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HomeMy WebLinkAboutGardner 07-07-03 .. . BETWEEN: IN THE MATTER OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT THE OTTAWA HOSPITAL ("the Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 464 ("the Union") GRIEVANCE RE KIMBERLEY GARDNER AWARD CHAIR: BARRY STEPHENS EMPLOYER COUNSEL: VICKY SATTA - Emond Harnden UNION COUNSEL: ALISON DEWAR - Raven, Cameron, Ballantyne & Yazbeck Hearing held in Ottawa, Ontario, on November 16, 2006, March 19 and 20, 2007 AWARD Introduction The grievor works as a Nuclear Medicine Technologist at The Ottawa Hospital. At a young age she lost a leg to cancer, and over the years has maintained mobility with the use of a prosthetic leg. The leg that she has been using for some time is referred to as the "Four Bar". Recently, however, the grievor's medical advisors have recommended she switch to a different type of prosthetic leg, referred to as the "C-Leg". The C-Leg offers more advanced technology. However, the C-Leg is considerably more expensive, and the employer's benefit administer, Coglin & Associates, has denied the expense for the C-Leg as not fitting within the range of compensable products covered by the employer's benefit plan. The union and the grievor challenge the decision, and seek an order that the employer is required to pay for the purchase of the C-Leg. Evidence The grievor testified that the Four Bar leg does not allow her the confidence to move about without fear of falling, whether at work or while engaged in activities outside work. The Four Bar consists of a hinged joint made up of four bars, and, if the proper weight is not placed on the leg, it is prone to buckle, which can cause the grievor to fall. This is particularly problematic for her since the residual portion of her amputated leg is short, and cannot generate the muscular power to control the Four Bar leg. As a result, the grievor is required to use her back and hips to move the leg. She testified that if she walks slowly and concentrates she can avoid problems with the leg buckling and collapsing back on itself. In spite of her efforts, she estimates that she falls or trips a few times per month, often injuring herself. The problems with the Four Bar leg are increased on uneven or slippery surfaces. The grievor has been receiving medical advice and treatment from Dr. Meredith Marks. The artificial legs wear out over time, and when it came time to consider a replacement in 2004, Dr. Marks prescribed the C-Leg. The grievor's prosthetist, Craig Smith, advised her that most insurance companies deny the claim for the C-Leg due to the cost but that, if the claimant fights, the claim can be approved. Mr. Smith testified as an expert witness in prosthetics. He has been working with the grievor since 1997. He described himself as a specialist in above-the-knee amputations. He stated that a "routine" leg amputation occurs approximately 10 centimeters above the knee joint, whereas the grievor's amputated leg is much shorter. The difference is that, the longer the residual leg, the more power the individual maintains in the leg to control the prosthetic leg. He described the Four Bar as a multi-axis knee joint which has been on the market for some time, adding it was appropriate for smaller communities, as it requires less maintenance than a more sophisticated device. 2 Mr. Smith testified that the C-Leg has been in use since approximately 1998. It has a computer control built into it to regulate the movement of the leg to prevent locking and falling. He stated that the C-Leg was not for everyone, as it requires some ability to learn its function. However, for those able to learn, the C-Leg reduces the risk of falling, to the point where the risk is not much greater than that of an individual without a prosthetic leg. Mr. Smith said that the nature of the grievor's amputation made it more difficult for her to control the Four Bar, and that she fits within the profile of individuals who would benefit from the use of a C-Leg. Mr. Smith stated that the C-Leg has become an industry standard since its introduction, in the sense that it is the preferred option for those who are active, and who can learn how to use it. He added that the cost is the only reason it is not made available to all those who would benefit. He conceded that there is not extensive empirical data supporting the benefits of the C-Leg, but explained that this was a result of the small size of the population that would use the leg, and the difficulty of setting up a study to get control information, since it might involve placing individuals at risk. However, he stated that his own experience, and the experience of others he knows in the field, has amply demonstrated the benefits of the C-Leg for the right individual. He characterized the C-Leg as, "the best and