WORKERS COMPENSATION APPEAL TRIBUNAL. WORKER CASE ID # [personal information] WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION #132

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1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: WORKER CASE ID # [personal information] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #132 Appellant Respondent Douglas R. Drysdale, Solicitor representing the Appellant Brian L. Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing February 23, 2010 Inn on the Hill Charlottetown, Prince Edward Island Date of Decision May 25, 2010

2 1 Facts/Background 1. This is an appeal of a decision of the Internal Reconsideration Officer ( IRO ) of the Workers Compensation Board (the Board ) dated April 27, 2009, being IRO Decision By that decision dated April 27, 2009, the IRO denied the Appellant further coverage of photon therapy and physiotherapy. [Revised Appeal Record Tab 2] 2. On June 26, 2001, the Appellant injured her right knee during her employment as [personal information]. The Board accepted the Appellant s claim for temporary wage loss benefits effective June 27, The Appellant received right knee arthroscopy on August 16, 2001, which was performed by Dr. A. Profit. A second arthroscopic surgery was performed on April 29, 2002, and a third arthroscopy was performed on November 15, Throughout this time period the Appellant continued to have pain and swelling in her right knee as well as weakness and numbness in her lower leg. 4. Over the years since the injury she has been examined and treated by many medical specialists including without limitation; Dr. Reg S. Hutchings (neurologist), Dr. Steven Miller (orthopedic surgeon), Dr. Bernard Holland (family physician), Dr. Desmond Colohan (pain management), Dr. Ross K. Leighton (orthopedic trauma and reconstructive surgeon), Dr. Henry Pollett (pain management), Dr. Kenneth Chisholm (pain management), Dr. Gregg MacLean (neurologist), Dr. Mary Lynch (pain management), and Dr. Jose Ledezma (pain management).

3 2 5. In addition, to the aforementioned surgeries, the Appellant has been on medication and has physical treatments with both doctors (i.e. nerve block treatments) and with physiotherapists. It has been a long and painful convalescence for the Appellant. 6. On December 18, 2003, the Appellant was examined by Dr. Kenneth Chisholm of the Pain Management Unit for the Victoria General Hospital in Halifax, Nova Scotia. Dr. Chisholm prescribed a lumbar sympathetic block which was carried out at that time. The Appellant continued to receive treatments from Dr. Chisholm but on February 1, 2005, Dr. Chisholm reported that the nerve block treatments were helping the Appellant for shorter periods of time and as a result he would not be proceeding with any further treatments. 7. The Appellant s family physician, Dr. Bernard Holland, then referred the Appellant to Dr. Henry Pollett of the Anesthesia and Pain Management Clinic at North Side General Hospital in North Sydney, Nova Scotia. At this point in time the Appellant had been diagnosed with complex regional pain syndrome ( CRPS ) which was accepted by the Board on May 19, [Appeal Record Tab 635] 8. Dr. Pollett, as part of his treatment for chronic pain, uses photon therapy. 9. On April 18, 2005, Dr. S. O Brien, Medical Advisor for the Board rendered a medical opinion that photon therapy was not a commonly used modality of treatment in Canada, and that such treatment would have to be subjected to random control tests to test its effectiveness and safety before it would be appropriate for the Board to approve such treatments.

4 3 10. As a result, the Board informed the Appellant on April 25, 2005, that any referral and associated costs with Dr. Pollett and his treatments would not be covered by the Board. [Appeal Record Tab 627] 11. Notwithstanding that the Board failed to approve the treatment and associated costs with Dr. Pollett s treatment, the Appellant did attend Dr. Pollett s clinic for photon therapy treatment. 12. By fax dated July 8, 2005, the Appellant indicated that she would be filing a Request for Internal Reconsideration. She also indicated that she was willing to pay for the photon therapy treatment herself, given that it was a new form of treatment and that both medicare and private health insurance did not cover this treatment at that time. However, she felt that the Board should be able to cover the expenses incurred as a result of the consultation which would include transportation costs. [Supplemental Appeal Record Tab 43] 13. The Appellant filed the Request for Internal Reconsideration on July 11, 2005, asking for reconsideration of the April 25, 2005, decision of the Board which denied her coverage for any referral to Dr. Pollett. [Appeal Record Tab 9] 14. The IRO denied the Appellant s request and the Appellant then filed a Notice of Appeal with the Workers Compensation Appeal Tribunal ( WCAT ). [Appeal Record Tabs 6 and 1] 15. WCAT released a decision on the appeal on February 8, 2007, (Decision #54) wherein WCAT ruled: 36. The applicable question of whether the Pain Management Program as offered by the North Side General Pain Clinic was approved under the Policy was never asked and never answered.

