APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20230089
OBJECTING PARTY: worker
REPRESENTED by: NOt represented
RESPONDENT: employer
REPRESENTED by: not represented
HEARING: HEARING IN WRITING
HEARD by: m. haughton, appeals resolution officer
ISSUES
The worker is objecting to the following decisions:
The Nurse Consultant’s (NC) decision dated April 12, 2022, which extended ongoing entitlement to medical cannabis, but did not accept the increase in the tetrahydrocannabinol (THC) concentration. The NC reconsidered and upheld this decision on May 13, 2022 and November 3, 2022.
The Case Manager’s (CM) decision dated May 2, 2022, which denied secondary entitlement to the left ear. The CM reconsidered and upheld this decision on May 31, 2022.
The CM’s decision dated June 14, 2022, which determined the worker’s maintenance massage treatment was appropriately accepted for twice per month.
The CM’s decision dated December 15, 2022, which denied secondary entitlement to degenerative disc disease (DDD) of the neck and muscle spasms and myofascial pain in the right shoulder.
BACKGROUND
On March 1, 1995, this general service worker attempted to empty a 20 to 30 pound mop bucket when they experienced a sudden onset of lower back pain. Initial entitlement was allowed for a lower back injury. Entitlement was also accepted for a surgical repair of an L5 to S1 disc herniation. The worker subsequently underwent further lower back surgeries, which were accepted under this claim.
The worker was determined to have reached maximum medical recovery on September 4, 1997 and a permanent impairment was identified. On April 6, 1998, the worker was granted entitlement to a 24 per cent NEL benefit for the lower back. The accepted diagnosis for NEL rating purposes was a surgically treated L5 to S1 disc herniation. The worker experienced a permanent worsening of their lower back impairment on March 23, 2004 and on August 26, 2004, their NEL benefit was increased to 31 per cent.
On March 9, 2005, entitlement was accepted for a psychotraumatic disability as a result of a failed back surgery. On August 18, 2005, the worker’s NEL benefit was increased to 52 per cent to reflect the accepted permanent impairment for the psychotraumatic disability. The CM concluded the provisions of Bill 179 had been met to allow entitlement to a 100 per cent Future Economic Loss (FEL) benefit effective April 1, 2005. The CM determined the worker was competitively unemployable based on the expansion of entitlement to include a permanent impairment arising from their psychotraumatic disability. The FEL benefit was payable from April 1, 2005 to February 1, 2035.
An Appeals Resolution Officer’s (ARO) decision dated December 21, 2021 allowed entitlement to a NEL redetermination for their lower back impairment and the accepted psychotraumatic disability. The worker’s NEL benefit was increased to 55 per cent. The worker objected to the NEL quantum and a subsequent ARO decision dated August 11, 2022, determined the worker was not entitled to an increase in the NEL quantum for psychotraumatic disability.
An ARO decision dated September 15, 2020, accepted entitlement to medical cannabis beginning January 23, 2020 for a period of three (3) months. Entitlement to further funding for medical cannabis was subsequently extended. On April 12, 2022, the NC extended ongoing entitlement to medical cannabis, but did not accept the requested increase in the dose or THC concentration. The NC reconsidered and upheld this decision on May 13, 2022 and November 3, 2022.
The worker claimed entitlement to a left ear injury as a result of acupuncture treatment. On May 2, 2022, the CM denied secondary entitlement to the left ear. The CM indicated the worker’s left ear concerns were not causally related to the accepted injuries. The CM also indicated the medical information did not support the worker had received acupuncture for their ear. The CM reconsidered and upheld this decision on May 31, 2022.
The worker requested entitlement to maintenance massage therapy on a more frequent basis. On June 14, 2022, the CM determined the worker’s maintenance massage treatment was appropriately accepted for twice per month.
The worker claimed entitlement to injuries to the neck and right shoulder. On December 15, 2022, the CM denied secondary entitlement to degenerative disc disease of the neck and muscle spasms and myofascial pain in the right shoulder. The CM indicated there was no causal relationship between the accepted work-related injuries and the diagnosed DDD of the cervical spine and right shoulder muscle spasms and myofascial pain.
The worker’s objection to the decisions dated April 12, 2022, May 2, 2022, June 14, 2022 and December 15, 2022, form the basis for this appeal.
