Decision #110/09 - Type: Workers Compensation
Preamble
The worker is presently appealing two decisions made by Review Office of the Workers Compensation Board (“WCB”) dated March 19, 2009. One deals with a denial to convene a Medical Review Panel (“MRP”) and the other deals with whether surgery performed on May 15, 2008 was related to the worker’s compensable injury of February 24, 2001. A hearing was held on September 24, 2009 to consider the matter.Issue
Whether or not responsibility should be accepted for the May 15, 2008 surgery; and
Whether or not a Medical Review Panel should be convened.
Decision
That responsibility should not be accepted for the May 15, 2008 surgery; and
That a Medical Review Panel should not be convened.
Decision: Unanimous
Background
On February 24, 2001, the worker felt pain in his low back region when moving a large freezer from a basement. A few days later he injured his back region again while bending and twisting at work.
On February 26, 2001, the attending physician reported that the worker had severe low back pain that radiated down the right leg. The diagnosis rendered was disc herniation. The physician reported that the worker had a previous back injury. The claim for compensation was accepted and benefits were paid to the worker.
On May 1, 2001, a WCB adjudicator asked a WCB medical advisor to provide an opinion as to the diagnosis related to the compensable injury. The adjudicator noted that the worker had four previous compensation claims for his low back and there was reference that the worker needed “life long” restrictions. In the opinion of the WCB medical advisor, the diagnosis was “possible resolving disc herniation at L/S spine”. He indicated that permanent restrictions were not warranted and he expected that the worker’s injury would resolve over the next four to six weeks.
File records showed that the worker continued to experience back pain and was examined and treated by an orthopaedic specialist and a physical medicine and rehabilitation consultant.
On October 29, 2002, the worker was seen by a neurosurgeon who opined that the worker’s back complaints were substantial and related to disc herniation at the L5-S1 level. He felt that conservative treatment had not been particularly successful and that surgical decompression of the S1 root was indicated.
On November 14, 2002, the worker underwent a hemilaminectomy and discectomy. The pre-operative and post-operative diagnosis was herniated lumbar disc L5-S1 medio-laterally right. The treating neurosurgeon noted that the preoperative radiculopathy had completely subsided and the sensory impairment had normalized.
In a follow-up report dated January 7, 2003, the neurosurgeon indicated that range of motion in the worker’s lumbar spine was fairly restricted and paraspinal muscle tightness was still quite significant. There was no evidence of radicular irritation. Physiotherapy treatment was prescribed.
On January 30, 2003, a WCB orthopaedic consultant indicated that the working diagnosis consistent with the effects of the compensable accident was discogenic lumbar back pain with right sided sciatica (L5-S1).
Progress reports submitted throughout 2003 showed that the worker continued to experience back pain along with depression, anxiety and substance abuse.
On January 5, 2004, the neurosurgeon indicated that neither analgesics nor anti-inflammatories were able to control the worker’s back pain. He reported findings consistent with an L5 radiculopathy. A lumbar laminectomy and discectomy at L4-5 was suggested.
A WCB orthopaedic consultant reviewed the file on January 20, 2004 and made the following comments:
“…an MRI assessment…done September 6, 2003, showing some changes at the right L5-S1 level consistent with previous surgery and shallow posterior disc herniation at L4-5, which “appears to contact the L5 nerve roots bilaterally”. No evidence of definite displacement or compression. To my mind, this finding is rather similar to the earlier CT examinations.
On this basis alone, it would seem that the prospects of improvement with L4-5 laminectomy and discectomy would not be good…”
The consultant concluded that based on the minimal MRI findings compared to the previous CT scan and the evidence of depression, anxiety and substance abuse, the WCB would not authorize further surgery.
On January 22, 2004, the orthopaedic consultant recommended a call-in examination to establish the current diagnosis, its relationship to the workplace injury and restrictions.
On February 17, 2004, the worker was examined by the WCB orthopaedic consultant. The consultant reported that the worker had established lumbar disc degeneration with significant L5-S1 posterior articular degenerative changes. There was no convincing evidence of a radiculopathy arising out of the L5 lumbar root compression on the right side. He confirmed that the proposed surgery was not recommended. He felt the worker was not totally disabled and was capable of light duties.
