DECISION Keith G. Barry Review Commissioner

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1 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION 6 Mt. Carson Ave., Dorset Building Mt. Pearl, NL A1N 3K4 DECISION Keith G. Barry Review Commissioner May 2013

2 WORKPLACE HEALTH, SAFETY & COMPENSATION REVIEW DIVISION DECISION Review Proceedings WHSCRD Case No.: WHSCC Claim No(s).: Review Commissioner: Decision Under Review: Keith G. Barry Workplace Health, Safety and Compensation Commission decision dated August 27, 2012 Date & Place of Hearing: April 4, 2013 Hearings Room Workplace Health, Safety and Compensation Review Division Mount Pearl, NL Attendances at Hearing: Worker Present Worker s Representative Vina Gould, NAPE Issues Under Review 1. The worker is requesting the Review Commissioner find the Commission erred in denying his request for an extension of physiotherapy treatments. The parties agreed to the use of the file materials for the purpose of this review. Case Summary The worker sustained a compensable injury to his left knee on February 15, His claim was accepted for medical aid only and he did not incur any loss of time from work. The worker sought medical treatment with his family physician, Dr. Kirby, on February 16, 2012, who diagnosed a first degree ligament sprain/meniscal tear and recommended physiotherapy. The worker commenced physiotherapy on March 6, On June 10, 2012, the Commission received an extension request for physiotherapy treatments from the worker s physiotherapist. 1

3 The request was forwarded to the Commission s Physiotherapy Consultants for review. Following the review, the worker was advised, in a decision dated July 3, 2012, that his request was denied. The worker appealed, and in a decision dated August 27, 2012, he was advised by the Internal Review Specialist that his appeal was denied. The worker disagreed. 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 Also relevant and considered in this case are Sections 19(1), 84(1) and 85(1) of the Act, along with Policy HC-01: Physiotherapy Services Private Clinics. Positions Considered Worker s Position: Ms. Gould began her presentation with a brief background of the worker s injury and subsequent medical treatment, noting specifically the recommendation by Dr. Kirby on February 16, 2012 that the worker obtain physiotherapy. The worker noted that he contacted his physiotherapist, who had treated him in the past for a similar injury, immediately after leaving the doctor s office on February 16, 2012 and was advised that he could not get an appointment until March 6, Ms. Gould noted that this date (i.e. February 16, 2012) is referenced by the physiotherapist as the Date of Referral in his report dated March 12, Ms. Gould noted that the worker began his physiotherapy on March 6, 2012 and, on June 10, 2012, had completed only seven of the twelve treatments for which he had been approved. She noted that, unfortunately, by June 10, 2012, the worker s purchase order approving the treatments had expired. As a result, Ms. Gould noted that the physiotherapist forwarded a request to the Commission for approval to complete the remaining five treatments. Ms. Gould pointed out that Policy HC-01 provides automatic approval for injured workers for up to twelve treatments. She noted that, while Policy HC-01 provides physiotherapy coverage on a selfreferral basis, the worker also obtained a referral from Dr. Kirby. She pointed out that the Commission s decision to deny the request for the remaining five treatments was clearly contrary to Commission policy. Ms. Gould reviewed the physiotherapist s initial assessment report dated March 12, 2012 wherein he notes the worker s bending and kneeling restrictions, along with his objective findings (i.e. swelling, joint effusion, etc.) and recommended treatments. She also referenced a Form 8/10 report from Dr. Kirby dated March 14, 2012, eight days after the worker started physiotherapy, noting that the worker was demonstrating mild improvement. Ms. Gould also referenced a prescription for a knee brace by Dr. Kirby, for the worker, which was approved by the Commission. 2

