The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on February 13, 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 under section 67(4) of the Act.

Decision

That a Medical Review Panel should not be convened under section 67(4) of the Act.

Background

In November 1996, the claimant filed an application for compensation benefits indicating that her right wrist difficulties were caused by her employment activities of keyboarding and data entry work. Subsequent medical documentation showed that the claimant was diagnosed and treated for "overuse syndrome".

On October 28, 1997, the Workers Compensation Board (WCB) Claims Services branch determined that the claimant had sufficiently recovered from her compensable injury to return to her regular job duties. Wage loss benefits were paid to October 1, 1997, inclusive. This decision was appealed to Review Office by a worker advisor on December 8, 1997. In a Review Office decision dated December 19, 1997, it was confirmed that the claimant was not entitled to further benefits after October 1, 1997, for her right hand or wrist problems that developed on or about September of 1996.

On March 3, 1998, Review Office considered the case again at the request of the worker advisor, based on new medical information that was received from a physical medicine and rehabilitation specialist. Following a review of the new medical information, Review Office confirmed that the claimant was not entitled to further benefits. In brief, Review Office indicated the following:

"Review Office considers that the medical evidence in your case continues to be speculative as to diagnosis and etiology. As well, the contention of a causal relationship to typing activities at work does not seem reasonable.considering that you had not performed significant typing duties after September 1996, yet your right wrist and hand problems continued to worsen (even after October 1997)."

On March 9, 2000, the worker advisor requested Review Office to reconsider its earlier decisions of December 19, 1997 and March 3, 1998. The worker advisor referred to several medical reports received from a plastic surgeon as well as a consultant in physical medicine and rehabilitation. Also included was information concerning the claimant's workstation. Based on the evidence contained in these reports, the worker advisor argued that the claimant was entitled to benefits and services beyond October 1, 1997, on the following grounds:

• There was a causal relationship between the claimant's November 1996 right wrist injury and her ongoing symptoms;
• The physical medicine and rehabilitation consultant provided a clinical explanation for the claimant's symptoms becoming worse after her employment activities were changed;
• An objective clinical diagnosis and etiology of the claimant's right hand condition had been provided.

Prior to considering the above appeal, Review Office obtained an opinion from a WCB orthopaedic consultant on March 28, 2000.

On March 31, 2000, Review Office determined that the claimant was not entitled to payment of further benefits after October 1, 1997. Review Office outlined the following reasons for its decision:

"It is the opinion of Review Office after further reviewing this worker's case that there is no cause and effect relationship between the condition identified at surgery, a radial sided TFCC [triangular fibrocartilage complex] tear and ligament laxity and the worker's employment as a typist. Review Office does believe that the claimant's type of employment may well have aggravated this condition, however, it is our opinion that such an aggravation would have ended by October 1, 1997. Review Office therefore would not accept responsibility for the surgery the claimant underwent or for any time loss from work that is being claimed beyond October 1, 1997."

In a submission dated July 6, 2000, the worker advisor requested that a Medical Review Panel (MRP) be convened pursuant to section 67(4) of The Workers Compensation Act (the Act). The worker advisor was of opinion that there was a clear difference of medical opinion between the claimant's treating physicians, i.e. the plastic surgeon and rehabilitation medicine consultant, and the WCB's orthopaedic consultant.

On July 27, 2000, the Acting Director of Case Management responded to the worker advisor's request for an MRP. The Acting Director stated she could not find that there was a difference of medical opinion relating to a medical matter, as required by section 67(4) of the Act.

On August 30, 2000, the worker advisor submitted a February 17, 2000 report from an occupational health physician for consideration by Case Management. On September 15, 2000, the worker advisor was informed that the new information did not meet the requirements to convene an MRP. The case was forwarded to Review Office for consideration.

In a decision dated September 29, 2000, Review Office determined that an MRP would not be convened in accordance with Section 67(4) of the Act. Briefly, Review Office stated the following in reaching this conclusion:

"it is the opinion of Review Office that a difference of medical opinion with respect to a medical matter affecting entitlement does not exist on this case. All of the physicians involved agree that it would be most improbable for typing activity to have caused a TFCC tear. The labour sponsored physician has also gone on to indicate in his report of February 17, 2000 that the laxity in the ligaments also would not have been caused by key boarding. There is therefore no difference of opinion with respect to the cause and effect relationship between the worker's two diagnosed conditions and her employment."

With respect to the issue involving the aggravation of a pre-existing condition, Review Office stated the following:

"In the opinion of Review Office the worker's pre-existing ligament laxity and the TFCC tear are the predominant factors in producing any claimed loss of income beyond October 1, 1997 and not the temporary aggravation caused by her key boarding duties which evidently ended some time in September of 1996."

In December 2000, the worker advisor submitted an appeal application to the Appeal Commission stating that in her opinion, the Review Office's decision should be overturned as there was a clear difference in medical opinion thus meeting the requirements of section 67(4) of the Act. On February 13, 2001, a non-oral file review was held.

Reasons

After reviewing the file, we find that there is no difference of medical opinion with respect to a medical matter that is required by section 67(4) of the Act. All of the physicians, who have input on this file, including those of the WCB, have acknowledged that the claimant's work duties could aggravate any one of the following conditions: right triangular fibrocartilage complex tear, lunotriquetral tear and ligament laxity.

The worker advisor, acting on behalf of the claimant, contended that two of the treating specialists reached the same conclusion: "Ms. [the claimant] has not recovered from the effects of her November 14, 1996 compensable injury." We have exhaustively reviewed these two specialists' reports and fail to see where such a medical conclusion has been stated.

The treating hand surgeon only goes so far as to suggest the following: "It is difficulty (sic) to determine whether or not her injury is work related. Usually radial sided tears of the TFCC come from a direct injury to the wrist such as a hyperextension injury. This is also true of the ligamentous laxity on the ulnar aspect of the wrist. However, it is possible that if these were pre-existing injuries Miss [the claimant's] work environment certainly could exacerbate her symptoms to the point where she would have to stay home from work." We note that the second treating specialist echoed similar comments with respect to the etiology of the claimant's hand difficulties.

In light of the foregoing, we find that a Medical Review Panel should not be convened under section 67(4) of the Act. Accordingly, the claimant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of March, 2001