PART C – Decision under Appeal The decision under appeal is the Ministry of Social Development and Social Innovation (ministry) reconsideration decision dated January 3, 2017 in which the ministry denied the appellant funding for Spinal Decompression Therapy (SDT) because all regulatory requirements for extended therapy visits under Schedule C of the Employment and Assistance for Persons with Disabilities Regulation (EAPWDR) were not met. While the ministry was satisfied that some of the requirements under Schedule C were met, it determined the following criteria were not met: A medical practitioner or nurse practitioner has not confirmed an acute need for the therapy [subsection 2(1)(c)(i) of EAPWDR Schedule C]. There is no indication that therapy visits that may be covered under the Medical Services Plan (MSP) have been exhausted and that payment is not available under the Medicare Protection Act [subsection 2(1)(c)(ii) of Schedule C]. The number of visits requested is more than the 12 per calendar year the ministry is authorized to provide [subsection 2(2) of Schedule C]. The cost of the program exceeds the $276 (12 visits at $23 per session) maximum the ministry is authorized to pay [subsection 2(2.1) of Schedule C]. In addition, the ministry found that SDT is not covered under Schedule C of the EAPWDR under medical supplies, as medical equipment, or as any other health supplement; and is not eligible as a life-threatening health need under section 69 of the EAPWDR. PART D – Relevant Legislation Employment and Assistance for Persons with Disabilities Regulation - EAPWDR - sections 62 and 69, and Schedule C
PART E – Summary of Facts The evidence before the minister at reconsideration consisted of the following: 1. Information from the ministry’s record of decision indicating the appellant is designated as a Person with Disabilities. As he is in receipt of Canada Pension Plan disability benefits he has been transitioned to Medical Services Only (MSO). 2. A Request for Reconsideration (RFR) signed by the appellant on December 2, 2016 with the following documents attached: A letter to the ministry from the appellant dated December 2, 2016 indicating he was injured at work and is in worse condition after having an “accident” with a physiotherapist. He describes the pain in his back and states that he has to wear a soft cervical collar more often. He saw his family physician on November 28, 2016 who said that gentle back massage “in combination with an 8-10 week program from Spinal Decompression Institute” makes sense. The appellant describes losing 6-7 cm of height since his accident and states that his Magnetic Resonance Imaging test (MRI) showed mild disc bulges all the way up his spine. A chiropractor, Dr. M. (the chiropractor) told him that after treatment, he may gain about 1 inch of his height back, and with treatment the vertebrae will not develop arthritis or even more serious complications. A letter to a Workers Compensation Board (WCB) claims manager from the appellant dated October 10, 2016 in which the appellant describes his workplace accident and injury and reports that the physiotherapist he was referred to (by WCB) made his pain and discomfort worse. Copies of physician’s notes and the appellant’s identification documents indicating the appellant’s height before and after his accident. An MRI report dated August 22, 2016 describing various features of the appellant’s thoracic spine. A letter to the chiropractor from the appellant dated October 3, 2016 in which the appellant requests a treatment plan, including total costs, to present to the ministry. A letter from the chiropractor dated October 27, 2016 describing the appellant’s bulging disc problem and recommending a non-surgical spinal decompression program for a period of 8-10 weeks, with treatments taking place 3 times per week. The chiropractor reports that in his 10 years of experience with the therapy, it has been found to be a viable and effective alternative to surgery. The fee for the program, if paid at the beginning of treatment, is $5,500. A copy of the ministry’s denial letter dated November 1, 2016 and Extended Medical Therapies Decision Summary. The ministry notes that Medical Services Plan (MSP) visits for 2016 may be available, as of January 1, 2016 for the calendar year, and confirmation has not been provided that MSP visits have been accessed. Additional submissions Subsequent to the reconsideration decision, the appellant’s Notice of Appeal dated January 9, 2017 reiterates that he lost height after his accident and the chiropractor told him he could regain an inch of height with decompression treatment. The appellant also provides his argument on appeal and the panel will consider both parties’ arguments in Part F - Reasons for Panel Decision.
