The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. Their current independent living allowance has been correctly calculated; 

2. They are not entitled to a replacement toilet; 

3. They are not entitled to coverage for Robaxacet medication; 

4. Responsibility should not be accepted for the worker's vestibular symptoms as being related to the compensable injury; 

5. Their physical permanent partial impairment rating should not be re-assessed at this time; 

6. Their psychological permanent partial impairment rating should not be re-assessed at this time; and 

7. A medical review panel should not be convened pursuant to subsection 67(4) of the Act.

A file review was held on February 5, 2024 to consider the worker's appeal.

Issue

1. Whether or not the worker's current independent living allowance has been correctly determined;

2. Whether or not the worker is entitled to a replacement toilet; 

3. Whether or not the worker is entitled to coverage for Robaxacet medication; 

4. Whether or not responsibility should be accepted for the worker's vestibular symptoms as being related to the compensable injury; 

5. Whether or not the worker's physical permanent partial impairment rating should be re-assessed at this time; 

6. Whether or not the worker’s psychological permanent partial impairment rating should be re-assessed at this time; and 

7. Whether or not a medical review panel should be convened pursuant to subsection 67(4) of the Act.

Decision

1. The worker's current independent living allowance has been correctly determined; 

2. The worker is not entitled to a replacement toilet; 

3. The worker is entitled to coverage for Robaxacet medication; 

4. Responsibility should not be accepted for the worker's vestibular symptoms as being related to the compensable injury; 

5. The worker's physical permanent partial impairment rating should not be re-assessed at this time; 

6. The worker’s psychological permanent partial impairment rating should not be re-assessed at this time; and 

7. A medical review panel should not be convened pursuant to subsection 67(4) of the Act.

Background

This claim was the subject of a prior appeal to the Appeal Commission as described in Decision 79/14 of June 19, 2014, and therefore, the entire background will not be repeated here.

The WCB accepted the worker’s claim based on compensable diagnoses of C7 radiculopathy related to right posterior lateral disc herniation at C6-7, and a psychological injury.

On April 1, 2010, the WCB determined that the worker was entitled to an Independent Living Allowance ("ILA") and approximately one month later, assessed the worker’s residence to determine their ILA entitlement. The WCB provided the worker with six months of ILA and at the request of the worker's representative in November 2010, the worker's ILA entitlement was extended by the WCB for one year, to be reassessed in December 2011.

In November 2011, the worker's representative requested the WCB extend the worker's ILA due to the severity of the worker's physical and medical conditions. The WCB reviewed the worker's entitlement and determined the worker did not meet the criteria for a severely injured worker as outlined in the WCB's policies; however, the WCB extended the worker’s ILA until the end of March 2012.

The worker's representative requested Review Office reconsider the WCB's decision and on October 18, 2013, Review Office determined the worker was not entitled to additional ILA. The representative appealed that decision to the Appeal Commission, who determined, in Appeal Commission Decision No. 79/14, that the worker was not entitled to an additional independent living allowance.

In discussion with the WCB on October 15, 2018, the worker advised of an issue with vertigo that was not related to their compensable injuries and that they were receiving treatment and medication for that condition. The worker advised the WCB on June 14, 2019 that they had continued issues with dizziness for approximately 3 weeks. On August 1, 2019, the worker’s representative advised the WCB that the worker was having inner ear issues, including vomiting, for several months which related to the compensable cervical spine injury. The representative requested the WCB arrange a call-in examination, but the WCB advised that further investigation was required to determine if those issues related to the worker’s compensable injuries. The WCB requested information from the treating physician, who reported on August 6, 2019 that based on their July 25, 2019 examination of the worker it was unknown whether the worker’s current symptoms were related to the C7 disc herniation, but the worker would see an ear, nose, and throat (ENT) specialist on September 16, 2019 for further review.

On August 6, 2019, the WCB advised the worker they could not relate their ear symptoms to the compensable injuries and that if the ENT specialist confirmed a relationship, the WCB would request a medical report from them. On November 12, 2019, the worker’s representative submitted a copy of the ENT specialist’s October 2, 2019 report to the WCB. The ENT specialist provided that they had seen the worker for several years related to vestibulopathy and that the worker currently had “…some significant left-sided hearing loss and likely has some degree of vestibular function on the left-hand side.” The ENT specialist noted the worker’s ongoing C3-C4 spine issues, with chronic neck stiffness and discomfort and found, on examining the worker, that the worker had marked neck stiffness, hearing loss on the left-hand side and a “…fixed vestibular deficit on the left ear but with fluctuating and increasing neck pain and neck stiffness…” with a significant cervical spine related issue. The ENT specialist stated their view that managing the worker’s cervical spine issues over the long term would help the worker’s vertigo issues.

A WCB medical advisor reviewed the worker’s file on February 3, 2020 and concluded the worker’s ongoing vestibulopathy was not medically accounted for in relation to the October 24, 2006 workplace accident as the C7 nerve root “…is not responsible for hearing or for inner ear/vestibular function.” On February 4, 2020, the WCB wrote to the worker advising it determined their vertigo difficulties were not related to the injuries sustained in the workplace accident.

At the request of the worker’s representative, the WCB subsequently obtained additional medical information from the treating ENT specialist, family physician and psychologist.

