Decision #80/19 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to deny responsibility for right below knee amputation surgery and benefits associated with that procedure. A hearing was held on May 7, 2019 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the right below knee amputation surgery and benefits associated with the procedure.

Decision

That responsibility should be accepted for the right below knee amputation surgery and benefits associated with the procedure.

Background

The worker injured his right lower ankle and leg in an incident at work on November 26, 2010. He described the incident as "I was tightening the strap down on the trailer and the pipe slipped and it was icy and I fall (sic) down and my right leg was bent underneath me." The worker was seen at a local hospital emergency department where he was diagnosed with a "lateral malleolar fracture" of his right ankle. Surgery, consisting of a right lateral open reduction internal fixation, was performed on November 28, 2010. The worker was re-admitted to the hospital on December 6, 2010 for increased pain and a possible infection at the surgical site, and discharged on December 11, 2010.

At a follow-up appointment with the orthopedic surgeon on March 8, 2011, the worker reported "…having ongoing pain in his right heel particularly on weightbearing." The surgeon reported that on examination, the incision site was well healed and x-rays showed good alignment of the worker's lateral malleolus fracture. The orthopedic surgeon opined that the worker's "…worsening pain symptoms are likely secondary due to chronic regional pain syndrome."

On March 24, 2011, a WCB medical advisor reviewed the worker's file and opined that the current diagnosis to account for the worker's worsening pain was complex regional pain syndrome of the foot and was medically accounted for in relation to the workplace injury. The WCB medical advisor further opined that:

Typically the diagnosis is hinged on the presence of intense pain affecting the leg or arm. This is seen after a traumatic event involving the limb. No clear understanding exists to account for the causes of complex regional pain syndrome but is often seen in the milieu of an (sic) traumatic event. The main symptom of regional pain syndrome is pain that worsens over time. Other symptoms often associated with this diagnosis includes (sic) but is not limited to burning pain, skin sensitivity, changes in skin temperature, changes in hair and nail growth, stiffness and swelling adjacent joints, muscle spasm and weakness and difficulty moving the affected limb. The documented pain in the heal (sic) pad that has been persistent since the workplace accident will account for this diagnosis.

… 

Recovery from the adjudicated fracture of the ankle has likely occurred. Recovery from the complicating complex regional pain syndrome is guarded and difficult to anticipate.

On June 15, 2011, the worker returned to work, with alternate duties. He experienced persisting pain complaints, which worsened to the point that he had to stop working on November 10, 2011. Due to ongoing pain complaints, the worker was seen by a neurologist, was re-assessed by the orthopedic surgeon, and a referral was made for the worker to see a plastic surgeon.

At an initial appointment with a plastic surgeon on December 7, 2011, it was noted that the worker reported neuroma type pain, radiating up his leg and pain in his heel. The plastic surgeon recommended neurolysis of the tibial nerve and removal of the plate and screws which had been placed in the worker's ankle, which surgery was authorized and took place on February 24, 2012. On July 27, 2012, the worker underwent a revision neuroloysis of the right tibial nerve. On September 21, 2012, as the worker continued to report considerable pain in his right ankle, the plastic surgeon recommended he be referred to a pain clinic.

The worker attended an initial assessment at the pain clinic on December 1, 2012. The pain clinic physician opined that the worker's symptoms "…appear to be characteristic of neuropathic pain." Changes to his medications, along with an ultrasound guided peroneal nerve injection, were recommended and approved. On April 29, 2013, the treating plastic surgeon advised the WCB that the worker was reporting no benefit from the nerve injection and recommended referral to an orthopedic surgeon with a foot and ankle specialty.

The worker attended an appointment with the foot specialist on September 27, 2013. The specialist opined that the worker "…appears to have some component of complex regional pain syndrome post ankle fracture fixation." The specialist noted that she did not have some of the worker's medical records and wished to reassess him after she had received those records. She also noted that they had discussed the possibility of an "elective below knee amputation" and she would be referring the worker to the amputee rehabilitation clinic to discuss this.