5 4 37. This Tribunal finds that the Board was not correct in its decision in denying the costs associated with the provision of medical aid and travel out of province based solely on Dr. O Brien s memorandum on Photon Therapy. The Board misinterpreted the finding of Dr. O Brien to apply it to the entire pain clinic program, which upon review of the record is not supported and cannot be upheld by this Tribunal. By failing to identify and address the appropriate issue for reconsideration, the Board clearly erred in its decision with its conclusion to deny the Appellant s request. 38. There was very limited evidence included in the record as to the details of the North Side General Pain Clinic and its entire program. As a result, this Tribunal will send this matter back to the Board to review the entire program for the purpose of managing chronic pain, directing the Board to keep in mind that the Appellant s family physician who has been very active with her care has recommended her attendance at this clinic and it is clearly part of a regional hospital. The program should not be denied in its entirety based on the Photon Therapy. The evidence indicates that the Pain Clinic in Halifax is overburdened, so it would be in the Board s best interest to approve an additional Pain Management Program in the region. 39. There is no doubt that pain syndromes are complex and difficult to treat. The Appellant has endured and continues to endure significant discomfort with respect to her workplace injury and the developing pain syndrome. Not all treatments may work for the Appellant, but she should be entitled to appropriate treatment and investigation which is reasonable and that may provide some improvement to her condition. [Supplemental Appeal Record Tab 180] 16. As a result of that decision, Dr. Pollett provided a letter to the Board dated March 5, 2007, wherein he outlined the treatments performed in his clinic. [Supplemental Appeal Record Tab 186]. 17. Dr. S. O Brien of the Board was asked by the Appellant s Entitlement Officer to review Dr. Pollett s information and to provide a medical opinion in relation to the Appellant s injury.

6 5 18. Dr. S. O Brien provided a medical opinion dated March 28, 2007, wherein he opined:... several of Dr. Pollett s treatments are not recommended or have not had sufficient study to be recommended for general use and therefore, could not be approved by the Workers Compensation Board of Prince Edward Island. [Supplemental Appeal Record Tab 191] 19. Dr. O Brien, in the same opinion, also reviewed information received from Dr. Des Colohan of the Island Pain Management Clinic by letter dated February 28, Dr. O Brien noted that, while this clinic would not be the Board s first choice for the Appellant, (the first choice being the Worker s Rehab Centre in New Brunswick) if the Appellant sought another comprehensive clinical assessment, then an assessment by Dr. Colohan would probably be appropriate under the claim. [Supplemental Appeal Record Tab 191] 20. Following receipt of that opinion, the Board issued a letter to the Appellant dated April 11, 2007, wherein the Board authorized Dr. Desmond Colohan of the Island Pain Management Clinic to perform a comprehensive clinical assessment of the Appellant and refused to approve payment for treatment at and travel to Dr. Pollett s North Side General Pain Clinic. The Board stated: The North Side General Pain Clinic, operated by Dr. Harry Pollett, is not a multidisciplinary clinic and many of the treatments offered have not undergone random control trials and are not commonly used in the medical community. Therefore, treatment at and travel to the North Side General Pain Clinic is not authorized by the Board. [Supplemental Appeal Record Tab 193] 21. The Appellant filed two Notices of Request for Internal Reconsideration of the April 11, 2007, decision, said Notices dated April 13 and May 11, 2007, respectively and filed with the Board on April 16 and May 18, 2007, respectively. [Supplemental Appeal Record Tabs 4 and 3]

