The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")to deny responsibility for abdominal wall seroma surgery.  A hearing was held on October 7, 2015 toconsider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits forabdominal wall seroma surgery.

Decision

That the worker is entitled to benefits for abdominal wallseroma surgery.

Decision: Unanimous

Background

The worker has an accepted claim with the WCB for a ventral hernia condition resulting from a work-related accident on August 5, 2009. On November 22, 2012, the worker underwent hernia repair surgery which was accepted as a WCB responsibility.

On June 4, 2013, the treating surgeon advised the WCB that the worker developed problems with panniculitis and he had a chronic seroma. The surgeon stated, "I did a CT scan on May 27 and this shows that he does have a chronic seroma and some fibrosis in the fat pad, but there is nothing that would prevent us from proceeding with a pannectomy on him. I think he really needs this because he has chronic panniculitis in this hanging panus, as well as a chronic intertriginous rash and I think this would benefit him greatly." The surgeon also stated, "As far as the funding of the pannectomy, I am not certain whether Workers' Compensation will handle this. I certainly will petition Manitoba Health in this particular case. Because of the underlying medical problems caused by the pannus, it should be covered by Manitoba Health."

Subsequent file records showed that the WCB denied funding for the proposed pannectomy procedure based on WCB medical opinion that the procedure was not related to the workplace event of August 5, 2009.

On June 12, 2013, the treating surgeon wrote the WCB and stated, in part: "He has quite a large chronic thick-walled seroma, which I do not believe will ever entirely resolve and I really think the only way we are going to get this gentleman back to full function and working would be to do a pannectomy on him. This will remove the seroma and a large amount of fat and will increase his mobility consequently."

On June 26, 2013, the WCB medical advisor indicated that no change would be made to his previous decision as the general surgeon did not provide evidence to support an indication for excision of the seroma.

After consulting the WCB's healthcare branch on March 24, 2014, the WCB's Review Office concluded on April 28, 2014 that the worker's seroma was related to the compensable injury and associated hernia repair and that the worker's panniculus was the result of his obesity rather than the compensable injury.

In a report to the WCB's Review Office dated July 8, 2014, the treating surgeon stated:

"He had repair of a very large incisional hernia, which was complicated by a seroma. This is, in part, due to his morbid obesity.

I feel, on balance, the best way of dealing with this seroma and the chronic ongoing pain and debility would be to actually operatively curette it out, remove it as far as possible from the surrounding tissue, and also do a pannectomy at the same time.

[The worker] recently filed a claim that was reviewed and he was told that the seroma was compensable, but responsibility was not accepted for the proposed pannectomy. I would think 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. This, of course, is my opinion only, but I do have considerable experience in this regard."

On August 5, 2014, the WCB advised the treating surgeon that responsibility would be accepted for the proposed surgical treatment of an abdominal wall seroma as outlined in his report of July 8, 2014 and that the WCB did not accept responsibility for the proposed pannectomy procedure.

On December 16, 2014, the employer requested reconsideration of the August 5, 2014 decision to accept the costs associated with the worker's seroma surgery on the basis that there was no medical indication for the surgery.

In the meantime, on November 13, 2014, the worker's case was the subject of an oral hearing at the Appeal Commission to determine whether or not responsibility should be accepted for the proposed pannectomy surgical procedure.

Under Appeal Commission Decision No. 14/15 dated February 17, 2015, the appeal panel stated:

"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."

Prior to considering the employer's appeal dated December 16, 2014 regarding the seroma surgery, the WCB's Review Office wrote the treating surgeon on March 3, 2015 requesting additional information regarding the current status of the seroma condition. On March 4, 2015, the surgeon responded to Review Office's request. On March 17, 2015, the WCB medical advisor reviewed the information and stated:

On the basis of [the worker's] general surgeon's September 2014 assessment, it would appear that the need for surgical treatment of the seroma is reduced....It would be speculative as to whether the seroma still exists. Regardless, the opinion of [the worker's] general surgeon, indicating improvement would be considered significant with respect to the indication for surgical intervention of the seroma.

Although updated CT scan imaging would provide a comparative study to the May 27, 2013 CT scan, the result would not outweigh the September 2014 clinical assessment that indicated improvement.

On April 9, 2015, Review Office concluded that the worker was not entitled to compensation for an abdominal wall seroma surgery as it would not be beneficial in his recovery or return to work. The decision was based on the information provided by the treating surgeon that the worker was much improved with regards to his seroma and the opinion outlined by the WCB medical advisor dated March 17, 2015.

On April 13, 2015, the worker's union representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged. In July 2015, the union representative submitted additional information which included CT scan results dated June 9, 2015 and a report from the treating surgeon dated June 26, 2015.

An oral hearing was held on October 7, 2015, and following the hearing, the appeal panel requested additional information from the attending surgeon regarding the worker's seroma condition. A response from the surgeon was later received dated October 13, 2015 and was provided to the interested parties for comment.

