Worker v. Employer, 2026 CanLII 41518

20260023

REPRESENTED by:

HEARD by:

DATED:

S. Vagadia, appeals resolution officer

FEBRUARY 23, 2026

ISSUE

The worker objects to a Nurse Consultant’s (NC) August 9, 2024 decision that denied maintenance treatment.

BACKGROUND

On April 9, 2017 the worker, a plumber, experienced left shoulder pain due to lifting a heavy pipe. Entitlement was granted to bursitis, a partial thickness tear, and an exacerbation to degenerative changes to the left shoulder.

The worker required left shoulder surgery on March 9, 2018. He secured a job with a new employer (plumbing related maintenance) on October 15, 2018. On March 31, 2019 he secured a new job with a different employer (lead hand plumber).

On September 4, 2019 entitlement to a psychotraumatic disability was granted.

On November 5, 2019 the worker was granted an 11% non-economic loss (NEL) award for his left shoulder. The maximum medical recovery (MMR) date was July 3, 2019.

In January of 2020 the employer was granted 50% cost relief under the second injury and enhancement fund (SIEF).

On July 30, 2020 secondary entitlement to the right shoulder was accepted.

On November 30, 2020 the worker secured a new job with a different employer (plumbing related maintenance).

An NC’s March 17, 2023 decision granted further treatment to the left shoulder.

In May of 2023 a “final LOE review” decision “locked in” partial loss of earnings (LOE) benefits based on the worker’s earnings as a plumber.

On January 18, 2024 the worker’s NEL award was increased to 15% in total in recognition of a permanent right shoulder impairment. The MMR date was September 21, 2023.

In March of 2024 the worker requested maintenance treatment.

An NC’s August 9, 2024 decision denied maintenance chiropractic treatment. The NC indicated the worker’s medication regime, use of a TENS unit, his home exercise program, and work restrictions (which included no overhead work) were sustainable tools for the management of his ongoing symptoms. The maintenance treatment was found to be clinically unnecessary.

The worker objects to the decision denying maintenance treatment and the issue is now before me.

AUTHORITY

Operational Policy Manual

Published

17-01-02 Entitlement to Health Care

Administrative Practice Document

Maintenance Treatment

January 3, 2023

December 2020

ANALYSIS

Worker representative submission:

The worker’s condition deteriorated when he stopped treatment in August of 2023.
The deterioration impacted his ability to perform his job.
A home exercise program was insufficient.
The treatment provided by the chiropractor could not be duplicated at home.
Ongoing treatment was needed to better manage his symptoms, pain, and bilateral shoulder movements (he had difficulty with overhead work as an example).
Maintenance treatment was supported by the treating healthcare practitioners. It allowed the worker to continue working and reduce his need for opioids, which had since increased.
The treatment would also benefit his psychological condition.
Acupuncture treatment was also supported by the family doctor as outlined in a May 2, 2024 clinical note.
Maintenance treatment was necessary, appropriate, and sufficient.

Employer representative submission:

There was no evidence to support maintenance treatment was needed to prevent deterioration to the worker’s condition or reduce his medication intake.
The worker demonstrated the ability to perform his job duties despite the lack of maintenance treatment.
It was clinically unnecessary.
Additional treatment would not result in functional gains.
The medical evidence suggested the worker’s ongoing symptoms were the result of a non-work-related condition (cervical spine radiculopathy).
Maintenance treatment was not necessary, appropriate, or sufficient.

I find the worker is entitled to maintenance treatment (once per week) from either a physiotherapist or chiropractor to the end of February 2027 (one year from the date of this decision). Entitlement to maintenance massage therapy or acupuncture treatment is denied.

Entitlement after February of 2027 is to be reviewed by the operating area and considered based on whether the maintenance treatment resulted in a decrease in opioid medication (including the need for Percocet). I note the following in arriving at my decision.

Policy 17-01-02 speaks to the guiding principle as outlined in the Act. “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.”