7 6 22. By letter dated June 28, 2007, the IRO accepted the Appellant s reconsideration request in part. The IRO, inter alia, recommended that the Board inquire if the Appellant is eligible for treatment at the PEI Pain Clinic even though she was being treated at another pain clinic and that she participate in a comprehensive clinical assessment pain clinic on PEI (if eligible) and New Brunswick. If it was determined that one or both of those clinics could successfully meet the needs of the Appellant in a timely manner, then the Appellant was to attend that clinic. If she chose to continue seeking treatment at Dr. Pollett s clinic, then she would be doing so at her own expense. The Board would reconsider its decision to pay for treatments with Dr. Pollett only if the other clinics did not meet the needs of the Appellant s condition. However, the Board would continue to pay the Appellant s travel costs to Sydney until a final decision was made on the two other clinics. [Supplemental Appeal Record Tab 2] 23. By letter dated July 23, 2007, the Board informed the Appellant that her travel costs to and from the North Side General Pain Clinic for the dates July 30, 2007 to August 3, 2007, would be covered by the Board as per Policy POL [Respondent s Revised Appeal Record Tab 17] 24. There also appears to have been payment by the Board in the past for the Appellant s travel expenses to Dr. Pollett s clinic in North Sydney, Nova Scotia, although it is not clear from the record when payment of these travel expenses commenced and under what grounds. In any event, it appears that at certain points in time the Board was willing to pay for the Appellant s travel expenses to Dr. Pollett s clinic in North Sydney but not the treatment expenses. This position was reiterated in a letter from the Board dated November 1, 2007, wherein the Board approved travel expenses to the North Side General Pain Clinic in North Sydney but denied reimbursement for the photon treatment. [Respondent s Revised Appeal Record Tab 83]

8 7 25. Over the years, the Appellant has been examined by many medical doctors and not withstanding Dr. S. O Brien s medical opinion on the efficacy of photon therapy, several doctors have recommended such treatment for the Appellant. 26. In particular, the following doctors have provided opinions and/or reports concerning this treatment for the Appellant: (a) Report of Dr. Steven Miller dated August 22, 2006, wherein he states: She [the Appellant] is weaning down off the long lasting Narcotic, clearly not resolved the issue yet but doing well with treatment by Dr. Pollett in Cape Breton. Just by way of clarification I understand by talking to [the Appellant] that there was some misinterpretation that she had reached medical plateau, my statement that she may never get better from previous correspondence was were (sic) meant to indicate that with her current regime and the lack of enthusiasm of the WCB and from Dr. Pollett s clinic in Sydney that it was unlikely that things were going to change. Since she has on her own accord gone over and has solicited this on the treatment and received it frequently and with obvious benefit, as I can objectively state here today. I am optimistic that we are seeing this patient turn the corner. Her affective has changed; her increase in function is correlated with an increase in expectation for return to work even perhaps in January. My feeling is that this patient improved based on what I have seen here today compared to previous exams... I am really encouraged by the progress. But I would have to suggest the treatments need to be considered and currently maintain that and I would like now to jump on the band wagon and start PT moving toward a strengthening program because I really feel the quadriceps atrophy since the onset of her symptoms is profound. We need to her strong, normalize her gait, we need to get her back into the game and I think these first few steps are all contingent on her pain and swelling improving and that has been done by Dr. Pollett. [Supplemental Appeal Record Tab 144]

9 8 (b) Letter from Dr. Steven Miller dated June 5, 2007: My difficulty is that the therapy [i.e. Photon Therapy] that has proven effective for her in the past are being restricted. It is difficult I understand because of relative information available regarding the success or failure of this but clinically the patient seems to have had benefit. I am aware of a met-analysis that seems to suggest there is some merit to it. I hear, but have no direct knowledge of the thoughts of WCB in Manitoba may be integrating this into a mainstream treatment plan, and certainly there are private clinics in Toronto that do this sort of thing. I am not sure where this situation stands, but from my perspective I can only say that [the Appellant] seemed to benefit from this treatment form in the past, and as such probably should have tried it again in the future. [Supplemental Appeal Record Tab 219] (c) Letter from Dr. Bernard J. Holland dated May 17, 2006, to Dr. S. O Brien of the Board: [The Appellant] has been to numerous different specialists over the past five years including orthopedic surgeons, neurologists, physiatrists, and pain clinic specialists. She has also been seen by Dr. Harry Pollett on a couple of occasions last year and was encouraged by her response to his treatment at the time. She feels that he was the only specialist that she had seen who seemed to help improve her condition... I am requesting that WCB of PEI reconsider its decision and allow [the Appellant] to return to Dr. Pollett for treatment. At this time, I feel that she has nothing to lose and everything to gain if Dr. Pollett was able to improve her condition and eventually get her back to work. [Supplemental Appeal Record Tab 114] (d) Letter from Dr. Gregg MacLean to Dr. B. Holland dated January 2, 2007: The only treatment she [the Appellant] has found truly effective was photon therapy with Dr. Harry Pollett in Cape Breton. Because this isn t a widely accepted type of treatment, the Compensation Board has refused to pay. She had treatments last summer and was walking without a cane with a marked improvement in her pain for most of the summer. She was able to cut back dramatically on her

