The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on September 12, 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 pursuant to Section 67(4) of the Act.

Decision

That a Medical Review Panel should be convened pursuant to Section 67(4) of the Act.

Background

While working in a kitchen as a cook on January 14, 1998, the claimant slipped and fell onto her back and right side. The diagnosis rendered by the attending physician was multiple contusions and strains especially of the spinal area from the coccyx to the neck. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on January 15, 1998.

In May 1998, a WCB medical advisor assessed the claimant with respect to the status of her right shoulder. The medical advisor believed that the claimant suffered from muscle irritation of the right shoulder and a diagnosis of myofascial pain was made. The medical advisor indicated that the claimant was capable of performing modified duties with restrictions and that a referral was made for acupuncture treatment.

Over the course of the claim, the claimant was treated by an orthopaedic surgeon and had undergone MRI examinations of the right shoulder and a right shoulder arthrogram. On January 5, 1999, the claimant underwent a right shoulder arthroscopy, a debrided labrum, a debrided rotator cuff, arthroscopic acromioplasty, and distal clavicle partial excision.

In early January 2000, the treating orthopedic surgeon noted that the claimant continued to have muscular pain in her neck and below her shoulder blade as well as some anterior shoulder pain. He stated that the claimant's muscular pain was worse than anything else. It was the surgeon's opinion that the claimant should push and carry on with life as tolerated. "If she cannot return to her job because of this pain now, I think it is unlikely that she will in the next few months, but possibly within year or so she may go back to her work."

On January 20, 2000, a WCB orthopedic consultant reviewed the case. He recommended that the claimant "should continue with a limited work hardening program, maximum twice weekly until the end of March 2000 at which time the restrictions noted in my memorandum of January 3, 2000 will cease."

A WCB physical medicine and rehabilitation consultant examined the claimant on July 20, 2000, and commented that the current clinical examination suggested resolution of the adhesive capsulitis. The claimant had essentially a normal shoulder range of motion on the right. There was no evidence of any active myofascial pain involvement. The consultant expected that any residual symptomatology should resolve with continuing range of movement and stretching exercises. He did not expect any permanent impairment related to the injury and stated that some impairment related to the pre-existing degenerative changes of the acromioclavicular joint arthrosis may be possible.

In a letter dated January 25, 2000, Rehabilitation & Compensation Services determined that the weight of medical evidence did not support a continued cause and effect relationship between the compensable injury and the claimant's ongoing symptoms. It felt that the claimant had recovered from the effects of her compensable injury and was fit to resume her pre-accident duties.

Additional medical information was received from the section head of physical medicine and rehabilitation dated November 16, 2000. The report stated that the claimant did not have full range of motion in the shoulder or full strength about her shoulder. Arrangements were made for the claimant to see another specialist for trigger point injections. The section head noted the comments expressed by the WCB adjudicator in her decision letter of September 25, 2000, which suggested that ongoing impairment may possibly be related to pre-existing degenerative changes of the acromioclavicular joint. The section head indicated that the claimant may have had pre-existing problems, but in his opinion that certainly would not account for her present lack of function of the right shoulder, which he believed was a result of her injury.

A WCB physical medicine and rehabilitation consultant reviewed the case on December 13, 2000. He was of the opinion that the claimant had, on a balance of probabilities, recovered from the January 14, 1998 injury in view of the time since the injury, i.e. 3 years post, the claimant's age, surgery and treatments received to date including trials of direct needling treatments.

In a report dated January 9, 2001, a second physical medicine and rehabilitation specialist submitted an opinion that the claimant had developed a myofascial syndrome affecting the right upper extremity. He felt the claimant may have a complex regional pain syndrome given the allodynia in her right shoulder and hand, as well as, the swelling and discoloration of the right hand. A trial of needling and infiltration of the major trigger points was suggested including those in the supraspinatus ligaments at C3-4 and C4-5.

A WCB orthopaedic consultant reviewed the case on January 26, 2001. The consultant stated, in part, that the additional information did not warrant a change in the WCB's medical opinion concerning the claimant's fitness for regular work. The consultant felt the trigger point injections were not the WCB's responsibility as there was no direct cause/effect relationship between the workplace injury and the diagnosis. On February 7, 2001, Rehabilitation & Claim Services notified the claimant that no change would be made to the decision of September 25, 2000.

In a letter dated March 28, 2001, a worker advisor referred to new medical evidence received from the claimant's treating physical medicine and rehabilitation specialist dated March 22, 2001. He contended that this report fully supported the position that the claimant's present right shoulder condition was directly related to the compensable accident of January 14, 1998 and that the claimant had not recovered from her accident.

A WCB physical medicine and rehabilitation consultant reviewed the case on April 10, 2001. The consultant agreed with the WCB's orthopaedic consultant's review of January 26, 2001. The consultant stated, in part, that on a balance of probabilities, the numerous diagnoses noted by the treating physical medicine and rehabilitation consultant were not directly related to the workplace incident of January 14, 1998 and that there was no need for restrictions based on the injury of three years ago. On April 17, 2001, the worker advisor was notified that no change would be made to the decision of September 25, 2000.

On May 7, 2001, a second worker advisor advanced the contention that there was a clear difference of medical opinion between the treating physical medicine and rehabilitation consultant and the opinion expressed by the WCB's physical medicine and rehabilitation consultant of April 10, 2001. On this basis, the worker advisor requested that a Medical Review Panel (MRP) be convened pursuant to Section 67(4) of the Worker's Compensation Act (the Act).

In a letter dated May 16, 2001, the worker advisor's request for a MRP was denied. The case manager made reference to the treating physical medicine and rehabilitation consultant's response to the following question, "In your medical opinion, is Ms. [claimant's] current diagnosis directly related to her compensable accident January 14, 1998? Please explain and provide clinical medical findings to support your opinion." The response provided by the consultant, in part, was as follows: - "Yes, because if she had had as much limitation in the function of her right upper extremity and neck prior to the injury she would not have been able to manage in her job." The case manager indicated she could not accept this as an "opinion" as defined by Section 67(1) of the Act.

At the request of the worker advisor, Review Office considered the case on June 15, 2001. Review Office noted the opinion expressed by the treating physical medicine and rehabilitation specialist in his report of March 22, 2000. Review Office was of the view that the specialist's comments did not meet the requirements of Section 67(4) of the Act. The request for a MRP was denied. The worker advisor appealed Review Office's decision and a non-oral file review was held.

Reasons

We reviewed the extensive medical documentation on file and, in particular, considered those opinions expressed by the WCB's physical medicine and rehabilitation consultant, the WCB's orthopaedic consultant and that of the claimant's treating physical medicine and rehabilitation specialist dated March 22, 2001. We are satisfied that the requirements of Section 67(4) of the Act have been satisfied and that a difference of opinion in respect of a medical matter does exist. Therefore the worker's request for a Medical Review Panel is hereby granted.

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 17th day of September, 2001