Decision #77/18 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to travel expenses to attend physiotherapy treatment in Winnipeg. A hearing was held on April 10, 2018 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to travel expenses to attend physiotherapy treatment in Winnipeg.
Decision
That the worker is not entitled to travel expenses to attend physiotherapy treatment in Winnipeg.
Background
The worker filed a Worker Incident Report for a right shoulder injury with an incident date of January 2, 2012. The worker described his injury as being the result of the "Repetitive use of my right shoulder" over several years at work. The worker's claim was accepted and payment of wage loss and other medical aid benefits commenced.
On August 20, 2012, the worker underwent a right shoulder arthroscopy, glenohumeral debridement, biceps tendon debridement, subacromial decompression, distal clavicle excision and rotator cuff repair.
On October 3, 2012, the worker attended an initial physiotherapy assessment and physiotherapy treatments were authorized.
Due to ongoing issues with pain and continuing symptoms with the worker's right shoulder, further surgery was proposed. On June 28, 2013, the worker underwent a second surgical procedure, consisting of a right shoulder arthroscopy, debridement, lysis of adhesions, and revision repair right rotator cuff tear.
On July 24, 2013, the worker attended a further physiotherapy assessment in his home location. On August 1, 2013, the worker attended a second assessment with a physiotherapist in Winnipeg.
On August 6, 2013, the WCB authorized travel expenses for the worker to travel to Winnipeg for physiotherapy appointments on August 8 and 12, 2013. Travel expenses for an August 19, 2013 physiotherapy appointment in Winnipeg were subsequently also authorized.
By letter dated August 29, 2013, Compensation Services advised the worker that travel expenses to attend physiotherapy treatments in Winnipeg were not approved. Compensation Services determined that as physiotherapy was available in the worker's home location, attending for therapy in Winnipeg was not the most cost effective alternative.
On April 15, 2014, the worker's union representative requested reconsideration of the WCB's August 29, 2013 decision by Review Office. On May 16, 2014, Review Office determined that there was no entitlement to travel expenses for physiotherapy treatments in Winnipeg. Review Office found that the travel to see a physiotherapist in Winnipeg as opposed to seeing a physiotherapist in the worker's home location was not necessary. Review Office noted that the type of treatment the worker was receiving in Winnipeg was just one of a number of types of treatments performed by physiotherapists, and there was no medical evidence that this particular type was any better or worse than any treatment the worker was receiving in his home location. Review Office also found that the worker's lack of progress with this particular type of treatment was itself evidence that it was not any better.
On May 26, 2017, the worker's representative appealed Review Office's decision to the Appeal Commission, and an oral hearing was arranged.
Reasons
Applicable Legislation and Policy
The worker is seeking payment of travel expenses to attend physiotherapy treatment in Winnipeg.
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors.
Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid.
The payment of compensation for medical expenses falls under the heading of Medical Aid.
Subsection 27(1) of the Act provides as follows:
Provision of medical aid
27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.
WCB Policy 44.120.10, Medical Aid (the "Policy"), sets out a coordinated approach to delivery of medical-aid services to injured workers. As it relates to payment of expenses to attend for medical treatment, the Policy provides, in part, as follows:
3. Expenses
a. Expenses Incurred to Attend Compensable Medical Treatment
i) The WCB will reimburse an injured worker's actual reasonable expenses related to travelling to medical treatment (wage-loss, travel, accommodations, meals and reasonable telephone charges) which are in excess of costs normally incurred by the worker while travelling to and from work.
…
iii) All travel reimbursements should be based on the most cost-effective alternative and take account of the injured worker's medical functioning level.
Worker's Position
The worker was represented by a union representative who made a presentation on the worker's behalf. The worker responded to questions from his representative and the panel.
The worker's position was that he was entitled to travel expenses to attend physiotherapy treatment in Winnipeg as this was the best treatment for him, and his appeal should be allowed.
