WORKERS COMPENSATION APPEAL TRIBUNAL WORKER 2010-06-22¢  WORKERS COMPENSATION APPEAL...

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Transcript of WORKERS COMPENSATION APPEAL TRIBUNAL WORKER 2010-06-22¢  WORKERS COMPENSATION APPEAL...

  • 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 Managem