Decision #18/10 - Type: Workers Compensation
Preamble
A file review was held on January 14, 2010 to consider the issues under appeal.Issue
Whether or not the psychiatrist’s fee for services should be covered;
Whether or not the worker is entitled to reimbursement of medical aid expenses associated with treatment of his physical condition as a sequela of his compensable psychological condition; and
Whether or not the worker is entitled to travel expenses for appointments prior to July 3, 1985.
Decision
That the psychiatrist’s fee for services should be paid only in relation to his medical report dated February 23, 2004;
That the worker is not entitled to reimbursement of medical aid expenses associated with treatment of his physical condition as a sequela of his compensable psychological condition; and
That the worker is entitled to mileage and parking expenses in relation to psychiatric appointments he attended prior to July 3, 1985 as outlined in the case manager’s summary of November 5, 2008.
Decision: Unanimous
Background
During the course of his employment on August 24, 1959, the worker was struck on the top of his head by a “catching bar” that weighed approximately 200 pounds. File records showed that the worker was diagnosed with a hematoma but later complained of a number of symptoms such as recurrent and persistent headaches, vertigo, leaking eyes, and pain in his cervical spine, upper chest, arm and back. It was eventually accepted that the worker was suffering from a psychoneurosis and this was causally related to the workplace injury. The worker was awarded a 50% neurosis impairment retroactive to 1972, which was the date that legislation was passed recognizing compensability of a psychological condition.
The worker is presently appealing a number of decisions that were made by Review Office of the WCB, with the assistance of legal counsel. The following background will therefore only encompass specifics in regard to the three issues under appeal:
Issue 1: Whether or not the psychiatrist’s fee for services should be covered:
On June 19, 2007, an appeal panel hearing took place to consider an issue related to the worker’s entitlement to vocational rehabilitation benefits beyond February 28, 1985. In attendance at the hearing as a witness was the worker’s treating psychiatrist whom the worker arranged to have present. On July 27, 2007, the psychiatrist issued an invoice for $1,500.00 to the worker’s legal counsel “for professional services rendered in this matter.” The invoice was paid for by the worker. Under Appeal Commission Decision No. 106/07, the appeal panel overturned the decision made by the WCB’s Rehabilitation Committee dated July 22, 1985 and determined that the worker was entitled to vocational rehabilitation benefits due to his compensable psychological condition.
In a letter to the WCB dated July 7, 2008, the worker’s legal representative asked the WCB to reimburse the worker for the costs associated with the psychiatrist’s fee to attend the June 19, 2007 hearing as he provided “viva voce evidence” which was used by the Appeal Commission in overturning the Rehabilitation Committee’s decision of July 22, 1985. This request was based on subsection 27(11) of The Workers Compensation Act (“The Act”) and Policy 42.20.30 Medical Reports.
On November 12, 2008, a WCB case manager denied the request to reimburse the worker for the costs he incurred in association with the psychiatrist’s attendance at the appeal panel hearing. The case manager indicated that section 22(11) was the relevant section of the Act that was in place at the time of the worker’s accident in 1959. She indicated that the intent of the section was essentially unchanged (from 27(11)) and only addressed the ability of the WCB to pay for medical reports. She noted that WCB Policy 42.20.30 spoke to situations where the WCB would pay healthcare professionals for completion of prescribed forms of medical or narrative reports.
After reviewing the relevant Act and policies, the case manager determined that the services provided by the psychiatrist were not considered a medical report and therefore the costs of his testimony could not be paid under WCB Policy 42.20.30. The case manager stated that the psychiatrist’s testimony did not provide any new information but was a summary of the information previously submitted for consideration. On November 12, 2008, the worker appealed the case manager’s decision to Review Office.
On November 27, 2008, Review Office confirmed that the psychiatrist’s fee for services should not be covered. Review Office stated that WCB Policy 42.20.30 detailed when the WCB paid for medical reports and it did not speak to “viva voce evidence” but only to “prescribed forms of medical or narrative reports”. Review Office felt that the psychiatrist’s verbal testimony did not meet this test.
Further, Review Office was of the view that the psychiatrist’s testimony or reports did not provide “new and relevant information”. In support of its position, Review Office referred to the following text found in appeal panel decision no. 106/07:
“As stated by the psychiatrist at the hearing, as well as the psychiatrist retained by the WCB in 1983,… .”
“this work history was, as previously noted, commented upon by both psychiatrists, the first as early as 1983.”
