WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1929/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1929/14 BEFORE: S. Netten: Vice-Chair HEARING: October 8, 2014 at Toronto Written DATE OF DECISION: November 18, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2485 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer decision dated June 27, 2013 APPEARANCES: For the worker: For the employer: Interpreter: G. Metulynsky, Office of the Worker Adviser Not participating None Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1929/14 REASONS (i) Issue [1] The issue under appeal is the worker s entitlement to reimbursement of the cost of Neuro-Oxygen Spinal Decompression therapy in relation to his compensable back injury. (ii) Overview [2] The worker has entitlement for a permanent low back impairment resulting from an injury sustained at work on January 30, He receives a 15% permanent partial disability pension, for mechanical low back pain with no neurological deficits. [3] The claims file was dormant between the last permanent disability (PD) reassessment in 2002 and early 2009 when the worker reported aggravation of his low back condition due to increased duties at work. He stopped working on January 9, 2010 at the age of 63. The Board provided health care benefits, as confirmed in March and April 2010, for chiropractic care, a lumbosacral support brace, a TENS machine, and a brief course of physiotherapy for TENS training. A request for pension reassessment was denied in June In September 2010 the worker informed the Board that he was attending a consultation at the Canadian Decompression and Pain Centers (CDPC), and the CDPC subsequently recommended 20 sessions of Neuro-Oxygen Spinal Decompression. Coverage for this treatment was denied by the Board on November 1, [4] The worker s objection to this determination was further denied at the operational and appeals levels of the Board, in April 2012 and June The worker appealed to the Tribunal. This appeal was selected for a written hearing pursuant to the Tribunal s Practice Direction on Written Appeals. (iii) Legal framework [5] Since the worker was injured in 1987, the pre-1989 Workers Compensation Act is applicable to this appeal. All statutory references in this decision are to the pre-1989 Act unless otherwise stated. The hearing of the appeal commenced after January 1, 1998; therefore, certain provisions of the Workplace Safety and Insurance Act, 1997 (the WSIA ) also apply to the appeal. [6] Health care is governed by section 52 of the pre-1989 Act: 52(1) Every worker who is entitled to compensation under this Part or who would have been so entitled had he been disabled beyond the day of the accident is entitled, (a) to such health care as may be necessary as a result of the injury; (b) to make the initial choice of doctor or other qualified practitioner for the purposes of this section; (c) where, in the opinion of the Board, he is rendered helpless through permanent total disability, to such other treatment, services or attendance as may be necessary as a result of the injury. (2) In this Act, "health care" means medical, surgical, optical and dental aid, the aid of drugless practitioners under the Drugless Practitioners Act, the aid of chiropodists under the Chiropody Act, hospital and skilled nursing services, such artificial members and such

3 Page: 2 Decision No. 1929/14 appliances or apparatus as may be necessary as a result of the injury and the replacement or repair thereof when deemed necessary by the Board. (6) All questions as to the necessity, character and sufficiency of any health care furnished or to be furnished and as to payment for health care shall be determined by the Board. [7] Drugless practitioners includes physiotherapists and chiropractors (now regulated under the Physiotherapy Act and Chiropractic Act). [8] The standard of proof applicable in workers compensation proceedings is the balance of probabilities. The benefit of the doubt is given to the claimant in resolving an issue where the evidence for and against is approximately equal in weight. (iv) Evidence [9] Dr. Q. Tran, a specialist in internal medicine and the worker s physician regarding possible coronary artery disease and dyslipidemia, assessed the worker s chronic back condition in January and February In January Dr. Tran noted chronic back pain, no focal neurological symptoms, and pain radiating down both legs. The worker was not interested in surgery or in a referral to a pain clinic at that time. An MRI of February 2, 2010 found a disc herniation at T11-12 with no nerve root compromise; disc bulges and facet arthropathy at multiple levels; severe spinal stenosis at L4-5 without nerve root compromise; and a left disc herniation and broad-based disc bulge at L5-S1 affecting the left and right S1 nerve roots respectively. Dr. Tran suggested referral to a neurosurgeon in Windsor for surgery. [10] In the meantime, on February 2, 2010 chiropractor Dr. W. Currier began a chiropractic treatment