WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150082
DECISION DATE:
August 14, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT:
Employer
REPRESENTED by:
Employer Representative
HEARING:
Hearing in Writing
HEARD by:
C. Ihasz, Appeals Resolution Officer
ISSUE
The injured worker and his representative object to the decision dated January 19, 2015, wherein entitlement to surgery performed out of Province on May 2, 2013, was denied, as well as associated benefits.
BACKGROUND
The worker is now a 37-year-old Border Services Officer, who had been employed in this capacity since 2006. The worker had been doing a work-out for a work-related course, at which time he sprained his back. This took place at the (redacted) Academy. The initial diagnosis in the Emergency record was a lumbar strain.
The worker returned to work, although later suffered a recurrence. He reported additional problems including reproductive system issues and anxiety. In December 2012, he reported neck difficulty as well.
This claim was accepted for entitlement to an L5-S1 disc herniation in the lower back. This eventually came to a Non-economic Loss (NEL) Assessment, at which time the injured worker was given a 15% NEL benefit for his permanent impairment.
Of note is that the injured worker's claim has been to the Appeals Services Division on three previous occasions. There is a decision dated April 10, 2014, at which time entitlement to the cervical spine or neck was denied. Full Loss of Earnings (LOE) benefits, beyond April 10, 2013, were also denied. This had to do with the injured worker misrepresenting his level of disability on surveillance. As a result of this decision, there was an overpayment. In a decision of January 22, 2015, another Appeals Resolution Officer (ARO) allowed LOE from December 31, 2013, to January 5, 2013. Additional periods claimed including January 25, February 5, and February 7, 2014, were denied. Lastly, there was an ARO decision, dated March 9, 2015, confirming the quantum of the 15% NEL benefit.
The claim was returned to the Appeals Services Division concerning the decision dated January 19, 2015 regarding entitlement to May 2, 2013 surgery. By history, it was not learned by the WSIB that the injured worker had surgery, in the United States, until November 22, 2013. The injured worker did not notify the WSIB that he was planning this treatment. He did not notify the WSIB just following his return to Canada following the surgery. It was not until a meeting with the Return to Work Specialist that he notified the WSIB. By this time, LOE benefits were already closed in this claim, as of April 10, 2013.
In the decision of January 19, 2015, the Case Manager clarifies that the WSIB will not allow entitlement for the May 2013 surgery. The issue of LOE benefits, beyond April 10, 2013, has already been addressed as at the Appeals Services Division at a level equivalent to me. The representative indicated that he is taking this matter before the Workplace Safety and Insurance Appeals Tribunal. He requested a decision on entitlement to the surgery itself and asked that this matter be addressed in a ‘Hearing in Writing’.
AUTHORITY REFERENCE
Policy Numbers:
11-01-01 Adjudicative Process
11-01-02 Decision Making
11-01-03 Merits and Justice
11-01-13 Benefit of Doubt
22-01-03 Workers Cooperation Obligation
17-01-02 Entitlement to Healthcare
17-01-03 Choice and Change of Health Professional
17-01-04 Healthcare Outside Ontario
RESOLUTION PROCESS
The injured worker's representative has indicated that this matter should proceed to a decision in writing, with the information on the claim record. The employer did not make any further submissions but has indicated they are participating.
ANALYSIS
I have carefully reviewed all of the evidence in this claim record. I have noted the three previous ARO decisions made prior to me and equivalent to my level.
The issue before me is strictly entitlement to the May 2, 2013, surgery, as part of entitlement in this claim. The WSIB has accepted entitlement to an L5-S1 disc injury. The injured worker has a 15% Permanent Impairment benefit for that.
I have looked at all of the events leading up to the surgery on May 2, 2013. Medical information indicates that the injured worker was following the normal protocol for an injury such as his. He had treatment with many different doctors. He had chiropractic treatment, acupuncture treatment and physiotherapy. He had an MRI study done on November 21, 2012. A second one was done on February 22, 2013. At the same time, the Healthcare Professionals were looking at a neck problem, which was not accepted as part of entitlement by the WSIB.
Most notable was an assessment by the specialist on February 4, 2013. The specialist discussed surgery with the injured worker, but referred him to the Pain Clinic for steroid injections as the first method of treatment. The injured worker attended a center for pain care, starting March 1, 2013. He began epidural injections.
The injured worker went to the WSIB Back and Neck Specialty Program, beginning April 22, 2013. The diagnosis there was an L5-S1 disc herniation and radiculopathy. He was considered totally disabled at that time, but referred for a CT scan. He was also going to be assessed regarding psychological issues. There is a CT scan on April 28, 2013.
The injured worker at this time was under surveillance. This was discussed in the previous ARO decision. The end result was that the injured worker's level of functioning was not equivalent to what his reported level of functioning was.
