WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1721/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1721/14 BEFORE: S. Martel: Vice-Chair HEARING: September 18, 2014 at Toronto Written DATE OF DECISION: September 22, 2014 NEUTRAL CITATION: 2014 ONWSIAT 2030 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer (ARO) decision dated January 21, 2013 APPEARANCES: For the worker: For the employer: Interpreter: R. A. Gosbee, Lawyer Did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1721/14 REASONS (i) Introduction [1] The worker appeals a decision of the ARO, which granted the worker a non-economic loss (NEL) redetermination of his low back condition with a permanent worsening date of May 9, 2011 but denied reimbursement of the costs of a surgery performed in September 2010 outside Ontario. The worker now appeals the denial of the costs of the surgery he underwent in Florida in September [2] The appeal proceeded in writing. I considered the written case materials, which included Mr. Gosbee s written submissions. (ii) Issue and submissions [3] The issue on appeal is whether the worker is entitled to be reimbursed for the costs of the surgery he underwent in Florida in September [4] On the worker s behalf, Mr. Gosbee submits that it was medically necessary for the worker to seek and undergo treatment. He admits that the worker did not obtain approval from the Board prior to the surgery. He submits, however, that the procedure was clinically appropriate. He submits that the Ontario physicians were reluctant to operate probably because of the worker s age with the result that the worker underwent the surgery outside Ontario. (iii) Background [5] The now 72-year-old worker injured his back on May 9, 1996 while lifting a 20-pound tool tray. The Board accepted entitlement for a lumbar strain and a subsequently diagnosed herniation. The worker had a number of recurrences, which the Board also accepted. The Board granted the worker a 19% NEL award in As a result of the ARO decision of January 21, 2013, the worker s NEL award was reassessed and increased to 24%. [6] The worker underwent a number of assessments in 2009 by several Ontario physicians. He then consulted a physician in Florida and on September 8, 2010, underwent a lumbar laminotomy and foraminotomy including facetectomy with decompression of the nerve root and disc decompression right L4/5. The pre and post diagnoses were bulging disc, foraminal and spinal stenosis, facet degeneration, lumbar arthritis/oa w/o myelopathy, lumbago and radiculitis. [7] There is no dispute that the worker did not obtain approval from the Board prior to undergoing the surgery in Florida. The worker now seeks to be reimbursed for the costs of the surgery, which apparently totaled $22, (iv) Law and policy [8] Since the worker was injured in 1996, the pre-1997 Workers Compensation Act, as amended by the Workplace Safety and Insurance Act, 1997 (WSIA), applies to this appeal. Specifically, section 50 of that Act states as follows: 1 Board Memo #100 dated March 25, 2011.

3 Page: 2 Decision No. 1721/14 50(1) Every worker who is entitled to compensation under this Part or who would have been so entitled had the worker been disabled beyond the day of the accident is entitled, (a) to such health care as may be necessary as a result of the injury; (b) to make the initial choice of doctor or other qualified practitioner for the purposes of this section; (c) where, in the opinion of the Board, the worker is rendered helpless through permanent total impairment, to such other treatment, services or attendance as may be necessary as a result of the injury. (2) In this Act, health care means medical, surgical, optometrical and dental aid, the aid of drugless practitioners under the Drugless Practitioners Act, the aid of chiropodists under the Chiropody Act, hospital and skilled nursing services, such artificial members and such appliances or apparatus as may be necessary as a result of the injury and the replacement or repair thereof when deemed necessary by the Board. (3) The Board may pay and, where the employer is individually liable, the Board may order the employer to pay, (a) for the replacement or repair of an artificial member or apparatus of a worker that is damaged as a result of an accident in the employment; and (b) on application, an allowance not exceeding $368 a year for the replacement or repair of clothing worn or damaged by reason of the wearing of a lower limb prosthesis or a back brace for a permanent back impairment or a permanent leg brace, and not exceeding $184 a year in respect of an upper limb prosthesis where the lower or upper limb prosthesis, back brace or permanent leg brace is supplied by the Board, and where the worker is unable to work because of the damage referred to in clause (a), he or she is entitled to compensation as though the inability to work had been caused by a personal injury within the meaning of subsection 4(1). (4) Health care shall be furnished or arranged for by the Board or as it may direct or approve and, (a) in the industries in Schedule 1, shall be paid for out of the accident fund and the necessary amount shall be included in the assessments levied upon the employers; and (b) in the industries in Schedule 2, the amount shall be paid by the employer of the injured worker to the Board for payment. (5) A worker is entitled to such health care as may be necessary, for an accident happening on or after the 1st day of January, (6) All questions as to the necessity, character and sufficiency of any health care furnished or to be furnished and as to payment for health care shall be determined by the Board. (7) The fees or charges for health care shall not be more than would be properly and reasonably charged to the worker if the worker was paying them, and the amount thereof shall be determined by the Board, and no action for any amount larger than that determined by the Board under this subsection lies against the Board and no action in respect of such fees and charges lies against the injured worker, his or her employer or any other person. (8) Where accounts for payment of health care are not received by the Board within such time as the Board may prescribe, the Board may impose such penalty by way of a percentage reduction in the amount of the account as it may prescribe. (9) REPEALED: 1995, c. 5, s. 5.