On July 22, 2020 and on September 18, 2020, a WCB psychological consultant reviewed the worker’s file, and concluded the worker was not yet at maximum medical improvement and recommended against a permanent partial impairment examination until the worker completed their ongoing treatment and the treating psychologist indicated the worker was at maximum medical improvement. On reviewing a report from the worker’s treating psychologist received on September 22, 2020, the WCB psychological consultant again opined the worker did not appear to be at maximum medical improvement and recommended the WCB request a report from the treating psychologist after the worker’s treatment concluded.

On September 25, 2020, a WCB medical advisor also reviewed the worker’s file, noting the treating physician’s report of September 10, 2020 regarding the worker’s ongoing and chronic loss of balance, vertigo, intermittent nausea, leg weakness, and difficulty walking, as well as the worker’s September 22, 2020 report to the WCB of vertigo and nausea that began approximately 1.5 years previously. The WCB medical advisor also referenced the February 3, 2020 Healthcare Service Request that concluded the worker’s vestibulopathy was not medically accounted for in relation to the October 24, 2006 workplace accident, with symptoms of nausea and vertigo reported as beginning more than 12 years after the accident. The medical advisor noted the January 16, 2020 cervical spine and brain MRI and medical reporting did not support a worsening of the worker’s acceptable compensable right C7 radiculopathy. Further, the WCB medical advisor concluded the reported symptoms of nausea, increased sleep, leg weakness, and issues with hearing and sight were not medically accounted for in relation to the workplace accident. The medical advisor also noted the worker’s report of an increased impairment in their functioning and found that was not medically accounted for.

On September 30, 2020, the WCB wrote to the worker indicating that they were not entitled to further ILA as the medical information did not support a significant change in their medical condition. As there was no significant change to their medical condition, the WCB also determined the worker was not entitled to a reassessment for a permanent partial impairment rating. Further, as the WCB psychological consultant had determined the worker was not at maximum medical improvement, they were not yet entitled to a reassessment of their permanent partial impairment rating for a psychological injury.

The treating psychologist provided a Discharge Report to the WCB on November 18, 2020, in which they noted that, in an appointment with the worker on November 10, 2020, the worker indicated they were no longer interested in continuing with treatment as they felt “…that treatment has been minimally beneficial at assisting him with symptoms in the long-term…”, which the psychologist agreed with. The treating psychologist further noted the worker’s comment that they “…felt more practical support that assists him in maintaining his home and yard would likely be more useful…”. The WCB psychologist consultant reviewed the treating psychologist’s report on November 19, 2020 and provided, based on the report, the worker was most likely at psychological maximum medical improvement and that a permanent partial impairment reassessment would be conducted when the COVID-19 pandemic restrictions allowed. On December 11, 2020, the WCB scheduled a virtual permanent partial impairment examination for December 30, 2020. After examining the worker virtually on December 30, 2020, the WCB psychological consultant concluded the worker’s diagnosis was Major Depressive Disorder with anxiety (anxious distress). Noting the previous psychological permanent partial impairment rating of 20%, based on an October 19, 2011 WCB psychiatric assessment, the psychological consultant indicated that current rating schedule would rate the worker’s psychological permanent partial impairment at 15%. As such, the WCB psychological consultant concluded there would be no increase in the worker’s rating. On January 13, 2021, the WCB wrote to the worker advising that there would be no increase to their rating.

On January 27, 2021, the worker’s representative requested Review Office reconsider the WCB’s decision on the worker’s psychological and physical permanent partial impairment (PPI) reassessments. In their submission, the representative noted the worker had “substantially deteriorated” and required a higher PPI rating. Review Office determined on March 15, 2021 that the worker’s permanent partial impairment ratings were correctly calculated. Review Office accepted the WCB medical advisor’s September 25, 2020 opinion that the medical evidence did not support worsening of the worker’s physical condition and as such, the worker’s previous physical PPI rating of 6% was correct. In respect of the worker’s psychological PPI rating, Review Office accepted the opinion of the WCB psychological consultant prepared after the virtual PPI examination on December 30, 2020 and found that the worker was not entitled to an increase in their psychological PPI rating.

On April 28, 2021, the worker’s representative requested Review Office reconsider the WCB’s decision on the worker’s entitlement to an ILA, noting the worker’s condition had deteriorated since the accident in 2006 and the worker required assistance to maintain their home. On June 8, 2021, Review Office determined the worker was entitled to an assessment for an ILA, noting the WCB determined the worker was totally disabled as of May 4, 2012, and the last ILA review was completed in December 2011. Review Office also noted the policy in place at the time of the review and the 2014 Appeal Commission decision was replaced and updated, new assessment criteria and establishment of entitlement process. As such, Review Office determined the worker’s file should be returned to the WCB’s Compensation Services to complete a new assessment.

On June 8, 2021, the WCB requested Rehabilitation Services conduct an ILA assessment. A WCB rehabilitation specialist provided their Independent Living Assessment report to the worker’s file on July 8, 2021. The specialist provided the worker required one hour of housekeeping assistance per week, one hour of grass cutting per week and snow clearing removal assistance to provide safe access to their primary residence. A WCB sector manager reviewed the report on July 21, 2021 and accepted the recommendations, noting the worker would qualify for retroactive ILA back to March 1, 2014, which was the effective date of the new ILA policy.

On August 9, 2021, the WCB wrote to the worker at the request of their representative confirming the previous decision that the worker’s vertigo symptoms were not related to their accepted compensable C7 radiculopathy diagnosis and noting that the July 21, 2021 report from the treating ENT specialist did not provide any information to support a causal relationship.