The worker was seen by a physiatrist at the amputee rehabilitation clinic on October 21, 2013. The physiatrist, who held the position of amputee rehabilitation service chief, noted that the worker:

…was previously high functioning prior to a work related right ankle fracture in 2010 and since has developed symptoms consistent with complex regional pain syndrome in the right foot and ankle. These symptoms extend to the distal third of the calf.

The physiatrist recommended that the worker be trialed on further medications, made a referral to a pain clinic psychologist and provided the worker with information on the amputation and rehabilitation process. The physiatrist further noted that:

We specifically discussed the issue of amputation in the case of complex regional pain syndrome and while in general, the literature cautions against an amputation in the case of complex regional pain syndrome due to the possibility of significant phantom limb pain and complex regional pain syndrome migrating up the amputated limb, in cases where the patient has specifically requested the amputation rather than having it suggested to them, there is usually good satisfaction with amputation. It is recommended that the amputation occur fully above the area of pain associated with complex regional pain syndrome which would include the length of the long posterior flap for a below knee amputation surgery. This concept was reviewed with [the worker].

On October 23, 2013, the worker's file, including the report from the foot specialist, was reviewed by a WCB orthopedic consultant. The WCB orthopedic consultant expressed "extreme concern" regarding the proposal of below knee amputation and advised that he did not recommend financial acceptance for a below knee amputation until a further assessment by the pain clinic physician, information and rationalization of current medication was obtained.

The worker was seen by the pain clinic physician on November 2, 2013. The pain clinic physician acknowledged approval of a nerve block injection, and recommended trial of a different medication in hopes of providing additional improvement in pain control. Regarding the possible below knee amputation, the physician noted that the worker was frustrated with the lack of progress in his recovery, but was willing to consider any other suggestions before giving further consideration to this surgical procedure.

At a follow-up appointment at the amputee rehabilitation clinic on January 13, 2014, the physiatrist noted that the worker reported no improvements in his symptoms on the additional medications trialed, suggested further medications, and indicated the worker would be seen for a reassessment after scheduled arthroscopic surgery on his shoulder.

On March 25, 2014, the worker attended a call-in examination with the WCB Pain Management Unit's medical advisor and psychological advisor.

On May 17, 2014, at a follow-up appointment at the pain clinic, the pain clinic physician noted that the worker reported no significant change after nerve block injections or with medications. The physician recommended a trial of spinal cord stimulation "…to see if this might provide improvement in his right foot and leg pain." On June 18, 2014, this request was reviewed by the WCB orthopedic consultant, who opined:

A spinal cord stimulator trial is appropriate for, among other conditions, chronic regional pain syndrome. It appears that the continuing diagnosis of the claimant's lower limb pain is CRPS rather than pain related to complications of the open reduction and internal fixation of the right ankle fracture.

WCB financial responsibility will be accepted for the proposal…

On November 24, 2014, the worker underwent surgery to insert a spinal cord stimulator for a pain management trial. At a follow-up appointment on December 1, 2014, the pain clinic physician noted that the worker stated "…his pain level decreased from 9 out of 10 prior to insertion of the spinal cord stimulator to between 5 and 6 out of 10 afterwards. He stated that there was improvement in pain involving the dorsum and lateral aspect of the foot; however, his heel was still quite painful, especially when standing or putting pressure on the heel." The physician noted that overall, the worker wished to pursue permanent implantation of a spinal cord stimulator. On December 10, 2014, the WCB approved permanent implantation of a spinal cord stimulator, which procedure took place on January 6, 2015.

On November 6, 2015, the worker was seen for a follow-up appointment with the foot specialist, who noted that the worker:

…continues to be frustrated by his ankle pain. It has been problematic over the last five years. He has tried multiple modalities most recently a spinal cord stimulator. These have not improved his pain. He continues to have pain on a daily basis. He is using a cane for ambulation. He is having difficulties with his right shoulder secondary to rotator cuff tear, which is exacerbated by the cane use. He feels he has exhausted all options and wishes to proceed with amputation.