plan, including exercise, modality therapy, diathermy and ultrasound. The worker then had reduced sensation in his legs, reduced active and passive range of motion, and limited tolerance for walking beyond a short distance. On March 22, 2010 Dr. Currier recommended a lumbar support and TENS machine, both of which were subsequently funded by the Board. On April 13, 2010 physiotherapist S. Costantin reported that she would see the worker for two weeks for evaluation of the use of his TENS machine, and that the worker was also awaiting a consultation with neurosurgeon Dr. T. Dang. At that time the worker reportedly had leg pain with walking, left buttock weakness, and restricted trunk extension; Ms. Costantin also outlined the MRI findings of facet arthropathy and L5-S1 disc herniation. Discharge reports from Dr. Currier and Ms. Costantin are not on file. [11] The worker was assessed by chiropractor Dr. R. Sohal of the CDPC on September 16, Dr. Sohal wrote to the Case Manager on September 28, 2010: [The worker] has presented to CDPC severe back and leg pain. The perceived intensity has been recorded at 9/10 and he has described the pain as a sharp, dull and achy lower Back Pain and shooting right-leg pain. The pain has remained fairly constant and is aggravated by standing, walking, bending and sitting for prolonged periods of time. The patient has no avenue of relief at the present time A past medical history was unremarkable and the only medication currently being taken is the occasional Aleve. Physical Exam Findings reveal limited Range of Motion (ROM) in all lumbar ranges. There is pain in extension, left lateral flexion and left rotation. Sensory Findings reveal decreased sensation on the Left and Right SI.

4 Page: 3 Decision No. 1929/14 Orthopaedic Tests revealed that KEMPS was positive bilaterally, SLR was positive bilaterally for Lower Back Pain, Yoemans was positive bilaterally and Elys was positive for Lower Back Pain. Muscle Tests revealed tender L/S erectors, bilateral QL and bilateral piriformis. Based on these findings and a previous MRI report dated February 2, 2010, the patient is suffering from multiple levels of disc herniation in his lumbar and thoracic spine. Treatment and Recommendations We have recommended a course of approximately twenty (20) sessions of Neuro-Oxygen Spinal Decompression Therapy at a frequency of three sessions per week. This is the standard protocol in the decompression treatments as recommended by clinical studies. In a study by Grotecke (2003), it was observed that of the 219 patients diagnosed with herniated discs and degenerative disc diseases, eighty six percent (86%) had a decrease in their symptoms. [12] Dr. Sohol attached CDPC advertising materials which describe a three-phased approach. The first, spinal decompression, creates distractive forces on a region of the human spine in order to generate negative pressure in the focused interverterbral [sic] disc(s). The second aspect entails oxygen enhancement while receiving decompression, and the third phase is neuro-nutrition for anti-inflammatory benefits and enhanced healing. Treatment is recommended for those with disc bulging, disc herniation, degenerative disc, fibromyalgia, neck pain, osteoarthritis, radiculopathy, sciatica, scoliosis, spinal arthritis, spinal stenosis and carpal tunnel syndrome. [13] Payment for spinal decompression therapy was denied by the Board on November 1, 2010, on the basis of Board medical consultant Dr. W. Maehle s advice that there is no scientific evidence to support it. On November 9, 2010, the worker submitted a written objection, seeking reimbursement of the $2100 he had paid for treatment between September 16, 2010 and the last week of November On November 25, 2010, the worker s family doctor, Dr. M. McElligott wrote: The above mentioned patient is under my care for chronic back and right leg pain secondary to prolapse disc. He has been offered surgery at Neuro-Surgical Centre in Windsor. I feel that it is in the patients [sic] best interest to have non-surgical spinal decompression to alleviate pain and to reduce the possibility of neuro-surgery. [14] The CDPC Director wrote to the Case Manager in January 2011 to support the worker s request for funding by providing references from the medical literature as well as one example of Board-approved treatment, at the rate of $50 per treatment, for a worker whose treatment had been recommended by a Regional Evaluation Centre in October [15] The worker saw Windsor neurosurgeon Dr. Dang on February 22, Dr. Dang outlined symptoms of low back and bilateral foot pain, and no radicular leg pain; previous posterior right leg pain had resolved. His report further stated: He had previous physical therapy, chiropractic treatments, massage therapy, epidural steroid injections [which did not help], facet injections, and spinal decompression therapy in London, Ontario which did help with his symptoms. He denied any lower [sic] or bladder dysfunction. He denied any other neurological symptoms.