On August 17, 2021, the worker’s representative requested Review Office reconsider the WCB’s decision in relation to the worker’s vertigo symptoms. The representative submitted that the treating healthcare providers supported a relationship between the worker’s vestibular dysfunction and the workplace accident. On August 26, 2021, Review Office determined there was no relationship between the worker’s vestibular symptoms and their 2006 workplace accident, relying upon the February 3, 2020 and September 25, 2020 WCB medical advisor opinions.

The worker’s representative contacted the WCB on September 21, 2021 to request that the WCB convene a medical review panel under s 67(4) of the Act to address the difference of opinion between the treating healthcare providers and the WCB medical advisors, with respect to the worker’s vestibular symptoms. The representative also requested reassessment of the worker’s PPI rating.

On November 5, 2021, the WCB advised the worker that it would not convene a medical review panel as it determined the medical information received from the treating ENT specialist in relation to the worker’s vestibular symptoms did not represent a difference in opinion from the WCB medical opinion. Further, the WCB advised the worker that a PPI reassessment would not be conducted at this time as their PPI was reviewed in January 2021, and the policy allowed for reassessment after 24 months.

On November 15, 2021, the worker’s representative requested Review Office reconsider the WCB’s November 5, 2021 decisions regarding denial of a medical review panel and reassessment of the worker’s PPI rating. Review Office determined on December 9, 2021 that a medical review panel should not be convened, a PPI reassessment for the worker’s psychological injury should not be done at this time but a PPI reassessment for the worker’s physical injury should be done. With respect to the medical review panel, Review Office found the treating ENT specialist did not provide a full statement of the facts and reasons supporting a medical conclusion for the worker and as such, did not provide an opinion that differs from the opinion of the WCB medical advisors. In relation to the psychological PPI rating, Review Office found a reassessment should not be conducted as two years had not yet passed since the worker’s most recent psychological assessment on December 30, 2020. In relation to the physical PPI rating, Review Office noted the most recent assessment was completed on April 22, 2010 and reviewed by a WCB medical advisor on September 25, 2020 and as such, Review Office found it would be appropriate for a reassessment to be conducted at this time.

The WCB wrote to the treating physician on February 17, 2022 for a medication review, and the physician responded on March 15, 2022. On March 22, 2022, the worker’s representative requested the WCB reimburse the worker for an over-the-counter medication, Robaxacet. The WCB confirmed with the worker that they previously stopped taking the medication but resumed taking it in August 2021 due to muscle pain. On April 12, 2022, the treating physician advised they had not prescribed the medication to the worker but as the worker advised it was helping, the physician recommended the worker continue to take the medication as needed. A WCB medical advisor reviewed the worker’s medication on April 20, 2022. The medical advisor noted Robaxacet was a central nervous system depressant medication with sedative and muscle relaxant properties licensed for use for acute musculoskeletal conditions and noted it was not recommended for patients over 65 years of age. Given the worker did not have an acute condition and the risk due to their age, the medical advisor concluded the worker’s use of the medication Robaxacet was not medically supported. On April 25, 2022, the WCB advised the worker coverage for the medication Robaxacet was not approved.

The worker attended a physical PPI examination on April 26, 2022. After examining the worker, the WCB medical advisor calculated the worker’s cervical spine PPI assessment to be 12.4%, reduced by 50% due to a major pre-existing condition, for a total of 6.2%. On April 28, 2022, the WCB advised the worker that there was no increase in their physical PPI rating, noting the previous assessment on April 22, 2010 resulted in a rating of 6.9% which was greater than the current rating of 6.2%.

On May 11, 2022, the worker’s representative requested Review Office reconsider the decisions made by the WCB. On May 12, 2022, Review Office contacted the worker’s representative to clarify the issues. Review Office determined on June 29, 2022 that the worker was not entitled to coverage for the medication Robaxacet, the worker’s physical PPI rating was correct, and the worker’s current level of ILA is correct.

A further ILA assessment conducted by a WCB rehabilitation specialist resulted in a report to the worker’s file on August 3, 2022, recommending one hour of housekeeping per week, one hour of lawn cutting per week from May to September and one hour of snow clearing a week from October to April. In the report, the specialist noted they were not allowed entry to the worker’s home and as such, personal care allowance items could not be assessed.

On September 2, 2022, the worker’s representative requested Review Office reconsider the worker’s ILA entitlement and requirement for personal care assistance. On September 7, 2022, Review Office returned the worker’s file to the WCB for further investigation. The worker’s representative submitted a further Request for Review on September 20, 2022, indicating the amount provided for ILA was too low. In addition, the representative noted the worker’s need for a personal care allowance was raised more than 12 years previously. On September 27, 2022, Review Office again returned the worker’s file to the WCB, noting a home visit was being arranged to determine the worker’s requirement for a personal care allowance.

On October 7, 2022, a WCB rehabilitation specialist assessed the worker’s requirement for ongoing ILA and personal care assistance and placed their report to the worker’s file on October 14, 2022. The prior recommendation of one hour per week for housekeeping, lawn cutting and snow removal remained unchanged with a further recommendation by the specialist for installation of a grab bar in the worker’s bathtub for improved safety in bathtub transfers. The report noted with respect to toileting that the worker “…demonstrated reach within the functional limits of completing toilet hygiene.” The WCB wrote to the worker on October 17, 2022, confirming the specialist’s findings with respect to the worker’s request for toileting assistance. On October 21, 2022, the worker’s representative contacted the WCB to advise the worker had purchased a new toilet which helped the worker to be independent with their toileting and on the same date, the WCB wrote to the worker advising they would not be reimbursed for the cost of a new toilet as the assessment by the WCB’s rehabilitation specialist found the worker was independent in their personal care, including toileting.

