WORKERS COMPENSATION APPEAL TRIBUNAL

Transcription

1 WORKERS COMPENSATION APPEAL TRIBUNAL BETWEEN: WORKER CASE ID # [personal information] APPELLANT AND: WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION #179 Appellant Maureen Peters, Worker Advisor representing the Worker Respondent Brian Waddell, Solicitor representing the Workers Compensation Board Place and Date of Hearing March 21, 2013 Loyalist Lakeview Resort 195 Harbour Drive Summerside, Prince Edward Island Date of Decision April 29, 2013

2 WCAT Decision #179 Page 1 of 9 1. This is an appeal by the Appellant of the decision of the Internal Reconsideration Officer (the IRO ) # [personal information], dated September 26, 2012, upholding a decision of the Workers Compensation Board (the Board ) to deny coverage for a microamp nerve stimulator (MENS) unit. FACTS, EVIDENCE AND BACKGROUND 2. On January 4, 2000, the Appellant was injured in the parking lot of [personal information] when she slipped and fell. The Board accepted the claim for left abdominal wall muscle sprain and left knee and left shoulder pain, and the Appellant was approved for temporary wage loss ( TWL ) and medical aid benefits. 3. Following the injury the Appellant received numerous physiotherapy and supportive care treatments. 4. The Appellant participated in a Functional Capacity Evaluation on June 1 and 2, 2000, where it was determined that she is not a match for the critical job demands of the pre-injury position. [Appellant s Appeal Record Tab 6] 5. On October 7, 2004, the Appellant underwent a permanent medical impairment assessment during which it was determined she had a 5% whole person permanent; 3% for the left knee and 2% for the left shoulder. [Appellant s Appeal Record Tab 7] 6. On May 10, 2010, the Appellant s family physician, Dr. Ron Nicholson, states in his report, Physio following left shoulder and left knee injuries. Physio advises a home microamp stimulation unit to utilize at home between monthly physio appointments. Rx = home microamp nerve stimulation unit. [Appellant s Appeal Record Tab 23]

3 WCAT Decision #179 Page 2 of 9 7. The Case Coordinator requested an opinion from Dr. Steve O Brien, the Board Medical Advisor, as to the appropriateness of a MENS unit under the Appellant s claim. On June 30, 2010, Dr. O Brien provides his opinion where he writes: In ODG Treatment in Workers Comp, 2010, page 1113 under Microcurrent electrical stimulation (MENS devices), it states: Not recommended. Based on the available evidence conclusions cannot be made concerning the effect of Mircrocurrent Stimulation Devices (MENS) on pain management and objective health outcomes. MENS is characterized by sub-sensory current that acts on the body s naturally occurring electrical impulses to decrease pain and facilitate the healing process. The above mentioned publication also states, MENS differs from TENS in that it uses a significantly reduced electrical stimulation. TENS blocks pain, while MENS acts on the naturally occurring electrical impulses to decrease pain by stimulating the healing process. Therefore, based on current scientific evidence, the microcurrent electrical stimulation machine is not recommended. On page 11 of ODG Treatment in Workers Comp 2010, it states, This edition of ODG Treatment incorporates the latest findings from Work Loss Data Institute s rigorous, comprehensive and ongoing systematic literature search and review of existing scientific evidence published in peer-reviewed journals. Therefore, this would be an evidence-based decision that the microcurrent electrical stimulation device would not be appropriate under this claim. [Appellant s Appeal Record Tab 24]

