The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker sustained a compensable injury to his right wrist in a work related accident on July 22, 1980. The Workers Compensation Board (WCB) accepted the claim for compensation and the worker was provided with various benefits and services in this regard. On a number of occasions, the worker asked the WCB to approve a below elbow amputation of his right arm which he felt would improve his quality of life and his functional ability to return to the work force. His request was denied by the WCB and by the Appeal Commission under Decision No. 150/04. The worker subsequently requested reconsideration of Decision No. 150/04 under subsection 60.10 of The Workers Compensation Act (the Act) and was granted a new hearing which took place on April 10, 2008.

Issue

Whether or not the WCB should accept responsibility for the below elbow amputation of the worker’s right arm.

Decision

That the WCB should not accept responsibility for the below elbow amputation of the worker’s right arm.

Decision: Unanimous

Background

The worker sustained an injury to his right wrist in a work related accident that occurred on July 22, 1980. In the period between 1982 and 2001, the worker had 11 operations to his right wrist. Due to a number of complications that occurred following surgery, the worker was left with a permanent disability related to his right hand and received a Permanent Partial Disability award from the WCB.

Over time, the worker began to suggest that an amputation of his right wrist would assist to alleviate his pain, make his arm more functional and restore his quality of life. In support of his position, a report dated October 29, 2002 was submitted by an upper extremity specialist.

The upper extremity specialist wrote that the worker had little functional use of his hand. He had some motion of the fingers but essentially no strength. He had no motion of the wrist. The distal ulna was significantly unstable and he had decreased sensation in both the ulnar and median nerve distribution. The specialist stated “I think that [the worker] has convinced me that an amputation would be the best form of treatment for this. I do not think that I could really make his hand much better though a fusion of his distal ulna to the radius would improve that instability but I don’t think that is enough to make him happy. I would like to discuss the level of amputation to best fit a prosthesis with [doctor] as he is involved with prosthetics in amputee.”

The specialist’s opinion was reviewed by a WCB senior medical advisor in late November 2002. The medical advisor determined that financial responsibility for the procedure was not a WCB responsibility on the following grounds:

· an Ontario specialist, in a report dated April 8, 2002, felt that surgery would not have any significant chance of diminishing the worker’s symptoms or disability; and

· the opinion expressed by a WCB psychiatric consultant on 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.

As the worker disagreed with the WCB’s decision to deny responsibility for a below elbow amputation, an appeal was filed with Review Office. On May 9, 2003 and July 29, 2003, Review Office maintained the position that no responsibility could be accepted for the below elbow amputation. Review Office was not satisfied that concerns regarding phantom pain and neuroma formation, the significant chance that the worker’s pain may remain the same or worsen following surgery or the worker’s ability to comprehend the psychological ramifications of such surgery have been answered satisfactorily.

On February 13, 2004, a Medical Review Panel (MRP) was held based on subsection 67(4) of the Act. The report noted:

All in all this man has a fairly good function of the right hand when functions are examined specifically. It appears that in actuality he does not use it as much as the physical examination would suggest he might be able. (emphasis added)

The man's story and the physical findings related to it do not really fit very well. Essentially he claims to have a useless hand and that it is affecting the rest of his right upper extremity and shoulder and that he feels his body is wasting on that side.

Examination reveals a very functional hand in terms of strength and mobility and also no evidence whatsoever of loss of strength or wasting in the upper portion of the extremity and the shoulder girdle. There is thus a huge discrepancy between the story and the finding. (emphasis added)

The MRP’s opinion was that a below amputation of the right arm was not an appropriate treatment plan given the worker’s extensive history, physical and psychological findings and ongoing complaints. Based on this finding, Review Office confirmed on March 26, 2004 that no change would be made to its previous decision.

At the worker’s request, the case was referred to the Appeal Commission and a hearing was held on June 29, 2004. Before issuing its final decision, the appeal panel requested additional information from the upper extremity specialist. A report was later received dated September 14, 2004.

