Decision #53/06 - Type: Workers Compensation

Preamble

A file review was held on February 28, 2006, at the request of an advocate, acting on behalf of the worker.

Issue

Whether or not responsibility will be accepted for the costs associated with the July 6, 2004 surgery to the worker's nose.

Decision

That no responsibility will be accepted for the costs associated with the July 6, 2004 surgery to the worker's nose.

Decision: Unanimous

Background

On August 9, 1989, the worker was injured when a transmission shaft cover struck him on the nose. The initial diagnosis was a nose laceration.

In a December 24, 2002 report, an otolaryngologist reported that he saw the worker on September 12, 2002 for complaints of chronic left nasal obstruction. On September 18, 2002, a septoplasty was carried out to repair the worker's deviated nasal septum. The specialist said it was reasonable to assume that the 1989 injury caused the deviated nasal septum.

The claim was accepted and the Workers Compensation Board (WCB) covered the costs associated with the September 2002 surgery. In February 2003, the worker was awarded a 1% cosmetic permanent partial disability award for scarring.

In a report dated August 12, 2003, the otolaryngologist who performed surgery on the worker's nose in September 2002 reported that the septoplasty "appeared to completely resolve [the worker's] nasal obstruction."

On April 26, 2004 a plastic surgeon reported that the worker did not like the tip of his nose as he found it to be droopy and bulky. The surgeon recommended a cartilaginous graft to support the worker's nasal tip along with a cosmetic tip rhinoplasty to reduce the bulk and improve the shape. He stated that the tip projection should improve the worker's breathing difficulties as well.

On June 9, 2004, the WCB's ear, nose and throat (ENT) consultant was asked to provide his opinion as to whether or not the proposed surgery was required due to the August 15, 1989 compensable injury. The ENT consultant stated that the surgery was mainly for the worker's bulky, droopy nasal tip and that this was a normal change in the nose because of the worker's age. He stated that surgery was purely a cosmetic procedure.

In a decision dated June 24, 2004, a WCB case manager determined that the WCB would not accept responsibility for the costs associated with the proposed surgery as the surgery was for cosmetic reasons and was not directly related to the 1989 claim.

On July 6, 2004, the worker underwent a septoplasty and cosmetic rhinoplasty to his nose.

At the request of the worker's advocate, the WCB case manager wrote to the plastic surgeon for his opinion on whether or not the July 2004 surgery would be directly related to the worker's previous workplace injury.

A progress note was received from the plastic surgeon dated September 16, 2004. The plastic surgeon stated "He's also wondering if this is related to an accident he had about 10 yrs. ago and where he has a scar on the lt. ala of the nose. I kind of doubt it but he can settle this with WCB."

On April 20, 2005, the worker's advocate appealed the WCB's decision of June 24, 2004. The advocate stated, "The 'cosmetic' surgery referred to was not to the claimant's knowledge, cosmetic at all. The septoplasty was the same conducted by the earlier otolaryngologist. [plastic surgeon's] $1500.00 procedures failed to improve the breathing or cosmetically improve the nose. If not for the 1989 injury, the claimant would not have gone to either [otolaryngologist] or [plastic surgeon]."

In a May 19, 2005 decision, Review Office confirmed that no responsibility would be accepted for the costs associated with the July 6, 2004 surgery to repair the worker's nose. Review Office stated that it was clear from the surgeon's evidence of April 15, 2004 that the surgery was performed for cosmetic reasons and was not a direct result of the 1989 work injury or related surgery. Review Office indicated that the file evidence supported that the worker had a good result from his compensable surgery of September 2002. Review Office also relied on the opinion expressed by the plastic surgeon in his progress note of September 16, 2004 and the opinion expressed by the WCB's ENT specialist in his response to the query made by primary adjudication on June 9, 2004. On October 18, 2005, the advocate appealed Review Office's decision and a file review was arranged.

Reasons

As noted in the background, the worker had surgery to his nose on July 6, 2004 and has asked that the WCB accept responsibility for the surgery which included a septoplasty and cosmetic rhinoplasty. The WCB and Review Office have declined to accept this responsibility. The worker has appealed to the Appeal Commission and a panel was appointed to determine the appeal.

The issue before the panel was whether responsibility will be accepted for the costs associated with the July 6, 2004 surgery to the worker's nose. For this appeal to be successful the panel must find that the surgery was required as a result of the worker's workplace injury. The panel was not able to reach this conclusion. The panel finds that the surgery was primarily for cosmetic reason and is not the responsibility of the WCB.

Worker's Submission

The worker was represented by an advocate who made the following written submission to the Appeal Commission:

"Review Office erred in the opinion of the writer:
-Claimant's breathing became impaired following the 1989 compensable injury;
-Review Office noted the otolaryngologist told the claimant to "settle this matter with the WCB";
-Claimant's breathing improved but was not healed to the point of pre-accident, August 9, 1989;
-The claimant was 48 years of age at the time of the accident, but Review Office and the WCB Otolaryngology Consultant, are basing their Review and Medical Opinion at the current age of 64;
-The Plastic Surgeon performed a septoplasty, the same procedure as the otolaryngologist;
-Whatever the surgery performed by the Plastic Surgeon, it was unsuccessful. The claimant has impaired breathing and all the Plastic Surgeon had to offer was another, more expensive and disfiguring procedure;
-The claimant would never have seen either specialist were it not for the breathing impairment in his nose;
- If not the 1989 accident, the claimant would not have had either procedure."

Reasons

The panel has considered the submission made on behalf of the worker and reviewed the file. The panel is unable to agree with the submission. The panel finds, on a balance of probabilities, that the surgery was not required due to or directly related to the worker's workplace injury.

In arriving at its decision the panel relies upon the following evidence:
  • the worker underwent surgery in September 2002. This surgery which was performed by an otolaryngologist who commented in an August 12, 2003 report that "...His nose had healed completely and his breathing was much improved…In conclusion I can say that the septoplasty appeared to completely resolve [the worker's] nasal obstruction."

  • the worker was subsequently referred to a plastic surgeon who he saw in April 2004. In a letter dated April 26, 2004 the plastic surgeon notes that the worker was concerned about the appearance of his nose. The plastic surgeon wrote: "He does not like the tip of his nose. He finds it very droopy and very bulky….Examination reveals that he has very little support present in the caudle part of his nose. He will need a cartilaginous graft to support his nasal tip…"

  • a progress note dated September 16, 2004 in the plastic surgeon's records comments on the relationship between the surgery and the worker's workplace injury. The plastic surgeon wrote: "…He's wondering if this is related to an accident he had about 10 yrs. ago and where he has a scar on the lt. ala of the nose. I kind of doubt it but he can settle this with WCB."

  • the WCB obtained an opinion from the WCB ENT consultant on whether the surgery was required due to the compensable injury of August 15, 1989. The specialist answered "No. This surgery is mainly for bulky, droopy nasal tip. This is a normal change in the nose because of age. So surgery is a pure cosmetic procedure."
The worker's appeal is denied.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 25th day of April, 2006

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