Decision #103/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to benefits in relation to the December 6, 2019 surgery. A teleconference hearing was held on July 21, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to benefits in relation to the December 6, 2019 surgery.
The worker is entitled to benefits in relation to the December 6, 2019 surgery.
On August 17, 2018, the worker filed a Worker Incident Report with the WCB indicating they injured themselves while at work on August 2, 2018 when they slipped and fell backwards, landing on their left hand. A co-worker took the worker to a local hospital where an x-ray was taken, and a splint was applied to the worker’s left wrist. The worker then attended at a local emergency department where the x-ray confirmed a distal fracture of the left radius with “...intra articular extension and dorsal displacement of the distal fragment [and]...an associated fracture of the ulnar styloid process.” The worker was treated with a closed reduction, casted, and referred to a sports medicine physician for further treatment.
On August 7, 2018, the worker saw a sports medicine physician and further x-rays were taken. The physician noted the x-rays indicated “excellent alignment” of the worker’s wrist. Upon examination, the treating sports medicine physician reported the worker was “…distally neurovascularly intact” and after removing the worker’s cast, “…a small reduction maneuver was performed with the wrist in slight flexion [and] a new below elbow cast applied.” The physician noted the worker would be unable to return to their full duties for three to four months from the time of the accident and provided a Work Abilities/Modifications form noting the worker was unfit for work until November 2, 2018 but could do right-handed duties.
Upon receiving the worker’s accident report, the WCB contacted the employer for further information. The employer confirmed a workplace accident occurred on August 2, 2018 and that they received a copy of the restrictions indicated by the worker’s treating sports medicine physician and had advised the worker they could accommodate those restrictions; however, the worker had not returned to work or contacted the employer The WCB spoke with the worker who also confirmed the employer had offered modified duties and noted they felt uncomfortable with those duties as their treating physician recommended they remain off work until November 2, 2018 and they were left-hand dominant, which was the wrist that was injured.
A WCB medical advisor reviewed the worker’s file on August 21, 2018 with respect to restrictions and provided an opinion that, at three week’s post-injury, a closed fracture of the wrist, treated with a cast did not account for total disability. The medical advisor agreed that the sports medicine physician’s recommendation of right hand use only was appropriate while the worker’s left wrist remained in a cast, likely for six weeks from the date of injury. The WCB accepted the worker’s claim on August 22, 2018.
The WCB advised the employer of the worker’s temporary restriction of right hand use only and the employer confirmed the availability of suitable duties on August 29, 2018. On September 5, 2018, the employer contacted the WCB to advise the worker had not returned to work. In speaking with the worker on September 5, 2018, the WCB advised that as the worker had not returned to work, their entitlement to wage loss benefits ended as of September 3, 2018, which was confirmed in a letter of the same date.
On October 22, 2018, the employer provided the WCB with a detailed chronology of the events since the worker’s accident, noting the worker’s refusal of modified duties and requested the WCB reconsider the decision the worker was entitled to wage loss benefits. On October 25, 2018, after a discussion with the worker, the WCB wrote to the worker confirming the entitlement to wage loss benefits ended as of September 3, 2018 as the worker did not participate in a return to work program with the employer. Further, the WCB also confirmed the employer’s advice the worker was laid off as of September 21, 2018 due to lack of work.
The WCB provided updated restrictions to the employer and on November 2, 2018, the employer confirmed they could accommodate the restrictions. The worker returned to work on November 5, 2018.
On November 19, 2018, the employer requested reconsideration of the WCB’s decision to pay wage loss benefits to the worker to Review Office, with reference to their October 22, 2018 submission and indicating the employer offered but the worker refused suitable modified duties. The worker provided a submission in response on November 24, 2018. On January 16, 2019, Review Office denied the employer’s request for reconsideration and determined the worker was entitled to wage loss benefits to September 3, 2018.
The worker again went off work on December 4, 2018 declining the modified duties offered by the employer. After discussions with their union representative, the employer and the WCB, the worker returned to work on January 23, 2019. A further lay-off occurred mid-March 2019 due to lack of work and the worker was recalled on May 14, 2019. Due to a non-compensable health issue, the worker did not return to work at that time, and ultimately did not ever return to the accident employer.
The worker’s treating orthopedic surgeon reported to WCB on June 3, 2019 that the worker had “…no mid arc pain through range of motion and has relatively well preserved extension, flexion, supination, pronation, ulnar and radial deviation” and a normal neurovascular examination. The surgeon noted “a very reasonable alignment”, provided the worker with range of motion and strengthening exercises and recommended use of a wrist brace while doing laborious work.
