Decision #09/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her current medical condition was not a consequence of the August 24, 2001 compensable injury. A hearing was held on December 12, 2016 to consider the worker's appeal.

Issue

Whether or not the worker's diagnosis of lymphedema is a consequence of the August 24, 2001 compensable injury.

Decision

That the worker's diagnosis of lymphedema is not a consequence of the August 24, 2001 compensable injury.

Background

The worker has an accepted claim with the WCB for a low back injury that occurred at work in 2001.

On September 23, 2005, the worker underwent the following surgical procedure which was accepted as a WCB responsibility:

Left-sided microscopic lumbar laminectomy at L4-L5, L4-L5 discectomy, left-sided L5 partial foraminotomy and epidural placement of fat graft.

In a report to the family physician dated October 23, 2009, a vascular surgeon reported that the worker noticed episodic and progressive swelling episodes in her left leg and foot six months after the surgery that was performed in 2005. The surgeon indicated that this was typical of postoperative lymphedema related to the surgery. He said there was no evidence of any arterial disease or venous disease. The worker had mild swelling on her lower leg and foot consistent with lymphedema.

On December 8, 2009, a WCB medical advisor reviewed the file information at the request of the case manager. The medical advisor stated that he was not able to establish an ongoing cause and effect relationship between the diagnosis of lymphedema to the original compensable injury based on his review of the examination findings when the worker was seen at the WCB offices for a call-in assessment or when seen for a PPI assessment.

In a WCB decision dated December 8, 2009, the worker was advised that any ongoing responsibility in relation to the lymphedema would not be covered by the WCB as the WCB was unable to establish a cause and effect relationship between the diagnosis and her compensable injury.

On March 31, 2016, the worker submitted to Review Office that her condition diagnosed as lymphedema of the left leg and her related losses were directly caused and related to the back surgery of September 2005. Included with the submission were four medical reports dated between October 23, 2009 and December 16, 2015 to support her position.

On May 24, 2016, Review Office determined that the worker was not entitled to benefits in relation to the diagnosis of lymphedema. Review Office stated that it obtained medical advice from the WCB's healthcare branch on May 18, 2016 and that it accepted the general medical advisor's opinion that there was insufficient medical evidence to support a probable relationship between the worker's lymphedema and the compensable low back surgery. On May 31, 2016, the worker's legal representative appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB.  To have an acceptable claim, a worker must have suffered an injury by accident that arose out of and in the course of employment.

Subsection 27(1) of the Act provides that the WCB "…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."

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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury (the "Further Injuries Policy"), applies to circumstances where a worker suffers a separate injury which is not a recurrence of the original compensable injury, but where there may be a causal relationship between the further injury and the original compensable injury.

The worker has an accepted claim for a back injury.  She is seeking coverage for a condition which arose after WCB-covered medical procedures for the accepted back injury.

Worker's Position

The worker was represented by legal counsel and assisted by a friend. The worker provided information on her condition and answered questions posed by the panel.

The worker's counsel submitted that the worker suffers from lymphedema secondary to surgery for a work-related injury.  He explained the worker developed this condition, after undergoing surgery on her back.  He relied upon the October 23, 2009 opinion of a vascular surgeon who opined:

She underwent a back discectomy and laminectomy in 2005 by [neurosurgeon] and then six months after, noticed episodic swelling with progressive swelling episodes in her left leg and foot.  Her story is typical of postoperative lymphedema related to the surgery.  From our point of view, there is no evidence of any arterial disease or venous disease.  She does have mild swelling on her lower leg and foot consistent with lymphedema. 

He also noted a March 29, 2012 opinion from the vascular surgeon:

…As indicated in my previous letter, there was no history of any swelling in her left leg until the surgery.  She then historically had progressive left leg swelling which became severely worse at about six months' time.  Lymphangiogram done on September 10th had revealed no lymphatic activity visualized in the lower extremity consistent with the previous surgery. I continue to support the diagnosis of lymphedema secondary to post surgical complications…

The worker's counsel noted that many physicians were involved with the worker's care.  He submitted that the physicians missed identifying and treating the worker's lymphedema symptoms because they were focused on the worker's serious back condition. 

The worker's counsel provided excerpts from a book entitled "100 Questions & Answers About Lymphedema."  The complete text is noted to comprise 182 pages; the panel was provided 16 pages. 