In its decision dated November 3, 2004, (Decision No. 150/04) the appeal panel determined that surgical authorization should not be provided for the proposed below elbow amputation of the worker’s right arm. In reaching its decision, the appeal panel stated that it preferred to attach more weight to the following opinion expressed by the specialist 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…

On May 3, 2005, a Toronto surgeon operated on the worker in an effort to improve his condition. A follow-up visit took place in August 2005.

On September 28, 2005, the worker underwent a below elbow amputation of his right arm at the hands of another surgeon (“the amputating surgeon”).

A WCB memo to file dated October 24, 2005 states:

[the Toronto surgeon] advised me that he was very surprised to hear that the clmt (sic) had gone ahead with the amputation. He found it hard to understand how a surgeon could ignore all the previous specialist opinions on file nor contact him (the treating surgeon) before going ahead with such a procedure.

He advised…the [worker's] pain symptoms, wrist stability and function were better than they had been in years. He advised that there was a small opening where the plate was visible but this was not an uncommon occurrence.

On April 12, 2006, an Impairment Awards Medical Advisor noted that “[The worker] states that he has coldness of the remaining stump and some decreased circulation. He indicated, however, that he is otherwise pain-free and has no problems…With regard to his activities for daily living, he notes that he has tended to manage well as he has been unable to use his right hand for many years. He does, however, find that doing dishes is a little more difficult and general house cleaning requires assistance.”

In 2007, the worker requested reconsideration of Decision No. 150/04 under subsection 60.10 of the Act. He provided new information which consisted of four medical reports dating between August 22, 2006 and April 11, 2007. On May 3, 2007, it was determined by the Chief Appeal Commissioner that the information submitted was new, substantial and material to the decision. He directed that the Appeal Commission reconsider Decision No. 150/04.

The following is a summary of the new medical information that was submitted by the worker:

· August 22, 2006 – it was reported by a physical medicine and rehabilitation consultant that the worker was a right elbow amputee secondary to trauma. The amputation performed in September 2005 was because of instability and Raynaud’s syndrome of the right hand as a complication of trauma. It was indicated that the worker currently experienced significant discomfort at the distal ulna and radius when the skin is stretched with donning of the prothesis liner. The worker indicated he could tolerate the prosthesis for 2 to 3 hours before the pain was too unbearable. He had good function with the prosthesis and had no complaints of phantom pain or sensation. A revision to the right elbow amputation was being contemplated.

· August 23, 2006 – a plastic surgeon noted that the worker was recently seen after his below elbow amputation and that the pain was relieved but the worker was not able to tolerate wearing his prosthetic sleeve. He indicated that he would shorten the amputation to try and get better stump coverage.

· October 4, 2006 – the family physician noted that the worker had a good benefit from his right hand amputation. He no longer had the chronic debilitating pain in his arm. He had good functional use of his prosthesis but there was a bony protuberance of the distal ulna which prevented him from using it more than two hours at a time. He noted that the worker had much more function from his prosthetic hand than he had with his injured hand prior to surgery. He stated, “the decision to proceed with his amputation was the right one, even if he now needs a revision to shorten his stump and adequately cover the bone.”

· December 21, 2006 – the treating surgeon indicated that the worker had been having pain in his right hand for over 21 years. To relieve his pain and discomfort, the worker underwent an amputation of the right hand with relief of his pain and symptoms. He now uses a prosthesis and was doing more with his prosthesis than he ever did with his right hand.

· April 11, 2007 – the treating plastic surgeon noted that the worker was much happier with his below elbow amputation. His pain was completely relieved and he had no tenderness on palpation of the stump. He had good elbow range of motion and felt quite confident that when he obtained a prosthesis, his function would be better than it was prior to his below-elbow amputation.

The file also contains a memo to file dated January 29, 2007 from a WCB staff person who indicates that:

[The worker] reports that he has had significant improvement in his overall functioning since having his hand removed...His prosthetic is fitted with a hook that he finds functional. He wears this between six and seven hours at a time before the discomfort forces this (sic) to remove this.