A WCB medical advisor reviewed the worker’s file on June 17, 2019 and provided an opinion that “Considering the nature of the injury, the time passed for healing (eleven months) and the vary favorable recent report of the orthopedic surgeon (June 3 2019) it does not appear that specific restrictions are required.” The medical advisor also determined no further treatment was required and recommended the worker resume normal use of their wrist and hand. The WCB accepted this opinion and advised the worker on June 27, 2019 that no further restrictions or treatment were required in relation to the left wrist injury.
The worker requested reconsideration of the WCB’s decision to Review Office on July 3, 2019. Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation. At the request of the WCB, the worker attended for a call-in examination with a WCB medical advisor on August 22, 2019. The WCB medical advisor noted the left wrist fracture was well-healed, that the worker should limit the use of the wrist brace to overcome their issues with weakness and that regular use of their wrist and hand could be considered as occupational therapy. A Functional Capacity Evaluation took place on September 26, 2019 but the worker’s functional abilities could not be evaluated.
On October 31, 2019, the worker was assessed by a second orthopedic surgeon specializing in hand, wrist, elbow and peripheral nerve surgery. The surgeon noted a distal radius osteotomy could be performed, which could relieve some of the worker’s ulnar-sided wrist pain but indicated the surgery would not provide the worker with 100% reduction of pain and was unlikely to impact the worker’s flexion or extension. The surgery was booked for December 6, 2019.
In response to the request from the orthopedic surgeon for approval of the surgery, the WCB obtained opinions from three orthopedic consultants that the proposed surgery was not required given the misalignment was less than 10 degrees and that there were no anatomic findings to account for the worker’s ongoing pain symptoms. The WCB’s Chief Medical Officer agreed with the consultants and on November 26, 2019, the WCB advised the orthopedic surgeon the WCB would not accept responsibility for the proposed left distal radius osteotomy.
On April 30, 2020, the WCB provided the worker with a further letter confirming no restrictions were required in relation to their left wrist as a result of the August 2, 2018 workplace accident.
On May 29, 2020, the treating orthopedic surgeon provided a follow-up report to WCB indicating “significant improvement since the time of surgery”, and that the worker had excellent grip strength. The surgeon recommended the worker progress to heavier activities. The worker requested reconsideration of the WCB’s decision on benefit entitlement to Review Office on June 18, 2020 and on August 20, 2020, Review Office determined the worker was not entitled to further wage loss or medical aid benefits.
On September 1, 2020, the worker discussed the surgery with the WCB noting improvement in their symptoms but also noting they continued to experience pain on moving their wrist to the left. At the request of the WCB, the worker’s file, including the December 6, 2019 surgical report, was reviewed by a WCB medical advisor on September 21, 2020. The medical advisor provided an opinion that other than an improvement in the worker’s range of motion, the surgery resulted in little to no pain relief. The worker was noted to be well-healed from the osteotomy surgery, with no sign of arthrosis. The WCB medical advisor further opined the worker’s ongoing pain was of an inexplicable nature.
On September 28, 2020, the WCB advised the worker that upon review of their file, the decision to deny responsibility for the December 6, 2019 remain unchanged.
The worker requested reconsideration of the WCB’s decision to Review Office on October 28, 2020. In their submission, the worker noted their belief they required the December 6, 2019 surgery to be able to return to their job and perform daily tasks and since the surgery, they have noticed a significant improvement in the range of motion and strength of their wrist.
Review Office determined on December 14, 2020 the worker was not entitled to benefits in relation to the December 6, 2019 surgery. Review Office agreed with the opinion of the WCB medical advisors the December 6, 2019 surgery was not necessary in relation to the August 2, 2018 workplace accident and therefore the worker was not entitled to benefits in relation to the surgery.
The worker filed an appeal with the Appeal Commission on February 19, 2021. A teleconference hearing was arranged for July 21, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 4(2), a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which states 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.
The WCB has established Policy 44.120.10, Medical Aid (the “Medical Aid Policy”) which defines key terms and sets out general principles regarding a worker's entitlement to medical aid. The general principles that apply include the following:
• 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 WCB has also established Policy 42.10.10, Elective Surgical Procedures (the “Elective Surgery Policy”) to clarify the circumstances when the WCB will accept responsibility for the costs associated with elective surgery and the worker's recovery. The Elective Surgery Policy provides that the WCB will accept responsibility for the costs associated with elective surgery and the worker's subsequent recovery if the surgery is required as a result of a compensable injury and prior approval has been received from the WCB. Further, if elective surgery is undertaken without prior approval, the WCB may accept responsibility if prior approval would have been granted had it been requested. If the elective surgery has not been authorized, the WCB will be responsible for only those benefits that the worker would have been entitled to receive if he or she had not received the surgery.