Prior to the hearing, the appellant faxed the following documents to the tribunal office: A letter to WCB from the appellant’s family physician (the GP) dated January 25, 2017 describing the appellant’s accident and injury which happened on December 23, 2014; discussing his WCB claim; and indicating that he could be helped “with proper therapy” which he has had very little of to date. The GP indicates the appellant would require “prolonged therapy” in order to recover more function and that the appellant has had very little therapy done due to his claim being denied, and not having the financial means to pay for therapy privately. A letter to the Workers Compensation Appeal Tribunal (WCAT) from a Doctor of Medicine dated February 3, 2017 in support of the appellant’s appeal of a denied claim. A letter to WCAT from the appellant dated January 30, 2017 providing submissions on appeal for his denied claim. The appellant indicates that one of his WCB claims was accepted while the other was refused. A letter from a social worker dated February 18, 2017 providing submissions on the appellant’s need for improved living conditions. Two notes from the GP dated February 17, 2017 confirming that the appellant remains unable to work due to his injuries. At the hearing, the appellant provided a photograph of the equipment that caused his workplace injury, as well as 6 additional photographs of his living conditions which he explained are exhibits to the social worker’s letter of February 18, 2017. The appellant also reviewed a radiology report from 2015 for his neck; a letter from a neurologist dated April 4, 2016 describing the appellant’s circumstances re- WCB; and 4 letters from the GP dated between April and July 2016 describing the appellant’s spinal compression and bulging discs affecting his spine and his neck [no copies were provided]. In the letter of May 12, 2016, the GP writes that the appellant “desperately needs physical therapy” but has been unable to obtain therapy due to financial constraints; the GP does not believe his condition will improve without therapy. Admissibility - additional documents The ministry had no objections to any of the above documents but questioned whether they are relevant to the ministry’s denial of funding for SDT. The ministry explained that it is not questioning that the appellant has an injury. The ministry also explained that the ministry’s decision is not connected with the appellant’s WCB claim as the ministry and WCB are separate programs and the only circumstance in which the ministry requires information about a WCB claim is with respect to the amount of a payment that a recipient receives from WCB. The panel admits all of the documents under section 22(4)(b) of the Employment and Assistance Act as evidence in support of the information and records that were before the minister when the decision being appealed was made, as the panel finds that they corroborate the information in the reconsideration record regarding the appellant’s injury, living conditions, and WCB claim. With the exception of the May 12, 2016 and January 25, 2017 letters from the appellant’s GP, which are in support of the appellant’s reconsideration submission of December 2, 2016 in which he confirms discussing therapy with the GP, the panel finds that the additional documents are not relevant to the legislative criteria that authorize the ministry to fund therapies. In addition, the panel recognizes that it has no jurisdiction over WCB adjudication/ appeals.
Oral submissions The hearing was adjourned once at the request of the appellant so that he could obtain additional documents. The tribunal chair approved the ministry’s request to attend the hearing via telephone. At the hearing, the appellant further described his injury affecting both his back and his neck and summarized his argument on appeal. In response to questions from the panel, the appellant stated that SDT is not covered by WCB but the chiropractor did not tell him one way or another whether it could be covered by MSP. The appellant further stated that while his GP thought that SDT could be helpful, he did not specifically refer him to a chiropractor. The appellant stated that the physiotherapist whose treatment “almost killed me” is covered by MSP but WCB referred him for that treatment. The ministry explained the reconsideration decision and emphasized that ministry staff are not medical practitioners who can approve a particular treatment or therapy based on its chance of success; rather, the ministry is only authorized to base its decision on whether the criteria set out in the legislation are met. The ministry further explained that it has no involvement when a client is dissatisfied with a particular therapy they received, and the ministry also has no knowledge of what therapies are covered by WCB which may be different from what the ministry funds. The ministry explained that under ministry-funded therapy the client is free to choose his or her own therapist. The ministry further explained that the appellant was transitioned to MSO and is eligible for ministry-funded chiropractic and physiotherapy treatments as long as the specific legislative criteria for these therapies are met. The panel admits the oral testimony under section 22(4)(b) of the EAA, finding that it is in support of the information and records before the minister at reconsideration. The panel finds that the testimony provides further detail about the appellant’s request for SDT, the ministry’s process for administering the request, and the statutory limitations on the ministry’s authority to provide funding.
