The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 29, 2004, at the worker's request. The Panel discussed this appeal on June 29, 2004 and again on October 19, 2004.

Issue

Whether or not surgical authorization should be provided for a proposed below elbow amputation of the claimant's right arm.

Decision

That surgical authorization should not be provided for a proposed below elbow amputation of the claimant's right arm.

Decision: Unanimous

Background

In July 1980, the worker sustained a compensable injury to his right wrist during the course of his employment at a dairy plant. Subsequent file information revealed that the worker underwent a number of surgical procedures and has received a Permanent Partial Impairment award in recognition of his right wrist difficulties.

In a letter addressed to the Workers Compensation Board (WCB) dated December 4, 2003, the claimant's MLA made reference to a report by a physician specializing in upper extremities dated October 29, 2002, in which the specialist recommended that the claimant proceed with a below elbow amputation. As the surgery was scheduled for December 19, 2002, the MLA asked the WCB to provide consent as soon as possible so that the surgery could proceed as scheduled.

On November 28, 2002, a WCB senior medical advisor wrote to the treating physician, stating that the WCB would not accept any financial responsibility for the above procedure. Reference was made to the opinion expressed by a London, Ontario hand and upper limb specialist dated April 8, 2002, who felt that surgery would not have any significant chance of diminishing the claimant's symptoms or disability. Reference was also made to the opinion expressed by a WCB psychiatric consultant dated January 21, 2002, who questioned whether the claimant was capable of making an informed decision about the risks and benefits of a below-elbow amputation.

On December 4, 2002, the WCB informed the claimant that it could not authorize the below elbow amputation for the reasons as set out above. This decision was further confirmed by Review Office in decisions dated May 9, 2003 and July 29, 2003.

On September 12, 2003, primary adjudication granted the claimant's request to convene a Medical Review Panel (MRP) based on section 67(4) of The Workers Compensation Act (the Act). An MRP took place on February 13, 2004 and its final report is dated March 16, 2004. In brief, the MRP offered the opinion that a below elbow amputation of the right arm was not an appropriate treatment plan given the claimant's extensive history, physical and psychological findings and ongoing complaints.

In a letter by Review Office dated March 26, 2004, the claimant was advised that no changes would be made to the previous Review Office decisions in light of the findings of the MRP. On March 22, 2004, the claimant appealed Review Office's decision and an oral hearing was arranged.

Following the hearing and after discussing the case, the Appeal Panel determined that additional information was required from the claimant's treating upper extremity specialist, prior to discussing the case further. A response from the specialist dated September 14, 2004 was later received and was forwarded to the claimant for comment.

On October 19, 2004, the Panel met further to discuss the case and rendered its final decision with respect to the issue under appeal.

Reasons

The written materials comprising this file are voluminous and rather quite extensive. The claimant's oral evidence at the hearing was both passionate and compelling. However, after having taken into consideration all of the evidence, we nevertheless prefer to attach more weight to the opinion of the claimant's treating upper extremity specialist, which is contained in a letter to the Panel's recording secretary dated September 14, 2004.

"This is a letter to update you on the findings at the time of our 'rounds session' at the Health Sciences Centre. Numerous physicians were there including Dr. [name], and Dr. [name], as well as some therapists and residents. [The claimant's] case was presented including review of the x-rays and examination of the hand. We deliberated amongst ourselves after [the claimant] had left the room, and the general consensus was that a below elbow amputation would not make him functionally that much better. He has had multiple operations on his wrist and hand and no one felt that it would be doing him any service to continue with more operations. Effectively this would end any ongoing debate about the amputation…".

We therefore find that surgical authorization should not be provided for a proposed below elbow amputation of the claimant's right arm. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of November, 2004