The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that the proposed surgery, a pannectomy, was not a consequence of his compensable hernia repair surgery performed in November 2012. A hearing was held on November 13, 2014 to consider the matter.

Issue

Whether or not responsibility should be accepted for the proposed pannectomy.

Decision

That responsibility should be accepted for the proposed pannectomy.

Decision: Unanimous

Background

On August 5, 2009, the worker was standing in a vehicle closing the emergency roof vent when he fell and felt a sharp pain on the left side of his abdomen. His claim for compensation was accepted based on the initial diagnosis of an abdominal wall strain. The worker was later diagnosed with a ventral hernia condition which was accepted as being related to the August 5, 2009 accident. Hernia repair surgery was performed on November 22, 2012.

On April 12, 2013, a WCB medical advisor spoke to the treating surgeon to discuss the worker's functional capabilities. The surgeon commented that the worker was not totally disabled and that he may require a panniculectomy in the future due to his obesity and that this would not be related to the August 5, 2009 compensable injury.

On May 27, 2013, the worker underwent a CT scan of his abdomen and pelvis which revealed a large abdominal wall fluid collection anterior to the mesh. There was no evidence of a recurrent hernia.

A WCB medical advisor reviewed the claim file on May 29, 2013. He stated that the CT findings of May 2013 would be in keeping with a seroma which often occurred following hernia repair as described in the operative report of November 22, 2012.

On June 4, 2013, the treating surgeon reported that the worker had developed problems with panniculitis and he had a chronic seroma. The surgeon commented that a pannectomy would be required to enable the worker to return to his full duties. The surgeon indicated that he was not sure whether the WCB would fund the pannectomy and he was going to petition Manitoba Health because of the underlying medical problems caused by the pannus.

In another report dated June 12, 2013, the treating surgeon commented that the worker was going to have ongoing problems with panniculitis. He said the worker had a large chronic thick-walled seroma which would probably not entirely resolve. He said the only way to get the worker back to full function would be to perform a pannectomy. This would remove the seroma and a large amount of fat and would increase the worker's mobility.

On June 24, 2013, a WCB medical advisor commented that the proposed pannectomy would not be related to the workplace events of August 9, 2009 and was not related to the worker's recurrent ventral/incisional hernia and the subsequent surgical procedure of November 22, 2012.

On June 26, 2013, the worker was advised that the WCB was not accepting responsibility for the recommended surgery as it was not a consequence of the August 5, 2009 workplace injury but was related to other medical reasons.

On August 12, 2013, the treating surgeon wrote the WCB to support that the proposed surgery would permanently resolve the worker's problems and would enable him to return to full active duties.

On December 6, 2013, the worker's union representative submitted various medical reports for consideration which included a medical opinion from an independent physician. The independent physician opined that the recommended pannectomy was a complication of the incisional hernia repair in November 2012 and therefore it should be covered by the WCB.

On January 27, 2014, the worker was advised that based on a WCB medical advisor's review of the file on January 21, 2014, the new medical information did not provide information to warrant a change to the WCB's previous decision. The WCB's position was that the proposed pannectomy was not related to the August 5, 2009 workplace accident.

On February 6, 2014, an occupational health physician reported that he saw the worker on January 14, 2014 to discuss whether his previous occupational injury led to the problem leading to the proposed pannectomy. The specialist stated:

I feel your current symptoms and problems are related to your previous ventral hernia repair and the complications thereof and as such would be related to your original injury. Your large body size had predisposed you to these problems, but you would not have required a pannectomy if you had not had a ventral hernia repair.

On February 25, 2014, the worker's union representative appealed the WCB's decision to deny responsibility for the worker's ongoing difficulties and the case went to Review Office for consideration.

On March 18, 2014, Review Office referred the case to the WCB's healthcare branch to obtain additional information regarding the following medical conditions: Panniculitis, chronic seroma and a chronic intertriginous rash. The WCB medical opinion is on file dated March 24, 2014.

On April 9, 2014, the employer's representative submitted to Review Office that the WCB decision of June 26, 2013 was well founded. A copy of the submission was forwarded to the worker and his union representative and their comments are on file dated April 15, 2014.

On April 28, 2014, Review Office determined that the seroma was related to the compensable injury and associated hernia repair based on WCB medical opinions dated May 29, 2013 and March 24, 2014 and that of the worker's treating surgeon.

Review Office also found that the proposed pannectomy was not a WCB responsibility. Review Office accepted the WCB medical opinion of March 24, 2014 that the worker's panniculus was the result of his obesity rather than the compensable injury. This was considered to be a pre-existing condition. Review Office noted that based on a May 1, 2012 report from the treating surgeon, a pannectomy was being contemplated prior to the hernia repair in November 2012.

Review Office considered the medical opinion outlined on February 6, 2014 but was unable to find the evidence to support that the proposed pannectomy was required as a result of the compensable injury or the associated repair.