The worker appeared in the hearing, accompanied by a support person, and made an oral submission on their own behalf. The worker also provided testimony through answers to questions posed by members of the appeal panel.
The worker’s position is that the surgical procedure undertaken on December 6, 2019 was necessary to address the symptoms and functional impairment resulting from the accident of August 2, 2018. The worker’s position is that the evidence of the success of the surgery supports that the surgery was appropriate and necessary.
The worker advised the panel that although the wrist injury was healing, they were not gaining function, and activities requiring use of the left wrist caused a strain on the wrist and hand prior to the surgical intervention; whereas, after recovering from the surgery, they are able to move the wrist fully. On questioning by panel members, the worker indicated that prior to the surgery, they were unable to use their hand to climb a ladder, lift a pot or milk jug, carry a jug or push/pull a lawnmower. Before the surgery the worker couldn’t swing a hammer. Since the surgery, the worker testified they are able to do these activities. The worker explained that they continue to experience pain occasionally but that the pain symptoms now are variable, depending on the day and further, they are now fully functional able to do any activity using their left hand and wrist.
In sum, the worker’s position is that the success of the surgery in increasing their functional abilities and decreasing their degree and frequency of pain symptoms supports a finding that the surgery was required in order to cure and provide relief from the effects of the injury sustained in the accident of August 2, 2018, and for this reason, they should be entitled to benefits in relation to the surgery of December 6, 2019.
The employer did not participate in the appeal.
The issue on appeal is whether worker is entitled to benefits in relation to the December 6, 2019 surgery. In order to grant the worker’s appeal, the panel would have to determine that the surgery of December 6, 2019 was required to provide relief to the worker from the injury sustained in the compensable accident of August 2, 2018. For the reasons outlined below, the panel was able to make such a finding.
The Act provides in s 37 that compensation is payable when the WCB determines a worker has sustained a loss of earning capacity, an impairment or requires medical aid, as a result of an accident. The provision of medical aid, under s 27 of the Act is limited to such aid as the WCB considers necessary to cure and provide relief from the compensable injury. The factors and principles the WCB will consider in determining whether proposed medical aid is necessary are outlined in the Medical Aid Policy and include the appropriateness and necessity of the proposed treatment based upon recommendations from healthcare providers, current scientific evidence as to effectiveness and safety, standards developed by the WCB and the objectives of promoting a safe and early recovery and return to work, enabling activities of daily living and minimizing or eliminating impacts of the injury upon the worker.
The file documents the opinions of multiple WCB medical consultants that the proposed surgical procedure did not meet the WCB standards in respect of elective surgical approvals despite the recommendation of the treating surgeon. The November 21, 2019 orthopedic consultant opinion noted that “In general, a distal radius osteotomy is indicated if there is the presence of significant mal-alignment on X-ray after healing of a distal radius fracture, AND if said mal-alignment can specifically be related to a reduction in wrist and hand function (i.e.. decreased wrist range of motion, decreased grip strength), or to wrist pain.” The orthopedic consultant noted the surgeon did not anticipate any change in function and further that the evidence of the worker’s pain was not specifically relate to any anatomical findings. Another orthopedic consultant concludes, in a November 22, 2019 report that he proposed surgical procedure does not meet all of the criteria required for funding by the WCB but is not more explicit.
The November 26, 2019 report of a third WCB orthopedic consultant provides more detail in terms of concerns with the proposed surgery noting that the first treating orthopedic surgeon was satisfied with the fracture healing and “reasonable alignment” and advocated continuing non-operative management. The evidence of dorsal tilt is “subtle” at just 5 degrees with very mild radial shortening, and “...studies assessing long term results of residually tilted (dorsally) distal radial fractures do not generally consider a dorsal tilt of less than 10 degrees to be of any potential functional or symptomatic relevance....” Further, a satisfactory result without surgery was anticipated given the nature of the worker’s fracture. As well, the orthopedic consultant noted the worker did not complain of significant pain at the Call-In Examination on August 22, 2019 but did have concerns as to grip strength and functional use of their hand. At that time, the WCB orthopedic consultant found no evidence of mid-arc pain through range of motion of the worker’s wrist but did note restrictions in terms of left forearm/wrist range of motion would be appropriate, and further that the worker would not be precluded from involvement in light or moderate work with appropriate modifications. The consultant concluded that the Elective Surgery Policy required the surgery to more likely than not result in an improvement in the worker’s pain and function and that the risk/benefit ratio of the surgery is likely to be favourable, and found that they could not approve the surgery based upon the “...nature of the injury and pathology involved, with the ambiguities and inconsistencies symptomatically and functionally noted, both demonstrated by and related by [the worker]”.