4 Ms. Gould referenced the Extended Service Adjudicator s July 3, 2012 decision, specifically noting that one of the reasons given for denying the worker s request was as follows: Before any physiotherapy extension requests can be considered there has to be evidence indicating functional improvements have occurred and that further functional improvements are likely with the approval of additional treatments The request for physiotherapy is not considered treatment that will in all likelihood improve your functional capacity. Ms. Gould noted that this was not supported by the evidence, specifically a follow up report dated June 10, 2012, wherein the physiotherapist pointed out that the worker had demonstrated moderate improvement in his earlier reported objective findings (i.e. joint effusion, range of motion, swelling, etc.). The Physiotherapist also noted mild/moderate improvement by the worker with respect to pain, stiffness and tenderness. She also noted that it was in this report the physiotherapist requested approval for the remaining five treatments. The worker referenced his letter of appeal wherein he noted that, after learning that he was not approved for the remaining five treatments, he contacted the Commission and was told that he would be approved. However, two days later he was informed by the clinic that they had received a letter from the Extended Services Adjudicator stating that he would no longer be covered for physiotherapy. He noted that similar conflicting opinions from the same two Commission employees was repeated shortly after (i.e. one said he could have the treatment while the other said he could not). The worker expressed the opinion that it was obvious that the left hand did not know what the right hand was doing. Ms. Gould noted that, in the Case Worksheet note dated June 26, 2012, the Physiotherapy Consultant stated that the worker has not sought medical attention since April 26/12. She noted that this opinion was referenced by the Internal Review Specialist in her August 27, 2012 decision. However, she noted a Form 8/10 report from Dr. Kirby dated June 14, Ms. Gould acknowledged that, while this report from Dr. Kirby was not stamped as being received until June 26, 2012, the date of the Commission s Physiotherapy Consultant s opinion, it should have been picked up by the Internal Review Specialist as being incorrect given that her decision was approximately two months later, (i.e. August 27, 2012). With respect to the Consultant s questioning why the worker only had seven physiotherapy treatments in three months, the worker noted that the frequency of treatments was determined by the physiotherapist. Ms. Gould questioned why the Extended Services Adjudicator requested the Consultant s opinion in the first place, since Policy HC-01 provides automatic approval for up to 12 treatments. Both the worker and Ms. Gould expressed their view that it appeared that the Consultant was more concerned with the cost (i.e. brace should not be an overly expensive item ) and the timeframe rather than focusing on whether or not the physiotherapy was achieving the required result (i.e. keeping him at work). 3

5 Commission s Position: The Commission s position was contained in the Internal Review decision dated August 27, The Internal Review Specialist began her decision by acknowledging the worker s complaints contained in his letter of appeal (i.e. conflicting information from Commission Officials, etc.). She noted the mechanism of injury which was diagnosed as a ligament strain (first) and meniscal tear. The Internal Review Specialist noted that the worker commenced physiotherapy on March 6, 2012 and, in a progress report dated June 10, 2012, the Physiotherapist pointed out that the worker had received seven treatments and was requesting approval to complete the remaining five treatments. She noted that the request was forwarded to the Physiotherapy Consultant who provided the following opinion in a Case Worksheet note dated June 26, 2012, stating, in part: I have reviewed this file. Thank you for the summary. This client started physio on March 6/12 and had only 7 sessions of physio as of June 7/12. The therapist has reported that the P.O. expired before the other 5 sessions had been used and has requested that number of sessions. He has noted the client s knee is still swollen and he still has joint pain. The injury was over 4 months ago and I would wonder why this has not been investigated or why treatment was not more frequent if he continued to have problems with it. He has not sought medical attention since April 26/12. I see little need for another 5 sessions of physio which is passive in nature. He should be able to self manage with quads strengthening and the use of ice Following a review of the information on file, including the opinion of the Physiotherapy Consultant, the Internal Review Specialist denied the worker s appeal. Reasoning and Conclusions I find after listening to the presentations of both the worker and Ms. Gould that their primary arguments included: - The Commission erred in their application of Policy HC-01, by refusing to cover the five remaining treatments which would have given the worker a total of twelve treatments as provided in policy. - There was no need to consult with the Physiotherapy Consultant as automatic approval is provided in policy for up to twelve treatments. - The Consultant s comment that the worker had not sought medical attention since April 26, 2012 was incorrect. This should have been picked up by the Internal Review Specialist who was aware that there was a medical report from Dr. Kirby dated June 14, 2012, wherein she continues to recommend physiotherapy as the treatment plan for the worker s left knee. - The Extended Services Adjudicator, in his July 3, 2012 decision denying the worker s request, listed as one of his reasons the unlikelihood that the physiotherapy would improve the worker s functional capacity. 4