File reports showed that the worker returned to modified duties but was unable to tolerate more than four hours per day because of back pain. In February 2005, a MRI of the lumbar spine revealed no significant interval change from the previous September 2003 examination. The radiologist’s only comment was “Perhaps degenerative changes have somewhat progressed at the L4-5 level.”
On March 10, 2005, the neurosurgeon reported that his examination findings were consistent with those of the previous examination of September 2003. There was no radiological correlation for right sided radiculopathy. Clinically, the neurosurgeon opined that the worker’s main problem was mechanical low back pain (low back and gluteal pain).
Following an examination of the worker on September 22, 2005, a WCB orthopaedic consultant opined that the worker’s complaints were consistent with degenerative changes noted on x-rays and MRIs and that his examination findings were suggestive of spinal stenosis. He further stated:
“On the MRI of February 4, 2005, the radiologist reported severe bilateral foraminal stenosis at L5 S1, facet arthropathy, and post-surgical scarring. There was no nerve root displacement. At L4-5 it was reported there was posterior disc herniation associated with an annular tear. I feel the claimant’s symptoms are more consistent with the stenosis reported at L5-S1. On reviewing the films, I felt there might be some degree of stenosis at L4-5 as well. The radiologist had reported that the degenerative changes had progressed at L4-5. I do not see any objective evidence that the degenerative changes would be related to a work related injury.”
On May 16, 2006, a senior WCB medical advisor reviewed the file at the request of a WCB vocational rehabilitation consultant. In his opinion, the compensable diagnoses were “L5-S1 disc herniation and right SI radiculopathy with subsequent L5-S1 discectomy/laminectomy and post-operative scarring. Degenerative changes L4-S1 and degenerative changes facet joints L5-S1.” The medical advisor indicated that there was a cause and effect relationship between the worker’s back difficulties, compensable injury and subsequent surgery.
On May 23, 2006, a WCB medical advisor spoke with the treating neurosurgeon who felt that surgery was not recommended. Treatment suggestions included supportive injections, non-invasive treatment and physiotherapy from time to time.
Laboratory investigations revealed that the worker underwent a CT scan on January 25, 2008 which showed no significant interval change compared to the prior 2006 study.
On February 1, 2008, an MRI examination revealed the following impression:
“Diffuse posterior disc protrusion at L4-5. Exit foraminal narrowing of the LS nerve root L5-S1. Shallow left posterolateral disc protrusion and osteophyte formation L5-S1. The central spinal canal diameter is narrow on a congenital basis and there is mild superimposed further narrowing at L4-5 due to the disc protrusion. There is mild facet arthropathy principally at L5-S1. Prior left L5-S1 laminectomy.”
On March 31, 2008, the worker was assessed by an orthopaedic surgeon for a second opinion. He stated:
“This patient therefore has longstanding mechanical back pain dating back to 2002. There is a confirmed disc herniation centrally at L4-5 with annulus rupture as well. The patient has considerable progressive urinary dysfunction. Perianal sensation was normal but rectal exam was not done but the patient does complain of poor anal control from time to time. The MRI scan does confirm the L4-5 changes and I believe this patient should be given the benefit of the doubt with an L4-L5 discectomy fusion and fixation arranged to S1. This will also include a foraminotomy at L5-S1 due to the blunting of the foramen as seen on MRI scan. The Modick changes noted, are typical long term complications of discectomies indicative of a lumbar instability. Due to the fact this has been such a longstanding program I would certainly advise a pre and postoperative help of a Psychotherapist to motivate this patient and to get optimum benefits from surgery. He will also need to be weaned off his opiates in an attempt to improve his postoperative pain control. This letter therefore serves as a request from Worker’s Compensation to continue with surgery.”
On April 1, 2008, the neurosurgeon wrote to the treating physician stating that the worker’s clinical presentation was suggestive of some residual mechanical/musculoskeletal low back pain which accounted for the lumbosacral discomfort. He could not detect any obvious signs of radiculopathy. He did not think that the radiological findings had any surgical relevance at this point in time.