10 9 narcotics... Although she is on unconventional treatment with Dr. Pollett, it seems to be the most effective for her. [Supplemental Appeal Record Tab 173] (e) Letter from Dr. Harry F. L. Pollett to Dr. B. Holland dated June 22, 2007: [The Appellant] was here for more photonic treatments this week. She did have some improvement. The swelling was reduced in the right leg and there was significant reduction in her pain. She didn t respond as well as she has on previous times. The last time she was in, from what I understand, she was able to do without a cane for five months after the treatment. She may continue to improve once she goes home and be able to do without her cane again but she was still using her cane a bit when she left but not very much. The big problem is how to coordinate her treatment... [Revised Appeal Record Tab 3] (f) Letter from Dr. Harry F. L. Pollett to Dr. B. Bernard dated July 13, 2007: [The Appellant] has improved very rapidly during this week. At the end of the week she was able to move her toes very easily. The burning has gone out of her toes and the area of normal looking skin which was at about knee level when she first came in moved down to about the middle of the leg and after the last treatment, it appeared to be actually moving very rapidly down the leg and the abnormal area extended just above the ankle... [Revised Appeal Record Tab 6] (g) Letter from Dr. Desmond P. Colohan to Dr. B. Holland date stamped June 6, 2008: Given this lady has had her chronic pain syndrome for seven years, and the only thing that seems to have helped her for any significant degree is the use of low light laser therapy. I would recommend strongly that this modality be continued. I would support Dr. Pollett s contention that there is a role for these types of adjunctive treatments in the management of complex pain conditions and would be prepared to supervise such treatment were it to be organized here in Charlottetown. In the meantime I think

11 10 the most cost effective way of delivering this treatment is for [the Appellant] to continue to see Dr. Pollett. I understand that an appointment has been made for [the Appellant] to see Dr. Mary Lynch at the Pain Clinic at the VG in May and I would be interested in any additional recommendation that Dr. Lynch might have. [Revised Appeal Record Tab 146] (h) Letter from Dr. Ross K. Leighton of the Ambulatory Surgery Clinic at the Halifax Infirmary to Dr. B. Holland and Dr. Steven Miller dated June 9, 2008: At this stage, I would certainly recommend continued conservative treatment with the use of non-operative means. Pain clinic apparently in Sydney has been successful with her so I have maintained that. Physiotherapy and anti-inflammatories as tolerated, pain medication as needed and continuing treatment by the pain clinic in Sydney sounds reasonable given her situation. I do not think we are going to make her better but if we can control her pain and improve her situation in life on a regular basis so that she does not have continued chronic pain or at least has intervals where she is relatively pain free I would certainly continue those. I think surgery at this stage is not indicated and would not particularly help her. [Revised Appeal Record Tab 147] (i) Letter from Dr. Mary E. Lynch of the Pain Management Unit at the Victoria General Hospital to Dr. B. Holland dated October 6, 2008: Suggested management is that of an interdisciplinary approach to include an emphasis on active participatory strategies but also continued bridging treatment using the photon stimulation, which appears to have led to significant benefit in this patient. My understanding is that the photon stimulation also works through the meridian system, similar to acupuncture and other therapies such as Qigong. For our part, we have found Qigong helpful in management in other types of neuropathic pain including fibromyalgia, and there is growing literature with regard to meridian stimulation therapies.