4 WCAT Decision #179 Page 3 of 9 8. On July 2, 2010, the Case Coordinator advised the Appellant in writing the request for a MENS unit was denied. She based her decision on the policy dealing with TENS and on Dr. O Brien s opinion. [Appellant s Appeal Record Tab 25] 9. The Appellant requested reconsideration of the July 2, 2010, decision, but her request was accompanied by a letter from her treating physiotherapist which was deemed new evidence by the IRO. Reconsideration was dismissed and the matter returned to Client Services. [Appellant s Appeal Record Tabs 28, 29 and 32] 10. The evidence in question was a letter from Deborah Gee, L.P.T., who made a recommendation that the Appellant purchase a micro-amp stimulator for use at home. The letter also outlined the difference between a TENS and MENS unit. 11. By letter dated April 30, 2012, the Case Coordinator once again advised the Appellant that the requests for a MENS unit was denied. [Appellant s Appeal Record Tab 38] 12. On July 27, 2012, the Appellant requested reconsideration and on September 26, 2012, the IRO issued her decision upholding the Case Coordinator s decision. 13. The Worker subsequently filed a Notice of Appeal with the Workers Compensation Appeal Tribunal on October 26, ISSUE Was the decision to deny coverage for a microamp nerve stimulator (MENS) unit appropriate?

5 WCAT Decision #179 Page 4 of 9 ANAYLSIS/DECISION 14. This Tribunal is a creature of statute, having been created pursuant to provisions of the Workers Compensation Act, R.S. P.E.I. 1988, Cap. W-7.1 as amended (the Act ). Section 56(17) of the Act states that this Tribunal is bound by the Act and its regulations as well as the policies of the Board. 15. The Appellant summarized the basis for the IRO denying coverage for the MENS unit as follows: > Section 18 of the Act and the Medical Aid Policy affords the Board discretion in determining the necessity of medical aid; > Dr. Steven O Brien s opinion that a MENS unit was not appropriate; > the lack of medical evidence to support that this form of treatment was beneficial to the Appellant. 16. The Appellant concedes that while section 18 of the Act provides the Board some discretion in determining the necessity of medical aid, the Appellant argued the Board also has a responsibility to provide necessary medical aid resulting from an accident. 17. Section 18 reads in part: (1) The Board may provide any worker entitled to compensation under this Part with medical aid, and every such worker is entitled to such prosthetic appliances and to such dental appliances and apparatus as may be necessary as a result of any accident, and to have the same kept in repair or replaced in the discretion of the Board, and to such corrective lenses as may be necessary as a result of the injury, which corrective lenses may, in the discretion of the Board, be renewed from time to time....

6 WCAT Decision #179 Page 5 of 9 (3) All questions as to the necessity, character, and sufficiency of any medial aid furnished or any vocational or occupational rehabilitation shall be determined by the Board. 18. The Board is guided by POL 92, Medical Aid, in making a determination. It reads, 1. The Workers Compensation Board will provide every worker who is injured as the result of an accident arising of or and in the course of employment with any medical aid determined necessary by the Workers Compensation Board. 19. Also, POL-26, Physiotherapy Treatment, is applicable in this case. It reads in part: DEFINITION: 6. Supportive care means treatment that is therapeutically necessary for workers, who have reached their maximum recovery from a work related injury, to maintain a maximum level of recovery. Supportive care would only be considered after the appropriate application of active and passive care either from health care providers or through lifestyle modifications. POLICY: 3. Supportive care is appropriate when the worker requires physiotherapy treatment to maintain functioning at the maximum level of recovery and when alternative care options have not been successful. 20. As evidence that the MENS units is a necessary component of the Appellant s treatment, the Appellant points to the letter of July 15, 2010, from the attending physiotherapist where she writes: I recommended that [Appellant] purchase a micro-amp stimulator for use as home. As you know she is on supportive physiotherapy care at our clinic and has been for some time. She copes with her ongoing muscle tightness with trigger point tenderness through the neck and shoulders. She has found over the extended time period that she has attended physiotherapy