On November 7, 2022, the worker’s representative requested Review Office reconsider the WCB’s decision related to the worker’s ILA and reimbursement for a new toilet, noting the WCB had not provided a rationale for the time and price allowed for the ILA and that the new toilet helped relieve the worker’s upper body pain. On December 14, 2022, Review Office found the worker’s ILA was correct and the worker was not entitled to a replacement toilet.

On October 24, 2023, the worker’s representative filed appeals of the various Review Office decisions to the Appeal Commission, and a file review was arranged.

Reasons

Applicable Legislation and Policy

The provisions of The Workers Compensation Act (the “Act”) in effect on the date of the compensable accident are applicable to the worker’s appeal.

The Act provides in s 4(1) that compensation is payable when a worker sustains personal injury by accident arising out of and in the course of the employment. Section 37 of the Act outlines that compensation under the Act includes medical aid, as provided in s 27 and an impairment award, as provided in s 38.

Section 27(1) provides that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident and s 27(10) confirms that such medical aid is subject to the supervision and control of the WCB. Section 27 (20) outlines that medical aid includes expenditures as follows:

to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker 

(a) could, in the opinion of the board, experience a long-term loss of earning capacity; 

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or 

(c) requires assistance in the activities of daily living.

Section 38 of the Act provides that the WCB “shall determine the degree of a worker's impairment expressed as a percentage of total impairment” and shall pay to the worker as a lump sum an impairment award calculated as set out in s 38(2). A worker who the WCB has determined to have an impairment and who suffers a significant deterioration of their medical condition, may apply to the board under s 38(6) to reconsider their degree of impairment and, where the reconsideration results in a change in the percentage of the impairment, the board shall treat the reconsideration as though it were an initial determination under this section but s 38(8) limits such applications to be made 24 months or more after a decision of the WCB or the Appeal Commission respecting a worker’s degree of impairment.

Section 67 of the Act provides authority for the WCB to establish a medical review panel to provide an opinion. Section 67(4) permits a worker to request such a panel be established where “…the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing.” As set out in s 67(1), “opinion” is defined as “a full statement of the facts and reasons supporting a medical conclusion”.

The WCB established Policy 44.10.80.40, Secondary Injury (the "Secondary Injury Policy"), to explain when a secondary injury will be compensable. This policy sets out that an injury is a secondary injury where: 

• it is caused to the worker by an intervening incident, event or exposure ("intervening event"); 

• the intervening event is not work related; and, 

• there is a causal link or relationship between the intervening event and the previous workplace accident.

A secondary injury will be compensable under the provisions of this policy when the dominant cause of the intervening event that caused the secondary injury is the previous workplace accident, or when the secondary injury is caused by an intervening event over which the WCB exercises direct, specific control or where the secondary injury was caused by the delivery of treatment for the previous workplace accident.

The WCB has established Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) which outlines the general principles that the WCB will consider and apply in determining a worker’s entitlement to medical aid, which includes medications. The Medical Aid Policy provides that the general principles governing the WCB’s funding of medical aid include the following: 

o The Board is responsible for the supervision and control of medical aid funded under the Act or this policy. 

o The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury. 

o In determining the appropriateness and necessity of medical aid, the Board considers: 

 Recommendations from recognized healthcare providers; 

 Current scientific evidence about the effectiveness and safety of prescribed / recommended healthcare goods and services; 

 Standards developed by the WCB Healthcare Department. 

o The Board promotes timely and cost-effective access to medical aid. 

o The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries. 

o The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

Schedule A to the Medical Aid Policy outlines that in respect of funding of prescription and non-prescription medication, the WCB may refuse or limit the authorization of payment for such medications that are considered by the WCB to be inappropriate, ineffective, excessive, or harmful, including those that may lead to dependency or addiction.

The WCB has also established Policy 44.120.30, Support for Daily Living, (the “Support Policy”) which outlines the general criteria for providing injured workers with assistance to engage in the activities required for daily living. This policy sets out that decisions will be made on a case-by-case basis, guided by the following general criteria:

• The compensable injury must have reduced the worker's ability to engage in the activities required for daily living, which include but are not limited to: 

o personal hygiene; 

o toilet functions; 

o grooming; 

o dressing; 

o preparing food; 

o eating; 

o housekeeping; 

o child/other dependent care; 

o safely accessing the primary residence and portions of the primary residence; and 

o routine travel outside the home. 

• The assistance should compensate in the most cost-effective way possible for additional costs the worker incurs in engaging in the activities required for daily living that he/she engaged in prior to the injury, where those costs arise because of the injury. 

• The assistance should not impede progress in other areas of the worker's rehabilitation, including medical recovery, vocational rehabilitation, and return to work. 

• The WCB is not required to compensate for costs for which it has not provided prior written approval. 

• The type, level and duration of assistance provided is based on regular, standardized evaluations of the injured worker's needs and abilities, and may be adjusted in keeping with the results of these evaluations.