On December 8, 2015, the worker was seen by the rehabilitation clinic physiatrist, who reported that the worker had not noted benefit from the spinal cord stimulator and continued to report 10 out of 10 pain in his right lower limb. The physiatrist opined that:

This pain has been refractory to all medications and interventions that have been trialed in the clinic.

He has now booked a right below knee amputation with [foot specialist] on January 29, 2016. I reviewed with him the potential risk of phantom pain and for his CRPS symptoms to migrate up his right leg but at this point he feels the amputation is his best option. His goal remains improved pain control as well as the ability to return to work.

On January 6, 2016, the worker attended a call-in examination with the WCB orthopedic consultant and a second WCB orthopedic specialist. In his notes from the examination, the WCB orthopedic consultant stated:

Considering the unknown pathophysiology underlying the constellation of symptoms and physical findings associated with a diagnosis of CRPS, and the potentially functionally devastating consequences from a poor outcome, I am unable to arrive at the conclusion that the proposed surgery will likely result in improvement in [the worker's] overall pain and function, or that the risk/benefit ratio of the surgery is favorable. As such, it is recommended that WCB not accept financial responsibility for the proposed surgery.

In a memorandum to file dated January 6, 2016, the second WCB orthopedic specialist also opined that "on balance of probabilities, the proposed surgery would not lead to sustained improvement in function" and that the WCB "would not be responsible for funding of the proposed trans-tibial amputation."

By letter dated January 15, 2016, the WCB orthopedic consultant advised the treating foot specialist, the worker's family physician and the worker that the WCB would not accept responsibility for the proposed right below knee amputation.

The right below knee amputation surgery proceeded on January 29, 2016.

On May 4, 2016, the worker requested that the WCB reconsider their decision to deny responsibility for the amputation surgery and advised that the rehabilitation clinic physiatrist would be providing a report on the worker's progress since the surgery. On May 9, 2016, the physiatrist submitted a report to the WCB, in which he opined:

The right transtibial amputation has led to both an improvement in pain and function for [the worker]. As this amputation occurred as a result of complex regional pain syndrome developing after a fractured ankle during a work place accident, I believe this surgery and the resultant prosthetic componentry should be covered by the Workers Compensation Board of Manitoba.

On June 7, 2016, Compensation Services advised the worker that the WCB Healthcare Department had opined that it was too early to revisit the decision to deny the surgery and it would be reviewed again in August 2016.

Further medical reports were provided by the treating physiatrist and pain clinic physician, the worker's family physician and the worker's prosthetist.

On May 9, 2017, the WCB's senior medical advisor reviewed the worker's file and provided an opinion to file.

On May 16, 2017, the WCB advised the worker that they would not accept responsibility for the right below knee amputation surgery or the resulting medical aid required following the surgery.

On May 11, 2018, the worker requested that Review Office reconsider the WCB's decision. The worker noted that since the amputation surgery, he had a "…vastly improved quality of life, and my relationships with family and friends have improved."

On June 8, 2018, Review Office determined that responsibility should not be accepted for the right below knee amputation and benefits associated with the procedure. Review Office noted that they had carefully considered the file evidence, including the April 3, 2017 report from the treating physiatrist, in which:

The physiatrist recorded that post-amputation, the worker "no longer required any pain medication and was able to have his spinal cord stimulator removed in January of this year." It was documented that the worker was wearing a prosthesis which was "fitting well" and a prosthetist recommended a "different ankle unit." He said the worker "has had an excellent functional recovery." The physiatrist added that "clinically and functionally he has been much better off with the amputation."

Review Office placed greater weight on the May 9, 2017 opinion of the WCB senior medical advisor, who had opined:

[The worker's] file was brought to my attention for consideration as to whether WCB Healthcare will support funding of a right trans-tibial (below-knee) amputation that was performed on January 29, 2016, in relation to a diagnosis of complex regional pain syndrome.

