The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") which denied responsibility for the May 13, 2014 panniculectomy and therefore she was not entitled to benefits in relation to the surgery. A file review was held on April 30, 2015 to consider the matter.

Issue

Whether or not responsibility should be accepted for the May 13, 2014 panniculectomy; and

Whether or not the worker is entitled to benefits in relation to the May 13, 2014 panniculectomy.

Decision

That responsibility should not be accepted for the May 13, 2014 panniculectomy; and

That the worker is not entitled to benefits in relation to the May 13, 2014 panniculectomy.

Decision: Unanimous

Background

On June 10, 2011, the worker slipped and fell while going down a flight of stairs, injuring her right knee, low back and hip. By May 31, 2012, it was determined by the WCB that a cause and effect relationship did not exist between the accident of June 10, 2011 and the worker's current reported difficulties. The worker disagreed with the decision and appeals were filed with the WCB's Review Office and then the Appeal Commission. On May 13, 2014, the Appeal Commission determined that the worker suffered an aggravation of a pre-existing condition in her SI joint when she fell down the stairs on June 10, 2011 and that she was entitled to further compensation benefits.

On April 9, 2014, the treating physician stated:

This is to confirm that [the worker] is getting abdominal pannus removal surgery. She has chronic lower back pains as well as facet joint syndrome and possible disc herniation/s. This surgery is to relieve the pressure on the lower back and hopefully allow [the worker] to be more efficient at her job as well as daily activities. This surgery is NOT considered cosmetic surgery, but rather a necessary medical intervention to prevent further deterioration to the lower back and in fact improve her posture, productivity and need for time off work.

On May 13, 2014, the worker underwent abdominal panniculectomy.

On May 26, 2014, the plastic surgeon advised the WCB that the surgery of May 13, 2014 was not for a work-related injury but was necessary for weight loss.

At the request of case management, the worker's claim file was referred to the WCB's healthcare branch for medical advice as to whether the May 13, 2014 surgery was related to the worker's compensable injury. On June 30, 2014, a WCB sports medicine advisor stated:

An abdominal panniculectomy was performed on May 13/14. The procedure involves removal of subcutaneous fat in the lower abdomen. This does not pathoanatomically relate to the workplace injury of June 10/11 and should not be considered a WCB funding responsibility.

There are no objective findings regarding the worker's low back/right hip since December 2013. It is therefore undeterminable whether the current presentation medically relates to the workplace injury based on file review. It is recommended that updated information be sought from the treating pain clinic physician (if available), and physiotherapist.

By letter dated October 20, 2014, the worker was advised of the WCB's position that the May 13, 2014 abdominal panniculectomy was not pathoanatomically related to the workplace injury of June 10, 2011 and that no responsibility could be accepted for the surgical procedure or for the resulting wage loss. On November 10, 2014, the worker appealed the decision to Review Office.

On January 23, 2015, Review Office confirmed that the worker was not entitled to benefits in relation to the May 13, 2014 surgery as it was unable to find that the panniculectomy was necessary and related to the June 10, 2011 compensable injury. Review Office accepted the reasons provided by the plastic surgeon's office and as outlined in the operative report as well as the WCB medical opinion of May 13, 2014. On March 1, 2015, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

In considering this appeal, the panel is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB. Subsection 39(2) provides that the WCB will pay wage loss benefits until the worker's los of earning capacity ends. Subsection 27(1) of the Act provides that the WCB may provide a worker with such medical aid as considered necessary to cure and provide relief from a workplace injury.

The worker has an accepted claim for an injury to her back and is seeking payment of wage loss and medical aid benefits related to abdominal surgery she underwent in May 2014.

Worker's Position

In her appeal form, the worker identified reasons for appealing the review office decision not to accept responsibility for an abdominal panniculectomy and related time loss. She wrote:

I have been in extreme pain with my back since day one of my accident of June 2010. I have a permanent injury to my lower back - I will and do have injections in my back so that I can continue with my life and also so that I can continue doing my job at work. I recently went back to work August 28th, 2014. Once back to work I realized that I would need more then (sic) just the injections I am getting in my si joint to continue with work. I've been in agony since the day I fell down a flight of stairs at work and even though I have returned to work, the pain is worse if I don't move - its like rigamortis setting in. My biggest complaint to my physician was excess skin and fat hanging from my stomach causing me extreme pain with certain functions at work and at home. I had already explain (sic) this to the appeal commission with my first appeal that I had won. my physician referred me to a specialist [doctor's name] who believed I would benefit from the procedure called Abdominal Panniculectomy. He performed the procedure and even though I am still in pain it has benefitted me in making movements in my job and home life easier without jarring pain in my lower back. Now because the physician who does my injections [doctor's name] said I MIGHT have arthritis setting into my si joint "unproven" that this is why I am not eligible to have my sick time reimbursed by them (sic) WCB. One WCB is not in my body and unable to feel if this surgery was a benefit to me or not? Secondly even if I had arthritis setting into my si joint it doesn't change the fact that my pain has been constant and never ending since the first day I fell down the stairs to present day. I have been in constant agony and have only been trying to ease this pain and agony since the day I fell down the stairs. And I hope that this will not be a constant battle with WCB every time I might need and find something that might work and might not work for my back. I am only trying to keep myself at work and able to have some quality of life. (emphasis original)

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1. Whether responsibility should be accepted for the May 13, 2014 panniculectomy?

The worker has asked that the WCB accept responsibility for surgery known as a panniculectomy. This surgery has been described by a WCB medical advisor as being a procedure which involves removal of subcutaneous fat in the lower abdomen. The worker is appealing the WCB decision that the surgery is not related to her compensable workplace injury. For the worker's appeal to be approved, the panel must find that the surgery is necessary and is related to the worker's compensable injury of June 10, 2011. The panel was not able to make this finding.

The worker underwent the surgery and advises that the surgery has "...benefitted me in making movements in my job and home life easier without jarring pain in the lower back." She argues that this procedure has assisted in relieving the "pain and agony" she has felt since her workplace injury.

The panel finds, on a balance of probabilities, that the surgery was not related to the treatment of the worker's compensable injury. The panel relies upon the May 13, 2014 opinion of the WCB medical advisor that the procedure "...does not pathoanatomically relate to the workplace injury of June 10/11 and should not be considered a WCB funding responsibility."

The panel also places significant weight on the information provided by the treating plastic surgeon's office, that the surgery is not related to injury, the surgery is for weight loss and the physician has obtained authorization for the surgery from Manitoba Health. The panel also notes the operative report from the plastic surgeon noted that:

"This patient presents with signs and symptoms compatible with abdominal pannus. She has had significant weight loss and has symptomatic pannus with intertrigo and recurrent rash and occasional ulceration. This patient has been pre-approved for abdominal panniculectomy."

The worker's physician has pointed out that surgery is not considered cosmetic surgery, rather it is a necessary medical intervention. The panel accepts this opinion but is unable to find a relationship between the development of the condition, its subsequent surgery and the worker's workplace accident.

The worker's appeal of this issue is denied.

Issue 2. Whether the worker is entitled to benefits in relation to the May 13, 2014 panniculectomy?

Given the panel's decision on issue 1 above, the panel finds that the worker is not entitled to benefits in relation to the May 13, 2014 panniculectomy.

The worker's appeal of this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 27th day of May, 2015