7 WCAT Decision #179 Page 6 of 9 that the micro-amp stimulator is very good [sic] her in releasing the active trigger points thus reducing the ongoing chronic aching. Micro-amp stimulator differs from the TENS machine in that the micro-amp reduces muscle spasm thus increasing circulation to normalize the muscle tension. TENS units are used to modify pain and have effect on the muscle tension itself. 21. Additionally, in an Inter Office Memorandum dated June 19, 2012, the Case Coordinator documents a conversation she had with the Appellant. She writes, she could not get along with [sic] the myofascial release treatment she gets from Island Physio (CBI Health) as this is keeping her at work. 22. Furthermore, the Appellant argued while Dr. O Brien opined that the MENS is not appropriate under this claim, he has never treated or examined the Appellant, nor does he have experience in administering MENS treatment. On the other hand, the treating physiotherapist does have expertise in the benefits of a MENS unit, but more importantly the benefits this particular patient is receiving from it. 23. Therefore, the Appellant argued, the physiotherapist is in a better position to provide an opinion on the merits of this type of treatment. As such, her opinion should hold more weight than that provided by Dr. O Brien. 24. The Appellant pointed the Panel to paragraph 70 of the PEI Court of Appeal case, Workers Comp Br. (PEI) v MacDonald 207 PESCAD 04, where it reads: [70] In conclusion, WCAT is entitled by the powers granted to it pursuant to the Act, to substitute its view of the law and evidence for that of the Board in the event it decides the Board made an error.

8 WCAT Decision #179 Page 7 of Finally, the Appellant submits the evidence on file in support of approving coverage for a MENS unit outweighs the evidence against it, and that this Panel should overturn the Board s decision. 26. Alternatively, if the Panel finds the evidence of the physiotherapist does not outweigh that of Dr. O Brien, she argued it should be at least equal in weight, and pursuant to section 17 of the Act, the matter must therefore be resolved in favour of the Appellant. 27. On the other hand, the Respondent submits the Board made the correct decision in denying coverage for the MENS unit. He argued there is no evidence on file to support the Appellant s claim that such a unit is necessary for her treatment, nor is the evidence equal in weight. 28. The Respondent argued, that although the Appellant was receiving ongoing physiotherapy, there appears to be only the report from her treating therapist on September 23, 2009, which mentions electro-stimulation. 29. Further, the only mention of a MENS unit by her physician, the Respondent argued, is in Dr. Nicholson s report of May 10, 2010, but it appears he is simply repeating what the physiotherapist said as there is not further mention in follow-up treatment. 30. The Respondent argued, the medical opinion of Dr. O Brien of June 30, 2010, (see paragraph 7) clearly states that a MENS unit is not appropriate under the claim. This medical opinion, the Respondent argued, was based on current scientific studies and observations from the Official Disability Guidelines Treatment of Workers Comp 2010, an accepted text in the field of workers compensation.

9 WCAT Decision #179 Page 8 of Furthermore, the Respondent argued, the Board did consider the matter of the differences between a TENS unit and a MENS unit, and in concert with Dr. O Brien s opinion concluded it was still not recommended under his claim. 32. After considering the evidence presented and the submissions of both counsels, this Panel finds, on the balance of probabilities, that the Board s decision to deny the Appellant coverage for a MENS unit was not appropriate (correct). 33. The MENS unit was recommended by both Dr. Ron Nicholson, the Appellant s treating physician and Deborah Gee, her physiotherapist. 34. Evidence provided by Ms. Gee indicates that the MENS unit was a component of the Appellant s physiotherapy treatment (paid for by the Board) and that the micro-amp stimulator is very good [sic] her in releasing the active trigger points thus reducing the ongoing chronic aching and she could not get along with [sic] the myofascial release treatment she gets from Island Physio (CBI Health) as this is keeping her at work. 35. It should be noted that the publication ODG Treatment in Workers Comp, 2010, states Based on the available evidence conclusions cannot be made (my emphasis) concerning the effect of Microcurrent Stimulation Devices (MENS) on pain management and objective health outcomes. In other words, the jury is still out, whether the MENS unit is or is not an effective treatment of pain. 36. It should also be noted that although there is a Board Policy (POL-07) negative to TENS units there is no such Policy relating to MENS units. 37. Accordingly, the Appellant s appeal is allowed for coverage of a microamp nerve stimulator (MENS) unit under her claim.

10 WCAT Decision #179 Page 9 of The Panel wishes to thank Counsel for both the Worker and the Board for their well presented submissions, both written and oral. Dated this day of April, John L. Ramsay, Q.C., Vice-Chair Workers Compensation Appeal Tribunal Concurred: Fairley Yeo, Employer Representative Gordon Huestis, Worker Representative