The WCB’s Policy 44.90.10, Permanent Impairment Rating (the "PPI Policy”) describes how permanent impairment ratings are calculated as a percentage of impairment as it relates to the whole body. The Policy provides that the degree of impairment will be established by the WCB's Healthcare Services Department in accordance with the Policy, and that whenever possible and reasonable, impairment ratings will be established strictly in accordance with the PPI Schedule which is attached as Schedule A to the Policy. Schedule A to the Policy provides that permanent impairment from a workplace injury is evaluated for the following deficits: 

• loss of a part of the body; 

• loss of mobility of a joint(s); 

• loss of function of any organ(s) of the body identified in the Schedule; and 

• cosmetic disfigurement of the body. 

The impairment rating for loss of range of motion resulting from direct injury or related surgical procedures will be determined by a WCB Healthcare Advisor, through clinical examination or assessment of the medical information on file, based on the loss of active guided movement of the affected joint(s). For the loss of movement to be ratable using the Schedule, the examining WCB Healthcare Advisor must be satisfied that the end-feel at end range of the best attainable active guided movement was valid. Schedule A provides that determining the impairment rating for the spine, whether resulting from direct injury or related surgical procedures, involves measurement of the active guided spinal mobility, divided into cervical and thoracolumbar regions. The impairment rating for partial loss of spinal movement is “…proportional to the percentage of movement that is lost for combined spinal flexion, extension, lateral flexion, and rotation compared to standard ROM’s…multiplied by…the percentage of the assigned ratings for complete immobility” which, in the case of cervical spine mobility, is set out at 30%. The PPI Policy also sets out that if a worker has a pre-existing condition and the WCB determines the worker has an impairment, the worker is eligible for a PPI rating based on the difference between the total rating and the rating assigned to the pre-existing condition, which is determined based on the best information possible.

The WCB also established Policy 44.10.20.10, Pre-Existing Conditions (the “Pre-Existing Policy”) to address the principles governing payment of compensation for workplace injuries when a worker’s pre-existing condition impacts the severity of the workplace injury experienced by the worker. This Policy sets out that for PPI awards, the WCB will assign a rating for the condition as set out in the PPI Policy Schedules when practical, or if this is not possible, as follows:

i. A pre-existing condition that is determined to be minor will be assigned a 0% impairment rating; 

ii. A pre-existing condition that is determined to be major, as described below, will be assigned an impairment rating equivalent to 50% of the impairment rating for that body structure.

A pre-existing condition is considered to be major for the purpose of the impairment rating if: 

i. The impairment was/is significantly affected by the pre-existing condition; or 

ii. The WCB has determined that the workplace injury enhanced the pre-existing condition; or 

iii. The WCB has determined that the pre-existing condition contributed to the workplace injury.

Worker’s Position

The worker was represented in the appeal by an advocate who outlined the worker’s position in the file documents and in the various Worker Appeal of Claims Decision documents filed.

The worker’s position in respect of the independent living allowance is that the WCB promised the worker an independent living allowance so the worker could remain in their house and then reneged on that promise. The worker also indicated that the independent living allowance is totally inadequate.

The worker’s position in respect of the replacement toilet is that they require it because the compensable injury limits the worker’s ability to reach with their right hand as required for toileting. As such, the WCB should reimburse the worker for the cost of a replacement toilet.

The worker’s position in respect of the Robaxacet medication is that the medication offers them relief from the symptoms of their chronic compensable injury, and as such the WCB should provide coverage for the costs associated with the worker’s use of the medication.

The worker’s position with respect to their vestibular symptoms is that the medical evidence from the treating ENT specialist confirms a relationship between the worker’s vertigo and their cervical spine injury, and that the vestibular symptoms are a secondary condition arising from the compensable injury.

The worker’s position in relation to their physical PPI rating is that the rating does not take into account the worker’s symptoms of numbness, tingling and muscle fatigue and the fact the worker spends 16 hours daily lying in bed. As such, the rating is not complete and should be reassessed.

The worker’s position in respect of the psychological PPI rating is that the rating should be reviewed and assessed by a psychiatrist, rather than a psychologist, and therefore the rating should be reassessed.

The worker’s position in relation to a medical review panel is that the evidence before the panel confirms there is a difference of opinion between the treating ENT specialist and the WCB medical advisor in relation to the cause for the worker’s vertigo and therefore, the worker is entitled to have this difference of opinion addressed by a medical review panel, under the provisions of the Act.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The worker’s appeal arises from the decisions of Review Office of March 15, 2021, December 4, 2021, June 29, 2022 and December 14, 2022. The panel reviewed the file evidence and made determinations in respect of each of the questions on appeal, as detailed below.

Was the worker's current independent living allowance correctly determined? 

For the worker’s appeal on this question to succeed, the panel would have to find that the WCB failed to properly assess and determine the worker’s ILA entitlement as required by the Support Policy. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal of this question is denied.

The panel noted the requirements for assessing a worker’s entitlement to an ILA are set out in the WCB’s Support Policy, which outlines that the WCB may provide assistance for personal care, independent living and home modifications, among other supports. Personal care support includes assistance with hygiene, grooming, feeding, dressing and toilet functions, preparation of food and routine housekeeping and other activities. Independent living support includes services such as lawn care and snow shoveling that allow an injured worker to live safely and independently in their home. Home modification support is intended to allow an injured worker to safely access the primary residence and parts of the residence they need to access for daily living. The policy sets out that the criteria for such supports include the following: the compensable injury has reduced the worker’s ability to engage in the activities of daily living; the assistance must compensate in the most cost-effective way possible for additional costs the worker incurs in engaging in such activities that they engaged in before the injury if those costs arise because of the injury; the WCB is not required to compensate for costs for which it has not provided prior written approval; and the type, level and duration of assistance provided is based on regular, standardized evaluations of the worker’s needs and abilities. The Support Policy also permits the WCB to offer support beyond what is outlined in the policy in “exceptional circumstances” such as where a “worker has a severe and permanent injury, such as paraplegia/quadriplegia, a significant brain injury, serious mental health difficulties, major limb amputations or a similar injury that necessitates special assistance to reduce the effects of the handicap.”