PART F – Reasons for Panel Decision The issue in this appeal is whether the reconsideration decision of January 3, 2017 in which the ministry denied the appellant funding for SDT because all regulatory requirements for extended therapy visits under Schedule C of the EAPWDR were not met, was reasonably supported by the evidence or was a reasonable application of the applicable legislation in the circumstances of the appellant. While the ministry was satisfied that some of the requirements under Schedule C were met, it determined the following criteria were not met: A medical practitioner or nurse practitioner has not confirmed an acute need for the therapy [subsection 2(1)(c)(i) of EAPWDR Schedule C]. There is no indication that therapy visits that may be covered under MSP have been exhausted and that payment is not available under the Medicare Protection Act [subsection 2(1)(c)(ii) of Schedule C]. The number of visits requested is more than the 12 per calendar year the ministry is authorized to provide [subsection 2(2) of Schedule C]. The cost of the program exceeds the $276 (12 visits at $23 per session) maximum the ministry is authorized to pay [subsection 2(2.1) of Schedule C]. In addition, the ministry found that SDT is not covered under Schedule C of the EAPWDR under medical supplies, as medical equipment, or as any other health supplement; and is not eligible as a life-threatening health need under section 69 of the EAPWDR. Applicable legislation The ministry was satisfied that the appellant’s request for SDT meets the following general eligibility criteria under section 62 of the EAPWDR for ministry-funded therapies for clients transitioned to MSO. General health supplements 62 The minister may provide any health supplement set out in section 2 [general health supplements] or 3 [medical equipment and devices] of Schedule C to or for (1)(c) a family unit, if the health supplement is provided to or for a person in the family unit who is a continued person. However, the ministry was not satisfied that the appellant’s request for SDT meets all of the regulatory criteria that are applicable to ministry-funded therapies under Schedule C of the EAPWDR or that the therapy is eligible under the other applicable sections of the Regulation, including section 69. EAPWDR Schedule C – General Health Supplements 2 (1) The following are the health supplements that may be paid for by the minister if provided to a family unit that is eligible under section 62 [general health supplements] of this regulation (a) medical or surgical supplies… (a.1) the following medical or surgical supplies that are, at the minister's discretion, either disposable or reusable… (a.2) consumable medical supplies…
(c) subject to subsection (2), a service provided by a person described opposite that service in the following table, delivered in not more than 12 visits per calendar year, (i) for which a medical practitioner or nurse practitioner has confirmed an acute need (ii) if the visits available under the Medical and Health Care Services Regulation for that calendar year have been provided and for which payment is not available under the Medicare Protection Act, and (iii) for which there are no resources available to the family unit to cover the cost: Item Service Provided by Registered with 1 acupuncture acupuncturist College of Traditional Chinese Medicine under the Health Professions Act 2 chiropractic chiropractor College of Chiropractors of British Columbia under the Health Professions Act 3 massage massage College of Massage Therapists of British therapy therapist Columbia under the Health Professions Act 4 naturopathy naturopath College of Naturopathic Physicians of British Columbia under the Health Professions Act 5 non-surgical podiatrist College of Podiatric Surgeons of British podiatry Columbia under the Health Professions Act 6 physical therapy physical College of Physical Therapists of British therapist Columbia under the Health Professions Act (2) No more than 12 visits per calendar year are payable by the minister under this section for any combination of physical therapy services, chiropractic services, massage therapy services, non-surgical podiatry services, naturopathy services and acupuncture services. (2.1) If eligible under subsection (1) (c) and subject to subsection (2), the amount of a general health supplement under section 62 of this regulation for physical therapy services, chiropractic services, massage therapy services, non-surgical podiatry services, naturopathy services and acupuncture services is $23 for each visit. Medical equipment and devices 3 (1) Subject to subsections (2) to (5) of this section, the medical equipment and devices described in sections 3.1 to 3.12 of this Schedule are the health supplements that may be provided by the minister… (2)… 3.1 Medical equipment and devices – canes, crutches and walkers 3.2 Medical equipment and devices – wheelchairs 3.3 Medical equipment and devices – wheelchair seating systems 3.4 Medical equipment and devices – scooters 3.5 Medical equipment and devices – bathing and toileting aids 3.6 Medical equipment and devices – hospital bed 3.7 Medical equipment and devices – pressure relief mattresses 3.8 Medical equipment and devices – floor or ceiling lift devices