On August 1, 2014, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested clarification from the WCB's healthcare branch regarding a WCB medical opinion outlined on July 29, 2014. A response was later received from the WCB and a copy was forwarded to the employer and the worker's union representative for comment. On January 7, 2015, the panel met further to discuss the case and render its decision.

Reasons

Applicable Legislation:

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

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 Act. Provision of medical aid to injured workers is payable in accordance with subsection 27(1) of the Act which provides as follows:

Provision of medical aid

27(1) The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Worker’s Position

The worker was assisted by a union representative with the appeal. It was noted that the worker suffered an abdominal hernia, for which the WCB accepted full responsibility. Numerous physicians gave opinions that the worker's current situation was related to and caused by the hernia repair surgery. The surgery could not be performed laparoscopically, so a large incision was made along the middle of his abdomen to repair the hernia. After the surgery, the worker was left with a large seroma on his abdomen and an inflamed pannectus which had been determined by multiple doctors to be related to the worker's WCB supported surgeries. It was noted that the worker never asked for a pannectomy. He had been told by his surgeon that in order for the seroma surgery to be successful, he needed the pannectomy to be done or there could be further complications.

Employer’s Position

The employer was represented by a compensation coordinator. The employer was opposed to acceptance of the proposed pannectomy on the grounds that the sole purpose in undertaking the procedure was to address the consequences of the worker's morbid obesity and not the residual effects of the compensable injury. It was noted the pannectomy had been contemplated as far back as the middle of 2012 and that, notwithstanding the May 27, 2013 CT scan confirmation of the seroma, subsequent correspondence from the general surgeon spoke only of the pannectomy. It was submitted that the significance of the seroma was only elevated after both Manitoba Health and the WCB denied responsibility for the pannectomy.

With respect to the December 9, 2014 response by the WCB medical advisor, it was submitted there was a slight degree of ambiguity. The response could be interpreted as meaning that it would make sense to do both procedures at the same time given that they involve virtually the same anatomical site. It was submitted, however, that this in and of itself ought not warrant the acceptance of a procedure which was clearly unrelated to any compensable event. The panel was also asked to note the caution contained in the last sentence of the WCB medical advisor's response.

Analysis

The issue before the panel is whether or not responsibility should be accepted for a proposed pannectomy surgical procedure. In order for the worker's appeal to succeed, the panel must be satisfied that the surgery is necessary to cure and provide relief from the injury resulting from an accident. We are able to make this finding.

The worker's compensable injury was a ventral hernia which was surgically repaired on November 22, 2012. Due to the worker's body habitus and large abdominal pannus, he experienced some post-surgical complications with his wound. In the area of the incision, the worker developed a seroma.

As early as May 2012, the worker's surgeon was suggesting that a pannectomy be performed to reduce the hanging pannus and problems with panniculitis and chronic rash. It is the panel's understanding that a pannectomy is not routinely covered by provincial health insurance. Two WCB medical advisors indicated that the proposed pannectomy surgery would be required on account of morbid obesity and would not be considered related to the ventral hernia.

The panel accepts the opinion of the WCB medical advisors and finds that pannectomy surgery, in and of itself, is not related to the worker's compensable injury. The attending surgeon, however, has requested coverage of the pannectomy as an adjunct to surgical treatment of the seroma. In his letter dated July 8, 2014, the surgeon states: "from a surgical point of view, one would almost have to approach the seroma by doing a pannectomy at the same time; otherwise one would be faced with a large amount of dead space in a wound that potentially might not heal."

Following the hearing, the panel requested clarification from the WCB medical advisor as to whether or not he agreed with the surgeon's opinion. In a response dated December 9, 2014, the WCB medical advisor stated:

While a pannectomy would not be absolutely required in the treatment of a seroma, I would agree with [surgeon's] rationale, as stated in his July 8, 2014 correspondence in which he has proposed a pannectomy to be done in concordance with the surgical treatment of [the worker's] seroma.

At the same time, this rationale would need to be balanced by the inherent risks of a pannectomy.

Based on the WCB medical advisor's agreement with the proposed surgical approach outlined by the surgeon, the panel finds that responsibility for the pannectomy should be accepted as a reasonably necessary adjunct to the seroma surgery, to improve the chances of a successful outcome.

As at the date of the hearing, the current adjudication on the worker's file was that the seroma was a compensable condition and that responsibility for the surgical treatment of the seroma was accepted as being necessary to cure and provide relief from the effects of the hernia repair. The panel's acceptance of responsibility for the pannectomy is based on the current adjudication, which we understand is undergoing review by the WCB. We note that if the adjudication changes to determine that the seroma surgery is not compensable, the pannectomy would not be compensable either. To be clear, the panel does not find the pannectomy to be compensable in and of itself in isolation of the seroma removal, but only as an adjunct to a seroma surgery.

We therefore find that responsibility should be accepted for the proposed pannectomy. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
C. Anderson, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 17th day of February, 2015