The plastic surgeon submitted a further report dated May 11, 2007. He stated that the worker’s pain was decreased and he was wearing and using a below elbow prosthesis. The worker noted that his prosthesis was more useful and functional to him and he can demonstrate at least a hook opening and closing function today and seemed to be wearing his prosthesis without any disability.

On August 13, 2007, a physical medicine and rehabilitation consultant reported that the worker was seen on July 31, 2007. The worker did not have any major concerns regarding the fit of the prosthesis or related to his stump. He was not experiencing stump or phantom limb pains and he wore his prosthesis 10 to 14 hours a day.

The worker’s solicitor provided the Appeal Commission with a brief from the worker dated April 2, 2008 which included a number of medical reports. The solicitor suggested these physicians agreed that an amputation of the worker’s right arm was beneficial and added to his quality of life. Also submitted was a report from a psychiatrist dated February 19, 2008. It was the worker’s position that:

…the WCB ought to have approved the below elbow right arm amputation. Several medical professionals had agreed that it was a reasonable option given his medical history and the outcome was favourable.

The claimant wants to return to work, but in order to do that he will require a more sophisticated prosthesis. If the WCB will accept responsibility for this amputation and the appropriate prosthesis he is determined and will make his best effort to find employment. If this is to occur any costs associated will be offset by his either decrease or end to this wage loss benefits which to date is $1,567.00 per month. Further, if the WCB accepts responsibility for this amputation, the claimant will need to be re-assessed under the Policy No. 44.90.10.02 – Permanent Impairment Rating Schedule for the amputation.

The oral hearing

An oral hearing was held at the Appeal Commission on April 10, 2008.

a. The Comments of the Worker

The worker detailed both the pain and the loss of function which he attributed to his injured arm. He described what he considered to be the increased function he had enjoyed since the amputation, including an enhanced ability to carry groceries. He also indicated that “the minute the hand was removed my pain was gone.”

The worker went on to discuss his research on the subject of amputation including his conversations with amputees as well as his visit to a prosthesis clinic. He indicated that in electing for the amputation “I just made up my mind that I was going to take the chance . . . it can't be worse than what I have now…”

In discussion with the panel, the worker noted that after the amputation, he had a second surgery in 2007 to reshape his stump given a concern that the bone on the amputated stump might poke through the skin. He described his post amputation volunteer work and his desire to re-enter the work force. He indicated that since the amputation “I'm motivated. I didn't have that before. [Then] I was depressed…some days I just felt like not living…”

He suggested that in the post amputation period he had not really looked for other jobs because “I haven't really decided what type of work I would like to do.”

The worker also discussed the surgery that was performed in May 2005 by a Toronto surgeon. He indicated that he was disappointed in that surgeon because when he asked the surgeon if he would perform an amputation, the surgeon replied “Definitely not.” He noted that after surgery in May, he visited the Toronto surgeon in August 2005. At that period of time, the worker noted that he had an open scar which the Toronto surgeon suggested should be left open until January 2006.

The worker also expressed his vehement disagreement with the suggestion from the Toronto surgeon that “the claimant's pain symptoms, wrist ability and function were better than they had been in years.” In his view, “. . . by the time January would have came around, I would have either had gangrene in my arm.”

b. The submissions of legal counsel

Counsel for the worker commented upon the many unsuccessful medical procedures the worker had endured. He noted that

…because the early procedures did not offer [the worker] any relief from pain and permit him to return to work, he believed that the pain would never go away. He believed he would never be able to return to work unless the pain and disability caused by the arm that would not function and which actually got in his way as an injured limb…was abated.

He concluded that the only reasonable answer was to amputate his arm and to have it replaced by an up-to-date, state-of-the art prosthesis, which would allow him to function and return to work.

Counsel suggested that the worker treated his decision seriously, undertaking his own research into the pros and cons and discussing the issue with other amputees. In his submission, the worker felt the pain was unbearable and that his injured arm was causing problems to his good hand because of overuse.