AUTHORITY
Workplace Safety and Insurance Act, 1997 (The Act), Section 33
Operational Policy Manual
Published
Policy 15-05-01 Resulting from Work-Related Disability/Impairment
April 9, 2021
Policy 17-01-02 Entitlement to Health Care
October 12, 2004
Policy 17-01-10 Cannabis for Medical Purposes
February 8, 2022
ANALYSIS
I have carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. Based on the evidence before me, I find the worker does not have secondary entitlement to the left ear, neck or right shoulder. I find the worker does not have entitlement to funding for an increase in the currently approved dose of medical cannabis. Further, I find the worker does not have entitlement to massage therapy sessions on a weekly basis. My findings and analysis are provided below.
On the Appeal Readiness Form dated June 6, 2023, the worker indicated they required an increase dose of medical cannabis due to a limited supply and increased pain and insomnia.
The worker did not include a submission with the Appeal Readiness Form dated December 28, 2022, pertaining to secondary entitlement to the left ear, neck and right shoulder and the frequency of their massage therapy treatment. On the Objection to Employer Access Form, the worker noted their shoulder pain was due to stress, inactivity and laying on their shoulder, while their neck concerns resulted from constantly laying down and being propped up.
The employer did not include a submission with the Respondent Form dated March 7, 2023.
Secondary Entitlement to the Left Ear
On March 3, 2022, the worker advised the CM they had sustained injury to their left ear while receiving acupuncture for the work-related injury. The worker indicated the injury happened five (5) to seven (7) years prior and the treatment had caused a punctured eardrum.
A medical report dated September 22, 2014, indicated the worker was seen by a specialist for a left ear condition of about five (5) months in duration. The worker indicated they could not hear very well; however, they were not experiencing dizziness or tinnitus. The worker reported no past history of ear disease. On examination, no concerns with the worker’s ear canals or eardrums were noted. The worker’s audiogram showed evidence of lesser air entry into the left ear than the right and there was some evidence of a hearing impairment on the left side. The specialist opined the worker likely had a left otitis media that had settled and then they had a severe otitis extrema in the same ear. There was some evidence of fluid in the left ear and the worker was prescribed a nasal spray to open up the ear.
The worker was seen for left ear concerns on November 3, 2015. The worker reported their left ear concerns began two (2) years prior when they developed an acute onset of fullness, decreased hearing and a popping sensation with bleeding from the left ear. The worker indicated there was no traumatic event or loud noise exposure associated with the onset. The worker was diagnosed with a tympanic membrane perforation and they were prescribed Ciprodex eardrops for approximately one (1) year; however, the left-sided pain persisted. The worker subsequently developed a fullness, warmth and severe pain in the left mastoid region. A CT scan of the head was completed and the worker was diagnosed with otomastoiditis. The worker was treated with oral antibiotics and the severe pain, redness and fullness resolved.
Since the resolution of the otomastoiditis, the worker indicated they had been suffering with intermittent stabbing pain in their left ear, which occurred two (2) to three (3) times per week for approximately 20 minutes. The worker did not identify any aggravating or alleviating features. Additionally, the worker reported a constant deafness sensation in the left ear.
The worker was diagnosed with asymmetric sensorineural hearing loss. A CT scan of the temporal bones was ordered to rule out an acoustic neuroma. It was noted that if the CT scan was negative, the sensorineural hearing loss was likely caused by the previous otomastoiditis. The otomastoiditis was noted to have likely been caused by Eustachian tube dysfunction, which has since resolved.
Policy 15-05-01, Resulting from Work-Related Disability/Impairment, states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.
In review of the claim file, the medical records from the acupuncture clinic provide no indication the worker’s left ear was treated. Further, the initial medical reports in relation to the ear do not support a trauma to the left ear, or that the worker reported an injury to the ear was sustained as a result of acupuncture treatment.
The worker was diagnosed with asymmetric sensorineural hearing loss, otomastoiditis and Eustachian tube dysfunction involving the left ear. In review of medical literature, Eustachian tube dysfunction is most commonly caused by allergies and infections (such as the common cold and the flu), which can cause inflammation and mucus build up, leading to blockage of the Eustachian tube. Otomastoiditis is an inflammation of the mastoid air cells and can be caused by a bacterial infection or Eustachian tube dysfunction. Asymmetrical sensorineural hearing loss can be caused by a variety of factors including infections. In this case, the worker’s treating health care professionals specifically attributed the asymmetrical sensorineural hearing loss to otomastoiditis.
