Workplace Safety and Insurance Board
Appeals Resolution Officer Decision
DECISION NUMBER: 20090020
OBJECTION BY: Worker
EMPLOYER: Not Participating
HEARING DATE: N/A
ISSUES
The worker has appealed the claims adjudicator’s decisions of November 20, 2008, January 16, 2008, April 18, 2007, May 15, 2007 and June 18, 2007.
The claims adjudicator had concluded that the worker is capable of returning to modified employment on a part-time basis, five hours per day. As a result, the worker’s loss of earnings (LOE) benefits was reduced to reflect the worker’s capability of modified employment.
The claims adjudicator, in conjunction with the Workplace Safety and Insurance Board (WSIB) medical advisor, also ruled that the worker is not entitled to continue Botox injections as they are considered to be maintenance-therapy is nature.
HOW THE ISSUES AROSE
On January 25, 2004, this operator was lifting a box of exhaust guards and injured her left chest and arm. She was diagnosed with cervical-thoracic strain and treatment was provided on a conservative basis to include chiropractic manipulation.
The worker underwent a magnetic resonance imaging (MRI) scan of the cervical spine and there was no evidence to suggest any stenosis or disc herniation. In addition, an electromyography (EMG) study of the right-upper extremities was reported as normal.
The worker attended the regional evaluation centre (REC) on March 18, 2005 and was discharged with a diagnosis of a strain of the neck and left shoulder and chronic pain. Permanent restrictions of the upper extremity were recommended.
The worker has been seen by her doctor and was provided with Botox therapy in an attempt to reduce the worker’s ongoing pain difficulties.
The worker attended a Functional Restoration Program (FRP) in September 2007 and was discharged with functioning at a limited stated but it was indicated that the worker was capable of returning to modified employment for five hours per day at five days per week.
The claims adjudicator has ruled that the worker is entitled to partial LOE benefits in recognition of the partial disability stemming from the occupational injury.
Ongoing treatment monitoring suggested that the worker is no longer benefiting from Botox therapy and the WSIB medical advisor has ruled that this therapy is maintenance in nature and therefore there does not appear to be a clinical necessity for continuation of this treatment to aid in the worker’s recovery.
The worker has appealed these decisions and these issues are now before the appeals resolution officer (ARO) for further consideration.
AUTHORITY
The ARO will review the worker’s request in light of Operational Policy Manual Documents:
- 11-01-05 – Determining Maximum Medical Recovery (MMR)
- 17-01-02 – Entitlement to Healthcare
- 18-03-02 – Payment of LOE Benefits
RESOLUTION METHOD AND PROCESS
The worker has submitted a 60-Day Decision Option Form. By completing this Option Form the worker indicates her understanding that the ARO will provide a final decision of the WSIB based on the information on the record and any additional information submitted with the Objection Form.
ASSESSMENT OF THE EVIDENCE
The worker has submitted that she is not capable of returning to any form of employment and also requires additional treatment in the form of Botox therapy to increase her level of functioning.
The worker attended the FRP in September 2007. The discharge recommendation is clear from the assessment team that the worker is, in fact, capable of returning to modified employment for five hours per day, five days per week.
It is noted that the suitable employment or business (SEB) target selected for the worker is that of an Elemental Service Position.
The worker is also in receipt of a non-economic loss (NEL) award for the permanent impairment stemming from the occupational injury. The worker has been provided a 32 per cent NEL award in recognition of this permanent impairment.
The clinical documentation on record, in particular the FRP, does indicate that the worker is partially disabled and fit for modified employment. It is suggested that the worker is not capable of returning to full-time employment and provides permanent restrictions for the upper extremities and recommends that the worker be only capable of returning to employment for five hours per day.
The additional clinical documentation on record does not supply any clinical objective findings to alter the conclusions provided by the assessment team of the FRP.
The worker has been treated with Botox injections for quite some time by her doctor. Her doctor had indicated, in the clinical assessment that the worker does derive some benefits from the Botox injections.
This clinical recommendation by the treating physician has been reviewed by the WSIB medical advisor.
The medical advisor notes that the treating doctor’s report of December 2008, that:
“Botox provides her with tone reduction, pain reduction, and enhanced sleep; this does provide reduced pain levels for the three to four months duration that Botox is clinically effective.”
The conclusion drawn by the WSIB medical advisor does indicate:
“The Botox injections appeared to be used for pain-control purposes only. While there is tone reduction and enhanced ability to sleep, the effect of Botox appears to be only for maintenance purposes. Overall, this worker does not appear to be improving.”
The WSIB is able to authorize treatment for a worker when the treatment is provided to assist the worker in their recovery process. Once the clinical information appears to suggest that the worker has reached a MMR, the treatment process is considered to be no longer effective in aiding a recovery and becomes maintenance in nature.
Having regard for the opinion provided by the WSIB medical advisor, the ARO is not satisfied that continued Botox injections are providing clinical assistance beyond maintenance therapy in general.
The worker’s level of functioning is documented by the FRP who has indicated that the worker is capable of returning to modified employment, five hours per day. As a result, the ARO is satisfied that the worker is being properly compensated in recognition for the partial disability stemming from the occupational impairment.
CONCLUSION
I have reviewed the evidence on record, and it is the judgement of the ARO that:
- There is insufficient clinical evidence available to support the worker’s claim for inability to return to modified employment.
- The clinical evidence on record does support the worker is capable of returning to modified employment, five hours per day, five days a week and the reduction of LOE benefits is appropriate in light of the worker’s partial disability;
- The worker’s request for continued Botox injections to do appear to be clinically greater than that of maintenance therapy and the ARO accepts the opinion provided by the WSIB medical advisor and denies the worker’s request for continued Botox injection.
The worker’s objection is denied.
DATED June 4, 2009
N. J. Shruiff Appeals Resolution Officer Appeals Branch