The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker's claim for injury has been accepted. He is appealing two issues that have arisen on the claim.

Issue 1. The worker is asking the panel to find that the WCB is responsible for the surgery he received on his left knee. Matters regarding medical care are dealt with under subsection 27 (10) of the Act. In addition the Board enacted WCB Policy 42.10.10, Elective Surgical Procedures.

Issue 2. The worker is also seeking payment of further benefits, including medical benefits, related to recovery from the left knee surgery. Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends as determined by the WCB.

Worker's Position

The worker was represented by legal counsel who made a presentation on the worker's behalf. The representative and worker answered questions asked by the panel.

The worker's representative noted that this is an unusual case in that the worker is 82 and has been working for the employer since 1997. He advised that the worker wishes to continue to work with the employer and has returned to work in a light duties position.

The representative advised the worker's main concern is responsibility for the surgery, expenses incurred and also medical loss benefits because he continues to take treatments. He is currently receiving chiropractic treatment. The representative advised that the worker is not seeking wage loss benefits because he had no loss.

The representative referred to the December 2, 2011 Review Office decision which found that the worker was entitled to compensation benefits after March 2, 2011 for the compensable left knee injury. He noted that no one has appealed the decision and questioned why the WCB will not continue, given the prior Review Office decision, to accept responsibility for the knee injured as determined by Review Office.

In answer to a question about the condition of his left knee now compared to the way it was before the surgery, the worker replied "A lot better." He also advised that he has less pain and he no longer limps. The worker advised that his knee did not bother him before the accident.

Employer's Position

The employer was represented by its WCB coordinator. The representative noted that the worker used 35 days of sick leave after the surgery. She confirmed that if the worker's appeal was successful, his sick leave would be replaced except for ten percent that had been used to top up WCB wage loss benefits.

The employer representative provided a copy of the worker's job description.

She commented that the WCB decision appears to be medically influenced and noted that the treating surgeon expressed the opinion that the arthroscopy would not provide much long term benefit.

She advised that the employer is committed to accommodating the worker based on medical information provided and restrictions. She noted that the WCB decision would not change his employment status or the need to accommodate him.

Analysis

In addressing the issues under appeal, the panel finds that the WCB policy on Elective Surgical Procedures is applicable. The Policy Purpose states:

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. This policy clarifies the circumstances in which the WCB will accept responsibility for the costs associated with elective surgery and the worker's recovery.

The policy provides 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's Healthcare Services Department.

2. If elective surgery is undertaken without prior approval, the WCB may accept responsibility if prior approval would have been granted had it been requested.

3. If the elective surgery has not been authorized, the WCB will be responsible for only those benefits that the worker would have been entitled to receive if he or she had not received the surgery.

4. Decisions of the Healthcare Services Department regarding the authorization of elective surgery may be reconsidered and appealed in accordance with the normal process prescribed by the Act.

Issue 1: Whether responsibility should be accepted for the June 21, 2012 surgery.

The worker underwent arthroscopic surgery to his left knee on June 21, 2012. The surgery consisted of arthroscopy and tri-compartmental debridement of the left knee. As noted in section 1 of the policy, elective surgery is only covered by the WCB where it is required as a result of a compensable injury and prior approval from the WCB has been given.

In this case, the panel considered whether the arthroscopic surgery was elective. It concluded that it was elective in that it was optional and was not urgently required. As it was elective, prior approval for the surgery should have been obtained from the WCB. The panel finds that prior approval was not sought.

The failure to obtain prior approval is not fatal, if prior approval would have been granted had it been requested. However, the evidence shows that the WCB medical department's position is that it would not have authorized the surgery. This is noted in the July 26, 2012 letter from the WCB orthopaedic consultant to the treating physician. The WCB orthopaedic consultant advises the treating surgeon that "The WCB would not have authorized the arthroscopic procedure because there is little probability of a sustained improvement of function as a result."

The decision of the WCB medical department and Review Office are appealable to the Appeal Commission. In addressing an appeal on this issue, the Appeal Commission will consider the relationship of the surgery to the accident, and whether the surgery was appropriate. In determining appropriateness, the panel will consider the likelihood of sustained improvement resulting from the elective surgery. The panel finds:

1. The surgery was not required as a result of a compensable injury. The panel notes that the diagnosis suggested by the WCB orthopaedic consultant was a strain of the left knee in the environment of osteoarthritis of the knee. The treating surgeon's letter of September 20, 2011 refers to degenerative changes in the medial compartment. The operative report indicates extensive findings of osteoarthritic changes, degenerative tearing, and chondromalacia in all parts of the knee. The panel finds that these conditions are not, on a balance of probabilities, related to the compensable injury which was a capsular sprain, and
2. The surgery is not appropriate given the poor likelihood of sustained improvement of function. The panel accepts the treating surgeon's opinion noted in his letter of September 20, 2011 that "I do not think knee arthroscopy will be much long term benefit…" As well, the panel notes the WCB orthopaedic consultant opinion that there was little probability of sustained benefit from the arthroscopic procedure and that meta analysis of the outcome of arthroscopy for osteoarthritis of the knee has demonstrated no significant effect on the natural history of the condition in the population reviewed. The panel is unable to authorize the surgery.

The worker's appeal of this issue is dismissed.

At the hearing, the worker's representative questioned why the WCB and Review Office are not complying with Review Office decision dated December 2, 2011 which found that the worker is entitled to compensation benefits after March 2, 2011. The panel has considered both Review Office decisions. Review Office decision of October 18, 2012 deals with a specific surgical procedure which took place on June 21, 2012 and not with the worker's general entitlement to benefits as of March 2011. The December 2, 2011 decision found that as of that date the worker was entitled to benefits but it did not determine that entitlement to benefits would last forever. This is consistent with the provisions of the Act which allow for decisions on a claim to evolve over time, as dictated by the circumstances of the claim. The panel does not find the decisions to be inconsistent.

Issue 2: Whether the worker is entitled to wage loss and medical aid benefits as a result of the surgery.

Section 3 of the policy provides that: "If the elective surgery has not been authorized, the WCB will be responsible for only those benefits that the worker would have been entitled to receive if he or she had not received the surgery."