certainly the safest" prosthetic leg available. Mr. Smith estimated he cost for a new Four Bar at approximately $8,200, while the cost of the C-Leg would be approximately $45,000. Mr. Smith produced written estimate of the costs for Coglin & Associates, which included a detailed covering letter explaining why Ms. Gardner was considered a good candidate for 3 the C-Leg. He testified that this letter was, in essence, a pro-active measure, as he was aware that insurers look at cost estimates at around $10,000 to $15,000 for such replacements, and that they might be "startled" by an estimate of almost $50,000 unless advised of the details. Mr. Smith stated that, in his opinion, the costs for the C-Leg are "reasonable and customary" in the sense that they adhere to recognized Assisted Device Program (ADP) fee schedules published by the Ministry of Health and used throughout Ontario. He stated that he is aware of approximately half a dozen cases in which insurers have approved a C-Leg for one of his clients. Mr. Smith provided the following evidence with respect to two clients covered by such claims: · RWAM Insurance Claim- The claim for a C-Leg was approved in 2000. There was no evidence as to the relevant collective agreement, the benefit plan or if the estimate was approved outside the plan, i.e. as an accepted cost that was not covered by the strict terms of the plan. · Sun Life of Canada/Coglin & Associates Claim - This was an approval of a C-Leg under the self-insured federal Public Service Health Care Plan (PSHCP), in which the claimant's spouse was covered by a plan administered by Coglin & Associates, where Coglin approved the expense as co-insurer. The PSHCP plan contains a similar "usual and customary" restriction as is found in the Ottawa Hospital plan. The payment was not approved on an ex gratia or 'outside the plan' basis. The expense for the C-Leg was approved in 2000, and a replacement C-Leg was approved in 2005. Dr. Marks testified as an expert witness. Dr. Marks' practice is focused on prosthetics and amputations, and she has been providing medical care to the grievor since 1988. Dr. Marks stated that the typical amputee is a middle aged male suffering from complications related to diabetes. She also confirmed that the nature of the grievor's amputation makes it more difficult for her to control a 4 prosthetic device. She needs to exert more effort to move the leg and this leads to fatigue, which also contributes to increased risk of stumbling or falling. In addition, the increased force creates greater friction between her leg and the socket of the prosthetic. Dr. Marks characterized the grievor as an active individual who requires a device that can be adapted for multiple activities, and which can provide a greater degree of safety while the grievor is carrying delicate objects at work. In addition, Dr. Marks testified that patients with above the knee amputations, like the grievor, are at risk of developing arthritis in the opposite leg, as well as lower back pain. Joseph Zadzora is a consultant with Coglin & Associates, the company that administers the self-insured Ottawa Hospital benefit plan. He has been working in the insurance industry since 1974. He testified that he was "impressed" when he saw the estimate for Ms. Gardner's claim, as he had never seen a claim for a C-Leg before. He requested more information from Mr. Smith and referred the matter to two outside consultants. Mr. Zadzora stated that the decision to reject the cost of the C-Leg was based on the test set out in the definition of terms in the Ottawa Hospital insurance booklet. He testified that the cost for the C-Leg cannot be considered "reasonable and customary charges" for "services and supplies usually furnished" in cases such as that of the grievor. His evidence was that his review of insurance data indicated that the cost for prosthetic legs ranged between $6000 to $10,000, well below the cost for the C-Leg. In addition to his own company's records, he contacted several large Canadian insurance "'",,'~"~m""""_m""'mm""""'~~_~"_"'mM"~m~~""",~,~,_~'M~"""","",,'"~"",'"'"''~,"'',m''''m"~'m'""'M"""m~'m"~"'"m"'~"m,""W""'''''''''''' 5 carriers, such as Desjardins, and SSQ, all of whom indicated that they cover the Four Bar and would approve the C-Leg only on the basis of an ex gratia payment not required by the insurance policy. Some carriers indicated that they had never dealt with a claim for the C-Leg. In his view, the usual and customary expense in such circumstances is the Four Bar. Mr. Zadzora requested a study of the C-Leg from two medical consultants, Dr. Jennifer Beecker, and Dr. Todd Bentley. Dr. Beecker pointed to the fact that the U.S. Department of Veterans Affairs had developed guidelines for determining circumstances under which the C-Leg would be approved. These guidelines, or roughly