6 The Commission s position was primarily based on their Physiotherapy Consultant s opinion that there was little need for another five sessions as the worker should be able to self-manage. My role as a Review Commissioner is to review the decision of the Commission and determine if the Commission, in making that decision, acted in accordance with the Act, regulations and policy. I find, after reviewing all of the medical evidence on file and listening to the presentations by both Ms. Gould and the worker, that the weight of evidence clearly favors the position of the worker over that of the Commission. While I acknowledge that Section 85(1) gives the Commission the authority for the supervision and control of medical aid, Section 84(1) dictates that they must exercise this authority in a fair and reasonable manner. Fundamental to this, is the requirement that the Commission s decisions are in accordance with policy and procedures. I note that the relevant sections of Policy HC-01 state, in part: 2.1.The Commission supports early access to appropriate health care services that are necessary as a result of the work injury through the following: a. Coverage for physiotherapy on a self-referral basis within two weeks of the date of a new injury; b. In the case of a physician referral, the worker is expected to contact a physiotherapy clinic within 72 hours of receiving the referral from the treating physician. 2.2 To avoid delays in treating injured workers, automatic approval is granted by the Commission for up to 12 treatments. Where physiotherapy begins in good faith and it is later determined the worker's claim is not acceptable, the Commission will pay the physiotherapy clinic for treatments provided up to the date of notification of the decision. 2.3 Physiotherapy continuation requests beyond 12 treatments must be made in writing to Compensation Services using the appropriate form. 2.4 Physiotherapy continuation requests beyond 12 treatments will only be considered where evidence from outcome measures data indicates that functional improvement has occurred and further functional improvement is likely, and the continued treatment will result in the worker remaining in or returning to the workforce. All requests for extensions require approval from Compensation Services, following consultation with the Commission's Physiotherapy Consultant. 5

7 After reading Policy HC-01, I find it is clear that it is intended to minimize, as much as possible, obstacles that would prevent a worker injured in the course of his employment from obtaining the medical aid required to effect a speedy recovery. Supporting this view, I note, in particular, the reference in policy to the following: - Coverage for physiotherapy can be accomplished on a self-referral basis within two weeks of the date of a new injury. I note, as Ms. Gould pointed out, that this would allow the worker to make physiotherapy arrangements without consult. However, I note that the worker did obtain a referral from his family physician and contacted his Physiotherapist for an appointment on the same day. - To avoid delays in treating injured workers, automatic approval is granted by the Commission for up to 12 treatments (emphasis mine). I find that this is self-explanatory and clearly supports the worker s position. - Physiotherapy continuation requests beyond twelve treatments will only be considered where evidence from outcome measures data indicates that functional improvement has occurred. I find that, although the worker s request does not go beyond twelve, the evidence supports that functional improvement has indeed occurred. In his progress report dated June 10, 2012, the physiotherapist reports moderate improvement, after seven treatments, to the objective findings (i.e. range of motion, swelling and joint effusion) and mild/moderate improvements in the worker s pain, tenderness and stiffness. With respect to the opinion provided by the Physiotherapy Consultant, I agree with Ms. Gould that it was not necessary that the Consultant be consulted since the worker was not requesting any more than the twelve treatments provided for in policy. However, I note that in the Case Worksheet note dated June 13, 2012, wherein the Extended Service Adjudicator requested the Consultant s opinion, the Adjudicator asks the following question: Does it seem appropriate to issue another 12 physiotherapy treatments based on compensable injury? I find that it is clear that the question posed to the Consultant was incorrect in that the worker was not requesting an extension of twelve additional treatments, but was only seeking the remaining five treatments afforded him under Policy HC-01. I find that when you add this error to the conflicting information reported by the worker in his letter of appeal and restated under oath, it is clear that the Commission has failed to provide the worker with the medical aid for which he was entitled. I find that the Commission has erred in its application of Policy HC-01 by denying the worker s request that he be covered for the twelve physiotherapy treatments provided in policy. With respect to the Consultants question as to why the worker only availed of seven treatments, I note that this was sufficiently explained by the worker. He pointed out that he had reported that the injury to his left knee was an aggravation of a previous compensable meniscal injury for which the physiotherapist had been treating him. He noted that the pace of treatments was determined by the physiotherapist, who believed, based on past experience that the worker would be best served by spacing his treatments out over a period of time. 6

8 Accordingly, I find that the Internal Review decision dated August 27, 2012 is overturned and the Commission is directed to compensate the worker for the additional five physiotherapy treatments, as requested. Decision With respect, the review is allowed. Review Allowed Keith G. Barry Review Commissioner May 10, 2013 Date /dho 7

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