“the only medical evidence that we have before us that explains what happened is that of the 1983 report of the psychiatrist and the 2004 report and testimony of the psychiatrist that performed the medical examination. These reports indicate that the worker’s psychological condition caused him to complain of physical pain that impacted his attachment to the workforce; sometimes he could cope, other times he could not – simply, the psychological condition waxed and waned, allowing for greater or lesser participation.”
Issue 2: Whether or not the worker is entitled to reimbursement of medical aid expenses associated with treatment of his physical condition as a sequela of his compensable psychological condition.
In light of Appeal Commission Decision No. 106/07, the worker’s legal representative submitted that the worker was entitled to medical aid expenses associated with treatment related to his workplace accident. Enclosed with the submission were various receipts and invoices for consideration. On March 14, 2008, it was determined by the case manager that the WCB was unable to accept responsibility for any of the invoices or receipts that were submitted, as it was felt that these invoices related to the worker’s physical ailments as opposed to his compensable psychological condition. The case manager noted that the Board of Commissioners’ decision of February 11, 1975, determined that the worker had no continuing physical disability as a result of his at work accidents and that this decision remained in effect. It was indicated that the appeal panel’s 2007 decision was limited in scope to whether or not the worker was entitled to vocational rehabilitation benefits beyond February 28, 1985 due to his compensable psychological condition. On March 27, 2008, the solicitor provided the WCB with a further submission to support his position that the worker was indeed entitled to medical aid and expenses back to 1959.
In a May 6, 2008 decision, the case manager confirmed that the worker was not entitled to reimbursement of expenses incurred in relation to medical treatment and or appliances back to 1959. With regard to medical aid between 1959 and 1987, the case manager noted that the handwritten sheets detailing expenses from 1969 to 1987 were previously provided to the WCB in 1987 and had been denied by primary adjudication and Review Office under Order No. 42/88. If the worker wished to challenge the Review Office’s decision, he could still do so as that issue had not been appealed to the Board of Commissioners.
With regard to medical aid from 1988 to the present, the case manager noted that the worker provided receipts for medical treatment received and appliances purchased by him but he had incurred these expenses without the prior approval of the WCB. The case manager stated that the provision of medical aid was discretionary and would only be provided to the extent the WCB considered it reasonably necessary to “cure and relieve from the effects of the injury.” She noted that most of the expenses that were submitted were for non-prescribed treatments and there was no evidence to suggest that any of the treatment undergone by the worker was reasonably necessary to “cure and relieve from the effects of the injury.”
The case manager stated that the WCB accepted responsibility for the worker’s psychological condition and that he may be entitled to medical aid on a go-forward basis if it was reasonably necessary to “cure and relieve from the effects of the injury.” On May 14, 2008, legal counsel appealed this decision to Review Office.
In a decision dated July 22, 2008, Review Office determined that the worker was entitled to reimbursement of the following medical aid expenses:
· the usual expenses associated with referrals that were made by the WCB (“this may have already been done”); any appointments the worker had with mental healthcare professionals; and appointments made with his general practitioner for treatment of his psychological condition.
· the cost of prescriptions associated with treatment of the worker’s psychological condition. Prescription costs associated with treatment of the worker’s physical complaints would not be covered.
· the costs related to the worker’s trips to the pharmacy for any purpose would not be covered. The costs and/or expenses would not be covered for ambulance trips, chiropractic treatment, massage therapy, over the counter medication, taxis, a shoe horn, orthotics, shoes, visits to the legislature, etc.
· “Regarding the concern that there is not complete documentation for some expenses which Review Office has allowed, Review Office directs that this be set aside if the request is considered to be reasonable. By way of an example, a $1.00 parking fee likely is reasonable, a $20.00 one likely is not.”
Review Office felt that its decision was consistent with the applicable policy and practice as well as the Act as articulated in the May 6, 2008 case manager’s letter.
Issue 3: Whether or not the worker is entitled to travel expenses for appointments prior to July 3, 1985.
On November 5, 2008, the case manager advised the worker that based on Review Office’s decision, the WCB was accepting responsibility for the usual expenses associated with treatment of his psychological condition. The case manager confirmed that between 1961 and 1983 the worker attended four different physicians and had various appointments at the WCB’s office. The case manger stated the WCB had no provision for payment of travel expenses prior to the establishment of WCB Board Order 104/85 which provided in part that payment of travel expenses for medical treatment related to a workplace injury was appropriate on or after July 3, 1985. Given that all the eligible appointments occurred before July 3, 1985, the WCB was unable to issue travel costs associated with his psychological treatment. The worker was advised that the WCB was able to identify 3 prescriptions which were related to his psychological condition and that a cheque for these expenses would be issued under separate cover. On November 17, 2008, the solicitor appealed this decision to Review Office, stating that the case manager’s decision was contrary to Review Office’s Order No. 432/2008.