12 11 After reviewing this patient s case, I think it would be reasonable for the patient to receive a further year of photon stimulation therapy. [Revised Appeal Record Tab 201]. 27. On the other hand, the Board relies on Dr. O Brien s reports referred to above as well as a report from Dr. Jose Ledezma of the Workers Rehabilitation Centre in Saint John, New Brunswick. By an Independent Medical Examination Report date stamped January 31, 2008, Dr. Ledezma reported on his examination of the Appellant. With respect to the issue of the Appellant s diagnosis Dr. Ledezma stated: Without intention to be academic, allow me to say the diagnosis of complex regional pain syndrome, type 1 and type 2 remains challenging and controversial... It is therefore not possible to apply the usually scientific tools to the problem of diagnosis and therapy... Regarding treatment of this challenging condition, the current therapeutic recommendation is to treat those patients in an interdisciplinary Pain Management Program, including pain medicine, physiotherapy, occupational therapy, psychology, nursing, dietitian, assistive devices, vocational rehabilitation, etc. in order to address the physical and psychosocial aspects of the disease, if one wants to succeed in the rehabilitation of those patients. [The Appellant] is receiving only unimodal or bi-modal therapeutic modalities and is not enough to cover the whole spectrum of her physical and emotional needs consequently, she appears to be having only partial and transient functional recovery... With regard to the photonic (low level laser therapy) treatment the results remain controversial and there is no general consensus of the effectiveness in the rehabilitation of CRPS patients and more evidence based studies are required before this modality reaches general acceptance. [Revised Appeal Record Tab 121]

13 By decision dated July 21, 2008, the Board advised the Appellant that its decision not to approve the cost of photonic treatments remained unchanged. With respect to the issue of physiotherapy treatment, the Board advised that, on the basis of the Appellant s physiotherapist s recommendation who felt the Appellant had reached a plateau in regard to her treatments and that the strengthening treatments he had prescribed could be continued at home, physiotherapy would only be considered if the Appellant incurred a flare up in the future. [Revised Appeal Record Tab 167] 29. On September 4, 2008, the Appellant filed a new Notice of Request for Internal Reconsideration with respect to the letter dated July 21, The Appellant requested reconsideration of the Board s decision to deny entitlement for photon treatments and physiotherapy treatments. [Revised Appeal Record Tab 183] 30. By Decision dated April 27, 2009, the IRO denied the Appellant s claim in part. The IRO reviewed the medical information provided by the various medical practitioners and ruled that none of the physicians submitting reports had any expertise or degree of specialization in chronic pain other than Dr. Ledezma who did not accept photon treatment as a legitimate course of treatment. The IRO stated that there were no objective findings that substantiated any functional improvement of the Appellant as a result of attending the photon therapy. Therefore, the IRO upheld the decision of the case worker to deny further coverage of photon therapy. However, as the Appellant did attend the North Side General Pain Clinic under approval of the Board (as a result of the IRO decision of June 28, 2007), the decision of the case worker to deny reimbursement to the worker for the cost of the photon therapy during the period in which travel was paid by the Board was inappropriate, and that claim was referred back to the Board for reimbursement. Finally, the IRO upheld the decision of the case worker to deny physiotherapy treatments on the basis of the advice received from the Appellant s treating physiotherapist. [Revised Appeal Record Tab 2]

14 The Appellant filed a Notice of Appeal of the IRO s decision with this Tribunal, said Notice of Appeal dated June 10, [Revised Appeal Record Tab 1] Issues 1. Was the denial of the Appellant s further photon therapy and physiotherapy treatment appropriate i.e. whether the discretion to approve medical aid as confirmed by section 18 of the Workers Compensation Act, R.S.P.E.I Cap. W. 4.1 ( Act ) was properly exercised in accordance with the purpose and objectives of the Act? 2. Was Board policy relating to the provision of medical aid properly applied in accordance with the purpose and objectives of the Act? 3. Was section 17 of the Act properly applied in this case? 32. The Appellant, in her factum, raised the issue of the standard of review to be applied by this Tribunal with respect to the decision of the IRO. The Prince Edward Island Court of Appeal in Workers Compensation Board (P.E.I.) v. MacDonald (2007) P.E.S.C.A.D 04, held the standard of review to be used by this Tribunal in reviewing decisions of the Board was the standard of correctness. As the MacDonald decision was rendered prior to the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.C. 190, the issue of the standard of review to be applied by this Tribunal in reviewing decisions of the Board was raised by the Board in Decision #95 of this Tribunal. In that decision, the Tribunal confirmed that correctness is the proper standard to be applied when reviewing decisions by the Board, and I adopt the reasoning of the Tribunal as set forth in Decision #95.