Based on my review of the medical evidence, I find there is no evidence to support a causal relationship between the worker’s diagnosed left ear conditions and the accepted work-related lower back and psychological injuries. As a result, I find the worker does not have secondary entitlement to the left ear, specifically, Eustachian tube dysfunction, otomastoiditis and asymmetrical sensorineural hearing loss.
Secondary Entitlement to the Neck & Right Shoulder
On October 4, 2022, the worker advised the NC that they required physiotherapy for their neck and right shoulder. The worker indicated that due to their stress and back issues, they needed to sleep propped up and in a way that was causing neck and shoulder issues.
A medical report dated October 4, 2022, noted the worker would benefit from a physiotherapy assessment and treatment for neck pain with some radiation of pain into their right shoulder.
Diagnostic imaging of the cervical spine completed on October 17, 2022, showed evidence of mild to moderate degenerative disc disease of the cervical spine, worst at C6 to C7, with mild foraminal narrowing at the right C5 to C7 and the left C6 to C7.
On December 15, 2022, the CM denied secondary entitlement to mild to moderate degenerative disc disease (DDD) of the cervical spine with mild foraminal narrowing at right C5-C7 and left C6-C7 and associated muscle spasm and myofascial pain in the right shoulder as a causal link had not been established between the worker’s neck and right shoulder concerns and the work-related injury.
On January 10, 2023, the worker’s primary physician contact the CM. The physician indicated the worker had provided them with the CM’s December 15, 2022 letter and they had advised the physician that the CM required further information. As noted in memo A0313, the physician indicated there was no causal relationship between the work-related injuries and the worker’s neck and right shoulder concerns. The physician indicated they did not feel the worker’s neck and right shoulder issues were work-related.
Policy 15-05-01, Resulting from Work-Related Disability/Impairment, states that workers sustaining secondary conditions that are causally linked to the work-related injury will derive benefits to compensate for the further aggravation of the work-related impairment or for new injuries. Entitlement for any secondary condition is accepted when it is established that a causal link exists between it and the work-related injury.
In review of medical literature, cervical degenerative disc disease is a common cause of neck pain and radiating arm pain. This condition develops when one or more of the cushioning discs in the cervical spine starts to break down due to wear and tear. This condition normally occurs with age; however, factors such as genetics, obesity and smoking can cause this condition to occur sooner or become symptomatic.
I have considered the worker’s position that there neck and right shoulder were symptomatic due to stress, inactivity and laying on their shoulder, laying down in a specific position and being propped up; however, I find there is no evidence to support these factors caused, contributed to, materially changed or accelerated the degenerative changes in the cervical spine. I have also considered the opinion provided by the worker’s and find there is no evidence of a causal relationship between the worker’s neck and right shoulder concerns and the accepted workplace injuries. As a result, I find the worker does not have secondary entitlement to degenerative disc disease of the cervical spine with mild foraminal narrowing at the right C5 to C7 and the left C6 to C7 and associated muscle spasm and myofascial pain in the right shoulder.
Entitlement to Medical Cannabis
An ARO decision dated September 15, 2020, accepted entitlement to medical cannabis beginning January 23, 2020 for a period of three (3) months. Entitlement to further funding for medical cannabis was subsequently extended.
The worker was initially prescribed three (3) grams of medical cannabis per day with a THC concentration of 2.5 per cent. The daily milligrams of THC was 75mg per day and the route of administration was vaporization and oral. This dose was approved from January 23, 2020 to March 23, 2020.
On November 13, 2020, the NC requested further information regarding the worker’s cannabis use from the prescribing nurse practitioner. On November 20, 2020, the NC approved ongoing funding for medical cannabis to December 2, 2021 at the same prescribed dose.
On March 4, 2021, the NC approved a daily dose of one (1) gram per day to be administered through vaporization. The NC approved this dose until June 4, 2021.
The NC completed a further review of the worker’s entitlement to medical cannabis. On June 1, 2021, the NC approved funding for one (1) gram per day with a THC concentration of 7.5 per cent. The daily milligrams of THC was noted to be 75mg per day and the route of administration was vaporization and oral. This daily dosage was approved until November 13, 2021.