On November 27, 2008, Review Office determined that the worker was not entitled to travel expenses for appointments prior to July 3, 1985. In its decision, Review Office stated that when it made its previous decision, it did not turn its mind to details such as the dates of the worker’s appointments. Review Office quoted the following text from appeal panel decision No.106/07:
“The only currently compensable condition that as been accepted by the WCB is a psychological condition, variously described as a psycho-neurosis or post-traumatic neurosis, which was finally accepted by the WCB’s Board of Commissioners in 1983. This condition was rated for the purposes of a Permanent Partial Disability (as defined by the legislation at that time) at 50%. Although evidence of the psychological condition was noted to be present at least as far back as 1961, the award was made retroactive only to 1972, when amendments to the Act first allowed for psychological conditions to be compensated by the WCB. (emphasis added)
On January 27, 2009, legal counsel disagreed with the decisions reached by Review Office on July 22, 2008 and November 27, 2008 and an appeal was filed with the Appeal Commission.
On June 2, 2009, the worker’s legal representative wrote to the Appeal Commission’s Registrar to clarify the issues that he wanted the appeal panel to address. It was later confirmed by the Registrar that the issue outlined by legal counsel, (i.e. whether or not the worker is entitled to reimbursement of medical expenses associated with the treatment of physical condition as a sequela of his compensable psychological condition which determination is inclusive of whether or not the worker is entitled to travel expenses for appointments both before and after July 3, 1985”) would be separated into two separate issues. A file review was then held on January 14, 2010 to consider the appeal.
Reasons
There are three issues being appealed. Each will be addressed separately.
1. Whether or not the psychiatrist’s fee for services should be covered.
The worker is represented by legal counsel in advancing his appeal. The submission from legal counsel dated January 27, 2009 indicates that the sum of $1,500.00 is being requested by the worker from the WCB for: “Costs he has incurred in obtaining (the psychiatrist’s) medical reports dated February 23, 2004 and November 28, 2005 along with his expert testimony all of which was relied upon by the Appeal Commission of the Workers Compensation Board of Manitoba in its Decision No. 106/07 dated August 10, 2007.” Legal counsel relies on section 22 of The Workmen’s Compensation Act, R.S.M. 1954, c.297 (the “1959 Act”), which is the workers compensation legislation in place at the time of the workplace accident in February 1959. Subsection 22(1) of the 1959 Act provides as follows:
22(1) In addition to the other compensation provided by this Part, the board may provide for the injured workman such medical, surgical, and hospital treatment, transportation, nursing, medicines, crutches, and apparatus including artificial members, as it may deem reasonably necessary at the time of the injury, and thereafter during the disability, to cure and relieve from the effects of the injury; and the board may adopt rules and regulations with respect to furnishing medical aid to injured workmen entitled thereto, and for the payment thereof.
The panel agrees that the medical aid contemplated by section 22 of the 1959 Act may include payments to healthcare professionals for medical information used to adjudicate the worker’s claim. The guidelines as to when such fees will be paid by the WCB to healthcare professionals are set out in policies established by the board of directors of the WCB.
Legal counsel refers to costs of obtaining medical reports and costs of expert testimony given at the hearing. With respect to the medical reports, WCB Policy 42.20.20 Medical Reports (the “Medical Reports Policy”) provides as follows:
The WCB will pay for unsolicited medical or narrative reports submitted by workers, their representatives, or their dependents during the course of a reconsideration or appeal where the reports add new and relevant information that is useful in making an adjudicative decision. The WCB will pay for such reports regardless of the outcome of that decision. The WCB will not pay for an unsolicited medical or narrative report if it is a summary or a reconstitution of existing medical evidence or contains no new information of value to the adjudicative process. The amount paid for unsolicited medical or narrative reports that meet these criteria will be the same as paid for reports directly requested by the WCB.
In the present case, the medical reports from the psychiatrist dated February 23, 2004 and November 28, 2005 were unsolicited. Accordingly, in order for the WCB to accept responsibility for payment of these reports, the reports must have added new and relevant information that was useful in making an adjudicative decision.