15 14 Issues #1 and #2 1. Was the denial of the Appellant s further photon therapy and physiotherapy treatment appropriate i.e. whether the discretion to approve medical aid as confirmed by section 18 of the Workers Compensation Act, R.S.P.E.I Cap. W. 4.1 ( Act ) was properly exercised in accordance with the purpose and objectives of the Act? 2. Was Board policy relating to the provision of medical aid properly applied in accordance with the purpose and objectives of the Act? 33. Section 18(2) and (3) of the Act states as follows: 18. (2) The medical aid is at all times subject to the supervision and control of the Board and shall be paid for by the Board out of the Accident Fund, and such amount as the Board may consider necessary therefor shall be included in the assessment levied upon the employers. (3) All questions as to the necessity, character, and sufficiency of any medical aid furnished or any vocational or occupational rehabilitation shall be determined by the Board. 34. In addition, section 18(11) of the Act states: 18. (11) To aid in getting injured workers back to work, the Board may take such measures and make such expenditures as it may consider necessary or expedient, and the expense thereof shall be borne out of the Accident Fund. 35. Medical aid is defined in paragraph 1(1)(r) of the Act as follows: 1. (1) (r) medical aid includes medical, surgical and dental aid, hospital and nursing services, chiropractic services provided by a registered chiropractor, occupation therapy and physiotherapy services provided by a licensed practitioner, x-ray and other treatment, drugs, dressings, appliances, apparatuses, transportation and other goods, services and things the Board may authorize in promoting the medical rehabilitation of an injured worker. (Emphasis added.)

16 As stated by the Appellant in her factum, the purposes of the Act are two fold: (a) To provide income replacement compensation to injured workers while their capacity to earn is reduced; (b) To provide medical aid to injured workers to assist in rehabilitating the worker, thus allowing him or her to return to work. 37. The first object is not in dispute in this appeal; however, the issue of provision of medical aid to the Appellant to assist in her rehabilitation is the crux of this appeal. As noted above, the Act grants the Board the authority to authorize such medical aid or any vocational or occupational rehabilitation as it considers necessary to promote the medical rehabilitation of an injured worker. 38. In this particular case, the Appellant is seeking a form of medical treatment that has not been authorized or approved by the Board, as the Board considers this form of treatment (i.e. photon therapy) as one treatment which has not been generally accepted by the medical community, and thus further studies would have to be undertaken before the Board could accept such a form of treatment. The Board s medical physician proposed that a multi disciplinary approach or care would be best for the Appellant s needs, as this is usually the best approach for most persons suffering with Complex Regional Pain Syndrome, which is the diagnosis of the Appellant. 39. The medical treatise, ODG Treatment and Workers Comp., 2007, 5 th Edition, published by the Work Loss Data, states that low level laser therapy is not recommended: Given the equivocal or negative outcomes from a significant number of randomized clinical trials, it must be concluded that the body of evidence does not allow conclusions other than that the treatment of most pain syndromes with low level laser therapy provides at best the equivalent of a placebo effect. [Supplemental Appeal Record Tab 191]

17 Board Policy POL06-64 defines a Pain Management Program as a program approved by the Board for the purposes of managing chronic pain. According to the Board, Dr. Pollett s clinic is North Sydney, Nova Scotia, has never been an approved program. The Board in its factum states: This case turns on whether WCB should become obliged to pay for non-traditional medical treatment simply on the basis of the placebo effect when a worker says that such treatment may be doing some good. There is no objective evidence contained in the file which would support the conclusion that photon treatment has been effective. [Revised Factum page 16, para. 55] 41. With all due respect to the Board, there appears to be objective evidence supporting the photon therapy treatment that the Appellant has been receiving. No fewer than seven doctors, some of them specialists in pain management, have recommended that the Appellant continue with the photon therapy treatment as it appears to be providing benefits to the Appellant. At least two doctors from the VG Pain Clinic, which is an approved program by the Board, (Drs. Lynch and Layton) have recommended that the photon therapy treatment continue. Dr. Lynch did recommend an inter-disciplinary approach, which is similar to what Dr. O Brien suggested for the Appellant, but Dr. Lynch did state that after reviewing the Appellant s case, it would be reasonable for her to receive a further year of photon stimulation therapy. Dr. Layton of the Ambulatory Surgery Clinic at the Halifax Infirmary recommended continued treatment at the pain clinic in Sydney together with physiotherapy and anti-inflammatories as tolerated, and pain medication as needed. 42. Dr. Desmond Colohan of the Charlottetown Pain Management Clinic supported Dr. Pollett s treatment and was more than willing to supervise the treatments should they be organized in Charlottetown. All of these doctors are considered specialists in their field of pain management.

