WORKERS COMPENSATION APPEAL TRIBUNAL WORKER 2010-06-22¢ WORKERS COMPENSATION APPEAL...
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CASE ID # [personal information]
WORKERS COMPENSATION BOARD OF
PRINCE EDWARD ISLAND
Appellant Douglas R. Drysdale, Solicitor representing
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. 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
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 –
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.
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.
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
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.
18. Dr. S. O’Brien provided a medical opinion dated March 28, 2007, wherein he
“. . . 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