WORKERS COMPENSATION
APPEAL TRIBUNAL
BETWEEN:
WORKER
CASE ID # [personal information]
APPELLANT
AND:
WORKERS COMPENSATION BOARD OF
PRINCE EDWARD ISLAND
RESPONDENT
DECISION #132
Appellant Douglas R. Drysdale, Solicitor representing
the Appellant
Respondent 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
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 08-72. 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, 2001.
3. 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, 2002.
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).
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, 2005. [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.
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.
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.
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,
2007. 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]
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 POL04-01.
[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]
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]
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
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
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.
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]
12
28. 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, 2008. 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]
13
31. The Appellant filed a Notice of Appeal of the IRO’s decision with this Tribunal,
said Notice of Appeal dated June 10, 2009. [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. 1988
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.
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. 1988
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.)
15
36. 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, 5th 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]
16
40. 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.
17
43. 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.
18
46. 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 25-001 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.”
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 04-30 to review all the evidence before it
and to make its decision on the balance of probabilities. Policy POL 04-30 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.
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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 inter-
disciplinary approach). On the other hand, the Appellant’s Physiotherapist Report
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 flare-
ups. [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?
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57. 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 POL04-30. 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.
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Dated this 25th day of May, 2010.
Wendy E. Reid, Q.C.
Chair of the Workers Compensation Appeal Tribunal
Concurred:
Neil MacFadyen, Worker Representative
Jean Tingley, Employer Representative