18 On the opposing side is Dr. Jose Ledezma of the Workers Rehabilitation Centre in Saint John who states that photon therapy treatment remains controversial, and there is no general consensus as to the effectiveness in rehabilitation of CRPS patients. 44. While, as Dr. Ledezma opines, there may not be a general consensus to the effectiveness in rehabilitation in CRPS patients, in this particular patient s case, there does appear to be a consensus among the examining physicians that the treatment was of assistance in helping her to rehabilitate. Therefore, in this particular case, it appears that photon therapy has been of great value to the Appellant. 45. The Board argued that if photon therapy or physiotherapy was such a success for the Appellant why was she still on narcotics or not back to work or at least in an ease-back program, or some other indication of continuing improvement. From the evidence before this Tribunal, it appeared that the photon therapy treatments were sporadic and were not provided over a continued period of time. Reference was made in at least one report of Dr. Pollett s to the fact that the Appellant walked without a cane for several months after photon therapy treatment [Revised Appeal Record Tab 3], which could be considered as evidence that the photon therapy was of benefit to the Appellant.

19 The Board relied on the New Brunswick Court of Appeal Decision in Creighton v. Workplace Health, Safety and Compensation Commission 2009 NBCA 73. In that case, the Appellant, was denied compensation for certain treatments, products and expenses which she believed were necessary for her rehabilitation. The Commission refused to pay for these treatments on the basis that its policy required scientific evidence of medical effectiveness for the continuation of the treatment. The New Brunswick Commission Policy entitled Medical Aid - Principles stated: IV. [Worksafe NB] requires scientific evidence and effectiveness of new, non-standard or not generally accepted treatments and tests. (Emphasis added.) 47. However, there is no similar requirement of scientific evidence of the effectiveness of new treatments in either the Act or the Board Policies. The Creighton decision was based on the specific wording of their policy. In addition, in the Creighton decision it does not appear that there was any medical evidence from the appellant s doctors as to the effectiveness of the treatment she was seeking compensation. 48. Board Policy POL04-67 refers to medical information as any objective or subjective information provided by a health care provider. Objective medical information is then defined as: Objective medical information means measurable data presented through documentation including clinical notes, physical examination, consultations, hospital records, admission and discharge summaries, notes on operations, pathologies and lab test reports, and reports on special tests and diagnostic procedures. Subjective medical information is defined as: Subjective medical information means data presented through the presentation of symptoms described by the worker, but not supported by any objective medical information.

20 19 There is nothing in this policy which states that there must be scientific evidence of the efficacy of the treatment. 49. In addition, the Board relied upon several decisions of the Nova Scotia Workers Compensation Appeals Tribunal which dealt with appeals for medical aid benefits for photon therapy at Dr. Pollett s clinic. In the cases which were presented to this Tribunal, the Nova Scotia Workers Compensation Appeals Tribunal did not recognize photon therapy as a treatment compensable under the Nova Scotia Legislation. With the exception of the last decision (which does not deal directly with the issue of the availability of photon therapy) all of the decisions are several years old and there was no indication as to whether the Nova Scotia Workers Compensation Appeals Tribunal does not recognize photon therapy. In any event, this Tribunal is not bound to accept the rulings of the Nova Scotia Tribunal. 50. The Board is obliged by Policy POL to review all the evidence before it and to make its decision on the balance of probabilities. Policy POL states: 3. The standard of proof for decisions made under the Act is the balance of probabilities a degree of proof which is more probable than not. 4. Decision makers must assess and weigh all relevant evidence. Conflicting evidence must be weighed to determine whether it weighs more toward one possibility than another. Where the evidence weighs more in one direction then that shall determine the issue. 5. If the evidence is weighed in favour of the worker, the claim shall be allowed and compensation benefits provided. 6. If the evidence weighs against a worker s claim, the claim will not be allowed.