5 Page: 4 Decision No. 1929/14 Impression and Plan: [The worker s] symptoms are mainly myofascial and musculoligamentous in nature Success rate in treating back pain with surgery is less than 30%. Therefore, I would not recommend surgery to treat his back pain. He was advised to continue with conservative treatments. If the spinal decompression therapy he received in London helped with his symptoms, then I will recommend he have further treatments. He was also advised to continue with physiotherapy and massage therapy. [16] As outlined in the worker s representative s submissions to the Board dated March 9, 2012, he had written to Dr. Dang to determine if a PD reassessment was in order and to get his opinion on the efficacy of the spinal decompression treatment. Dr. Dang s response to the second question, on March 1, 2012, was as follows: Secondly, the treatment of low back pain requires multimodalities approach. If spinal decompression has provided [the worker] relief of his LBP in the past, I would recommend further treatment for [him]. [17] The Board s further denial of payment for the spinal decompression treatment, on reconsideration in April 2012, was based upon a further review by Dr. Maehle on March 26, 2012 which stated: A 2005 review by the WSIB of British Columbia concluded: To date there is no evidence that the Vax-D system is effective in treating chr LBP associated with herniated disc, DDD, posterior facet syndrome, sciatica or radiculopathy. Subsequent reviews confirmed the above conclusion. (v) Discussion [18] In his submissions dated March 9, 2012, the worker s representative relies upon the documents provided by CDPC as well as Decision No. 775/10 to assert that spinal decompression has been allowed in some cases. Regarding Decision No. 775/10, he writes: The Vice-Chair found that the appropriate legal test was not one of medical certainty, but of a balance of probabilities. The worker in that case did not have to prove that the treatment would work for sure, only that it would be of some value in improving the condition and that it was recommended by a health professional. [19] The Vice-Chair in that case preferred the evidence of the chiropractor proposing the spinal decompression, who had quoted an 86% success rate, over the Board medical consultant s opinion. [20] As noted by the Vice-Chair in Decision No. 1546/11, Decision No. 775/10 does not establish a general principle that decompression therapy should be funded by the Board, and each decision must be based upon the facts of the case and the expert evidence before the Hearing Panel or Vice-Chair. Decision No. 1546/11 denied reimbursement for the cost of spinal decompression therapy where the worker had not been referred for such treatment by a health professional, the family doctor only endorsed the treatment retrospectively, decompression therapy had not otherwise been recommended by the worker s treating practitioners, and the treatment itself provided only transient relief. I find the facts of this appeal to be similar to those in Decision No. 1546/11. [21] The use of spinal decompression as a treatment modality for chronic low back pain is evidently controversial. In this appeal, as well as in Decisions No. 775/10 and 1546/11, the Board denied entitlement based on a general determination that the medical literature does not support spinal decompression as an effective treatment. The workers compensation authority in British Columbia apparently came to this conclusion after a review of the literature in 2005 and

6 Page: 5 Decision No. 1929/14 subsequently. In contrast, the treatment facility lists studies and articles which presumably do support the efficacy of spinal decompression. [22] The worker s representative submits that there is more than sufficient evidence to allow for this mode of treatment, relying upon the recommendations from Drs. McElligott and Dang. He submits further that the worker has stated that the therapy has provided significant relief of his back pain, evidenced by him paying for the treatment out of pocket despite your denial. However, given that the worker paid for the treatment in advance, I do not make such an inference. There is no discharge or other outcome report from CDPC. The only evidence on file with respect to the results of the decompression therapy is contained in Dr. Dang s February 2011 report, which states that it did help with his symptoms without specifying whether this was transient or long-lasting relief. [23] Health care coverage under