DECISION NUMBER:

20240015

OBJECTING PARTY:

WORKER

RESPONDENT:

SELF EMPLOYED

HEARING:

HEARING IN WRITING

HEARD by:

DATED:

SUZANNE FLANNERY, APPEALS RESOLUTION OFFICER

JANUARY 12, 2024

ISSUE

The worker is objecting to the Nurse Consultant’s (NC) decision dated September 28, 2023 that denied out of province health care, specifically reimbursement for fees associated with diagnostic testing and surgery to the worker’s lower back while in Country A.

BACKGROUND

On June 9, 2023, this sole proprietor for a floor tiling company was scraping dry mortar off the floor when they felt sudden pain in their back that went down their leg. The worker filed a claim to the Workplace Safety and Insurance Board (WSIB) on June 13, 2023 reporting their injury. The worker’s claim was allowed on June 26, 2023 for health care benefits for a disc bulge at the lumbar 5 and sacroiliac 1 (L5- S1) disc and entitlement to a nerve root impingement at L5-S1 was denied. The worker was also entitled to full loss of earnings (LOE) benefits effective June 10, 2023.

On July 10, 2023, the Case Manager (CM) provided written notice to the worker of their co-operation expectations. The CM and their physiotherapist had been unable to reach the worker regarding their claim and treatment. On July 24, 2023, the CM wrote a subsequent letter to the worker determining that they were not fulfilling their co-operation obligations under the Workplace Safety and Insurance Act (WSIA) and advised that their benefits were going to be reduced to 50% two weeks from the date of the July 24, 2023 letter. The CM cited that the worker had left the country without reporting this and was not participating in health care or return-to-work obligations. The letter also noted that the worker had left the country to obtain treatment that was not pre-approved by the Workplace Safety and Insurance Board (WSIB).

On September 28, 2023, the NC considered the worker’s request for reimbursement of their out-of- pocket medical expenses for a magnetic resonance imaging (MRI) scan and lower back surgery that the worker had while in Country A. The reimbursement was denied on the basis that this treatment required pre- authorization by the WSIB, and this was not obtained or previously requested.

On September 29, 2023, the CM clarified that entitlement to the worker’s lower back was for an aggravation of the worker’s pre-existing disc bulge at L5-S1 under policy 15-02-04 Aggravation Basis.

On November 7, 2023, the CM denied entitlement to the surgical procedure the worker had on July 9, 2023 in Country A, citing that it was not necessary or appropriate health care for treatment of the worker’s lower back injury, as the surgery had not been recommended by any of their health professionals. The CM also denied entitlement to post-surgical facet syndrome stating this was caused by the surgery that was not approved as a part of the entitlement in the claim.

The matter before me is to determine if the worker is entitled to be reimbursed for the cost of their health care expenses incurred while in Country A.

AUTHORITY

Operational Policy Manual

Published

17-01-04 Health Care Outside Ontario

June 1, 2023

ANALYSIS

I have carefully considered all the available information, legislation and relevant operational policies in reaching this decision. The worker’s objection is denied. I find the worker is not entitled to reimbursement for their out-of-pocket expenses for the testing and treatment they received while out of the province of Ontario.

The worker argues that they obtained health care in Country A because they were not receiving treatment in Ontario that was addressing their pain, or able to obtain a magnetic resonance image (MRI) fast enough. The worker said they took it upon themselves to go to Country A to get examined and were able to be seen at a private hospital right away. The worker said they were told they had a herniated disc and other disc issues that required immediate surgery and that without the surgery they may have been paralysed.

Preliminary Issue

The decision before me relates only to the reimbursement of medical expenses for health care obtained out of the province. I make no findings regarding whether surgical entitlement is allowed based upon the worker’s accepted entitlement in this case; it would be outside of my scope to address this as the decisions dated September 29, 2023 and November 7, 2023 are not before me.