The evidence here is that the WCB established an ILA for the worker on July 21, 2021, and that decision was made retroactive to March 1, 2014, and was to be reassessed in September 2022. On July 26, 2022, a WCB occupational therapy(“OT”) consultant attended the worker’s home to assess the worker’s support needs, but the worker declined to permit the specialist to enter the home due to ongoing renovations. The OT consultant determined that the worker was entitled to housekeeping assistance based on their pre-accident 50% contribution to those duties, resulting in a recommendation of 1 hour weekly. The consultant also determined that the worker required assistance with lawn care and snow removal, and recommended support of 1 hour weekly from May – September for lawn cutting and 1 hour weekly from October – April for snow removal. The file evidence indicates that the WCB case manager advised the worker’s representative of the recommended entitlements and also confirmed the worker’s entitlement to an annual allowance for eaves trough cleaning and for tree pruning. Following a further site visit on October 7, 2022 during which the OT consultant accessed the inside of the worker’s home, the recommendations regarding lawn care, snow removal and housekeeping assistance were confirmed.

In respect of the supports requested for eaves trough cleaning and tree pruning, the panel noted that Review Office determined that the worker was not entitled to such supports, as these are property maintenance activities which are specifically excluded from coverage by the Administrative Guidelines to the Support Policy. Further, Review Office found that there was no prior WCB Director-level authorization of Exceptional Circumstances support, as required by the Administrative Guidelines to the Support Policy and therefore the requested supports also could not be provided under that provision.

On reviewing the WCB’s decisions in respect of the worker’s entitlement to personal care and independent living allowance support, the panel is satisfied that the WCB appropriately applied the provisions of the Support Policy in assessing and determining the worker’s needs as of October 2022. Further, and specifically in respect of the worker’s request for eaves trough and tree maintenance, the panel is not satisfied that the worker is entitled to such support under the Exceptional Circumstances provision, as that provision is not intended to cover reduced capacity due to aging or any non-compensable injuries or conditions, but rather to allow the WCB, in limited and exceptional circumstances, to provide other supports in cases of significant and permanent injury. We do not find that the evidence supports the application of this provision in the worker’s case.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s current independent living allowance has been correctly calculated. Therefore, the worker’s appeal on this question is denied.

Is the worker entitled to a replacement toilet? 

For the worker’s appeal on this question to succeed, the panel would have to determine that the evidence supports a finding that the worker’s ability to use a toilet is reduced by the compensable injury and therefore replacement of the worker’s toilet is necessary to cure and provide relief from the worker’s accident-related injuries. The panel was unable to make such a finding, as outlined in the reasons below, and therefore the worker’s appeal on this question is denied.

The panel considered whether there is any evidence to support the worker’s request for a replacement toilet. The panel noted that during the ILA assessment of October 7, 2022, the WCB OT consultant specifically assessed and noted that the worker demonstrated sufficient right arm range of motion such that they did not require any toileting assistance. The consultant also measured the worker’s toilet and did not note any need for assistive devices in relation to the worker’s use of the toilet. The panel relies upon the consultant’s note that:

Toileting is described to now be a challenge as well. This is reportedly due to limited reach with the right hand (dominant) when symptoms are increased (numbnes (sic), tingling). The Worker's [spouse] reportedly occasionally (sic) assists with same. At the time of the assessment, the Worker demonstrated reach within the functional limits of completing toilet hygiene (sic). [I] cannot comment as to what functional limitations present with increased upper extremity symptoms.

The panel also considered the lack of medical evidence indicating that the worker has any medical need in relation to their toilet use, arising from the workplace injury or otherwise.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker is not entitled to a replacement toilet. The worker’s appeal on this question is denied.

Is the worker entitled to coverage for Robaxacet medication? 

For the worker’s appeal on this question to succeed, the panel would have to determine that the worker’s use of Robaxacet medication is necessary to cure and provide relief from symptoms arising from the compensable workplace injury. As outlined in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal on this question succeeds.

The panel noted that the provisions of the WCB’s Medical Aid Policy require the WCB to consider factors that include recommendations from recognized healthcare providers and current scientific evidence about the effectiveness and safety of prescribed or recommended healthcare goods and services. The Medical Aid Policy also outlines that as a general principle, the WCB promotes timely and cost-effective access to medical aid and seeks to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries, while refusing or limiting funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

The panel reviewed the medical reporting in relation to the worker’s use of Robaxacet, an over-the-counter medication. We noted that although the treating family physician acknowledged on April 12, 2022, they did not prescribe the use of Robaxacet to the worker, they did confirm to the worker that if it was providing some relief for their chronic neck and back pain, the worker could use this medication on an as needed basis. The panel also noted the WCB medical advisor’s opinion of April 20, 2022 indicating that the use of Robaxacet is contraindicated based on the worker’s age and the risk of sedation from use of the medication. The panel considered how to balance the potential risk to the worker against the potential benefit to the worker in terms of symptomatic relief. The panel noted the treating physician indicated their support for the worker’s use of this medication on an “as needed” basis. The evidence before the panel indicates the worker finds the medication to be effective in addressing their symptoms related to the compensable injuries, providing relief from pain that reduces the effects of their injuries. There is no evidence that the treating family physician, with whom the worker has a longstanding treatment relationship, has any concerns in respect of risk to the worker arising from their use of this medication. As such, we are satisfied that the potential benefits to the worker from the as needed use of this medication outweigh the potential risk to the worker.