[The worker] was diagnosed with complex regional pain syndrome in relation to symptoms he reported in his right lower leg following a November 26, 2010 distal fibular fracture, treated on November 28, 2010 by open reduction and internal fixation.

Complex regional pain syndrome is a label that reiterates a presentation characterized by regional (i.e. such as involving a lower extremity) pain that is complex in nature, particularly in relation to the fact that an essential criterion of the syndrome is that the reported pain and persistence of same is disproportionate to any inciting event.

Other factors that render the diagnosis of complex regional pain syndrome complicated include i) the recognition that the syndrome, including reported pain/persistence of same, constellation of other symptoms and degree of reported impairment of function are not accounted for anatomically and ii) the recognition that all of the physical findings ascribed to complex regional pain syndrome can be accounted for in relation to disuse of the affected region.

WCB Healthcare does not support amputation of an extremity, with all of its attendant long term risks, for a constellation of symptoms and reported impairment of function that is disproportionate to the workplace accident and for which commensurate tissue pathology has not been identified. This matter was reviewed with [WCB orthopedic consultant], who is in agreement.

Review Office acknowledged the worker's comments about his improved quality of life following the surgery, but found, on a balance of probabilities, that a relationship between the worker's January 29, 2016 right below knee amputation surgery and the November 26, 2010 workplace accident was not medically supported.

On July 30, 2018, the worker's representative appealed the Review Office 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.

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.

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."

WCB Policy 42.20.10, Elective Surgical Procedures (the "Elective Surgery Policy"), clarifies the circumstances when the WCB will accept responsibility for the costs associated with elective surgery and the worker's recovery.

WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy"), sets out general principles regarding a worker's entitlement to medical aid. The general principles, as set out in the Medical Aid Policy, include:

• The Board is responsible for the supervision and control of medical aid funded under the Act or this policy.

• The Board determines the appropriateness and necessity of medical aid provided to injured workers in respect of the compensable injury.

• In determining the appropriateness and necessity of medical aid, the Board considers:

o Recommendations from recognized healthcare providers;

o Current scientific evidence about the effectiveness and safety of prescribed/recommended healthcare goods and services;

o Standards developed by the WCB Healthcare Department…

• The Board's objectives in funding medical aid are to promote a safe and early recovery and return to work, enable activities of daily living, and eliminate or minimize the impacts of a worker's injuries…

• The Board will refuse or limit the funding of any medical aid it considers excessive, ineffective, inappropriate or harmful.

Worker's Position

The worker was represented by a worker advisor, and was accompanied by his daughter at the hearing. The worker's representative provided a written submission in advance of the appeal and made a presentation to the panel. The worker and his daughter also made presentations, and the worker responded to questions from his representative and the panel.

The worker's position was that the January 2016 right below knee amputation was medically necessary and intended to cure, or at least provide relief from, a compensable condition (complex regional pain syndrome), and the WCB should therefore accept responsibility for that procedure, in keeping with the Act and applicable medical aid policy.

The worker's representative noted that two surgeons had expressed a willingness to amputate, and a physiatrist (who holds the title of amputation rehabilitation service chief) supported the procedure. When supporting the procedure, the operating surgeon and the physiatrist acknowledged the same risks as were identified by the WCB medical consultants. Unlike the WCB medical consultants, the surgeon and the physiatrist also recognized the worker's long-standing pain, suffering and functional limitations despite treatments to date.

The representative noted that it appeared that all viable treatment options were attempted prior to amputation, without any meaningful long-term pain relief or functional improvement having been achieved. It was submitted that if there were any remaining feasible alternatives to amputation, the WCB orthopedic consultants would have identified these, instead of making a brief, non-specific reference to possible medication changes.

