C A N A D A WORKERS COMPENSATION APPEAL TRIBUNAL. and WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND DECISION

Transcription

1 C A N A D A H PROVINCE OF PRINCE EDWARD ISLAND WORKERS COMPENSATION APPEAL TRIBUNAL CASE # [personal information] BETWEEN: WORKER APPELLANT and WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION Date of Hearing: July 10, 1997 Date of Decision: May 28, 1998

2 C A N A D A PROVINCE OF PRINCE EDWARD ISLAND WORKERS COMPENSATION APPEAL TRIBUNAL CASE #[personal information] BETWEEN: WORKER APPELLANT and WORKERS COMPENSATION BOARD OF PRINCE EDWARD ISLAND RESPONDENT DECISION This decision relates to an appeal by [Worker] from the decision of Terry Dunsford, Director, Client Services, Workers Compensation Board of Prince Edward Island ( the Board ) dated January 15, Mr. Dunsford s decision was that he would not overturn the November 23, 1995 decision of Ms. Jean Tremere to terminate [Worker s] Workers Compensation benefits due to [Worker s] failure to submit to a prescribed medical procedure, namely an arthroscopic meniscectomy.

3 -2- Briefly, [Worker] did not want P.E.I. physician Dr. Profitt to carry out this procedure. He wanted to be examined by Dr. Stanish of Halifax, apparently a doctor of high repute. The evidence about the events which gave rise to this appeal is sketchy, as the parties filed very little material with the Appeal Tribunal. The Appellant filed only the Notice of Appeal, with no written submission. The Board filed a written submission. Those documents, together with the decisions of Ms. Tremere and Mr. Dunsford and the correspondence relating to procedure on the appeal were all that the Tribunal had before it when the appeal hearing commenced. During the course of the hearing, the parties agreed to enter the following: 1) a letter from Dr. Profitt dated September 27, 1995; 2, 3 and 4) two letters and a report from Dr. Stanish dated July 15, 1996, November 19, 1996 and November 7, 1996; 5) a letter from the Board to [Worker] dated November 20, 1995; and 6) a memo to file by Jean Tremere dated November 22, What does appear from the correspondence, decisions and medical report is this: [Worker] injured his right knee on March 24, 1995, while employed at [personal information]. He was seen by Dr. Vello Kass, who did arthroscopic surgery, but in September of 1995, he still had problems with his knee and had a disability which was quite significant. In his letter dated September 27, 1995, Dr. Profitt stated,

4 -3- I am suspicious he may have a residual tear of the medial meniscus and feel he should have repeat arthroscopic examination of the joint and possible meniscectomy. If it does turn out that he has minor arthritis or has developed a posttraumatic PF syndrome, there may be little else to do. I therefore have scheduled him for arthroscopic meniscectomy on a day surgery basis at the Q.E.H.... According to my medical directory, arthroscopy is defined as examination of the interior of a joint with an endoscope. An endoscope is a special instrument which is inserted in a natural body opening or an incision and permits visual examination of an internal part of the body. The meniscus is a fibrocartilage in the knee joint. A meniscectomy is the removal by cutting of some portion of the meniscus. At the hearing of the appeal, Counsel for the Appellant agreed that an arthroscopy was possibly at the minimal end of the range of surgical procedures. The arthroscopic meniscectomy was scheduled for November 24, On November 21 and 22, 1995, [Worker] spoke with Jean Tremere, Case Manager, Client Services at the Workers Compensation Board. [Worker] told Ms. Tremere that he didn t like the way [his] case was handled by Dr. Kass, and did not want to have this scope done by Dr. Profitt. He apparently expressed a desire to see Dr. Stanish instead. The memo to file by Jean Tremere dated November 22, 1995, stated: I phone Dr. Brandon today to discuss [Worker s] upcoming arthroscopy with Dr. Profitt, and Dr. Brandon felt there was no reason why Dr. Profitt couldn t do the scope and that he tried to encourage [Worker] to go for it. He said getting a second opinion sometimes is counter-productive. I said this looks like it will be this 3 rd opinion, wanting to go see Dr. Stanish. I said I have no reason to send him to Dr. Stanish unless he had a reason.