similar guidelines, have also been adopted by other organizations, including the British Columbia Worker's Compensation Board, Aetna Insurance, the State of Washington Department of Labour and Blue Cross Blue Shield in Iowa and South Dakota. Dr. Beecker concluded that the C-Leg was not "reasonable and customary" but recommended as follow up that the grievor's claim be assessed under guidelines similar to those developed by the U.S. Department of Veterans Affairs. Dr. Bentley reached similar conclusions. DECISION The parties agree that the relevant language in this grievance is found in the booklet "Your Health & Dental Insurance Plan". The booklet contains three references that must be considered. ....w...w..ww.w......w...wwwwww.Ww..~.~........~....mM.'W,.w".ww'~'w"~~~ww"w'~'m'~m 6 The first reference, on page 16, provides that employees are covered for "eligible expenses for medically necessary services or supplies in the treatment of an illness or injury." The union placed emphasis on this language, arguing that the C-Leg was medically necessary, and thus eligible for reimbursement. In my view, this case does not turn on the question of medical necessity. Quite apart from the fact that the union has not established a case for "medical necessity", since the grievor has been using the Four Bar for a number of years, the language on page 16 requires that the cost for the claim must be an "eligible expense." The phrase "eligible expense" has a specific meaning under the benefit plan and, no page 17, is defined as follows: "Eligible expenses must be reasonable, customary, and recommended by a physician." The union argues that this language simply sets out two further requirements. First, the expense must be approved by a doctor, and there is no dispute that Dr. Marks recommended and approved the C-Leg for the grievor for the reasons already outlined. Second, the expense must be "reasonable" and "customary". The union argues this means only that the expense must conform with some objective or acknowledged price guideline. In this instance, the union reasons, since the cost estimate is based solely on the ADP fee schedule established by the Ministry of Health, the costs should be found to be "reasonable" and "customary". 7 ~, young, active, had an amputation higher above the knee than average, etc., such a claim would arguably fit within the benefit plan definition. Unfortunately for the grievor, the evidence does not go that far. The union has provided examples from Mr. Smith's practice where the cost for the C-Leg has been approved. In addition, the employer's inquiries determined that the C-Leg has been approved by other institutions, including the U.S. Department of Veterans Affairs. However, such evidence does not lead to the conclusion that the C-Leg has become the device that is usually purchased for individuals in the same class as that of the grievor. Mr. Zadzora's evidence was that none of the insurance carriers he has surveyed have approved the C-Leg, that some have never had a claim for the device, and that the charges that are approved for prosthetic legs are in the same range as the cost of the Four Bar. This is consistent with Mr. Smith's evidence that he prepares detailed explanations for claims for the C-Leg as a pro-active measure in order to "prepare" insurance officials who typically see claims for artificial legs costing between $10,000 to $15,000. In my view, the union has not provided sufficient evidence to support a firm conclusion that the C-Leg is approved in most cases for individuals whose medical condition is equivalent in "nature and severity" to that of the grievor. Based on the evidence presented, it can be stated that the C-Leg is gaining acceptance, and that criteria have been developed for approval of the expense in 10 -t some jurisdictions in certain circumstances. However, such evidence does not mean that the C-Leg is a "reasonable and customary" expense, as defined under the Ottawa Hospital benefit plan. I have little doubt that the grievor would benefit from the C-Leg, having heard from Mr. Smith and Dr. Marks, both of whom impressed me with their knowledge and their commitment to Ms. Gardner's best interests. In addition, Mr. Smith and Dr. Marks testified that the grievor would almost certainly meet the criteria set out by the U.S. Department of Veterans Affairs, and both medical consultants engaged by Coglin & Associates recommended the expense be considered in light of those criteria. However, the benefit plan language sets a high threshold for the approval of new medical services where such services are significantly more expensive than those previously approved. Unfortunately, the evidence provided did not meet that threshold. As a result, for all of the above reasons, the grievance must be dismissed. C- V Barry te ens, Arbitrator July 3, 2007 11