A medical report from the prescribing nurse practitioner (NP) dated November 6, 2021, indicated they had been following the worker for over two years and the worker suffered from irremediable neuropathic pain. The prescribed THC concentration had been slowly increased to manage the worker’s symptoms without any adverse effects. A higher THC concentration was noted to provide the worker with more relief for their symptoms of neuropathic pain and anxiety/depression. The NP noted that cannabinoid mediations had enabled the worker to keep their opioid doses very low and to decrease their opioid dosing. The prescribing NP noted they were aware the Workplace Safety and Insurance Board (WSIB) would not authorize amounts of THC higher than a max dose of 75 mg per day and they were trying to assist the worker to manage their pain within these limits. They noted that the only way to obtain a more potent medication without exceeding the WSIB limit was to increase the THC concentration and decrease the overall amount dispensed.
On November 10, 2021, NC approved a daily dose of 0.5 grams per day with a THC concentration of 15 per cent. The daily milligrams of THC was noted to be 75mg per day and the route of administration was vaporization and oral. This daily dose was approved until April 7, 2022. The NC noted that the THC concentration of 15 per cent had been allowed as an exception, noting clinical rationale had been received from the prescriber and other dosing criteria continued to be met, including the milligrams of THC per day, which had not exceeded 75 milligrams. The NC noted that requests for greater than 75 milligrams of THC per day could not be considered.
On April 6, 2022, the NC spoke with the prescribing NP. The NP noted that the worker was having difficulty accessing medical cannabis as their dosage was 0.5 grams per day and only two (2) products from the approved cannabis provider met the criteria of 15 per cent THC concentration (and a maximum of 75 milligrams of THC per day). The NP noted that there were times when one (1) of the two (2) products was not available (supply issues or batch exceeded the THC concentration of 15 per cent) or was not working effectively enough. The NP noted they were considering a change in the worker’s medical cannabis dose to two (2) grams per day at a maximum THC concentration of 25 per cent. The NP indicated they were aware the WSIB could make exceptions with respect to the dose. The NC noted that an exception had already been made to allow THC of 15 per cent, which was a concentration of greater than 90 milligrams of THC per gram (nine (9) per cent); however, in this case, the milligrams of THC allowed was 75 milligrams. The NC stated that an exception could be considered; however, in no case other than palliative care, would the WSIB be able to approve a request for the milligrams of THC to exceed 75 milligrams.
The NP provided a medical report that confirmed the information provided the NC on April 6, 2022. The NP cited the definition of palliative care as defined by the Ontario Palliative Network (2019) and submitted the worker was both palliative and has a demonstrated need for medical cannabis. The NP indicated the worker was palliative as there was no cure for their condition; however, they were not at the end of their life. Therefore, to support the worker’s quality of life, medical cannabis should be available to the worker in sufficient quantities to manage their pain and associated symptoms. The prescriber recommended a dose of two (2) grams per day for up to 25 per cent THC, which was equal to 500mg of THC per day. This dose was recommended for six (6) months.
On April 12, 2022, the NC completed review of the worker’s entitlement to ongoing funding for medical cannabis. The NC extended ongoing entitlement to medical cannabis at the previously approved dose, but did not accept the requested increase in the dose and in the THC concentration. The NC reconsidered and upheld this decision on May 13, 2022 and November 3, 2022.
Section 33 of The Act provides the authority for the WSIB to determine the necessity, appropriateness and sufficiency of healthcare provided to a worker.
Policy 17-01-02, Entitlement to Health Care, states in part that a worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury.
Policy 17-01-10, Cannabis for Medical Purposes, stated an appropriate dose of medical cannabis will generally be the lowest safe and effective dose in terms of both the daily quantity of dried cannabis (or its equivalent) and the milligrams of THC per day. Dosing should begin at the lowest possible dose and proceed slowly and cautiously in a gradual fashion.
The medical cannabis and route(s) of administration authorized for the worker must satisfy all of the following:
The route of administration must not involve smoking.
The daily quantity of dried medical cannabis (or its equivalent) must not exceed three grams.
The medical cannabis should be CBD-rich with minimal THC.
The THC concentration of medical cannabis that is intended for inhalation must not exceed 90 milligrams of THC per gram (i.e., nine per cent THC by weight).
The milligrams of THC per day must not exceed 30 milligrams.