Following review of all file information on May 14, 2008, a WCB orthopaedic consultant indicated there was a significant difference of opinion between the assessment and recommendations by the orthopaedic surgeon and neurosurgeon. He further commented that the proposed surgery should not be authorized based on the following factors:
· there was a difference of opinion between the orthopaedic surgeon and the neurosurgeon with a practice entirely in spinal surgery;
· there was discrepancy in the interpretation of imaging studies between the orthopaedic surgeon, the neurosurgeon and the radiologist;
· the inappropriate use of analgesic medication was a strong contraindication to considering any surgical procedure and this had been commented on by the orthopaedic surgeon;
· the L4-5 disc herniation, in his opinion, was not a part of the compensable diagnosis of this claim. “…there was an imaging abnormality at the L4-5 level, but the operating neurosurgeon clearly did not feel that this was significant in relation to the L5-S1 disc herniation. The orthopaedic surgeon has subsequently commented that the neurosurgeon had later offered surgery at L4-5, after the original operation. This is so, but after further consideration, the neurosurgeon did not pursue this as a possible diagnosis. This was reinforced by a call-in assessment at the WCB which failed to identify any clinical evidence of symptomatic L4-5 disc herniation with radiculopathy.”
The WCB accordingly declined to authorize a second surgery.
On May 16, 2008, the worker underwent the following surgical procedure: “L4-5 Laminectomy and Discectomy, L5/S1 Foraminotomy and Decompression. Fixation L4 to S1 Using Pangea System, and bone graft left pelvis.”
On May 22, 2008, the WCB orthopaedic consultant reported that there was no available clinical or imaging study information of a deterioration in the compensable diagnosis of L5-S1 disc degeneration and herniation with right S1 radiculopathy. He noted that there was no report of a new workplace injury to the lower back. The consultant indicated that there was no change in his opinion of February 17, 2004 that the worker was not totally disabled and was capable of light duty work.
In a submission to a WCB case manager dated June 26, 2008, a worker advisor asked the WCB to reconsider its decision to deny responsibility for the surgical procedure that was done on May 16, 2008. The worker’s position was that his ongoing and progressive right sided low back and right leg difficulties had persisted since the February 2001 compensable injury and that it resulted in the May 2008 surgery. He further was of the view that his L4-5 was enhanced during the February 2001 compensable injury. The worker reported that he was enjoying a pain free recovery with no further numbness in his right foot. In the event that case management did not change the May 22, 2008 decision, the convening of a MRP was requested under subsection 67(4) of The Workers Compensation Act (the “Act”). The worker advisor indicated that there was a difference of medical opinion between the orthopaedic surgeon’s opinion of March 31, 2008 and the neurosurgeon’s opinion of April 1, 2008.
On September 9, 2008, the file was again reviewed by the WCB orthopaedic consultant and he outlined the opinion that the surgical procedure of May 16, 2008 did not arise out of the compensable injury.
In a decision dated October 6, 2008, the worker was advised that the WCB was not accepting responsibility for the May 2008 surgery (a surgical procedure involving fusion from L4 to the sacrum and a L4-5 herniation excision) as these diagnoses did not apply to the compensable injury.
On October 29, 2008, the treating orthopaedic surgeon reported the following:
“He is now 6 months out following an L4-5, L5-S1 fusion and fixation. I am flabbergasted that the Workman’s (sic) Compensation has rejected this patient’s claim. He had post-laminectomy syndrome with obvious instability at L5-S1 and obvious mechanical back pain. This alone should qualify him for further cover under the Workman’s (sic) Compensation Act. In addition the patient was unable to work but now has returned to work already doing 5 hours per day and steadily increasing that. The recent x-rays show a good fusion between L4 and S1 and I am quite satisfied with his clinical outcome.”
On January 27, 2009, it was determined by a WCB unit supervisor that there was no requirement for an MRP as the site in question during the surgical procedure of May 16, 2008 had been identified in reports as a pre-existing condition and not as a compensable diagnosis.