3.9 Medical equipment and devices – positive airway pressure devices 3.10 Medical equipment and devices – orthoses 3.11 Medical equipment and devices - hearing instrument 3.12 Medical Equipment and devices – non-conventional glucose meters 4 Dental supplements 4.1 Crown and bridgework supplement 5 Emergency dental supplements 6 Diet supplements 7 Monthly nutritional supplement 8 Natal supplement 9 Infant Formula EAPWDR section 69 - Health supplement for persons facing direct and imminent life threatening health need The minister may provide to a family unit any health supplement set out in sections 2 (1) (a) and (f) [general health supplements] and 3 [medical equipment and devices] of Schedule C, if the health supplement is provided to or for a person in the family unit who is otherwise not eligible for the health supplement under this regulation, and if the minister is satisfied that (a) the person faces a direct and imminent life threatening need and there are no resources available to the person’s family unit with which to meet that need, (b) the health supplement is necessary to meet that need, (c) a person in the family unit is receiving premium assistance under the Medicare Protection Act, and (d) the requirements specified in the following provisions of Schedule C, as applicable, are met: (i) paragraph (a) or (f) of section (2) (1); (ii) sections 3 to 3.12, other than paragraph (a) of section 3 (1). **** Analysis and decision Upon reconsideration, the ministry was satisfied that the appellant’s request for SDT meets the criteria under subsection 2(1)(c) of EAPWDR Schedule C in that the therapy is a service delivered by a chiropractor. The ministry was also satisfied that the request meets the requirement in subsection 2(1)(c)(iii) of Schedule C – that the appellant has no resources available to cover the cost of the therapy. However, the ministry found at reconsideration that the following criteria under Schedule C were still not met and, while the ministry is sympathetic to the appellant’s circumstances, it found that there are no legislative or policy provisions that would allow it to make an exception. The panel provides the following analysis and decision for each of the legislative requirements the ministry said were not met: 2 (1) The following are the health supplements that may be paid for by the minister if provided to a family unit that is eligible under section 62 [general health supplements] of this regulation (c) subject to subsection (2), a service provided by a person described opposite that service in the following table, delivered in not more than 12 visits per calendar year, (i) for which a medical practitioner or nurse practitioner has confirmed an acute need
The appellant argues that the chiropractor “is a doctor”; and that the appellant’s GP told him that an 8-10 week program from the Spinal Decompression Institute “makes sense” in combination with gentle massage of his back. The appellant referred to the May 12, 2016 and January 25, 2017 letters from his GP, which the panel has admitted. The appellant argues that these letters confirm his need for the therapy. The appellant argues that he still has a chance to recover with SDT and if he continues to delay treatment his situation will deteriorate further as the bulges between his vertebrae will “crack and leak out” and he will end up with “bone on bone, with the vertebrae touching.” He submits that new problems are developing as he cannot turn his head to the right and if he continues to wait for treatment, “BC Medical will do a surgical replacement that costs taxpayers $120,000.” The ministry argues that a medical or nurse practitioner has not confirmed an acute need for the requested therapy as the chiropractor who recommends SDT is not a medical practitioner; i.e., registered with the College of Physician and Surgeons of BC as required under the Interpretation Act definition of “medical practitioner”. Decision The panel finds that the ministry reasonably determined that a medical or nurse practitioner has not confirmed an acute need for SDT. The letters from the physician submitted on appeal confirm an acute need for “physical therapy” and “proper therapy” but do not specifically endorse SDT or chiropractic treatment for that matter. The panel therefore, finds that the ministry reasonably determined that the requirement in section 2(1)(c)(i) of Schedule C is not met. Regarding the appellant’s arguments, the ministry is not disputing that the chiropractor is a “doctor” [the ministry acknowledges that the chiropractor is registered with the College of Chiropractors of BC] or that the appellant could benefit from SDT. 2 (1) The following are the health supplements that may be paid for by the minister if provided to a family unit that is eligible under section 62 [general health supplements] of this regulation (c) subject to subsection (2), a service provided by a person described opposite that service in the following table, delivered in not more than 12 visits per calendar year… (ii) if the visits available under the Medical and Health Care Services Regulation, for that calendar year have been provided and for which payment is not available under the Medicare Protection Act. The appellant’s position is that the chiropractor did not indicate one way or another whether SDT is covered by MSP and the only therapy visits he had that were covered by MSP were with a physiotherapist who provided ineffective treatment, and were funded by WCB. The ministry argues there is no indication that therapy visits that may be covered under MSP have been exhausted, and that payment is not available under the Medicare Protection Act. Decision The panel notes that subsection2(1)(c)(ii) of EAPWDR Schedule C creates a pre-condition for ministry-funded therapy in that the client must exhaust any funding that is provided by MSP before the ministry can fund the therapies listed in the Schedule. The subsection requires the visits available under the Medical and Health Care Services Regulation to “have been provided” and for payment under the Medicare Protection Act to not be available before the ministry can fund any