21 20 7. If the Workers Compensation Board concludes that the evidence for and against entitlement is approximately equal in weight then the issue will be decided in favour of the worker, supported by a rationale for finding the evidence to be approximately equal in weight. Medical Information 8. The medical information provided by a health care provider, as outlined in Workers Compensation Board policy, POL04-19, Health Care Providers, will be used in determining the validity of a claim. 9. The Workers Compensation Board will evaluate the medical information that is provided by a health care provider as outlined in Compensation Board policy, POL04-67, Medical Information. 51. In this case, this Tribunal rules that the medical evidence before the Board did show that the photon therapy treatments which the Appellant was receiving from Dr. Henry Pollett were providing medical benefits to her. And furthermore that based on the medical opinions of the seven doctors noted above, these treatments should have been continued. 52. The Board has a statutory obligation to promote the medical rehabilitation of an injured worker, and thus the photon therapy treatments which the Appellant was receiving appears to have promoted the Appellant s medical rehabilitation. Thus the preponderance of evidence before this Tribunal shows that photon therapy treatment was of benefit to the Appellant in her medical rehabilitation. 53. With respect to the issue of continuing physiotherapy treatments, there was no specific medical evidence concerning the continuation of the physiotherapy treatments, other than from those doctors who suggested a multi-disciplinary approach would be required (i.e. Dr. O Brien of the Board and Dr. Layton who suggested continued physiotherapy and Dr. Ledezma who suggested an interdisciplinary approach). On the other hand, the Appellant s Physiotherapist Report

22 21 to the Board on September 14, 2007, reported that the Appellant was discharged with a home program but that she may need occasional acute treatment for flareups. [Revised Appeal Record Tab 66]. 54. This Tribunal rules that the Physiotherapist Report must be given greater weight than the medical examiners who suggested a multi-disciplinary approach of which physiotherapy would be one disciplined. The physiotherapist who treated the Appellant directed his mind to the issue of whether ongoing regular physiotherapy treatment would be required. As of September 14, 2007, it was the physiotherapist s medical opinion that ongoing treatment would not be necessary provided the Appellant followed a home program. However, the physiotherapist did acknowledge that treatment may be required for flare-ups. Therefore, on the balance of probabilities, this Tribunal can not find that the Board erred in its decision to refuse ongoing physiotherapy treatment to the Appellant. However, this Tribunal rules that physiotherapy treatments should be approved and paid for by the Board if the Appellant s medical condition flared up. 55. Therefore, this Tribunal rules that the Board did not properly exercise its discretion when it failed to approve photon therapy treatment for the Appellant, but the Board did exercise its discretion properly when upholding the recommendations of the physiotherapist, stating that physiotherapy treatment would not be required unless a flare up occurred. 56. Based on the foregoing, it is this Tribunal s ruling that the Board did not properly apply its policies pertaining to the provision of medical in accordance with the purpose and objectives of the Act. Issue #3 Was section 17 of the Act properly applied in this case?

23 Section 17 of the Act states as follows: 17. Notwithstanding anything in this Act, on any application for compensation the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. 58. In effect, section 17 states that where the evidence for and against the issue is approximately equal in weight the issue shall be resolved in favour of the claimant. Section 17 is also codified in Policy POL In this case, as this Tribunal has already ruled that there was a preponderance of evidence in favour of the Appellant s claim for photon therapy treatment, on the basis of section 17 of the Act, this Tribunal must also rule that the issue of whether the Appellant is entitled to photon therapy treatment shall be resolved in her favour. Even if the medical opinions of the doctors supporting the Appellant s claim could not be considered a preponderance of evidence, than at the very least, the evidence presented by the Appellant and the Board must be considered equal in weight and in that situation, by virtue of section 17, this Tribunal must rule in favour of the Appellant. 59. Therefore, in conclusion, this Tribunal rules: (a) That the Board erred in its refusal to pay for photon therapy for the Appellant and her expenses involved in receiving the photon therapy; (b) That the Board did not err in its ruling that physiotherapy treatments would not be reimbursed unless there was a flare-up. 60. As such the Appellant is entitled to be reimbursed for her photon therapy treatment and the expenses involved with obtaining such treatment.

24 23 Dated this 25 th day of May, Wendy E. Reid, Q.C. Chair of the Workers Compensation Appeal Tribunal Concurred: Neil MacFadyen, Worker Representative Jean Tingley, Employer Representative