The case was considered by Review Office on March 19, 2009 based on an appeal submission from the worker advisor dated January 30, 2009. Prior to rendering its decision, Review Office obtained a medical opinion from a different WCB orthopaedic consultant dated March 4, 2009.
Review Office determined on March 19, 2009 that responsibility should not be accepted for the May 2008 surgery and that an MRP should not be convened. Further, it was determined that there was some responsibility for the worker’s low back condition.
Regarding the surgery in May 2008, Review Office referred to the opinion expressed by the WCB orthopaedic consultant on March 4, 2009 that the May 16, 2008 surgery was for reasons unrelated to the compensable injury; that the condition of the L4-5 disc did not deteriorate as a result of the compensable injury and/or the compensable surgery. He indicated that surgery was contraindicated based on poor results from the first surgery and the other issues noted continued to be relevant reasons to contraindicate additional surgery. Based on the totality of evidence, Review Office said there was a significant pre-existing and degenerative condition, i.e. at the L4-5 level, and that the surgery was not related to the compensable injury. The worker was a poor surgical candidate and surgery was typically not the recommended treatment based on the presenting symptoms and findings.
Review Office determined that the orthopaedic surgeon’s medical conclusion did not meet the criteria to convene an MRP under subsection 67(4) of the Act. Review Office indicated that the worker’s presentation at the orthopaedic surgeon’s office was inconsistent with his presentation the next day at the neurosurgeon’s office. The orthopaedic specialist had limited medical information without the benefit of collateral information from the WCB and without knowledge of the neurosurgeon’s subsequent reasons for not performing surgery.
Lastly, Review Office felt that the worker’s pre-existing condition had been enhanced by the November 2002 surgery at the L5-S1 level and therefore he had not recovered from the effects of his compensable injury. As the worker had other conditions at the L4-5 disc and knee which were not accepted as the WCB’s responsibility, the WCB was to determine what if any time loss and medical treatment was required in relation to the compensable injury.
On March 23, 2009, the treating orthopaedic surgeon wrote a report for the worker and stated,
“The fact that Worker’s Compensation cut you off is very strange. This is because they explicitly gave us permission to go ahead with surgery prior to this. Furthermore you have not worked for many years and after the surgery you are now able to work. This should be enough incentive for them to continue with support. Furthermore I must state that the reason for the surgery was a direct result of the previous surgery which you had which was a compensable claim at that time.”
On April 14, 2009, the worker appealed Review Office’s decision related to the May 2008 surgery and the decision not to convene a MRP. A hearing was held in September 2009 to consider these issues.
Reasons
Applicable Legislation and Policy
When a worker suffers personal injury by accident arising out of and in the course of employment, compensation is payable to the worker pursuant to subsection 4(1) of The Workers Compensation Act (the “Act”).
Medical aid payments for expenses such as surgery are payable in accordance with subsection 27(1) of the Act. The WCB makes these payments where it determines that the medical aid is necessary to cure and provide relief from an injury resulting from an accident. In making such a determination, the nature of the injury, the treatment provided and the worker’s response to the treatment may be considered.
WCB Policy 42.10.10, Elective Surgical Procedures (the “Elective Surgery Policy”) sets out the WCB’s policy regarding authorization of elective surgical procedures. The Elective Surgery Policy states that: “Under the Act, the WCB is responsible for the supervision and control of medical aid to injured workers. The WCB believes that elective surgery should be subjected to a process of prior review to ensure that the requested surgery is appropriate.” Section 1 reads as follows:
1. The WCB will accept responsibility for the costs associated with elective surgery and the worker’s subsequent recovery if
a. The surgery is required as a result of a compensable injury; and
b. Prior approval has been received from the WCB Healthcare Department.
The worker has requested that an MRP be convened under subsection 67(4) of the Act. The relevant provisions of the Act are subsection 67(4) and 67(1).
Subsection 67(4) provides:
Reference to panel on request of worker
67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.
Subsection 67(1) defines opinion as "a full statement of the facts and reasons supporting a medical conclusion."