The representative submitted that the involved physicians also performed due diligence prior to proceeding with the amputation, which included explaining to the worker the risks associated with the procedure so he could make an informed decision, encouraging him to connect with other below knee amputees, and outlining a specific plan intended to mitigate the risk of CRPS extending into the stump. It was submitted that these actions showed the decision to amputate was given careful consideration.

The worker's representative asked that the panel attach less weight to the opinions of the involved WCB medical consultants, noting that, in their view, the consultants' cost/benefits analyses were incomplete, and in some respects, inconsistent with earlier opinions. It was submitted that while the WCB medical consultants apparently did not approve of the amputation, in part, because they believed that CRPS is not objective enough, the objectivity of that condition should not be a factor in assessing whether to amputate, especially since the WCB had accepted that the worker had CRPS and funded several other therapeutic interventions directed at that condition.

The representative noted that the WCB medical consultants discussed possible negative outcomes of amputation, including the risk that prosthetic use might not be possible if CRPS extended into the stump such that the worker's function might end up worse than before amputation. The worker conceded that these were valid concerns to consider, but noted that a discussion of the possible outcomes of not proceeding with amputation was absent from the WCB consultants' analyses.

The worker's representative noted that a WCB orthopedic consultant's statement that there was a lack of evidence-based clinical information which would support an anticipated successful outcome seemed to imply that the surgeon who operated, and doctors who supported the procedure, did so with the understanding that the prospect of a positive outcome was low. It was submitted, however, that the worker's physicians would not have supported the procedure if they believed the risk/benefit ratio was not favourable.

With respect to evidence-based information, the representative referred to two abstracts they had provided which discussed amputation as a treatment method for CRPS. The representative noted that the authors found that the majority of those who underwent amputation experienced positive outcomes with respect to a decrease in pain and increase in function, and that the authors therefore supported amputation as a form of treatment for CRPS.

The worker's representative submitted that there was no denying the positive outcome achieved from the amputation. Approximately nine months after the surgery, the worker returned to the workforce for the first time in over four years. The worker had re-obtained his Class 1 driver's licence and continued to work to the present date. Amputation allowed him to stop all pain medications, and he no longer needed the spinal cord stimulator, which was removed in January 2017. The worker's representative asked that the panel not overlook the immeasurable benefit to the worker's long-term quality of life.

In his presentation, the worker emphasized the impact that this procedure had on him and his family. He described how he had struggled through this very long process. He noted that the pain immediately after the first surgery was unbearable. He followed the instructions of his physicians and therapists. He never missed an appointment and was 100% committed and determined to achieve as much recovery as possible. The worker described how all of the surgeries and procedures, the relentless pain and medications had changed him.

The worker stated that since the lower right leg was removed in early 2016, he had weaned himself off all of the pain medications. He keeps the prosthetic on 12 to 14 hours a day, and walks an average of five or more miles each day. He is enjoying being more active again and is sleeping well at night. He is able to complete household tasks and home and vehicle maintenance, and to spend time with his family at most events. He successfully passed his Class 1 driver's licence with air brakes, and is so happy to be back working and feeling productive.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not responsibility should be accepted for the right below knee amputation surgery and benefits associated with the procedure. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the right below knee amputation surgery was necessary to cure and provide relief from the worker's November 6, 2010 compensable injury. For the reasons that follow, the panel is able to make that finding.

Based on the totality of the evidence, and in the particular circumstances of this case, the panel is satisfied that the right below knee amputation was medically necessary to cure and provide relief from the worker's compensable injury.

In arriving at this conclusion, the panel notes that there is no dispute in the file that the worker had an ongoing problem involving his right foot and lower limb.

In response to questions from the panel at the hearing, the worker described the burning pain he experienced in his right foot, as follows:

…if you take your hand or something, and put it onto a, on a barbecue, and that hand couldn't come off and it would burn and burn and burn and burn, and you didn't know where to go. No matter what you did, it did not go away. It hurt and burned so bad. And that's the way I put it, is because that's the way it felt, like somebody had just held me down, my hand or my leg down on that barbecue or fire, and just sat there and let it burn and burn and burn. It was so painful. I didn't know where to go with it.