In the panel’s opinion, the reports did add new information. The last significant psychological opinion on file was dated June 13, 1983, which was over 20 years earlier. The reports for which the worker is claiming reimbursement constituted expert medical opinion from a different medical specialist who interviewed the worker and provided an updated diagnosis based on psychiatric diagnostic nomenclature which was not previously developed. Although there was some overlap with previously existing medical evidence, there was certainly new information of value to the adjudicative process.
With respect to relevance, the panel finds that only the content of the medical report dated February 23, 2004 was relevant to the Appeal Commission hearing and subsequent adjudication. The November 28, 2005 report simply restates the opinion outlined in the February 2004 report, then addresses the issue of the percentage of impairment caused by the worker’s disability. As this issue was not addressed by the Appeal Commission, the November 2005 report did not provide any relevant information to the appeal panel.
As a result, the panel finds that the worker is entitled to reimbursement for the cost of the psychiatrist’s February 23, 2004 report. As per the Medical Reports Policy, the amount paid for the report will be determined in accordance with the established fee schedule used for payment of narrative medical reports directly requested by the WCB. The fee schedule used to calculate the amount paid shall be the version in place at the time when the report was prepared in February 2004.
The $1,500.00 claimed by the worker is also stated by legal counsel to be incurred with respect to expert testimony given by the psychiatrist at the June 2007 Appeal Commission hearing. The guidelines for payment of witness fees are outlined in WCB Policy 21.10.40, Expenses for Attendance at Appeal Hearings (the “Attendance Expenses Policy”), which states as follows:
6. Expert witnesses appearing at the request of the Chief Appeal Commissioner or an appeal panel will be reimbursed on the basis of the fee structure developed by their professional association or reasonable equivalent.
Unlike the policy for medical reports, the Attendance Expenses Policy makes no provision for payment of an “unsolicited” expert witness. There is only authority to pay expert witnesses who appear at the request of the Chief Appeal Commissioner or an appeal panel. As there was no such request made to the psychiatrist, there is no authority for the WCB to reimburse the worker for the costs of having the psychiatrist attend the hearing as an expert witness.
We therefore find that the worker is entitled to reimbursement for the psychiatrist’s February 23, 2004 narrative report according to the fee schedule in place at the time it was written. The worker’s appeal on this issue is allowed in part.
2. Whether or not the worker is entitled to reimbursement of medical aid expenses associated with treatment of his physical condition as a sequela of his compensable psychological condition.
In order for the worker’s appeal on this issue to be successful, the panel must find that the medical aid expenses for which the worker is claiming reimbursement were incurred to cure and relieve from the effects of the worker’s psychological injury. On a balance of probabilities, we are not able to make that finding.
At the outset, the panel notes that we are bound by the previous decision of the Board of Commissioners in 1983 which stated: “He originally suffered from an organic injury from which he recovered.” The Board of Commissioners went on to determine that the worker did continue to suffer from a psychoneurosis which was related to the workplace accident, but it is important to note that they found that he had no residual physical injury from the 1959 accident. The panel must therefore examine this issue only as it relates to physical complaints which are not generated by any anatomical derangement, ie. complaints which are purely psychosomatic in nature.
Legal counsel, by letters dated December 6, 2007, December 13, 2007 and January 28, 2008, provided the WCB with medical aid expenses which the worker claims were reasonably necessary to cure and/or relieve him from the effects of his compensable psychological injury. The general nature of the expenses includes (but is not limited to) the following:
· Payment of drug expenses from as early as 1973;
· Mileage and parking expenses since 1959 for attendances at medical appointments (doctor, chiropractor, physiotherapy), pharmacies, the WCB, the Legislature, and job opportunities;
· Chiropractic appointments (since 1992);
· Massage therapy appointments (since 2002);
· Physiotherapy appointments (since 1997);
· Acupuncture (2005);
· A treadmill;
· Medical appliances, including a head halter, ice cane support, support belt, orthopedic footwear and knee brace;
· Taxi fees;
· Ambulance fees; and
· Expenses associated with a trip to the Mayo Clinic.
The difficulty the panel has with the expenses claimed is that the worker is essentially claiming a lifetime of medical expenses which may or may not have been related to his psychological disorder. Legal counsel argues that the Pain Disorder which the psychiatrist diagnosed in the worker caused him to experience physical symptoms that do not have an organic basis. The types of physical symptoms listed by legal counsel include persistent headaches, vertigo, neck pain, chest pain, pain in his arm, pain in his back, and nervousness. According to the psychiatrist’s evidence given at the Appeal Commission hearing, these symptoms and the psychological condition would have waxed and waned throughout the years.
