the current appeal, unlike the situation in Decision 2009 292 AD, the Worker has already been provided 41 treatments from the latter part of 2008 to April 2009, so I do not believe the award of further sessions is appropriate. Further, both Dr. MacNeil and Dr. Sturmy substantially based their medical reports on the
7 Worker s subjective reporting. I also note the June 3, 2008 Rehabilitation Assessment and Planning report of Dr. Edvin Koshi, a specialist in Physical Medicine and Rehabilitation. Therein, Dr. Koshi related that the Worker had found chiropractic treatment and other treatments not to be helpful, but that massage had been a little bit helpful. Dr. Koshi also noted the Worker s use of OxyContin 120 mg twice a day, and that the Worker had difficulties with bathing, dressing and some other personal and family tasks. I note that these difficulties therefore existed even before the reported flare up of symptoms which required a new course of chiropractic treatment starting in October 2008. Dr. Koshi recommended only one or two physiotherapy sessions, just to produce a home exercise program which the Worker could perform on his own. Dr. Koshi believed that the best physiotherapy for the Worker involved using his back for activities of daily living, and for the Worker to stop using his cane. Generally, I prefer the assessment and opinion of Dr. Koshi a specialist to that of the family doctor or the chiropractor. My review of the previous Tribunal decisions reveals that the Board generally posits that a home exercise program is superior to chiropractic treatment with respect to long term management. This is in the same vein as Dr. Koshi s opinion above, and would accord with the general guideline of limiting the number of chiropractic treatments to 20 sessions or, in unusual circumstances, 30 sessions. I further note that the Worker is in receipt of a substantial PRI rating of 6 percent, whereas the workers in the two Tribunal decisions analysed herein had a slight PRI rating of 3 percent. Thus, a relatively greater portion of the Worker s pain symptoms is due to nonorganic factors, and is therefore presumably less susceptible to manipulative chiropractic treatment. In short, I find that the evidence does not support departing from the Board s non binding guideline, by providing the Worker with 33 additional chiropractic sessions between April 2009 and November 2009. This non binding guideline apparently forms part of the overriding discretion whether to award MA, as part of the general structuring of discretion concerning the award of MA. CONCLUSION: The Worker s appeal is denied, for the reasons above. The Worker is not entitled to MA in the form of the provision of 33 chiropractic treatments from April 2009 to November 2009. DATED AT HALIFAX, NOVA SCOTIA, THIS 15 TH DAY OF APRIL 2011.
8 Glen Johnson Appeal Commissioner