Based on the evidence before the panel and on the standard of a balance of probabilities, we find that the worker’s use of Robaxacet is necessary to cure and provide relief from the symptoms of the compensable workplace injury, and as such, so long as the worker’s treating physician continues to support the worker’s use of this medication, the worker is entitled to coverage for Robaxacet medication. The worker’s appeal on this question is granted.

Should responsibility be accepted for the worker's vestibular symptoms as being related to the compensable injury? 

For the appeal of this question to succeed, the panel would have to find that the worker’s vestibular symptoms arose either as a result of the injuries sustained in the accident of October 24, 2006 or are the result of a secondary injury, the dominant cause of which is the compensable workplace injury. As outlined in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal on this question is denied.

The panel considered the file evidence in relation to the injuries the worker sustained in the accident of October 24, 2006. We noted that the WCB accepted the diagnosis of C7 radiculopathy related to right posterior-lateral disc herniation at C6-7 as well as pain disorder with psychological factors. Beginning in October 2018, the worker reported to the WCB that they were experiencing vertigo and seeking medical attention in relation to that symptom.

The panel noted that the treating otolaryngology (“ENT”) physician reported to the worker’s treating family physician on October 2, 2019 that the worker likely “has a fixed vestibular deficit on the left ear but with fluctuating and increasing neck pain and stiffness, [they have] a significant C-spine related issue to [this] problem. I think focusing on C-spine management well over the long term will help [the worker’s] vertigo….” The panel noted that the C-spine issue referenced in that report related to the worker’s “ongoing significant C3-C4 spine issues”.

In a medical opinion provided by the WCB medical advisor on February 3, 2020, the medical advisor stated that the worker’s reported “ongoing vestibulopathy” was not medically accounted for in relation to the workplace accident, noting that “The C7 nerve root is not responsible for hearing or for inner ear/vestibular function.”

The panel also noted that an MRI study of the worker’s brain and cervical spine, of January 16, 2020 indicated “The internal auditory canals appear unremarkable. No evidence of a vestibular schwannoma.” The study also confirmed the previous findings of multilevel degeneration in the worker’s spine, not only at the C6-C7 level.

The panel considered the treating family physician’s September 10, 2020 report to the WCB indicated the worker’s ongoing symptoms of loss of balance, vertigo, intermittent nausea, leg weakness and difficulty walking, with postural changes often triggering nausea and vertigo, and frequent vomiting. The physician also reported “associated chronic neck pain and headaches” that had worsened in the previous months. The physician noted that the ENT physician did not believe that the worker’s middle ear was a “potential source” of the worker’s vertigo. On reviewing this report and the MRI study, the WCB medical advisor outlined their opinion that the MRI study did not alter the opinion they expressed on February 3, 2020 that the worker’s vestibulopathy is not medically accounted for in relation to the workplace accident, noting that the worker’s symptom onset was more than 12 years after the initial injury. The medical advisor also noted that the medical evidence on file did not substantiate any clinical worsening of the worker’s right C7 radiculopathy and that the symptoms reported by the family physician in September 2020 are not accounted for in relation to that diagnosis.

The panel also noted that in 2021, the WCB sought further information from the treating ENT specialist in relation to the worker’s presentation and symptoms, and that the ENT specialist did not provide any new information beyond that outlined in their October 2, 2019 report, although in a conversation with the WCB, documented by a WCB medical advisor on August 4, 2021, it is noted that the ENT specialist stated on June 24, 2021 that “there was likely some relationship to the cervical spine findings and the dizziness, but it is difficult to quantify.”

On considering the medical reporting and opinions, the panel finds that the evidence does not support a causal relationship between the compensable injuries sustained on October 26, 2006 and the worker’s vestibular symptoms that were first reported in October 2018, nor does the evidence support a finding that the worker’s vestibulopathy is a secondary injury to the compensable C7 radiculopathy related to right posterior-lateral disc herniation at C6-7.

Based on the evidence and on the standard of a balance of probabilities, we are satisfied that the worker’s vestibular symptoms are not related to the compensable injury. Therefore, the worker's appeal on this question is denied.

Was the worker's physical PPI rating correctly determined? 

For the worker's appeal on this question to succeed, the panel would have to determine that the WCB failed to correctly apply the provisions of the Act and applicable Policy in relation to the assessment of the worker’s physical PPI rating. As detailed in the reasons that follow, the panel was not able to make such a determination and therefore the worker’s appeal is denied.

The panel noted that the worker underwent a physical PPI examination on April 22, 2010 at which time the WCB determined the worker’s impairment was 13.7% of whole body impairment, which was prorated by 50% due to a finding of a major pre-existing condition. On January 11, 2022, a WCB medical advisor recommended reassessment of the worker’s cervical spine mobility for PPI purposes, and the medical advisor examined the worker on April 26, 2022.