Findings

Policy 17-01-04 Health Care Outside Ontario states:

The WSIB expects Ontario workers to receive health care in Ontario. However, there may be situations when workers are entitled to emergency or elective health care outside Ontario as a result of a work-related injury or an occupational disease. If the WSIB approves such care, it is provided and paid for at a rate that the WSIB determines is proper and reasonable.

The policy goes on to explain that emergency health care “is the initial treatment a worker requires immediately following an accident or the recurrence of an injury or occupational disease.” Emergency health care is meant to address circumstances when a worker may be in the course of their employment while working out of the province and sustains a workplace injury, or suffers a recurrence of a workplace injury while out of province, and requires immediate medical treatment. I do not find that either scenario is applicable in this case.

While the worker argues that they sought medical attention because they could not obtain treatment and testing fast enough in Canada, I find the file evidence does not support this. I turn to the file medical information from the worker’s family doctor dated June 27, 2023 that states, “a couple of months ago bought plane ticket to go away- next week- will be in Country A, wondering about trip with all this pain.” Based upon this, I find that there was no emergent reason the worker was flying to Country A for the sole purpose of obtaining further emergency medical attention, noting they had bought their plane ticket a few months prior.

The notes on file from the medical information obtained from Country A dated July 8, 2023 states: Low back pain, pain that radiates to the left leg.

The back pain, which was intermittent seven months ago, intensified in the last 1 month and

started to hit [their] legs. [They] cannot walk long distances. [They] had pain when turning left and right while lying down. [They] woke up in the morning with pain. There was tingling in the legs.

The medical information provides no indication that the worker was suffering from an emergent condition that required immediate surgery to avoid being paralysed while in Country A as the worker suggested.

I find the worker’s treatment in Country A falls into the category of elective health care and the policy defines elective health care as “treatment that can be scheduled in advance.” The policy is clear on out of province elective health care being pre-approved and states:

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.

As I find the worker’s health care was not emergent while in Country A, and was elective, the worker’s treatment must (my emphasis added) get approval before going for treatment. The worker did not do this at any point prior to leaving for Country A.

The worker is an Ontario resident, and the policy further explains that for Province of 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:

o the possibility of significant deterioration

o 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-of-province 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.

This worker is an Ontario resident, and I find there is no evidence that the worker required health care that was only available outside of Ontario. There is also no indication that the worker was at risk by travelling a longer distance or that waiting a longer period of time for treatment in Ontario, was putting them at risk for significant deterioration or that there was an increased chance of permanent injury. The WSIB also does not have a negotiated service agreement with Country A, and there is no evidence that it was reducing claim costs or facilitating an earlier return to work.

The worker was referred for an MRI by their health professional after having an x-ray and computed tomography (CT) scan on June 11, 2023 in Ontario. The worker was showing no signs of cauda equina when they were assessed by the emergency room doctors on June 9, 11 and 23, 2023, or when assessed by their physiotherapist on June 22, 2023, or by their family doctor when assessed on June 12, 20, 27, 2023. The worker was consistently diagnosed with sciatica or discogenic pain down their legs and was referred for the appropriate treatment by their doctor for physiotherapy, pain management with medication, and was advised to remain off work to rest. The worker was advised by their family doctor that their symptoms could take up to 12 weeks to resolve.

Based upon the facts of this worker’s circumstances, I find the worker had planned a trip to Country A a few months prior to their accident, and they chose to still go there after their accident. I do not find that this trip was for the sole purpose of obtaining emergency medical care that was not available in Ontario. I also find no evidence that the worker was treated on an emergency basis while they were in Country A as their symptoms and presentation were essentially the same. The worker was experiencing and reporting extreme pain levels prior to leaving Ontario and flying to Country A. I find the criteria to allow reimbursement of the worker’s health care expenses while in Country A has not been met under policy 17-01-04 Health Care Outside of Ontario.

CONCLUSION

The worker’s objection is denied. The worker is not entitled to be reimbursed for their medical expenses incurred while in Country A.

DATED January 12, 2024

Suzanne Flannery Appeals Resolution Officer Appeals Services Division