It is known, however, that the worker did also suffer from actual physical ailments which could also have generated the symptoms which required the medical aid claimed, including osteoarthritis, a motor vehicle accident in 1983, open heart surgery in the 1990s and an angioplasty in 2004. These are all conditions which may have triggered the need for the medical aid claimed by the worker and it is possible that the expenses were, in fact, related to these non-compensable conditions.
In his submission, legal counsel referred the panel to medical reports prepared by the worker’s massage therapist (dated June 26, 2007) and chiropractor (dated November 10, 2003). The panel has reviewed the reports and finds that neither supports the position that the treatment they provided the worker was related to the sequelae of his psychological injury. In fact, both practitioners refer to a physiological basis for their treatment, with the massage therapist indicating vertebral and scapular dysfunction due to tight tissue, and the chiropractor relating the worker’s condition to cervical spinal injury consistent with blunt trauma to the head. As noted earlier, we are bound by the Board of Commissioners’ determination that the worker had experienced a complete recovery from his physical injuries from the 1959 accident.
Overall, we find that there is insufficient evidence to satisfy us on a balance of probabilities that the medical aid expenses claimed by the worker are related to the physical sequelae of his compensable psychological condition. It is therefore our decision that the worker is not entitled to reimbursement for the medical aid expenses claimed. The worker’s appeal on this issue is denied.
3. Whether or not the worker is entitled to travel expenses for appointments prior to July 3, 1985.
By Review Office decision dated July 22, 2008, the WCB determined that it would accept responsibility for the usual expenses associated with treatment of the worker’s psychological condition. In a letter dated November 5, 2008, the case manager prepared a summary of the worker’s medical appointments to psychological practitioners. The summary encompasses attendances from 1961 to 1983. The case manager declined to pay any travel expenses associated with these attendances on the grounds that all of the eligible appointments occurred prior to the establishment of WCB Board Order 104/85 on July 3, 1985 and as such, there was no authority to pay for such expenses. This rationale was upheld by the Review Office by decision dated November 27, 2008.
The panel does not agree with the WCB’s interpretation of the effect of Board Order 104/85. In our opinion, while Board Order 104/85 formalized the WCB’s approach towards payment of travel expenses from July 3, 1985 onwards on a go-forward basis, the creation of Board Order 104/85 did not necessarily prohibit payment of travel expenses for the period prior to July 3, 1985. In fact, the discussion paragraph included in Board Order 104/85 reads as follows:
Discussion
For many years the Workers Compensation Board had made reimbursement to claimants for the cost of transportation when the claimant was required to attend for treatment of a medical program as a result of a compensable accident. This reimbursement included either bus fare, or, where a claimant was unable to use that mode of transportation, taxis or mileage allowance and parking costs should the claimant have had to utilize their own vehicle.
The panel interprets this to mean that prior to July 3, 1985, travel expenses were, in fact, paid to workers on an ad hoc basis, depending upon the circumstances. We do not think that payment of travel expenses prior to July 3, 1985 is precluded by Board Order 104/85 and the panel finds that travel expenses should be paid to the worker in respect of his medical attendances for psychological treatment between July 11, 1972 and 1983, as per the summary of attendances set out in the case manager’s letter of November 5, 2008. July 11, 1972 was the date upon which legislation was passed recognizing the compensability of a psychological condition related to employment and was the effective date for payment of WCB benefits to the worker for his psychological condition.
Although the discussion paragraph in Board Order 104/85 contemplates reimbursement of travel expenses based on the cost of bus fare, we are prepared to allow the worker mileage and parking at a rate which is consistent with the rates in place at the time the expense was incurred. Reimbursement for mileage should be based on the full distances calculated by the case manager in her letter of November 5, 2008, at the WCB mileage rate in place at the time of each attendance. With respect to parking, the worker has requested $3.25 for each appointment. However, this rate for parking would reflect a current rate. The worker is only entitled to receive reimbursement for parking at the rate which was charged at the time of the appointment. If this information is no longer available, the panel directs that the worker is to be allowed an amount which would reasonably reflect the actual cost of parking at the time.
The worker’s appeal on this issue is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 26th day of February, 2010