The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on January 29, 2001, at the request of a worker advisor, acting on behalf of the claimant.

Issue

Whether or not a Medical Review Panel should be convened.

Decision

That a Medical Review Panel should not be convened.

Background

On April 28, 1999, the claimant filed an application for compensation benefits indicating that he pulled a muscle in his left groin and that he heard his left hip joint snap when he stood up from the kneeling position while using a cutting torch in November 1997. The day was cold and he had been working outside for approximately 2 to 3 hours. As a result of the incident, the claimant indicated that he now needed a left hip replacement.

Initial medical reports showed that the claimant was seen by a specialist on January 12, 1999, who noted that the claimant had an acute onset of pain when getting up from a crouched position in December 1997. The claimant assumed he had suffered a groin pull and was referred to physiotherapy and a chiropractor with no improvement. X-rays of the left hip at that time were considered normal. The specialist commented that recent x-rays of the left hip showed collapse of the superior aspect of the femoral head with significant joint space narrowing. On the lateral view the collapse appeared to involve about 25% of the femoral head. The specialist indicated that the claimant had collapse and arthrosis of his left hip most likely related to avascular necrosis. "There being no other apparent risk factors I presume this idiopathic AVN."

On February 2, 1999, a second specialist concluded that the claimant had AVN of the left femoral head that had already collapsed and he was getting secondary osteoarthritis. A left total hip replacement was recommended by the specialist and was agreed to by the claimant. The left total hip replacement later took place on June 1, 1999.

In a decision dated May 31, 1999, Rehabilitation and Compensation Services determined that the claim for compensation was not acceptable. It was the opinion of a Workers Compensation Board (WCB) medical advisor that the claimant had a pre-existing condition (AVN) of the hip. He noted that avascular necrosis could be associated with the use of steroids or other non-work related contributing factors or can be congenital in nature. In the opinion of Rehabilitation and Compensation Services, a relationship between the claimant's left hip difficulties and an accident arising out and in the course of his employment had not been established.

On March 15, 2000, a worker advisor submitted copies of medical reports from two of the claimant's treating physicians dated October 12, 1999 and March 3, 2000. Based on the opinions expressed in these reports, the worker advisor argued that the claimant's November 1997 injury, on a balance of probability, arose out of and in the course of his employment.

Following consultation with a WCB orthopaedic consultant on June 4, 2000, Rehabilitation and Compensation Services wrote to the worker advisor on June 29, 2000. The worker advisor was informed that it was the WCB's orthopaedic consultant's opinion that the episode of left hip joint pain reported by the claimant arose entirely out of the pre-existing condition of vascular necrosis of the head of the left femur and was not the responsibility of the WCB. Based on this opinion, no change would be made to the original decision of May 31, 1999.

On July 7, 2000, Review Office confirmed that the claim for compensation was not acceptable. Review Office indicated that the collapse of the claimant's femoral head arose from other causes. Review Office relied on the opinion expressed by the WCB orthopaedic consultant to the effect that there was no relationship between the claimant's work activities and the start of the collapse of his femoral head other than he was weight bearing at the time. He said that the collapse could have started at any time the claimant was weight bearing. On balance of probabilities, Review Office concluded that the claimant's employment did not place him at an increased risk for causing his femoral head to start to collapse.

In a further submission dated July 20, 2000, the worker advisor felt there was a clear difference of medical opinion between the claimant's treating physicians and the orthopaedic consultant to Review Office regarding the relationship between the claimant's work activities and the start of his collapse of his femoral head. The worker advisor requested that a Medical Review Panel (MRP) be convened under section 67(4) of the Workers Compensation Act (the Act).

On September 19, 2000, a Rehabilitation and Compensation Services supervisor notified the worker advisor that the request for a MRP was denied. The supervisor made reference to the medical reports that were supplied by the claimant's treating physicians in which one report stated, "there is nothing in the literature that is described similar to this", and the second physician who stated "however, this hypothesis is not supported by what I could come up with in the recent medical literature." The supervisor acknowledged that both attending physicians had offered their opinion with respect to the relationship between the claimant's condition and his employment while a full statement of fact or explanation regarding their conclusions had not been provided. The decision to deny the request for the MRP was also confirmed by Review Office on October 6, 2000.

On December 19, 2000, the worker advisor appealed Review Office's decision regarding the convening of a MRP and a non-oral file review was then arranged for January 29, 2001.

Reasons

The issue before the panel in this appeal is whether or not the claimant is entitled to have his medical condition assessed by a Medical Review Panel.

The referral of a matter to an MRP is regulated by section 67(4) of The Workers Compensation Act and by WCB Policy 42.10.70, which reads:

Where the opinion of a medical officer of the board on a medical matter differs from the opinion expressed in a written certificate by a physician selected by the worker, the matter will be referred to an MRP upon written request by the worker or by the board. An "opinion" is a full statement of the facts and reasons supporting a medical conclusion.

The test that must be met, prior to authorizing an MRP, is whether or not there is a difference of medical opinion.

In this appeal, the panel concluded that there was not a difference of medical opinion, sufficient to meet the above-noted test.

In coming to our conclusion, the panel carefully reviewed all of the medical evidence on file, including reports and opinions prepared by WCB medical advisors, as well as the physicians who attended the claimant.

From this review, we note that all of the physicians are in agreement as to the diagnosis, that the claimant suffered from avascular necrosis (AVN), which resulted in the claimant requiring a hip replacement. There is general agreement among the doctors as to the wide variety of potential sources of this condition, including that the source could be idiopathic. But, there is no agreement or even a conflict noted as to the source in the claimant's situation.

For the medical condition to be accepted as a compensable injury by the WCB, there must be a clear link between the condition and a workplace incident. Unfortunately for the claimant, even his own doctors are not able to provide this clear link. They are only able to speculate as to possible origins in the workplace.

WCB medical advisors have concluded that the claimant's condition was due to a pre-existing condition and not the result of a work-related injury. In contrast, it is the position of the claimant, as put forward by two physicians, that his workplace incident - standing up after working in a crouched position for some time might have caused a subluxation of the left hip joint, along with intra-articular bleeding which led to AVN.

However, the claimant's physicians are unable to come to this conclusion with any degree of certainty. Both admit that they can find no support in medical literature for their premise.

The relevant section of the act and the policy are quite clear in their definition of a medical opinion, which must be "a full statement of the facts and reasons supporting a medical conclusion." The opinions provided by the claimant's physicians do not meet this test.

As a result, the panel is unable to authorize the convening of a Medical Review Panel. Accordingly, the appeal is not allowed.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of February, 2001