The administrative practice document “Maintenance treatment” provides guidance in relation to the specific issue before me. It in part states the purpose of maintenance treatment is to maintain function / recovery and quality of life by preventing deterioration of the work-related impairment, rather than to rehabilitate. Health care professionals may also recommend maintenance treatment to enable a reduction or avoidance of medication use.

A decision-maker may approve a request for maintenance treatment when they are satisfied, based on the clinical evidence, that the treatment is necessary to achieve one or more of the following objectives:

enables the injured or ill person to continue working within their accepted permanent functional abilities as recognized by their permanent impairment (suitable work)
leads to a reduction in the injured or ill person’s pain and/or decreases the injured or ill person’s use of medication
maintains the injured or ill person’s level of functioning
teaches the injured or ill person’s independent management of their condition

I begin my review by noting the operating area determined MMR for the left shoulder was achieved on July 3, 2019 with a permanent impairment. This was based on findings from a specialty clinic assessment that date. I note this, because some of the memos authored by the operating area appeared to be unaware. As an example, I note the NC decision to grant further treatment to the left shoulder in March of 2023. It was rendered without a review to determine if the worker had deteriorated below his “NEL level”.

In regard to the right shoulder (which was accepted as a secondary condition) I note a November 2, 2022 specialty clinic report found MMR was achieved with a permanent impairment. For reasons that are unclear, the operating area elected to conclude MMR was achieved on September 21, 2023. In this regard I note a chiropractor’s discharge report that was created on September 20, 2023 (the findings and conclusions were based on an August 18, 2023 assessment).

It is also worth mentioning the NC’s August 9, 2024 decision indicated the chiropractor’s discharge report was submitted on July 10, 2024. I note that was a duplicate. The original report was submitted on September 21, 2023.

Lastly, it is worth pointing out the worker had a pre-existing history of symptomatic back problems, a new non-work-related medical condition involving his neck and resulting radiculopathy, as well as severe sleep apnea.

Next, I turn to a more detailed review of the medical evidence and memos on file.

The July 3, 2019 specialty clinic report (in relation to the left shoulder) noted the worker completed formal active treatment in November of 2018. He stated he was 80% better and continued to perform his home exercise program. There was intermittent left shoulder pain (rated up to 7/10) with a tendency for irritation with heavy or above shoulder level work. The worker managed to return to some modified cricket playing and activities such as playing ball with his son. He was currently working as an assistant foreman with his union. The job did not require a lot of physical activity. He was found to be near full functional recovery with some residual left shoulder pain.

The November 2, 2022 specialty clinic report (in relation to the right shoulder) indicated the worker remained fairly stable with regards to his range of motion (ROM) and strength (for both shoulders). Surgery was recommended for the right shoulder, but the worker was unable to proceed due to financial constraints. He was working with a different employer (plumbing duties) with self-accommodation. He achieved MMR with a permanent impairment. A home exercise program was recommended.

A January 23, 2023 memo from a NC noted a conversation with a physiotherapy clinic. The worker had contacted them requesting additional treatment. They were unsure of the specific details noting the worker had been discharged after achieving MMR. The NC agreed to approve an assessment to evaluate the worker’s condition and determine if further treatment was in order.

A January 27, 2023 chiropractor’s treatment extension request was received. It indicated the worker had a full ROM and 80% improvement in strength. There was also a decreased intensity and frequency of shoulder pain. Of note, the chiropractor indicated the worker was not fully compliant with his home exercise program and this impacted his recovery. Additional treatment was recommended to decrease the worker’s pain and improve symptom management strategies. Curiously, it was also suggested treatment would “regain” shoulder ROM, despite the assessment considering it “full”. As outlined in a February 28, 2023 memo a NC granted treatment but only for the left shoulder.

For reasons that are unclear, the chiropractor submitted a March 20, 2023 Form 8 (initial healthcare report). This was for findings unrelated to this claim (bilateral numbness/tingling in the hands) and an apparent thoracic outlet syndrome diagnosis.

Clinical notes from the family doctor in April of 2023 noted the worker had neck pain and numbness in his fingers as well as bilateral shoulder symptoms. An April 25, 2023 ultrasound of the bilateral shoulders noted some degeneration to the AC joints as well as tendinopathy. An April 25, 2023 ultrasound of the cervical spine noted degenerative changes.