Worker’s Position
A worker advisor appeared on behalf of the worker and the worker participated in the hearing by teleconference. The worker’s position with respect to the first issue was that his L4-5 disc protrusion and degenerative disc disease were enhanced by the February 21, 2001 compensable injury. It was also his position that the compensable L5-S1 required surgical repair on September 15, 2008. Evidence cited in support of the worker’s position was the fact that the mechanics of the workplace accident would have enhanced a pre-existing L4-5 disc condition, a disc protrusion at L4-5 was identified on the April 4, 2001 CT scan, the worker continued to have low back and leg symptoms following the November 2002 surgical treatment of his L5-S1 and that he enjoyed a good recovery following the May 15, 2008 surgical treatment of his L4-5 disc. Medical reports from the worker’s attending physician, the treating orthopedic surgeon, and a senior consultant spine surgeon were relied upon.
With respect to the second issue concerning the convening of an MRP, it was submitted that in the event that the panel determined that the worker’s pre-existing L4-5 disc condition was not enhanced by the February 21, 2001 compensable injury, there was a difference in medical opinion between the worker’s treating physician, as stated in his June 25, 2008 report on file and the medical advisor to the WCB. In the event that the panel determined that the September 15, 2008 surgical repair of the worker’s compensable L5-S1 was not required, there was a difference in medical opinion between the WCB medical advisor and the senior consultant spine surgeon in his September 12, 2007 email, the attending physician in his June 25, 2008 report and the treating orthopedic surgeon’s reports of October 29, 2008 and March 23, 2009.
Employer’s Position
A representative from the employer appeared at the hearing with an advocate. The position taken by the employer was that responsibility should not be accepted for the surgery which was for a pre-existing degenerative condition. This was confirmed by extensive diagnostic testing, including three MRIs, CT scans, x-rays, bone scan examination by numerous specialists and call-in examinations. Based upon the extensive medical evidence, the WCB denied responsibility for the surgery. As prior approval was denied, there was no entitlement to compensation for the surgery and recovery period.
With respect to the convening of a Medical Review Panel, it was submitted that the difference of medical opinion between the worker’s doctors and WCB physicians did not meet the criteria of section 67(4) of the Act. Although there were differing opinions as to the need for surgery, the orthopedic surgeon did not provide a full statement of facts and reasons supporting the medical conclusion. Based on the evidence on file, the employer asked that the panel deny the appeal.
Analysis
There are two issues being appealed. Each will be addressed in order.
1. Whether or not responsibility should be accepted for the May 15, 2008 surgery
In order for the worker’s appeal on this issue to succeed, the panel must find that the surgery was required as a result of the compensable injury. As we are unable to find that the surgery was required as a result of the compensable injury, the worker’s appeal on this issue must fail.
Although the issue describes the date of the surgery as May 15, 2008, the surgical report indicates that the procedure actually took place on May 16, 2008. The one day discrepancy in the dates is of no significance.
The surgery consisted of three procedures: L4/5 laminectomy and discectomy, L5/S1 foreminotomy and decompression, and fixation L4 to S1 using Pangea System and bone graft left pelvis. If the panel were to find that any of these three procedures was required as a result of the compensable injury or its sequelae, then it would follow that responsibility for the surgery should be accepted.
With respect to the L4-5 laminectomy, we found insufficient support in the medical file to conclude that the L4-5 condition was related to the initial compensable injury. The worker had a significant history of back pain related to the L4-5 level. In early 1999, he was admitted to hospital for acute back pain referring to his right buttock with spasm down his right leg. The hospital discharge report dated March 12, 1999 stated: “He is known with a chronic disc lesion L4-L5.” A report from a sports medicine doctor dated March 16, 1999 indicated: “It is my opinion that (worker) has a right S1 radiculopathy likely as a result of a lumbar disc protrusion/herniation.” It was hoped that with conservative treatment, the condition would improve and allow him to return to his regular work and day to day activities.
There was a significant amount of radiological investigation into the worker’s condition, with 5 CT scans being taken between April 2001 and January 2008, and 3 MRI scans which were performed in September 2003, February 2005 and February 2008. The radiological findings indicated that there was little change at the L4-5 level over the several years after the compensable incident. The L4-5 disc protrusion was consistently described as a “small” or “shallow” disc protrusion and it is not until the MRI of February 4, 2005 that there is comment that: “perhaps degenerative changes have somewhat progressed at the L4-5 level.” Given the passage of time, the extensive pre-existing condition and its natural pattern of progression, the panel has difficulty attributing this progression to the compensable injury.