Reference was made to information from the text including:

  1. definition of lymphedema - being "an abnormal swelling condition that may affect one or many body regions.  The swelling develops because lymphatic vessels or nodes have been damaged or were formed incorrectly."  
  2. secondary lymphedema which was noted to be the most common type of lymphedema.  The article noted that "Lymphedema can be from many different causes.  Some lymphedema occurs because the lymphatic system was damaged with surgery or another trauma."  
  3. "…vascular specialists have a better understanding of the lymphatic system and its disorders."  
  4. …some of the initial changes in the limb are detected by sensory observations. People will note that they experience a tight, full feeling.  Other descriptions of sensory change include a tingly feeling in the affected limb, heaviness, and aching.  Other common early signs of lymphedema include a visible swelling of the hand or around joints of the wrist and/or elbow…"  
  5. "typically, the early signs include intermittent swelling of the distal limb,  most often seen in the feet or the ankles, which will resolve with elevation of the limb…"  

The worker's counsel noted that:  

another frequent cause of secondary lymphedema … is the severe tissue trauma, such as  sustained from a motor vehicle crash, work-related injuries, falls, forced injuries and household accidents.  

…anytime a surgery is performed on a body, not just after lymph node removal,    lymphatics are disrupted.  

…scar tissue is anywhere in the body, it  may hamper a lymphatic fluid flow. Remember that surgical incisions create a scar tissue, not only on the surface of the skin, but down deep into the tissue.  

If this scar tissue is thick and prominent, it forms a barrier that the lymphatic vessels cannot move fluid through. In situations where there is significant scar tissue there may be swelling buildup and lymphedema surrounding the incision.  

The worker referred to the following chart which was included in the article provided by at the hearing:   

Table 1 Staging of Lymphedema (Based on the International Society of Lymphology)  

STAGE 0:  Latency

  • Lymph nodes and vessels have been removed and/or damaged
  • No visible swelling exists
  • Sensory changes may occur  

STAGE I

  • Visible edema exists in the limb and is usually pitting
  • The swelling may exacerbate and remit
  • Elevation of the limb helps to reduce the swelling

STAGE II

  • Swelling does not spontaneously reverse with elevation or rest
  • Fibrosis (scarring) is evident in the tissue
  • The edema may or may not be pitting  

STAGE III

  • Marked swelling of the limb
  • Hardened tissue
  • Skin becomes rough and thickened
  • Oozing and weeping of fluid may be seen

The worker reviewed her medical history commencing with her initial injury in 2001. She focused primarily on the symptoms in her left leg and foot subsequent to the September 23, 2005 back surgery.

On the issue of when she first noted symptoms consistent with lymphedema in her left leg, she noted it was shortly after the back surgery.

The worker advised that she reported the left leg symptoms in June 2006 to a treating chiropractor.  She noted that the chiropractor reported left lower extremity numbness and "tight/tender L/S numbness" on his first report.  She also advised that a WCB case manager reported the worker's complaint about left leg numbness on September 21, 2006.  

She advised she made a complaint about her leg to a WCB medical advisor who examined her on October 13, 2006. She noted that the medical advisor recorded her complaint as:      

Overall, [worker] feels that she continues to get worse.  She wakes up very stiff in the morning and the pain will get worse as the day goes on if she is active.  She has a constant sharp pain to the low back area around her scar.  She said sometimes there is a pressure there and it feels like her leg has locked up.  The back pain is worse that the leg pain.  She had radicular pain down her left leg.  Her left leg is numb, mostly laterally and then to the top of her foot.  She said she is now worse than before the surgery… 

The worker's counsel noted that the WCB relied upon the opinion of a WCB medical advisor who provided two memos dated May 18, 2016. He submitted that the opinion should not be relied upon because the medical advisor relied upon the medical report with incorrect information in which the worker's treating physician mistakenly reported that the worker had bi-lateral lymphedema.  The worker's counsel also suggested that the medical advisor did not appreciate the clear signs of lymphedema found in the medical reports on file.  

With regards to the opinion of the vascular surgeon, it was noted that the vascular surgeon said that to have secondary lymphedema something has to cause it, and the vascular surgeon said there was no evidence of any arterial disease or venous disease.

The worker's counsel submitted in closing that:

We know she was fine before, there’s no question about that, there’s nobody’s saying that she wasn’t. And the only logical explanation is when you look at the facts, and try to explain what has happened, and what she’s left with, the only explanation we have here is that, in fact, it was caused by … a surgery that went wrong.

Employer's Position 

The employer did not participate in the appeal.

Analysis

The worker suffers from lymphedema of her left leg.  She attributes this condition to her 2001 back injury and to the 2005 back surgery. She submits that her lymphedema condition is a direct result of the 2005 back surgery.  She is appealing the WCB decision that her lymphedema is not related to her 2005 back surgery.

For the worker's appeal to be approved, the panel must find that the worker's 2005 compensable back surgery caused her lymphedema.  Upon considering all the evidence on file and provided at the hearing and the argument made at the hearing, the panel finds, on a balance of probabilities, that the worker's lymphedema is not related to her 2001 injury and resulting 2005 back surgery. 

In support of her position that the surgery caused the lymphedema the worker submitted, in part, that:

  1. the surgery damaged her lymph system
  2. she had symptoms of lymphedema within six months of the surgery
  3. treating and examining physicians missed the symptoms of lymphedema because they were focused on the neurological issues related to the back surgery

The worker and her counsel placed significant weight upon the opinion of the vascular surgeon who examined the worker.  The panel finds that the vascular surgeon was an expert and was qualified to provide opinions on the development of lymphedema. The panel also accepts that lymphedema can be a consequence of surgery.