4 Page: 3 Decision No. 1721/14 (10) Employers in industries in which it is considered proper may be required by the Board to maintain as may be directed by the Board such first-aid appliances and service as the Board may direct, and the Board may make such order respecting the expense thereof as may be considered just. (11) Every employer shall at the employer's own expense furnish to any worker injured in the employer's employment, who is in need of it, immediate conveyance and transportation to a hospital or a physician, located within the area or within a reasonable distance of the place of injury, or to the worker's home, and any employer failing so to do is liable, on order of the Board, to pay for such conveyance and transportation as may be procured by the worker or by anyone for the worker, or as may be provided by the Board. (12) Where, in conjunction with or apart from the health care to which workers are entitled free of charge, further or other service or benefit is, or is proposed to be, given or arranged for, any question arising as to whether or to what extent any contribution from workers is or would be one prohibited by this Act shall be determined by the Board. [9] Board Operational Policy Manual (OPM) Document No , entitled Health Care Outside Ontario, which was provided by the Board pursuant to section 126 of the WSIA, discusses the procedure to be followed for elective surgery: 1. Elective health care Elective health care is treatment that can be scheduled in advance. a) Pre-authorization Workers must get the WSIB's approval before going for treatment. The WSIB pays the full cost of treatment only if it considers the treatment and charges appropriate. The WSIB may approve the type of treatment requested, but may not approve providing it outside the province of Ontario (for Ontario residents), or outside the place of residence (for workers residing outside Ontario). Workers are individually liable for any costs incurred in excess of the WSIB's treatment fees. b) Ontario residents Workers may be entitled to necessary elective health care outside Ontario (in other provinces or in the United States) if the required health care is not available/offered in Ontario. When making this decision, the WSIB considers whether a particular treatment provided in Ontario is equivalent to the clinical expertise or degree of specialization offered outside the province. (The advice of WSIB medical consultants is significant in these cases); or the out-of-province treatment is clinically appropriate. This applies when the worker's health could be put at risk by travelling a longer distance or waiting a longer period of time for treatment in Ontario. Risk can be measured by factors such as - the possibility of significant deterioration - increased chance of permanent injury, or greater potential for the deterioration of a currently stabilized condition. the WSIB has adopted or negotiated a service agreement with an out-ofprovince agency(e.g., the Ministry of Health Preferred Provider Network for MRI services in the United States), and there is evidence that there will be reduced claim costs due to lower travel expenses and/or an earlier return to work. [Emphasis in original]

5 Page: 4 Decision No. 1721/14 [10] The policy is dated October 12, 2004 and states that it applies to all decisions regarding health care treatment provided on or after March 1, 1997, except when this policy would cause significant disruption to health care programs that were established before this application date, for all accidents. (v) Analysis [11] There is no dispute that the worker did not seek the Board s approval before going to the United States for treatment. Decision No. 1439/10 reviewed a number of Tribunal decisions and concluded that in the case of elective surgery, the failure to obtain prior approval will cause the appeal to fail: In looking at Tribunal case law, I note that in Decision No. 450/08, the Vice Chair denied reimbursement for neck surgery carried out in the States because approval had not been given. In Decision No. 2081/07, the Vice Chair granted partial reimbursement at the Canadian cost equivalent on the basis that the Board had authorized the surgery in the United States. The Vice Chair noted that as the surgery was elective, pre-authorization was required. Similarly, the Panel in Decision No. 87/03 also denied reimbursement for the cost of an MRI performed in Buffalo as pre-approval had not been obtained. Also along the same lines, the Vice Chair in Decision No. 1368/01 denied the worker reimbursement for a consultation at the Mayo Clinic because prior approval had not been obtained. This line of thinking is followed in Decisions No. 554/02I and 841/91. I am satisfied that Tribunal case law has consistently found that, in the case of elective surgery such as is the fact situation in the instant case the failure to obtain prior approval will cause the appeal to fail. [12] Mr. Gosbee has suggested that the worker s Ontario physicians were reluctant to proceed with surgery because of the worker s age. That, in my view, is speculative. There is no medical opinion in the case materials offering such a view. The worker was seen by Dr. Kliman, an orthopaedic surgeon, on April 27, 2009, who at that time did not feel that the worker required surgical management. Dr. Kliman did not refer to the worker s age. The worker was then seen by Dr. Roscoe, another orthopaedic surgeon, on June 24, 2009, and reported that he was improving and that his leg pain had completely resolved although he remained subject to recurrences of severe back pain with sciatica. The worker saw Dr. Bril, a neurologist, on June 2, 2010 for electrodiagnostic studies. Dr. Bril opined that the electrodiagnostic studies were consistent with radiculopathy rather than any peripheral nerve dysfunction. She thought that the worker should be evaluated by a spinal surgeon to see if he would benefit from decompression. The worker returned to see Dr. Roscoe on June 9, 2010 but it is unclear if surgery was discussed at that time. According to Dr. Roscoe s report of June 9, 2010, the worker was reviewed because the Board had requested an idea of his range of motion, which Dr. Roscoe provided. Dr. Roscoe s report of June 9, 2010 does not include any opinion regarding surgery. The worker then went to a laser spine institute in the United States and underwent surgery on September 8, According to the most recent medical report dated May 9, 2011 from Dr. Roscoe, the operative procedure in Florida relieved the worker s right leg pain but did not improve his low back pain. [13] In addition to requiring prior approval for elective surgery outside Ontario, the Board s policy also requires that the required health care not be available or offered in Ontario or that the out-of-province treatment is required because of risks associated with delay in awaiting a longer period of time for treatment in Ontario. There is no medical opinion in this case recommending that the worker undergo surgery outside of Ontario and that such surgery is not offered or

6 Page: 5 Decision No. 1721/14 available in Ontario. There is also no medical opinion that the worker s condition could have significantly deteriorated if he waited to undergo surgery in Ontario. [14] In my view, the Board s policy conditions for elective surgery outside of Ontario are not met in this case. Accordingly, I deny the worker s appeal.

7 Page: 6 Decision No. 1721/14 DISPOSITION [15] The appeal is denied. DATED: September 22, 2014 SIGNED: S. Martel