On November 18, 2015, the appeal panel asked the healthcare branch at the WCB to review the specialist's October 13, 2015 report and to provide an updated medical opinion to the file regarding the seroma condition. A response from the healthcare branch dated November 30, 2015 to the appeal panel included the report of a WCB call-in examination done on that date by a WCB medical advisor. The response was provided to the interested parties for comment. On December 16, 2015, the panel met further to discuss the case and rendered its decision on the issue under appeal.

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. His position is that recent medical information demonstrates that the worker's seroma is in fact present and does require the proposed seroma surgery (and in turn the pannectomy surgery which had been accepted by a previous Appeal Commission, subject to the final adjudication of the status of the worker's seroma condition).

The worker relied on medical evidence that had been submitted to the Appeal Commission prior to the hearing, as being supportive of his position. This included a CT scan dated June 9, 2015 and a report from the treating surgeon dated June 26, 2015. Regarding the seroma, the surgeon stated:

"...there was some concern raised as to whether or not this seroma was still problematic or indeed did it even still exist. In order to clarify this, we repeated his imaging and this does in fact show quite a large seroma residing just above the mesh extending down and into the abdominal pannus with associated edema and some fat necrosis.

I think, on balance, as I stated before, my position would be that our best hope at getting a good functional result would be to perform a pannectomy excision and scarification of the seroma and removal of this abdominal pannus in one setting."

Employer's position:

The employer was represented by its compensation coordinator. Its position is that while the seroma condition has been established as being a compensable consequence of the treatment provided for the worker's hernia condition, the recent medical information suggests that the condition has abated and that the proposed surgery is no longer required. It was noted that while the recent CT scan indicates the presence of the seroma, the September 14 clinical findings from the worker's surgeon show an improvement in the condition which removes the need for the surgical excision of the seroma. More recent correspondence from the worker's surgeon failed to provide WCB with the objective evidence necessary to support the proposed surgical intervention. The employer therefore agrees with the Review Office decision.

Analysis:

As noted in the background, the worker is appealing a WCB decision denying surgical treatment for his compensable seroma condition. For the worker to succeed, the panel would have to find that the proposed surgery is medically necessary to cure and provide relief from the injury resulting from an accident. For the reasons that follow, the panel was able to make this finding.

The panel notes that the worker had a compensable work injury in 2009 which was accepted as a ventral hernia condition. It led to a November 2012 hernia repair surgery. On May 27, 2013, the worker had a CT scan, and his surgeon noted that the worker had a chronic seroma in the fat pad, which he described on June 12, 2013 as a large chronic thick-walled seroma which he did not believe would ever entirely resolve. This condition was accepted by WCB Review office in April 2014 as being related to the compensable injury and associated hernia repair. However, a later decision declined surgery for that condition based on the clinical improvements noted by the surgeon in September 2014.

The panel reviewed the subsequent medical evidence added to the file. In particular, the panel notes that the worker had a second CT scan dated June 9, 2015. The report notes the ongoing presence of the large thick-walled fluid collection with no significant change in size from the original CT scan. The report notes "The appearance is compatible with a chronic seroma. However, there is a new foci of fat necrosis along the left inferolateral margin of the seroma that may be secondary to chronic infection or post instrumental changes." Again, the report notes "Clinical correlation is required."

The panel notes that subsequent reports from the treating surgeon dated June 26, 2015 and October 13, 2015 did not specifically deal with the presence or absence of clinical correlation, while continuing to recommend the surgical excision of the seroma.

Given the additional findings on the CT scan and the lack of clarity as to the worker's clinical findings, the panel sought an additional medical perspective. As noted in the background, the WCB, the worker and the employer have been dealing with a variety of post-hernia medical issues on this file with a particular WCB medical advisor who has provided continuity of advice and opinions over the course of the claim. Indeed, the file and the transcripts of both appeals before the Appeal Commission indicate that both the employer and the worker/representative have acknowledged the expertise of that medical advisor and have deferred to or asked for referral to that medical advisor on matters related to this claim. The panel therefore referred the matter to the WCB healthcare department asking that the medical advisor provide an updated opinion from his March 17, 2015 opinion (as to the medical necessity of the proposed abdominal wall seroma surgery) based on what had transpired since that date.

The panel notes that on November 30, 2015, the WCB medical advisor undertook a 90 minute interview and examination of the worker, and reviewed the new documentation to the file. His impressions were as follows:

In response to the November 18, 2015 Appeal Commission memo, on the basis of the above call-in examination findings, [the worker] has a seroma that is symptomatic.

The June 9, 2015 CT scan abdomen and pelvis indicating the unchanged size of the seroma and the presence of edema around the seroma, would support this.

In that regard there is a medical indication for surgical treatment of the seroma.

The panel accepts the findings of the WCB medical advisor. Based on the WCB medical advisor's concurrence with the proposed surgical approach outlined by the surgeon, the panel finds that responsibility for the seroma should be accepted as being medically necessary to cure and provide relief from the injury.

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

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Lafond, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 21st day of December, 2015