The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on February 5, 2002, 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 subsection 67(4) of the Workers Compensation Act.

Decision

That a Medical Review Panel should not be convened pursuant to subsection 67(4) of the Workers Compensation Act.

Decision: Unanimous

Background

On June 8, 2000, the claimant filed an application for compensation benefits with regard to left and right hand/wrist difficulties that she related to her employment activities as a baker on May 31, 2000. The claimant described her injury as follows:

"I was pulling down a 34 lb. box a bit higher than my head. It was stuck and didn't want to slide off the other boxes. It suddenly let go and my hands flipped back. As I struggled to hold on to it my wrist bent backwards and I felt pain shooting all the way up my arms."

The employer stated on its reporting form that on the day of accident, the claimant sustained injuries to the muscles in both arms from moving a box of frozen dough weighing 30 lbs. from a height of four feet.

Initial medical information received from the attending physician diagnosed the claimant's condition as a muscle strain. Subsequent examination by a Workers Compensation Board (WCB) medical advisor, on June 23, 2000, noted that the claimant possibly sustained mild bilateral forearm extensor tendonitis at the time of the compensable injury and that her symptoms had virtually completely resolved by the time of the exam.

On July 17, 2000, the claimant was assessed by a sports medicine specialist and was diagnosed with de Quervain's disease and a cervical strain. Recommendations were made for physiotherapy and a graduated return to work in two to four week's time.

On August 3, 2000, a WCB medical advisor spoke to the treating physician by phone. Both doctors agreed that objectively, the claimant had recovered from the effects of her compensable injury.

In a decision dated August 8, 2000, primary adjudication determined that the claimant would be fit to return to her pre-accident employment following two weeks of home exercises and that wage loss benefits would be paid to August 16, 2000 inclusive and final. On August 18, 2000, the claimant disagreed with the decision and the case was referred to Review Office for consideration.

Prior to rendering a decision, Review Office sought the medical opinion of a WCB orthopaedic consultant. The consultant was of the opinion that there was no definite diagnosis and that the worker's ongoing symptoms were not consistent with the described compensable injury. The consultant was of the view that the mechanism of injury would not lead to de Quervain's tenosynovitis of the wrists and that a physiotherapy program would likely not be beneficial without a specific diagnosis.

On September 15, 2000, Review Office confirmed the decision that the claimant was not entitled to further benefits and services beyond August 16, 2000. Review Office found the weight of evidence did not support a relationship between the worker's ongoing complaints of disability and the compensable injury.

On February 21, 2001, a worker advisor, acting on behalf of the claimant, provided Review Office with a report from the treating sports medicine specialist dated February 21, 2001. It was the worker advisor's position that the February 21st report supported the diagnosis of de Quervain's tenosynovitis based on the mechanism of the claimant's May 31, 2000 workplace injury, and thus provided support for a relationship between the claimant's ongoing complaints of disability and the compensable injury. In the event that Review Office did not change its previous decision, a Medical Review Panel (MRP) was requested pursuant to section 67(4) of the Act. It was the worker advisor's belief that a clear difference of medical opinion existed between the WCB's orthopedic consultant and the sports medicine specialist.

Prior to considering the above appeal, Review Office referred the case back to the WCB's orthopaedic consultant for a further opinion based on this additional medical information. The orthopedic consultant responded to Review Office's questions in a memo to file dated March 27, 2001.

On March 30, 2001, Review Office confirmed that the worker was not entitled to benefits and services after August 16, 2000. Review Office maintained that it had not been established, based on the weight of evidence, that the worker's ongoing symptoms and disability were related to the compensable injury. With respect to convening an MRP, Review Office referred the case back to rehabilitation and compensation services for consideration of that issue.

On July 16, 2001, a manager with Case Management, Service and Trade Sector, Rehabilitation and Compensation, wrote to the worker advisor. The manager stated, in part, that the February 16, 2001 statement did not meet the criteria set forth in section 67(4) of the Act, therefore the request for an MRP was denied. The decision not to convene an MRP was later confirmed by Review Office in its decision of September 21, 2001. On November 20, 2001, the worker advisor appealed Review Office's decision to deny the convening of an MRP and a non-oral file review was arranged.

Reasons

As the background notes indicate, the claimant has requested pursuant to section 67(4) of the Workers Compensation Act (the Act) that a medical review panel (MRP) be convened. This section states as follows:

"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."

The claimant contends that there is a clear difference of medical opinion between her physician and the WCB's medical advisors and thus the requirements of the above section have been satisfied, which would entitle her to request the convening of an MRP.

The claimant's treating physician has based his medical opinion on a hypothetical scenario. He appears, in our view, to be arriving at his decision by including facts relating to the mechanism of injury, which are not on the file and thus are at best are speculative in nature. In particular, we note the following comments contained in a letter dated February 16th, 2001 to the claimant's worker advisor:

"The most common mechanism of injury for tendonitis is eccentric loading. If she only dorsiflexed her wrist at the time of the injury it would be an unlikely mechanism for the creation of DeQuervan's (sic) tenosynovitis. I would suggest there is likely some lateral movement in attempt to prevent the box from falling. Specifically I would anticipate ulnar deviation and thumb adduction as the most likely mechanism for damaging these tendons."

Inasmuch as the treating physician's opinion is not based on a full statement of facts, we find that the requirements of section 67(4) of the Act have not been met. Therefore, there is no entitlement to the convening of a medical review panel. 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 27th day of February, 2002