5 -4- Dr. Brandon said he doesn t other than it s something [Worker] wants to do. I phoned [Worker] and asked why he wanted to go see Dr. Stanish and he said he wasn t happy with Dr. Profitt. Dr. Profitt said Dr. Kass screwed up his knee and now Kass has left the Island. I said if he wanted to go to Dr. Stanish, that was up to him but we felt that there was no reason for him to go to Stanish, that he could go to Profitt. I said Dr. Profitt couldn t tell him what was wrong with him either until he does the scope, other than he can assume what s wrong. I said when you see Dr. Stanish, you will find the same thing. He would have to do a scope in order to tell you what s going on with the knee. But, he wouldn t be able to tell you from looking at it. He said he didn t care, he was sick and tired of this and he wanted someone to look after his knee, and he wanted that person to be Dr. Stanish. By letter dated November 23, Ms. Tremere advised [Worker], This office is satisfied that Dr. Allen Profitt is a qualified Orthopaedic Surgeon who can readily carry out this procedure. This office does not make referral outside of the Province unless these services are not available within this Province. Ms. Tremere then quoted s. 18(2), (3) and (12) of the Workers Compensation Act (the Act ), which state: (2) The medical aid is at all times subject to the supervision and control of the Board and shall be paid by the Board out of the Accident Fund, and such amount as the Board may consider necessary therefore shall be included in the assessment levied upon the employers. (3) All questions as to the necessity, character and sufficiency of any medical aid furnished or any vocational or occupational rehabilitation shall be determined by the Board. (12) The Board may require that any worker applying for or receiving compensation payments of any kind shall submit to and cooperate in vocational, occupational or medical examination, assessment or rehabilitation; and if, in the opinion of the Board, the worker fails to

6 -5- submit to or cooperate in such examination, assessment or rehabilitation, the Board may withhold all or part of the compensation payments. Ms. Tremere concluded by saying: If you do not wish to have Dr. Profitt do the surgery, going to see Dr. Stanish will not be something this Board will be approving. Therefore, if you decide not to have the scope with Dr. Profitt, your claim will close effective November 24, [Worker] did not go to Dr. Profitt on November 24 and the Board stopped paying Workers Compensation to him. [Worker s] Counsel sought a review of the decision, asserting that Dr. Stanish was a world renowned knee surgeon and asserting that [Worker] wanted to avail himself of the best possible opinion. Mr. Terry Dunsford replied by letter dated December 13, Mr. Dunsford declined to have [Worker] referred to Dr. Stanish and offered to refer him to Dr. Barry Ling, another P.E.I. orthopaedic surgeon. There was no evidence that Drs. Profitt and Ling are anything other than competent and well qualified orthopaedic surgeons. [Worker s] counsel then sought a rehearing. Mr. Dunsford again declined to overturn Ms. Tremere s decision whereupon [Worker] appealed. Six months later, in July 1996, [Worker] saw Dr. Stanish, who recommended an arthroscopic evaluation of the right knee and debridement of the injured tissues. Four months later Dr. Stanish did the arthroscopic evaluation and found a mild radial tear of the lateral meniscus anteriorly and mild degeneration of the medial facet of the patella.

7 -6- By letter to the Workers Compensation Board dated November 19, 1996, Dr. Stanish stated that in his opinion [Worker] did not require any medical treatment to his knee and could gradually return to the workplace. The only procedure carried out appears to have been the arthroscopy and the incision to permit it, which was closed with a single stitch. At the hearing, the Board referred to its policies on out-of-province medical care, but those policies deal with the conditions under which the Board will pay for outof-province medical care and the associated travel and other expenses. Since in this case there is no claim for payment of medical bills or for travel and other expenses, these policies are not relevant. follows: The grounds of appeal, which are more argument than grounds, are as 1, [Worker] has an absolute right, as part of this security of the person interest guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms, to make a free, voluntary, and informed decision as to whether he should undergo a second orthoscopic surgical operation on his right knee. 2. The Board has no right, and is acting in excess of its jurisdiction, in coercing [Worker] to undergo an operation which could cripple him for life by refusing to compensation him unless he goes under the knife; 3. Mr. Dunsford has erroneously identified the issue as a question of whether the Board will refer [Worker] to Dr. Stanish. This is not the issue. [Worker] is not asking the Board to refer him to Dr. Stanish. [Worker s] personal physician, Dr. Brandon, is prepared to make this referral; 4. [Worker] wishes to consult Dr. Stanish as to the advisability of undergoing a second orthoscopic surgical operation on the right knee. He wants to know what risks are involved. A factor in his mind is that Dr. Kass was not in favour of further surgery;

