The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 28, 2001 at the request of the claimant's advocate.

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 not be convened pursuant to section 67(4) of the Act.

Background

While employed as an assembler mechanic on January 2, 1997, the claimant reported injuries to the left side of his neck, left shoulder and arm when he attempted to lift a rack to remove it off of a tractor holding. On September 24, 1997 the claimant underwent a left cervical discectomy for an anterior C5-C6 cervical disc. The claim was accepted by the Workers Compensation Board (WCB) and wage loss benefits were paid between January 1997 and January 1998 when the claimant returned to regular duties. In January 1999, the claimant was awarded a 12% impairment rating due to the loss in range of motion in his neck and for cosmetic scarring from the surgery.

On February 23, 1999 the claimant was lifting a part off a tractor when he felt a sharp pain in the middle of his back. Following the incident the claimant attended a local hospital for treatment and was seen by his family physician. The claimant was diagnosed with mechanical back pain and a thoracic strain. Responsibility for the claim was accepted and WCB benefits were paid to the claimant.

Subsequent medical information revealed that the claimant received physiotherapy treatments and had x-rays of the thoracic spine taken on April 16, 1999. These showed minor degenerative spurring throughout the lower thoracic spine. On April 17, 1999, the claimant was assessed by a pain and stress management specialist and was diagnosed with myofascial trigger points in the left infraspinatus and pectoralis major muscles. This diagnosis was confirmed by the family physician in a progress report dated May 20, 1999. By July 15, 1999 the pain and stress management specialist noted that there were no contraindications for the claimant returning to work.

On July 21, 1999, the claimant underwent a Functional Capacity Evaluation. The results showed that the claimant was pain-focused and had stopped his dynamic lifting early due to concerns of causing more back symptoms and that the claimant appeared to be deconditioned cardio-vascularly.

A WCB medical advisor reviewed the case on July 28, 1999. Based on the reports by the pain and stress management specialist and the FCE results, the medical advisor concluded that the claimant had recovered from the compensable injury.

On August 6, 1999 an advocate, acting on behalf of the claimant, requested the convening of a Medical Review Panel (MRP) pursuant to section 67(4) of The Workers Compensation Act (the Act) and the issuance of interim benefits under Board Order No. 48/88. The advocate was of the opinion that the report from the attending physician dated May 20, 1999 and from an occupational health physician dated June 25, 1999 was at variance with the WCB medical advisor's opinion of July 28, 1999, with respect to recovery from the compensable injury and loss in range of motion.

In a response dated August 12, 1999, a supervisor from Rehabilitation and Compensation Services denied the advocate's request for a MRP. The supervisor noted that a MRP would be convened if there was a difference of opinion between the WCB's medical advisors and the worker's attending physician. The difference of opinion must be supported with a full statement of the facts and reasons supporting a medical conclusion. With respect to this case, the supervisor stated the following:

• The attending physician's report of May 20, 1999 did not provide a different diagnosis than that of the WCB's medical advisor - myofascial pain in the left infraspinatus and pectoralis major muscle. Previously, the attending physician and the WCB's medical advisor diagnosed this condition as a thoracic strain.
• The June 25, 1999 report from the occupational health physician did not provide any medical findings to relate the claimant's degenerative diseases to this compensable injury nor was the thoracic spine a significant source of ongoing discomfort.

On February 11, 2000 the claimant's advocate requested Review Office to consider a number of issues, one of which was the convening of a MRP and interim benefits under Board Order 48/88. The advocate referred to the opinions expressed by the occupational health physician dated June 25, 1999, the opinion expressed by a WCB medical advisor on July 28, 1999 and a report from the attending physician dated January 9, 2000.

In a decision dated April 28, 2000, Review Office confirmed that a MRP would not be convened as it was unable to identify a difference in medical opinion supported by a statement of facts and reasons supporting a medical conclusion, as required in the legislation. On October 5, 2001, the advocate appealed Review Office's decision and a non-oral file review was held.

Reasons

This appeal involves two separate claims. In the first, the worker suffered injuries to the left side of his neck, his left shoulder and arm. The second claim involved injuries to his middle back, rib cage and left shoulder. In both cases, the claim was accepted by the board and benefits were paid accordingly.

In a decision dated April 28, 2000, the Review Office reconsidered a number of issues. The claimant has appealed only one of those decisions to the Commission: whether or not a Medical Review Panel should be convened pursuant to section 67(4) of The Workers Compensation Act. (the Act). This section reads:

Reference to panel on request
67(4) Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Section 67(1) defines "opinion" as meaning "a full statement of the facts and reasons supporting a medical conclusion".

For this appeal to be successful, the Panel would have to determine that the above-noted test is met, i.e., that there is a clear difference of medical opinion between a WCB medical advisor and the claimant's own physician(s). We were not able to make this determination.

The claimant's advocate, in a letter dated February 11, 2000, wrote that two doctors seen by the claimant "have not indicated recovery from at least three injuries, 1994, 1997 and 1999", while the board doctor has indicated that the claimant is recovered. He also wrote that, while the board doctor has outlined minimal restrictions, the claimant's doctors have outline "a host of symptomatology which is aggravated daily."

We note that the 1994 injury is not part of our consideration and that, in respect of the 1997 injury, the board has accepted a permanent compensable restriction, for which the claimant receives an impairment award.

A board doctor did conclude in August 1999 that the claimant had recovered from the 1999 compensable injury.

In reviewing the medical reports of the claimant's doctors we do not find a difference of opinion which meets the test required by the Act. In a letter dated January 9, 2000, his family doctor reports that he continues to have aftereffects as a result of his 1994 injury. As already noted, that claim is not under consideration in this appeal. The doctor also notes ongoing restrictions due to his 1997 neck injury. Again as already noted, this is recognized by the board and compensation is paid accordingly.

Nor does the report of an examination by an occupational health specialist, dated June 25, 1999, provide the necessary conflicting opinion. This specialist reports that his assessment was limited to the low back, which is the 1994 injury. The injuries under consideration in this appeal, those of 1997 and 1999, relate to the mid back, neck and shoulder.

Neither of these noted reports, nor any others from the claimant's physicians, meets the test set out in the Act in respect of conflicting opinions. Thus, we find that the claimant has not met the requirements of the Act for referring his case to a Medical Review Panel.

Accordingly, the appeal is dismissed.

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 20th day of December, 2001