The worker's representative submitted that the physiotherapy treatment which the worker received in Winnipeg was not available in his home location. Arrangements were made for the worker to attend a facility in Winnipeg which would provide the best physiotherapy for him. He attended four sessions in Winnipeg in August 2013, and the WCB paid his travel expenses to attend for those treatments, as well as the cost of the sessions. The WCB subsequently concluded, however, that it would be cheaper for the worker to receive treatment in his home location. The representative submitted that this was clearly the deciding factor in the WCB not paying the worker's travel expenses.
It was submitted that the WCB's decision is contrary to what his orthopedic surgeon and physiotherapist believe. His orthopedic surgeon referred the worker for special treatment. He suggested the worker attend the Winnipeg facility as he believed it was the best place for him. His treating physiotherapist similarly stated in her letter dated September 30, 2013 that "I feel strongly that it is necessary that [the worker] attend physical therapy at [facility] in Winnipeg. I have extensive experience and knowledge with respect to shoulder rehab, particularly complex cases such as this one." The worker believed that he should be getting the best treatment available to him and the Winnipeg facility was the best place for him.
The worker's representative submitted that while the physiotherapists in the worker's home location are adequate for certain things, the worker was responding well to treatment in Winnipeg. He made nine trips to Winnipeg to attend physiotherapy appointments between September and November 2013. He paid all of his travel expenses for those trips, and is asking to be reimbursed for those expenses.
Employer's Position
The employer did not participate in the appeal.
Analysis
The issue before the panel is whether or not the worker is entitled to travel expenses to attend physiotherapy treatment in Winnipeg. For the worker's appeal to be successful, the panel must find that the requested travel expenses satisfy the requirements of the Policy. The panel is not able to make that finding.
Based on our review of the information on file and as presented at the hearing, the panel finds that there is little or no medical support or rationale to support that it was necessary for the worker to come to Winnipeg for the treatment which was being sought.
The panel notes that in his letter to the worker's family physician dated July 22, 2013, the treating orthopedic surgeon wrote that the worker:
…is not particularly happy about the physio process up here, so he is to start tomorrow to see…whether WCB might let him stay in Winnipeg and get his physio conducted at [facility]. I will put in a requisition for this and in the meantime he is to try and keep his shoulder moving as best as he can...
The panel finds that the evidence shows the worker's orthopedic surgeon was supportive of the worker's wishes, but did not point to any specific or unique treatment modalities to support the requisition for physiotherapy treatment in Winnipeg.
The worker's evidence at the hearing was that he had attended an assessment and a few physiotherapy sessions in his home location following the second surgery before continuing his treatment in Winnipeg. The worker confirmed at the hearing that the physiotherapist in Winnipeg continued with treatment which was similar to what he received after the first surgery.
The panel carefully questioned the worker at the hearing with respect to any differences in the treatment he was receiving in Winnipeg for his compensable injury as compared to what he had received previously. The worker said that after a few sessions, his treating physiotherapist recommended that he also do acupuncture, which was done by a second therapist. The worker said that the acupuncture provided some relief from the pain. While the worker suggested that the physiotherapy in Winnipeg was different from that in his home location, he was unable to provide examples of any differences other than the acupuncture.
The panel further finds that the evidence does not indicate that the treatment which had been provided by the physiotherapist in his home location following the first or second surgery or that was available or could be accessed in his home location was not appropriate.
In conclusion, based on our review of all of the information which is before us, the panel is unable to find that the worker's travel expenses to attend physiotherapy treatment in Winnipeg were reasonable or that treatment in Winnipeg, as opposed to treatment in the worker's home location, was required. The panel finds that travelling to attend physiotherapy treatment in Winnipeg was not the most cost effective alternative, and that the requested travel expenses do not satisfy the requirements of the Policy.
As a result, the panel finds that the worker is not entitled to travel expenses to attend physiotherapy treatment in Winnipeg.
The worker's appeal is dismissed.
Panel Members
M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 8th day of June, 2018