In the meantime, without knowledge by the WSIB, nor the treating physicians in Ontario, the injured worker went to the ‘HSC’ and had a disc and neural decompression at L5-S1. He was discharged the same day.
The worker attended the WSIB Back and Neck Specialty Clinic on May 30, 2013 and did not reveal that he had this surgery only a couple of weeks before. Of note was a further CT done on July 19, 2013, which showed no new compressive changes. Just following this, the injured worker had a motor vehicle accident. According to medical information from his family doctor on August 12, 2013, his symptoms returned and he now had a tender spasm in his back. The motor vehicle accident police report is on the claim file, but I find this report to be completely illegible.
As I have stated earlier in this summation, it was not until November 22, 2013 that the worker informed anyone at the WSIB, or with his Healthcare Professionals that he had this surgery previously on May 2, 2013.
Policy Number 17-01-02 states that a worker entitled to benefits under the Insurance Plan is entitled to such healthcare as may be necessary, appropriate and sufficient, as a result of the injury. The Policy also states that,
"If there are Healthcare Practitioners available in the workers region, the WSIB does not expect the worker to travel outside of his/her region to obtain care".
Policy Number 17-01-03 states,
"A worker who sustains an injury is entitled to such healthcare as may be necessary, appropriate and sufficient as a result of his or her injury and is entitled to make the initial choice of Healthcare Professional. The WSIB shall determine all questions concerning the necessity, appropriateness and sufficiency of Healthcare provided to a worker, or that may be provided to a worker and payment for Healthcare provided to a worker".
This Policy goes on to state,
"Once the worker choses his or her initial Health Professionals, workers are not permitted to change to another Health Professional, without WSIB authorization".
Policy 17-01-04 states that,
"The WSIB expects Ontario workers to receive Healthcare in Ontario. However, there may be situations when workers are entitled to emergency or elective Healthcare outside Ontario, as a result of a work-related injury, or occupational disease. If the WSIB approves such care, it is provided and paid at a rate that the WSIB determines is proper and reasonable.
In this case, the injured worker's treatment was decided to be "elective" Healthcare. It was not an emergency situation. Elective healthcare is treatment that can be scheduled in advance. The Policy states that,
"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".
In this case, the injured worker's representative has submitted a letter to indicate how this came about. It appears that the injured worker researched this treatment on his own and made a decision on his own to go to New Jersey for this elective surgery. It was not done on an emergency basis.
Policy 22-01-03, with respect to workers cooperation and obligation states that,
"The worker must provide the WSIB with any information necessary to adjudicate the claim. Also, he must notify the WSIB if he has changed Healthcare Professionals, without the WSIB approval".
This injured worker is now claiming entitlement to the surgery on May 2, 2013, as well as the associated expenses. It appears he and his family flew to New Jersey on May 1, 2013 and returned on May 5, 2013. He is claiming entitlement for the surgery itself, his hotel room, his rental car, and his flight. His receipt for his surgery indicates that the surgery itself cost $18,000.00. He is now asking that the WSIB reimburse him for these costs, as well as the associated LOE and healthcare benefits.
As I have stated above, this was an elective surgery, which was performed outside of Ontario, without the WSIB's knowledge. With the benefit of hindsight, we know that the surgery did not reduce the effects of the injured worker's compensable injury. He was still left with a permanent impairment.
A review of the file notes that surgery was discussed with the case manager on January 11, 2013, in a telephone call. The worker was verbally advised that if he was considering surgery, this would have to be ruled on in advance.
With respect to the surgery itself, the only information is the cost of the surgery, as well as the surgical report itself. I am not aware of any information on the claim record to include a preoperative or postoperative assessment. I was not provided with any consultation reports, or notes or testing that might have been done by the doctor in New Jersey. It is reasonable to conclude that this must have been done in order for that doctor to proceed with the surgery.
I note that around this time, the injured worker was under surveillance. The worker's activities in New Jersey explain why he was not seen on the May 2013 dates.
This injured worker did not have permission to go ahead with this surgery. He withheld information from the WSIB, as well as his treating physicians in Ontario. He misrepresented his position and misled all of the parties. This injured worker should have known weeks before the surgery was to be done, that it was planned and he had plenty of opportunity to discuss this. Also, post-surgery he had opportunity to discuss it. Unfortunately, for reasons unknown, he did not do so.
In looking at the Policies with respect to this issue, I find that the injured worker did have surgery to his compensable injury; however, it was out of province, elective and was not approved by the WSIB. The WSIB is therefore, not responsible for this surgery, its cost and the associated costs. For this reason, I must confirm the decision of January 19, 2015.
CONCLUSION
The objection is denied.
DATED
August 14, 2015
C Ihasz
Appeals Resolution Officer
Appeals Services Division