therapy sessions. The panel finds that the ministry reasonably determined this requirement was not met because there is no evidence that the appellant accessed MSP-funded chiropractic or other therapies as set out in the Schedule. The letter from the chiropractor dated October 27, 2016 provides a cost estimate for treatment but does not break down the cost into a portion covered by MSP versus a portion to be paid by the client. As noted by the ministry, the appellant may still have MSP visits available in the calendar year. Based on the information that was before the minister, which did not include any evidence of MSP-funded therapies, the panel finds that the reconsideration decision was reasonably supported by the evidence and the ministry therefore reasonably determined the criteria in subsection 2(1)(c)(ii) of EAPEDR Schedule C were not met. 2 (1) The following are the health supplements that may be paid for by the minister if provided to a family unit that is eligible under section 62 [general health supplements] of this regulation (c) subject to subsection (2), a service provided by a person described opposite that service in the following table, delivered in not more than 12 visits per calendar year. The appellant’s position is that he requires the SDT therapy program for a period of 8-10 weeks, with treatments taking place 3 times per week as prescribed by the chiropractor. The ministry argues that the number of visits requested is more than the 12 per calendar year the ministry is authorized to provide. Decision The chiropractor’s letter of October 27, 2016 confirms that the appellant’s request is for more than the 12 visits per calendar year that the ministry is authorized to fund under subsection 2(1)(c) of Schedule C. While requesting additional sessions would not be a sufficient reason to deny funding for the therapy sessions, the panel finds that the ministry reasonably determined it is authorized to provide funding for a maximum of 12 sessions per calendar year. 2 (2.1) If eligible under subsection (1) (c) and subject to subsection (2), the amount of a general health supplement under section 62 of this regulation for physical therapy services, chiropractic services, massage therapy services, non-surgical podiatry services, naturopathy services and acupuncture services is $23 for each visit. The appellant submits that the fee for SDT, as confirmed by the chiropractor, is $5,500 if paid at the beginning of care. The ministry argues that the cost of the program exceeds the $276 maximum the ministry is authorized to fund in the calendar year [12 visits at $23 per session]. Decision The chiropractor’s letter of October 27, 2016 confirms that the appellant’s request is for more than the $276 maximum that the ministry is authorized to fund under subsection 2(2.1) of EAPWDR Schedule C. While requesting additional funding would not be a sufficient reason to deny funding for the
therapy sessions, the panel finds that the ministry reasonably determined it is authorized to provide funding only up to the maximum dollar amount set out in subsection 2(2.1) of Schedule C. Eligibility - other sections of the EAPWDR In addition, the ministry found that it is not authorized to fund SDT under the following sections of the EAPWDR. The ministry stated at the hearing that “they walked through all of Schedule C but unfortunately the therapy does not fit in anywhere.” Schedule C, sections 2(1)(a), 2(1)(a.1), 2(1)(a.2), and 2(1.1) - Not a medical or surgical supply The appellant does not argue that SDT should be funded as a medical or surgical supply. The ministry argues that the request for therapy is not a medical or surgical supply as listed in the above-noted sections; and is not required for any of the purposes set out in section 2(1)(a)(i) of Schedule C. Decision The panel finds that the ministry reasonably determined that SDT is not listed in these sections as a medical or surgical supply and is not required for one of the purposes specified in section 2(1)(a)(i) of Schedule C. There is no evidence that the appellant is requesting any of the medical/ surgical items listed in these sections, and the purposes set out in section 2(1)(a)(i) relate only to the purposes for which the medical supplies are required. Schedule C, sections 3, and 3.1 to 3.12 - Not medical equipment The appellant does not argue that SDT should be funded as medical equipment. The ministry argues that the request for therapy is not one of the items listed in these sections, and that the appellant’s request does not meet the other legislative criteria for each of these health supplements under section 3 of Schedule C. Decision The panel finds that the ministry reasonably determined that SDT is not listed in these sections as medical equipment, and that the appellant’s request does not meet the requirements for each type of equipment pursuant to section 3 of Schedule C. There is no evidence that the appellant is requesting any of the listed medical equipment items, and the requirements in section 3 apply only to the equipment listed in the Schedule. Schedule C, sections 2.1, 2.2, 4, 4.1, and 5 - 9 - Not any of the other health supplements listed The appellant does not argue that SDT should be funded under the health supplements listed in the above-noted sections. The ministry argues that the request for therapy is not one of the health supplements in these sections which list optical, dental, and nutrition-related supplements. The ministry further argues that the appellant’s request does not meet the other legislative criteria for the health supplements under these sections.