In all cases, the classes of medical cannabis, the types of products within a class, and/or the specific cannabis products must be necessary, appropriate, and sufficient in the circumstances. Despite the limits on dosing, the WSIB may approve requests for a daily quantity of dried cannabis (or its equivalent) over three grams, milligrams of THC per day over 30 milligrams (but in no case, other than palliative care, must the milligrams of THC per day exceed 75 milligrams), or a THC concentration over 90 milligrams of THC per gram, where it is satisfied the quantity, milligrams of THC, or THC concentration requested results in a dose that is necessary, appropriate, and sufficient for the worker.
In this case, the recommended dose of two (2) grams per day for up to 25 per cent THC exceeds the maximum allowable dose based on the policy guidelines. I note the prescriber has indicated the worker’s condition should be considered palliative and the worker should be granted an exception. I have considered the NP’s opinion; however, the worker’s accepted injuries are considered to be chronic rather than palliative in nature. Entitlement to medical cannabis in this case was accepted as the worker has neuropathic pain and not because the worker is in a palliative state. Further, there is no indication the worker is receiving treatment that could reasonably be considered palliative care. I find there is no basis to allow entitlement to funding for an increase in the currently approved concentration of THC or dose of medical cannabis.
This decision does not preclude entitlement to funding for an increase in the prescribed dose of medical cannabis in future should the worker experience a change in their compensable condition that would warrant such an increase.
Frequency of Maintenance Massage Therapy Treatments
On February 17, 2022, a chiropractor submitted a Treatment Extension Request. As a result of this request the CM arranged a conference call with the NC and the worker’s treating health care professionals, which was conducted on March 2, 2022.
As noted in memo A0245 and A0246, the parties agreed the worker’s condition was permanent and chronic and the treatment available to the worker in the past and present had been to prevent further deterioration. As the treatment was no longer rehabilitative, maintenance treatment was considered. The CM advised the chiropractor that maintenance treatment was normally one (1) to two (2) sessions per month. The chiropractor agreed that the worker’s massage therapy treatment could take place twice per month. A trial of laser therapy was also recommended, which was approved on a weekly basis until the worker’s massage therapy sessions expired in April 2022. Massage therapy sessions on a twice monthly basis were approved from April 15, 2022 to April 15, 2023.
On June 4, 2022, the chiropractor submitted a report indicating the worker had undergone surgical procedures for their lower back that had left them with chronic pain/dysfunction. The chiropractor indicate they had felt that massage treatment every second week would be sufficient for the worker; however, the worker did not agree. The worker indicated that with two (2) weeks between treatments their condition deteriorated causing their pain levels to increase and their function to decrease. As a result, the chiropractor recommended massage therapy on a weekly basis for the worker.
A report from the Back and Neck Specialty Program dated March 30, 2023, indicated the worker attended massage therapy every one (1) to two (2) weeks to reduce tension, manage their pain levels and improve their tolerance for daily activities. Ongoing massage therapy was recommended.
On April 22, 2023, the chiropractor submitted a Chiropractor’s Treatment Extension Request, which indicated the worker should continue with massage therapy every second week to assist with the management of their symptoms.
Section 33 of The Act provides the authority for the WSIB to determine the necessity, appropriateness and sufficiency of healthcare provided to a worker.
Policy 17-01-02, Entitlement to Health Care, states in part that a worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury.
During a case conference, on March 2, 2022, the chiropractor agreed that massage therapy on a twice monthly basis would be appropriate for the worker. While I note the chiropractor subsequently indicated the worker should have treatment on a weekly basis, this opinion appears to have been provided based on the worker’s self-report rather than specific clinical findings. I note the chiropractor’s subsequent treatment extension request was for treatment every second week. The worker was also assessed at the specialty program on March 30, 2023 and I note that while ongoing massage therapy was recommended, an increase in the worker’s massage therapy treatment was not recommended.
In review of the information on the claim file, I find the approved treatment for massage therapy is necessary, appropriate and sufficient as a result of the injury. I find there is currently no basis to increase the worker’s massage therapy to weekly sessions.
This decision does not preclude entitlement to funding for additional treatment in future should the worker experience a change in their compensable condition that would warrant additional treatment.
CONCLUSION
The worker’s objection is denied.
The worker does not have secondary entitlement to the left ear.
The worker does not have secondary entitlement to the neck and right shoulder.
The worker does not have entitlement to funding for an increase in the currently approved concentration of THC or dose of medical cannabis.
The worker does not have entitlement to massage therapy sessions on a weekly basis.
DATED July 16, 2023
M. Haughton
Appeals Resolution Officer
Appeals Services Division