The panel reviewed the requirements of s 38 of the Act in relation to the assessment of a worker’s permanent impairment rating, and the applicable provisions of the PPI Policy in relation to cervical spine mobility and compared these to the findings of the April 26, 2022 PPI examination. We noted that the WCB medical advisor assessed the worker’s cervical spine mobility in terms of forward flexion, backward extension, right lateral flexion, left lateral flexion, right rotation and left rotation and that these are the specific cervical spine measurements required to be assessed as set out in the Schedule A to the PPI Policy. Based on those measurements, the WCB medical advisor calculated a deficit in the worker’s cervical spine mobility of 41.2%, which resulted, applying the provisions of Schedule A in relation to spinal mobility, in a 12.4% whole person impairment. This figure was then adjusted to reflect the major pre-existing condition in relation to the worker’s cervical spine, resulting in a prorated impairment rating of 6.2%.

The panel accepts and relies upon the evidence contained in the April 26, 2022 PPI examination notes and finds that the WCB appropriately applied the provisions of the Permanent Impairment Policy in undertaking this assessment and determining the worker’s physical PPI rating of 6.2%.

The panel acknowledges that the worker raised concerns about other continuing symptoms and difficulties which they relate to the compensable injury; however, we further note that the Permanent Impairment Policy provides that only measurement of active guided spinal mobility will be considered in determining a PPI rating and the additional symptoms and concerns identified by the worker do not relate to the worker’s spinal mobility.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s physical permanent partial impairment rating has been correctly determined. Therefore, the worker’s appeal on this question is denied.

Should the worker’s psychological PPI rating be reassessed at this time? 

For the worker’s appeal of this question to be successful, the panel would have to determine that the worker has experienced a significant deterioration in their compensable psychological condition and that more than 24 months have passed since the most recent decision as to the worker’s degree of impairment. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the worker’s appeal is denied.

The panel considered that s 38(6) of the Act allows, when the WCB has determined a worker has a permanent impairment and the worker’s condition significantly deteriorates, for a worker to apply for a reassessment of their degree of impairment, provided more than 24 months have passed since the WCB most recently determined the worker’s degree of impairment.

The file evidence indicates that the WCB assessed the worker’s psychological condition for PPI rating purposes on December 30, 2020. The report from that assessment confirms it was undertaken because the reporting from the worker’s treating psychologist indicated the worker’s “psychological functioning…appeared to have deteriorated” and the WCB had not determined the worker’s degree of psychological impairment since 2012. Based upon the December 30, 2020 assessment, the WCB psychological advisor found the worker’s psychological impairment rating to be 15%, which the panel noted is a lesser degree of impairment than was determined in 2012. As a result, on January 13, 2021, the WCB confirmed to the worker there would be no change in their psychological impairment rating, and this decision was confirmed by Review Office on March 15, 2021.

The worker’s representative requested reassessment of the worker’s psychological impairment rating on the basis that the December 30, 2020 assessment was not conducted by a psychiatrist. The panel reviewed the requirements of the PPI Policy and noted that the Policy does not specify that a psychiatrist must undertake the assessment of a psychological impairment. As there is no such requirement, either in the Act or the Policy, the panel does not find that this is an appropriate basis for a reassessment of the worker’s psychological impairment to be undertaken.

The panel also noted that the WCB psychological advisor reviewed the worker’s file on October 4, 2023 and concluded “…there is no current medical or psychological information…that there has been a significant change or deterioration in the worker’s psychological condition or functioning over and above what had been reported in the previous psychological PPI call-in exam dated December 30, 2020.” On reviewing the file evidence, the panel agrees with this conclusion, as of that date.

The panel is satisfied based on the evidence before us that when the WCB determined that the worker was not entitled to reassessment of their psychological PPI rating, there was no evidence of a deterioration in the worker’s psychological condition and further, that less than 24 months had passed since the worker was assessed and the WCB determined their degree of impairment.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the worker’s psychological permanent partial impairment rating could not be reassessed as of December 2021. Therefore, the worker’s appeal on this question is denied.

Should a medical review panel be convened pursuant to s 67(4) of the Act? 

For the worker’s appeal on this question to succeed, the panel would have to determine that there is a difference of opinion between the WCB medical advisor and the worker’s treating ENT specialist. As detailed in the reasons that follow, the panel was not able to make such a finding and therefore the worker’s appeal of this issue is denied.

The panel reviewed and considered the reporting of the worker’s treating ENT specialist in relation to the question of whether there is a causal relationship between the worker’s vestibular symptoms and their compensable workplace injury. In reviewing the reports from the ENT specialist, the panel considered whether these meet the definition of an “opinion” as set out in s 67(1), being “…a full statement of the facts and reasons supporting a medical conclusion.” We note that the ENT specialist provided three reports with different dates but the same information, as though cut and pasted, and does not provide a complete summary of either the facts relating to the worker’s development of vestibular symptoms and the condition of their cervical spine, nor a reasoned basis for their conclusion in those reports. The panel finds that that the ENT specialist has not provided a full statement of the facts and reasons supporting their medical conclusion, as repeated in their reports of September 17, 2019, October 2, 2019, and July 26, 2021. As such, the panel does not find that the statutory basis for convening a medical review panel has been met.

On the basis of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that a medical review panel should not be convened pursuant to s 67(4) of the Act. Therefore, the worker’s appeal on this question is denied.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 21st day of March, 2024