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
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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