8 positions which he takes [Worker] has the right to access the best medical opinion available. After all, it is [Worker], not the Board, not Terry Dunsford, not Jean Tremere, who has to contend with a damaged right knee for the rest of his life; 6. [Worker] will pay all travel expenses resulting from the trip to Halifax to see Dr. Stanish. Hospital and Health Services Commission will pay Dr. Stanish (based on Dr. Brandon s referral). All that [Worker] is asking of the Board is that it continue to compensate him until he is in a position to make an informed decision as to whether he should have a second scope done on his knee; 7. Instead, the Board has taken the high-handed approach of giving [Worker] an ultimatum: Undergo the operation or we cut off your benefits. Jean Tremere stated in her letter, dated November 23, 1995, Therefore, if you decide not to have the scope with Dr. Profitt, your claim will close effective November 24, 1995"; 8. [Worker s] position is that the Board has no right to make such an ultimatum. A person s health is of supreme importance. [Worker] will not be making any decision regarding further knee surgery until this ultimatum is reversed, his benefits have been restored retroactive to November 24, 1995, and he is in a position to make a free, voluntary and informed decision regarding the advisability of another operation. Appellant s Counsel did not quote any authorities in support of the I would agree that [Worker] has the right to refuse medical treatment. I do not agree that every Canadian has the right to access the best medical treatment available. I believe that the true issue here is: Does the Board have the right to cut off benefits to a worker who refuses an examination by a doctor chosen by the Board but offers to submit to an examination by an out-of-province doctor of the worker s choosing?

9 -8- The questions to be resolved are: 1) Can the Board terminate benefits to a worker who refuses to submit to or cooperate in an examination? 2) Is the arthroscopic meniscectomy an examination? 3) Is the refusal to have the examination done by a particular doctor (but offering to go to a different doctor) a failure to submit to or cooperate in an examination pursuant to s. 18(12)? 1. Can the Board terminate benefits to a worker who refuses to submit to or cooperate in an examination? Pursuant to s. 18(12) of the Act, the answer is clearly yes. 2. Is the arthroscopic meniscectomy an examination? s. 18(12) of the Act. I have no question that an arthroscopic is an examination as referred to in Dr. Profitt refers to the procedure as an examination, while Dr. Stanish refers to it as an examination or evaluation. On the other hand, it is equally clear that a meniscectomy is not an examination - it is an operation which removes damaged tissue from the body. According to the letter dated September 27, 1995, Dr. Profitt has not determined in advanced that he would do a meniscectomy - only that he would see whether (in his opinion) a meniscectomy needed to be done. I gather that if he thought one necessary, Dr. Profitt intended to go ahead and do it right then. This certainly blurs the line between examination and operation, but it should have been easy to limit Dr. Profitt strictly to doing an examination on November 24, But this possibility was never addressed. [Worker] wanted nothing to do with

10 -9- Dr. Profitt or later with Dr. Ling. From the evidence before us, [Worker] would not agree to Dr. Profitt or Dr. Ling doing anything - he wanted Dr. Stanish. 3. Is the refusal to have the examination done by a particular doctor (but offering to go to a different doctor) a failure to submit to or cooperate in an examination pursuant to s. 18(12)? It seems to me that a worker should have some input into when, where and by whom an examination is carried out. A particular time or place may be inconvenient or the worker may have some valid reason why he or she does not wish to be examined by a particular doctor. There will, however, be a point when the worker s objections become unreasonable barriers. Each case will turn on its own facts. by Dr. Profitt or Dr. Ling. In this case, [Worker] gave no reason why he did not wish to be examined The parties agreed that the normal referrals take longer than Worker Compensation referrals. Whether because of this or because of [Worker s] announced intention to make no decision until the Board reversed itself, or some combination of the two, the fact is that it took almost one full year more to get an opinion from Dr. Stanish than it would have taken to get an examination and opinion from Dr. Profitt. [Worker] asserts that the Board should have continued to pay him benefits while he sought the opinion from Dr. Stanish. I cannot agree with this position.

11 -10- The Board has the duty to carefully manage its funds, and obtaining examinations on a timely basis is a necessary part of that duty. stated at p. 30: In Decision No. 610/92 (1995) 33 WCATR 21 (Ont.), Vice Chair Faubert... it is reasonable that the Board have a reasonable measure of control over the treatment by specialists of injured workers, due to the Board s concurrent responsibility to manage the funds of compensation claims. I conclude that [Worker s] demand that he be examined by Dr. Stanish was not reasonable in the circumstances, and amounted to failure to submit to or cooperate in an examination pursuant to s. 18(12) of the Act. The Board was within its rights to withhold compensation under the circumstances. The appeal is therefore dismissed. DATED this 28 th day of May, BENJAMIN B. TAYLOR, Q.C. Chairperson Workers Compensation Appeal Tribunal I CONCUR: ALLISON DRAKE NOTE: Between the time when the hearing of this matter took place and the time when the decision was rendered, Mr. Ray Gallant, the worker s representative on the Tribunal, accepted a position with the Workers Compensation Board. Because of this, his concurrence or dissent to this decision was not requested.