Decision #60/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on April 16, 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

A Medical Review Panel should be convened pursuant to subsection 67(4) of the Workers Compensation Act.

Decision: Unanimous

Background

On May 24, 2000, the claimant submitted an application for compensation benefits for right upper back, neck and shoulder pain which she attributed to her work duties as a linen aid. The claimant described her injury as follows:
    This has been an ongoing injury. I have been on workers compensation before (in 1989) for the same reason. But most recently in November 1999 it became worse and progressed until I was unable to return to work after April 4, 2000. In the attached letter I have described the type of work I do which has injured my right shoulder.
Initial medical information dated April 7, 2000, diagnosed the claimant with muscle spasm cervical spine. In a subsequent progress report dated July 14, 2000, the diagnosis rendered was chronic cervical strain syndrome.

In letter dated August 2, 2000, primary adjudication advised the claimant that the file evidence did not establish a relationship between her 1989 compensable injury and the symptoms she experienced in April 2000. Hence, her claim for compensation was not acceptable.

On several occasions, a worker advisor, acting on behalf of the claimant, appealed the acceptability of the claim to Review Office. On November 10, 2000, January 26, 2001 and September 7, 2001, Review Office upheld primary adjudication's decision that the claim was not acceptable.

Given Review Office's decisions of January 26, 2001 and September 7, 2001, the worker advisor wrote to primary adjudication on September 24, 2001 requesting that a Medical Review Panel (MRP) be convened in accordance with section 67(4) of The Workers Compensation Act (the Act). The worker advisor advanced the argument that there was a difference of medical opinion between the claimant's treating practitioners and the WCB's medical consultant. The worker advisor's position was that the cumulative work duties as well as the specific act of sewing a pillow had caused the claimant's loss of earning capacity, not a degenerative condition. The worker advisor pointed out the contrasting opinions that were expressed by the claimant's treating physicians and the WCB's medical consultant:
  • on December 7, 2000, the attending physician stated: The most probable cause of her rotator cuff tear is a repetitive movement such as would be found in folding sheets and linen and blankets and I am not aware of any non-work activities or another condition that could have caused this tear.

  • the treating orthopaedic surgeon stated on July 27, 2001: The claimant's head of the humerus was a bit high-riding. This was considered a finding consistent with chronic rotator cuff wear -- And The rotator cuff may well have been weakened as a result of the degenerative changes which preceded this particular work place incident. It is my opinion although the patient may have had a preexisting degenerative condition of her rotator cuff, she did sustain a significant tear as a result of her work place activity March 2000.

  • the opinion expressed by the WCB's orthopaedic consultant on January 25, 2001: This type of work activity would not be causal for a rotator cuff tear. It might cause a pre-existing tear to be symptomaticat this age the tear is usually degenerative in nature.
The worker advisor was of the view that an MRP would resolve the medical debate on the causal relationship between the claimant's rotator cuff tear and her work activities.

On September 27, 2001, primary adjudication denied the request for an MRP. Primary adjudication stated, in part, "Under Section 67(4) of the Workers Compensation Act, a Medical Review Panel will be convened when there is a difference of medical opinion affecting entitlement. In this case, the adjudicator rendered their decision based on adjudicative grounds, not medical opinion. Therefore, the Medical Review Panel will not be granted."

On October 3, 2001 and February 22, 2002, the worker advisor asked Review Office to rule on the issue of convening an MRP under section 67(4) of the Act. In decision letter dated February 25, 2002, Review Office stated, in part, the following:
    "...we have a scenario where Review Office was reviewing this claim in regard to the issue of the convening of a Medical Review Panel on the basis of a difference of medical opinion between the claimant's attending physician and the WCB Orthopaedic Consultant to Review Office regarding the issue of the claimant's duties in general, and an overuse syndrome being involved. You have now brought forth a scenario where you are requesting the convening of a Medical Review Panel on the grounds of a difference of opinion between the claimant's orthopedist and the Orthopaedic Consultant to Review Office, and Review Office would advise that as the two orthopedists are not commenting on the same situation, there cannot be a difference of opinion between them. Accordingly, Review Office does not grant the convening of such a Panel."
In March 2002, the worker advisor appealed Review Office's decision as noted above and a non-oral file review was arranged. On April 16, 2002, the Appeal Panel considered the case along with a submission from the worker advisor dated April 5, 2002.

Reasons

We have reviewed the file and find that there is indeed a difference of opinion between a medical officer of the WCB in respect of a medical matter and that of the physician selected by the worker. In his opinion the WCB orthopaedic consultant states:
    "This type of work activity would not be causal for a rotator cuff tear. It might cause a pre-existing tear to be symptomatic. Significant trauma; at this age the tear is usually degenerative in origin."
By way of contrast, the claimant's treating orthopaedic surgeon has opined as follows:
    "It is my opinion that the patient did sustain a full thickness tear of the rotator cuff in March of 2000. The patient may well have had some degenerative tears of the cuff preceding this. However, the history the patient gives is consistent with the patient (sic) sustaining a significant tear of the rotator cuff at that time. The rotator cuff may well have been weakened as a result of the degenerative changes which preceded this particular work place incident. The patient had marked deterioration of her shoulder following that incident. It is my opinion although the patient may have had a preexisting degenerative condition of her rotator cuff, she did sustain a significant tear as a result of her work place activity March 2000."
We find that a Medical Review Panel should be convened in accordance with section 67(4) of the Workers Compensation Act of Manitoba. Accordingly, the claimant's appeal is hereby allowed.

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 14th day of May, 2002

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