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.”

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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

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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