Counsel for the worker took issue with the January 21, 2002 report of a psychiatrist who suggested the worker was not capable of making an informed decision about the risks and benefits of amputation. He noted that the worker was not diagnosed as suffering from any mental disease or other psychological disorder. He noted the October 12, 2003 view of a psychologist who suggested the worker had made a convincing case “in terms of his ability to articulate the likely consequences of such an operation.”

Counsel also pointed to the February 19, 2008 report of a psychiatrist who noted that clinically, [the worker] is not currently suffering from a major affective, psychotic or anxiety disorder, [the worker] does not currently appear to be suffering from a specific pain disorder, although he did, in retrospect, exhibit features of a Pain Disorder associated with Psychological Factors and a General Medical Condition, with this being present through the late 1980's until the early 2000's.

In terms of medical support for the operation, counsel for the worker pointed to the October 22, 2002 letter of the upper extremity specialist surgeon who wrote “I think [the worker] has convinced me that an amputation would be the best form of treatment…”

Counsel for the worker also pointed to what he considered to be a supportive letter from a plastic surgeon dated March 25, 2003. The surgeon stated:

The patient has had consistent complaints of pain and a useless extremity and has very little function of his right hand and if [the upper extremity specialist] felt that this was an appropriate procedure, I would not have any argument against this and would concur that if all WCB criteria had been met in order to proceed with this that this would not be an unreasonable procedure. This is an operation I would be reluctant to perform without all these criteria having been met. (emphasis added)

He also referred to a follow up letter dated June 4, 2003 from the plastic surgeon who again stated “it may not be unreasonable” for the amputation to proceed.

Counsel for the worker suggested that another orthopaedic surgeon was supportive of the amputation. He attached to the worker’s brief a February 15, 2005 letter of this surgeon. However, the letter in question appears to be supportive not of the amputation but of a different surgery to be undertaken by the surgeon in Toronto. There is also another letter on the record from the orthopaedic surgeon to the amputating surgeon. In it he states:

[The worker] tells me you will be performing a forearm amputation for him. He has exhausted all other surgical reconstruction treatment …I just know whatever has been done with [the worker] has been complicated.

Counsel suggested that as a result of the surgery, the worker was a “much happier and content individual. He has no pain in his right arm. He does not suffer, nor has ever suffered, phantom pain.” In Counsel's view, “the surgery [was] not elective, it [was] not cosmetic. It [had] to do with functional capacity of a limb [and] pain is a factor to function.”

Counsel for the worker argued that the surgery was necessary and not elective. In his view If the surgery will cure the problem and the problem is an immediate problem that continues to give disability and loss of function, and in order to overcome the disability and loss of function surgery is necessary that's not elective. That is necessary.

Counsel also addressed the March 16, 2004 decision of the Medical Review Panel. He suggested that it should be given less weight than the opinions of the upper extremity specialist, the orthopaedic surgeon and the plastic surgeon whose letters appeared as attachments to his brief.

They interviewed him on a personal basis. There was one to one contact. The review panel didn't have that one to one contact …we have to look on the basis of who had the closest contact, who knew more about the situation.

In terms of the recommendation of the hands round that an amputation was not appropriate, counsel for the worker suggested that they did not have the degree of familiarity with the worker that the upper extremity specialist, the orthopaedic surgeon and the plastic surgeon did.

In terms of the physician who actually performed the amputation, counsel for the worker suggested that “[the amputating surgeon] wouldn't have taken that man's arm off if it wouldn't have been for the fact that he believed that the arm had to come off.”

Counsel said with the benefit of hindsight it was clear the surgery was successful.

Post hearing information

Prior to rendering a decision on the issue under appeal, arrangements were made for the worker to be assessed by an independent occupational therapist (OT). The OT was asked to compare the worker’s physical abilities with and without his prosthesis. More specifically, the panel requested

1. A functional capacity evaluation without the prosthesis

2. A functional capacity evaluation with use of the prosthesis

3. A summary of the differences

4. An explanation of how the findings relate to the worker’s employability

5. An explanation of how the findings relate to the worker’s activities of daily living.

On April 11, 2008, the solicitor provided the Appeal Commission with a copy of two reports dated June 12, 2003 and October 20, 2005 from the family physician. In these reports, the family physician expressed his agreement for the worker to proceed with an amputation. He stated that the worker heard the pros and cons many times and had been advised that there was no guarantee that he will be more functional with a prosthesis. The worker considered all of this and wished to proceed.

