Decision #142/02 - Type: Workers Compensation
Preamble
A non-oral file review was held on October 30, 2002, at the claimant's request.Issue
Whether or not the worker is entitled to wage loss benefits beyond June 17, 2002.Decision
That the worker is not entitled to wage loss benefits beyond June 17, 2002.Decision: Unanimous
Background
A review of the merits of this appeal requires consideration of both the facts related to the current claim as well as of the background associated with a previous claim.On November 22, 2001, during the course of her work as a cook, the claimant was lifting a box of ground beef out of the freezer when she felt something pull in her stomach. She continued to work but her stomach was sore. When seen by a physician on November 27, 2001, the claimant was diagnosed with an abdominal hernia. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid starting November 28, 2001 (the current claim).
The Previous Claim
A review of the medical information suggests that many of the claimant's difficulties can be traced to the consequences of a non-compensable operation in September 2000.
As indicated in her obstetrician/gynecologist's letter dated March 12, 2001 and December 19, 2001, the claimant suffered from pelvic pain attributed to endometriosis and uterine fibroids. The claimant underwent an open myomectomy procedure in September 2000 which was terminated when it was discovered that she had a frozen pelvis.
Unfortunately, the claimant developed an incisional hernia in the upper third of the myomectomy incision. In the view of the obstetrician/gynecologist, the injury was a result of post operative complications of incisional hernia related to heavy lifting at her job. On February 7, 2001, the claimant subsequently underwent further surgery which involved a total abdominal hysterectomy and repair of the incisional hernia.
The obstetrician/gynecologist was well aware of the risk of recurrence. As noted in her letter of March 12, 2001, the claimant was advised that she should "take three months off of work as she had eight weeks off prior and still developed a postoperative complication of incisional hernia."
The WCB Medical Advisor considering the file did not disagree with the recommendation of the three months off work but he noted that there was no guarantee that such an extended time would make any difference. He pointed out that recovery was complicated by the fact that two procedures, only one of which was related to the compensable injury, were conducted at the same time. He expressed the view that the amount of time off work related to the compensable injury was 8 weeks.
In December, 2001, the claimant was advised that coverage for the previous claim would be restricted to eight weeks as this was the normal recovery time for a hernia repair. The additional time off work required could not be related to the compensable injury.
The Current Claim
On January 24, 2002, the claimant underwent the Burch procedure and an incisional hernia repair. As noted in the operative report dated February 11, 2002, on February 8, 2002, the claimant underwent another procedure to relieve an infection in the new incision site.
A progress report from the attending physician dated April 1, 2002, noted that the claimant was doing well and the incision site was well healed. The claimant was ready to return to modified duties. Restrictions were outlined to avoid heavy lifting or lifting over 20 lbs. The claimant returned to modified duties on April 9, 2002.
On May 14, 2002, the WCB Medical Advisor was asked to review the claimant's situation taking into account her job description and the time that had elapsed since her operation. In the Advisor's noted dated June 10, 2002, it was concluded that "based on work duties and length of time since surgery" the claimant would be able to return to her previous duties. In the advisor's view "any need for restrictions would be unrelated" to the compensable injury.
On June 11, 2002, primary adjudication advised the claimant and that following a review of her case by a WCB medical advisor, Rehabilitation and Compensation Services were of the opinion that she had recovered from the effects of her hernia and the subsequent surgery. "Any need for ongoing restrictions of duties would not, in our opinion, be related to your compensable injury or subsequent surgery."
Primary adjudication elaborated on its position in a June 11, 2002, memorandum to file. "[Claimant] indicated that the reason that she still had restrictions and her recovery was longer than normal time frame was due to the infection. I explained that, typically, we allow 6 - 8 weeks for the surgery. Given that the infection was in Feb we are now 17 weeks past that date."
The claimant was informed that wage loss benefits would be payable to June 17, 2002 inclusive and final. The claimant appealed this decision to Review Office.
On August 9, 2002, Review Office considered the claimant's appeal along with a submission by the employer's representative dated August 7, 2002. Review Office ruled that wage loss benefits were not payable to the claimant beyond June 17, 2002.
Review Office noted that in the claimant's appeal submission, she indicated that her surgeon and family physician had advised that she was at a high risk for further abdominal hernias if she were to perform duties not respecting her lifting restrictions placed on any attempt at a return to work. The employer's representative took the position that such recommendations for restricted duties were made on a preventative basis, in view of the claimant's established susceptibility to developing incisional hernias, which all started with the non-compensable surgical procedure carried out in September 2000. Review Office agreed with the employer's representative opinion after reviewing all the medical evidence on file.
Review Office commented that there was overwhelming medical evidence on file that the susceptibility to the development of abdominal problems, and in particular the incisional hernias, had been established through the original non-compensable conditions. "These led to surgeries, which predisposed the claimant to the susceptibility which led to the compensable incisional hernias." On August 26, 2002, the claimant appealed this decision to the Appeal Commission and a non-oral file review was held.
Reasons
As outlined in her surgeon's letter of March 12, 2001 and December 19, 2001, this is a situation in which the claimant is vulnerable to further abdominal injuries as a result of a non-compensable procedure which took place in September, 2000. While the claimant may face restrictions in terms of her employment related to her non-compensable injury, the Panel's task is to determine on a balance of probabilities, if her current medical difficulties are related to her compensable injury. We were not able to do so.While the claimant's surgical recovery was hindered by the need for a procedure to relieve post operative infection, the Panel accepts the opinion of the WCB Medical Advisor that based upon length of time since surgery the claimant was recovered from the effects of her compensable injury. The panel accepts the conclusion that any further need for restrictions was unrelated to the compensable injury and are of a preventative nature.
Any loss of earning capacity after June 17, 2002 would not be related to her compensable injury and no wage loss benefits are payable beyond that date.
Panel Members
B. Williams, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
B. Williams - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 11th day of December, 2002