the legislation does not extend to all forms of treatment which might provide some benefit to the worker, but rather to treatment which is necessary. For workers compensation purposes, this term has not been interpreted to mean health care without which life cannot be maintained, but rather health care which is required to facilitate recovery and rehabilitation from an injury. In addition, maintenance forms of treatment or medication may be considered necessary if they maintain function or work capacity, reduce pain and dependence on medications, or teach independent management of the condition. The availability of appropriate alternatives may be considered. Current medical information must support the necessity of the proposed health care, and there must be a reasonable expectation that it will achieve the treatment goal. (See, for example, Decisions No. 2279/12 and 1949/03.) [24] I also note the comments made by the Panel in Decision No. 2042/11: However, the legislation and policy pertaining to the provision of health care measures are distinct from those other entitlement provisions. The provisions with respect to health care recognize that the Board must exercise discretion in determining what is necessary, appropriate and sufficient. The language in both the legislation and the policy reflects that discretion. The legislation and the policy also reflect that the Board s opinion as to what constitutes necessary and appropriate warrants considerable weight. [25] While that decision referenced the statutory provisions in the WSIA, the pre-1989 Act similarly authorizes the Board to determine all questions as to the necessity, character and sufficiency of funded health care. [26] It appears from the materials on file that the primary goal of decompression therapy for the worker was lasting pain relief and, as noted above, there is conflicting information as to whether there was a reasonable expectation that decompression therapy could achieve that goal. Similar to Decision No. 2042/11, I agree that Dr. Maehle's opinion and the Board's position, based upon a review of the medical literature, reflects a reasonable exercise of the discretion granted to the Board by the legislative provisions. [27] Moreover, there was no contemporaneous medical support for this treatment from the worker s family physician or from a specialist. Dr. McElligott only provided his endorsement in late November 2010, at the conclusion of treatment and well after the worker had paid for it. Furthermore, Dr. McElligott stated that the worker had been offered surgery and the treatment would reduce the possibility of surgery, yet in fact Dr. Tran had offered a surgical consultation only, and that consultation had not yet occurred. Dr. Tran had also suggested a pain clinic, and did not mention spinal decompression. Neurosurgeon Dr. Dang s support for such treatment

7 Page: 6 Decision No. 1929/14 came three months after its completion; he declined to comment on the efficacy of spinal decompression despite being asked to do so, but recommended further decompression (along with other modalities) if it had been effective for the worker in particular. The question before me is the worker s entitlement to funding of decompression therapy in 2010, not in 2011 or I note also that Dr. Dang ultimately diagnosed myofascial and musculoligamentous symptoms, and that these symptoms are not, according to the CDPC s advertising, relieved by spinal decompression. Finally, as in Decision No. 1546/11, I do not consider the reports from the CDPC itself to constitute objective or sufficient medical support, given the CDPC s active marketing of this form of therapy for a broad clientele. [28] I find that the worker largely acted on his own initiative in seeking out this form of treatment in September 2010, and in doing so he acted prematurely. He had not obtained a recommendation from either of his treating physicians and he had not exhausted all other alternatives for pain relief. In particular, he had declined a pain clinic, he took only occasional over-the-counter pain medication, and he had an upcoming consultation with neurosurgeon Dr. Dang. As a result, I find that spinal decompression therapy was not necessary as a result of the worker s compensable back condition, at that time. The worker is not entitled to reimbursement for the cost of this treatment for the period September to November 2010.

8 Page: 7 Decision No. 1929/14 DISPOSITION [29] The appeal is denied. DATED: November 18, 2014 SIGNED: S. Netten