A letter from the amputating surgeon was provided to the Panel on May 3, 2008.

The Functional Capacity Evaluation

The worker underwent a Functional Capacity Evaluation (FCE) on June 17 and June 18, 2008. A detailed summary report was provided to the Appeal Commission and was shared with interested parties for comment.

Among the worker's reported symptoms in the course of the FCE were:

•  Right shoulder pain, which is reportedly associated with use of his right prosthesis, as the prosthesis operates off the shoulder muscles;
•  Left thumb, hand pain which is related to left CMC joint repetitive injury and subsequent surgery

The FCE report notes:

•  A link was definitely established between the claimant's physical and functional deficits and his diagnosis of right arm below-elbow amputation, and left thumb CMC limitations and pain, and hip pain;

It identified significant challenges the worker faced with regard to certain types of lifts:

•  [Lifts Waist to Floor] with prosthetic - The claimant was unable to lift 5 lbs safely using this technique . . he demonstrated significant right shoulder hiking and leaning over onto the right side, as well as right side twisting, while attempting this lift. He was unable to get a firm stable grip on the milk crate on the right side …

•  [Lifts Waist to Floor] without prosthetic – He was noted to exhibit tremor in his shoulders and arms, extreme accessory muscle use and 2-stage approach to lifting. The crate became uneven . . . Significant rounding of his spine was noted on both days .

•  [Compression Lift] The compression grip with the right stump arm was attempted from waist to floor level, but the claimant was unable to complete this lift . . .

•  [Waist to crown] With Prosthetic - this lift was not able to be achieved safely with 5 lbs of weight, as the claimant was not able to attain a firm grip on the crate with the prosthetic;

•  [Right Arm Lift] This lift was attempted using the right stump arm, squeezing against the side of the crate to achieve compression force for the lift. This was attempted as most items in every day life do not have handles which can be adapted with a strap. He was unable to complete a lift safely using this technique.

Challenges with regard to certain carries, also were noted:

•  On Day 1, the short carry was also attempted with the prosthesis on the right arm. He exhibited extreme trunk rotation and right shoulder hiking due to the required angle of hooking for the prosthesis, and it was deemed unsafe to progress this particular test further;

• The claimant attempted to use his prosthetic to lift the toolbox, by attaching the hook to the handle …This was determined to be an unsafe lift for him as he was unable to secure the toolbox with the hook, and unable to attain the right elbow and hook position to safely secure the prosthetic hook to the toolbox handle;

Among the limitations noted in the FCE Report were:

•  Bilateral and right side material handling limited to attachment options;
•  Decreased core stability;
•  Minimal ability to perform functional right upper limb activities using prosthetic.

The report concluded that the worker had “the ability to work at a job that can accommodate a one hand worker…Given that the worker has only one hand he is at risk for aggravation of his left thumb due to overuse…Bilateral gross and fine motor activities such as dressing, minor home repairs, folding laundry, and scrubbing pots and pans will be slower and more difficult for him to perform. [He] is at risk for aggravation of his left thumb due to overuse given his one handedness.”

On August 6, 2008, the panel met further to discuss the case and considered a final submission from the worker’s solicitor dated July 29, 2008.

Reasons

Based upon a balance of probabilities, the panel prefers the opinion of the medical review panel, the “rounds session” and the upper extremity specialist who first proposed then ultimately rejected amputation. In particular, the panel considers the medical review panel report to be a carefully written and persuasive document.

Conclusion

Based on a balance of probabilities and considering the evidence as a whole, the panel finds that the WCB should not accept responsibility for the below elbow amputation of the worker's right arm.

The appeal is dismissed.

Panel Members

B. Williams, Presiding Officer
B. Simoneau, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer

Signed at Winnipeg this 26th day of September, 2008