The chiropractor sent another treatment extension request dated April 24, 2023. It in part referenced the thoracic outlet syndrome diagnosis. Also noted was a change in employer (to heavier work).

A NC’s May 5, 2023 memo granted entitlement to bilateral shoulder treatment for a final 6 weeks. This was to improve bilateral ROM. The worker was to then be discharged to a home program. The worker was discharged on June 20, 2023 upon the completion of his treatment.

A July 12, 2023 NC memo indicated the worker contacted the physiotherapy clinic and wanted more treatment. It was noted he had a gym membership but wanted maintenance treatment. The clinic requested 4 additional weeks of treatment to educate the worker on his home program, review his gym exercises, and for him to gain independence in managing his symptoms. A July 19, 2023 chiropractor’s treatment extension request was submitted accordingly. The chiropractor indicated the request was to slowly transition the worker to a home exercise program (as was discussed). The NC approved the request as noted in a July 21, 2023 memo.

The chiropractor’s September 20, 2023 discharge report noted the worker completed treatment on August 18, 2023. The worker reported worsening left shoulder symptoms (intermittent pain which was worse with overhead activity) and even worse right shoulder pain that was constant. He also indicated his sleep was impacted due to the pain. He was encouraged to continue with his home exercise program.

In October of 2023 the worker had a cervical spine MRI. An October 30, 2023 clinical note from the family doctor indicated the worker was no longer taking Oxy for his chronic back pain, which had much improved. He continued to have hand numbness and neck pain.

In January of 2024 the family doctor noted the worker’s bilateral shoulder pain. Also noted was tingling in his arms and fingers (this was from cervical spine radiculopathy). The worker described his job as physical (lifting and repetitive). He reported acupuncture treatment helped but it was expensive. The doctor also provided a report speaking to the worker’s medication. The medication helped him keep working because it controlled his pain, as did acupuncture treatment which was not covered by the WSIB.

A February 19, 2024 report from the family doctor recommended additional treatment for both shoulders (physiotherapy, acupuncture, massage, chiropractic).

In March of 2024 the worker requested a back brace due to his long history of back pain.

A May 2, 2024 clinical note from the family doctor noted numbness in the fingers and arms. The worker’s job was not as heavy now. The doctor offered gabapentin and referral to a pain clinic, but the worker declined.

In August of 2024 the worker continued to experience numbness in his fingers and arms. He was looking for a new job as his present job was hard/heavy. He also indicated his condition deteriorated.

Of significance, a September 30, 2024 update from the family doctor (opioid assessment form) indicated that in addition to Tylenol 3, the worker was now prescribed Percocet effective August 20, 2024 for his compensable impairment.

I note the family doctor recommended maintenance treatment in February of 2024. This was not approved and apparently resulted in the need for increased narcotic medication in August of 2024. It appears there is a relationship between the denial of maintenance treatment and the need for increased medication. This would merit approval of maintenance treatment as outlined in the administrative practise document. However, I also recognize the worker has pre-existing (his low back) and concurrent (his cervical radiculopathy) non-work-related medical conditions. The relationship between his increased medication use and those conditions is unclear.

Therefore, I find a trial of maintenance treatment for 1 year is in order. This is to consist of either physiotherapy or chiropractic treatment once per week for the bilateral shoulders. The operating area is to request an updated report from the family doctor in February of 2027 to determine whether the maintenance treatment resulted in a reduction in the need for opioid medication. A further review by the operating area will be made at that time.

CONCLUSION

As outlined in the above decision I conclude maintenance treatment is in order for 1 year (to February of 2027) consisting of treatment from either a physiotherapist or chiropractor once per week.

Entitlement to maintenance treatment beyond February of 2027 is to be determined by the operating area, as I have outlined.

The worker’s objection is allowed-in-part.

DATED February 23, 2026Click or tap to enter a date.

S. Vagadia

Appeals Resolution Officer

Appeals Services Division