The worker's evidence at the hearing with respect to the nature and extent of his right foot pain and difficulties was consistent with the evidence on file.

The panel accepts that the worker had ongoing neurogenic pain, as evidenced by his own reports and reports from all of his healthcare providers.

The panel further finds that the worker's neurogenic pain or complex regional pain syndrome symptoms were causally related to his November 26, 2010 workplace accident and injury. The panel notes that the WCB medical advisor opined on March 24, 2011 that the current diagnosis for the worker's worsening pain was complex regional pain syndrome of the foot and that it was medically accounted for in relation to the workplace injury. The medical advisor further noted that recovery from the complex regional pain syndrome was guarded and difficult to anticipate.

The panel notes that other surgeries or procedures were approved for the same symptoms and diagnosis of complex regional pain syndrome or neurogenic pain, including:

• neurolysis of the right tibial nerve, which was authorized on December 14, 2011 and took place on February 24, 2012;

• revision neurolysis of the tibial nerve, for which WCB responsibility was accepted on June 11, 2012 and took place on July 27, 2012;

• referral to the pain clinic on November 6, 2012, and subsequent acceptance of an ultrasound guided peroneal nerve block injection on February 2, 2013;

• spinal cord stimulation trial, which was authorized on June 18, 2014 and carried out on November 24, 2014; and

• insertion of permanent spinal cord stimulator, which was authorized on December 10, 2014 and took place on January 6, 2015.

The evidence further shows that amputation was repeatedly delayed in favour of alternative methods of treatment, with it being noted that the worker repeatedly indicated he was prepared to consider any suggestions before proceeding to amputation.

The panel notes that the worker was also assessed and effectively screened by three psychologists, including the WCB psychological consultant who assessed the worker at a call-in examination on March 25, 2014, and a pain clinic psychologist who assessed the worker on September 3, 2014 and confirmed that there were no psychological contraindications for involvement in a trial of spinal cord stimulation.

Information on file indicates that the worker was at a higher risk of falling due to the sudden onset of pain in his right lower extremity causing decreased balance control. The worker experienced several injuries as a result, including an injury to his right shoulder which was accepted as indirectly related to his compensable injury in September 2013, and an injury to his left knee for which responsibility was accepted in September 2015.

The evidence shows that by January 2016, the worker was essentially out of options. The treating physicians had tried everything else, without any meaningful or sustained relief of pain or functional improvement. The report of the WCB orthopedic consultant from the call-in examination on January 6, 2016 indicated that when asked if there were any alternative treatments available, he had advised only that a variation of the nature and dosage of medication might be considered.

The panel finds that by the time of the amputation surgery, with the passage of time and failure of every treatment modality, the procedure was medically necessary to cure and provide relief from the worker's compensable injury, consistent with subsection 27(1) of the Act and the Medical Aid Policy. The panel is satisfied that the Elective Surgery Policy does not apply in the circumstances of this case.

The panel further finds, with the benefit of hindsight, that the effectiveness of the right below knee amputation was validated by the improvement in the worker's symptoms and his improved functionality as evidenced by his successful return to work following the surgery. Medical information on file, together with more recent medical information provided in advance of the hearing, supports that the worker has experienced and continues to experience significant and sustained improvement in his symptoms and function.

The panel respects the concerns and position of the WCB Healthcare physicians. Considering the evidence, and the due diligence and recommendations from the worker's treating healthcare providers, however, the panel finds that it was reasonable and necessary to proceed with the right below knee amputation.

Based on the foregoing, the panel finds, on a balance of probabilities, that the right below knee amputation surgery was necessary to cure and provide relief from the worker's November 6, 2010 compensable injury. The panel therefore finds that responsibility should be accepted for the right below knee amputation surgery and benefits associated with the procedure.

The worker's appeal is granted.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of July, 2019

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