The orthopedic consultant to the Review Office conducted a review of the worker’s medical information and in his memorandum of March 4, 2009, he noted: “there is no objective medical evidence that the condition of the L4-5 disc changed as a result of the CI.” The panel agrees with this assessment.
Overall, the panel was unable to find sufficient evidence to convince us that the workplace injury caused an aggravation or enhancement of the pre-existing condition at the L4-5 level. We therefore find that the L4-5 laminectomy was not required as a result of the compensable incident.
With respect to the L5/S1 decompression and the L4 to S1 fixation, the panel notes that the worker had previous surgery at the L5/S1 level which was deemed compensable. The question we had to ask was whether the two procedures performed at the L5/S1 level during the May 2008 surgery were related to the previous surgery or whether they were required due to degenerative changes. On a balance of probabilities, we find that the procedures were required due to degenerative changes.
In coming to our decision, the panel again relied on the analysis performed by the orthopedic consultant to the Review Office in his memorandum dated March 4, 2009. In the memo, the orthopedic consultant indicated he did not agree with the reasons for proposing the surgery and did not believe that those reasons related to the compensable injury. This opinion was similarly held by another orthopedic consultant to the WCB, who in a memo dated September 9, 2008 also opined that: “The surgical procedure appears to have been applied to the pre-existing condition of L4-5 and L5-S1 degenerative changes involving mainly the posterior articulations, and an L4-5 disc excision, which was not part of the compensable diagnosis.”
The panel notes that the section of the surgical report dealing with the L5/S1 decompression referred to “significant stenosis was found due to residual ligamentum flavum which clearly indented the S1 nerve root.” The stenosis and residual ligamentum flavum are not conditions which could be attributed to the compensable injury or its sequelae. The surgical report also stated that: “very little fibrosis was noted.” This indicates that scarring from the previous compensable surgery was not likely the cause of the worker’s continuing symptomatology.
For these reasons, the panel concludes that none of the procedures performed during the May 2008 surgery were required as a result of the compensable injury and we therefore find that responsibility for the surgery should not be accepted. The worker’s appeal is dismissed.
2. Whether or not a Medical Review Panel should be convened
To accept the worker’s appeal we must find on a balance of probabilities that the medical opinion of the medical officer of the WCB differs from the opinion of the worker’s treating physician within the meaning of subsections 67(4) and 67(1) of the Act. We are unable to make that finding.
At the hearing, the worker advisor was asked to clarify the specific issues upon which there was a difference of opinion. The worker advisor identified two issues as follows:
1. Whether or not the L4-5 was enhanced by the compensable injury; and
2. Whether or not there was instability of the compensable L5-S1.
With respect to the first question, it was submitted that the June 25, 2008 report of the treating physician stated that the L4-5 vertebral level was enhanced by the compensable incident. The panel does not agree that the report of June 25, 2008 provides such an opinion. In the panel’s view, the treating physician only commented on the history of the claim and outlined his own observations on examination over the past few years. He did not explicitly state a medical conclusion which was supported by a full statement of facts and reasons.
With respect to the second question, the October 29, 2008 report of the orthopedic surgeon was relied upon by the worker. Again, the panel did not identify in the report a medical conclusion, supported by a full statement of fact and reasons, which was contrary to an opinion of a WCB medical advisor. At best, the passage referred to by the worker advisor communicated the orthopedic surgeon’s observations of instability at L5-S1. The panel does not see where there is a difference of opinion respecting a medical matter affecting entitlement or compensation.
It is worth noting that at the hearing, the worker advisor admitted that neither of the reports relied upon by the worker contained a direct statement of opinion by either the treating physician or the orthopedic surgeon.
We therefore find that the requirements of subsection 67(4) have not been met. There is no difference of opinion as defined by the section which would warrant convening an MRP. The worker’s appeal is dismissed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 19th day of November, 2009