With respect to the conclusions of the WCB orthopedic consultant of November 26, 2019, the panel noted that at the time of the Call-In Examination, the worker had been hospitalized for more than two weeks for a serious condition unrelated to the compensable wrist injury. Further, the worker was still hospitalized and being treated for the unrelated condition when the Functional Capacity Assessment was attempted, and that the findings of that assessment were deemed to be inconsistent and therefore not meaningful. The file evidence confirms the worker remained hospitalized from August 5, 2019 through to October 17, 2019 receiving treatment for significant health issues. In these circumstances, we would place less weight on the evidence from these assessments, particularly with respect to any conclusions based upon the worker’s subjective reporting provided at those appointments.
The panel agrees that there is medical evidence confirming the worker’s injury healed within acceptable parameters, but the evidence also confirms that the injury nonetheless continued to cause both pain symptoms and functional limitations for the worker. The treating surgeon, prior to the surgery, noted the x-rays demonstrated “a distal radius malunion with decreased radial inclination, dorsal tilt of 5 degrees and some radial shortening.” The surgeon also noted the worker was “severely affected by [their] malunion and chronic wrist pain” and that nonoperative management of those symptoms had not succeeded. This is consistent with the medical reporting and opinions on file. The surgeon therefore proposed surgery, a distal radial osteotomy, which would likely improve the worker’s ulnar-sided wrist pain, although not expected to provide complete symptomatic improvement and unlikely to improve the worker’s flexion and extension arc.
The panel has the benefit here of hindsight in that the worker did elect to proceed with the surgery even in the absence of WCB approval. The file reveals the surgery took place on December 6, 2019 and the operative report confirms the malunion of the distal radius was corrected by the procedure undertaken with “excellent tilt, and normal inclination” achieved. Post-surgical follow-up reports confirm the surgery was viewed a success, with improvement noted in both the worker’s left wrist mobility and functional capabilities, even though these improvements were viewed, in advance, to be “unlikely” benefits of the surgery. The follow up report from January 13, 2020 indicates “angulation deformity has been improved”. The chart note of the same date indicates that alignment is “quite good”. On further follow-up on March 30, 2020, the surgeon recorded “some tenderness to deep palpation over the dorsal aspect of the distal radius, which would be consistent with [the worker’s] x-rays that is not showing complete consolidation....Positioning of the wrist is excellent.” By May 15, 2020, the surgeon notes the worker’s report of significant improvement since the surgery and ability to demonstrate “almost equivalent extension” with some limit of forward flexion and pro-supination arch, “excellent grip strength” and no numbness or tingling. The surgeon at that time recommended the worker could progress with heavier activities and should only follow up as needed. There is no evidence the worker needed to follow up with the surgeon at all.
As noted above, while prior to the surgery, the surgeon was less optimistic about the potential improvement in the worker’s wrist mobility, the post-surgical reporting confirms that there were improvements in this regard as well as reduction of other symptoms. Further, the worker’s evidence is that the wrist has healed very well after surgery and that they are satisfied with the results of that procedure and the increase in functional capacity post-recovery. The worker is now able to move their wrist fully and described their recovery at 99% since spring 2020. The evidence confirms that as a result of the surgery, the worker’s ability to participate in activities of daily living has improved. The worker has not since returned to any work, but there is no evidence before the panel that this is related to their compensable injury.
When the WCB orthopedic consultant reviewed the post-surgical reporting, they determined that although there was evidence of improvement in range of motion which had not been anticipated, there did not appear to be any improvement in terms of pain relief. The worker’s ongoing and “inexplicable” pain is relied upon by the medical advisor in concluding that the surgery should not have been authorized initially or after the fact. The panel finds that this conclusion is not consistent with the evidence of the worker provided in the appeal hearing and appears to be based solely on the report of the worker’s conversation with the WCB case manager of September 1, 2020 rather than on any medical findings. Upon reviewing the file memo of the worker’s September 1, 2020 conversation with the case manager, the panel noted the worker at that time described experiencing variable pain, with good days and bad days, but better than before the surgery. The worker also reported having less stiffness and better range of motion, although not full. This is similar to the evidence the worker provided in the hearing in which the worker advised they still have some pain depending on the day or activity, but that the pain in their left wrist was no longer of concern, describing their recovery to pre-accident condition as essentially full. We accept the worker’s testimony in this regard.
On the basis of the evidence before the panel and giving significant weight to the opinions and reporting of the treating surgeon as to both the anticipated and actual outcomes of the surgical procedure, the panel is satisfied on the standard of a balance of probabilities that the December 6, 2019 surgery was required to cure and provide relief to the worker from the injury sustained in the compensable accident of August 2, 2018.
Therefore, the worker is entitled to benefits in relation to the December 6, 2019 surgery. The worker’s appeal is granted.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 18th day of August, 2021