Decision The panel finds that the ministry reasonably determined that SDT is not included with the health supplements listed in these sections and that the appellant’s request does not meet the other legislative requirements for each of the health supplements listed. There is no evidence that the appellant is requesting any of the listed health supplements that include optical, dental, and nutritional supplements. Further, the legislative requirements for each item under these sections clearly do not apply to the appellant’s request for Spinal Decompression Therapy. EAPWDR section 69 - Not eligible under direct and imminent health need The appellant argues that he “still has a chance to recover” with SDT and he is frustrated that the legislation “is not working for injured workers in BC.” The ministry argues the appellant is not eligible to receive SDT as a health supplement for a person facing a direct and imminent life-threatening health need because section 69 is intended to provide a remedy for persons who are not otherwise eligible to receive certain health supplements in Schedule C. The ministry argues that the appellant does not require a remedy under section 69 because he is eligible to receive health supplements under sections 2(1)(a) and (f) and section 3 of Schedule C [where specific requirements for each of the supplements are met]. The ministry further argues that the information submitted with the application for SDT and the reconsideration does not establish that the appellant has a direct and imminent life-threatening health need for the requested therapy and even if this were satisfied, SDT is not one of the health supplements set out in Schedule C, sections 2(1)(a) and (f) and sections 3 to 3.12. Decision In order to be eligible for a health supplement under section 69, the person must be facing a direct and imminent life-threatening health need and not be eligible for health supplements under other specified sections of the EAPWDR. The Appellant is eligible to receive the health supplements set out under section 2(1)(a) and (f) and section 3 of Schedule C because he meets the basic eligibility requirement for health supplements as a person transitioned to MSO under EAPWDR section 62(1)(c). Regarding a direct and imminent life-threatening health need under EAPWDR section 69(a), the panel finds that the ministry reasonably determined the information provided does not establish this degree of need for SDT. While the appellant testified that the therapy could give him a chance to recover and avoid having surgery, and his GP supports his need for treatment, the panel finds that there was no evidence before the minister at reconsideration confirming that the appellant’s life will be in imminent danger if the ministry does not fund the therapy. The panel notes that even though the appellant is eligible for health supplements under sections 2(1)(a) and (f) and section 3 of EAPWDR Schedule C, his request must still meet the specific eligibility requirements for a particular item or supplement. Where the item he requested is not listed in the legislation as an eligible item, the panel acknowledges that the ministry has no legal authority to provide a health supplement to cover the cost of the item. The panel finds that the ministry reasonably determined that SDT is not an eligible item under Schedule C, sections 2(1)(a) [medical
supplies for a specific purpose as listed in the legislation], or section 2(1)(f) [medical transportation], or section 3 which applies to the medical equipment and devices that are listed in sections 3.1 to 3.12 of the Schedule. Given that SDT is not eligible under those sections the panel finds that the ministry reasonably determined the appellant is not eligible for SDT to meet a direct and imminent life-threatening health need under EAPWDR section 69. Conclusion The panel confirms the ministry’s reconsideration decision as reasonably supported by the evidence pursuant to sections 24(1)(a) and 24(2)(a) of the Employment and Assistance Act. The appellant is therefore not successful in his appeal.
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