The panel notes that the vascular surgeon relied on the worker's history that six months after the back surgery, she noticed episodic swelling with progressive swelling episodes in her left leg and foot.  The specialist relied upon this representation in his opinion.  He confirmed this reliance when he was contacted by a WCB medical advisor.  The panel notes that the vascular specialist did not have access to any other reports about the worker's treatment or care. The panel also notes that, in discussion with the WCB medical advisor, the vascular specialist agreed that "…if lower extremity lymphedema was related to a surgical procedure, that leg lymphedema would typically begin within a few months of the procedure."

The panel accepts the vascular surgeon's opinion that if lower extremity lymphedema was related to a surgical procedure, that the lymphedema would have typically begun within a few months of the procedure.

The panel has reviewed the claim file and finds, however, that the evidence does not support that the worker's lymphedema began within six months of the surgery. 

The panel notes that the worker was examined by many physicians during the three year period after the surgery. Her left leg was examined and findings were noted on many occasions. However, the panel was not able to find any reports of swelling in the first 3 years after the surgery.  The first reference to "edema" was in a 2009 report by the family physician who reported in a January 25, 2009 narrative that:   

 No leg edema today (patient says her (L) ankle and foot swell periodically).

The panel was not able to find evidence of the symptoms which the vascular surgeon noted would be expected in a developing case of lymphedema in the period six months after the surgery.  He noted that the "She underwent a back discectomy and laminectomy in 2005…and then six months after, noticed episodic swelling and progressive swelling episodes in her left leg and foot.  Her story is typical of postoperative lymphedema related to surgery."  

The lack of supporting evidence of swelling during the first six months is not consistent with the information provided to the vascular surgeon by the worker.  As a result, the panel is not able to attach weight to the vascular surgeon's opinion of causation, because the history he relied upon is not established by the evidence.  The evidence, on a balance of probabilities, supports a finding that the worker did not have swelling within six months of the surgery with no such reports by the worker of swelling or findings by the physicians who examined the worker within three years of the surgery.

At the hearing, the worker reviewed evidence relating to symptoms she had after the surgery.  She said that the evidence confirms she complained of symptoms consistent with lymphedema. She provided a review of various medical reports where reference was made to symptoms in her left leg and foot.

Upon review, the panel finds the symptoms noted by the worker are typical of symptoms that would be expected in relation to the disc surgery and laminectomy which the worker underwent.  The panel finds that the symptoms she complained of were sensory/neurological in nature. As previously noted, there is no evidence of swelling or reports of swelling.

As an example, the worker relied upon the symptoms noted by a treating chiropractor in June 2006.  The chiropractor reported "lower extremity numbness" "decreased sensation left calf + foot, decrease S1 reflex left (Achilles), tight/tender left sided motion segments, SLR 60 degree bi-lat positive dural signs left (numbness)."  It is the panel's understanding that these observations are related to a neurological assessment. The chiropractor did not report swelling (edema) of the left leg.    

In reply to a question about the lack of findings by the various physicians, the worker's counsel suggested that the physicians were focused on the back injury and related nerve issues and missed the symptoms of lymphedema.  It was also noted that few physicians are familiar with this condition and therefore do not make this diagnosis. 

The panel finds this argument to be speculative.  The panel relies upon the evidence on file that demonstrates the physicians examined and interviewed the worker, often in detail, and did not note symptoms of edema or lymphedema.

In considering the worker's evidence and argument, the panel considered the chart, "Staging of Lymphedema" noted in earlier in this decision.  The worker's symptoms and the various stages of lymphedema were discussed at the hearing.    In answer to questions, she said that she had Stage I lymphedema in 2009.  She said:

And that’s when I had, like, pitting edema, that’s when I could see the lines from the sandals, and I was telling [doctor]. And finally, I couldn’t fit it in my shoe, and I said, that’s it, I’m going to the hospital..

The worker acknowledged that she had no pitting edema before 2009. The worker advised that she had swelling that would come and go, tingling and tightness. The worker also agreed that when she saw the lymphedema nurse in 2011 that her condition was at Stage III.

The panel finds that the worker's evidence regarding her condition in 2009, being at Stage I, is inconsistent with a finding that her lymphedema developed within six months of her 2005 surgery.

The panel finds, on a balance of probabilities, that the worker's lymphedema condition did not arise out of and in the course of her employment.  The panel also finds that the worker's lymphedema condition did not meet the requirements of the Further Injuries Policy, in that the evidence did not establish, on a balance of probabilities, that the worker's lymphedema condition arose out of the delivery of treatment for the original compensable injury. 

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 20th day of January, 2017

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