The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on January 9, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on several occasions, the last one being May 16, 2002.

Issue

Whether or not a Medical Review Panel should be convened under Section 67(4) of The Workers Compensation Act; and

Whether or not the worker is entitled to wage loss benefits beyond November 2, 2000.

Decision

That a Medical Review Panel not be convened under Section 67(4) of The Workers Compensation Act; and

That the worker is not entitled to wage loss benefits beyond November 2, 2000.

Decision: Unanimous

Background

The claimant reported right shoulder, neck and back pain which occurred from lifting and stretching while putting up chipboard on October 25, 2000, during the course of his employment as a dry waller. A report from the attending physician dated October 27, 2000 indicated that the claimant suffered from an aggravation of cervical and lumbar disc disease and a cervical and lumbar strain. Arrangements were made for the claimant to receive physiotherapy treatments.

On December 5, 2000, the Workers Compensation Board (WCB) accepted the claim for compensation after review of signed statements from the employer and an opinion expressed by a WCB medical advisor. It was the opinion of primary adjudication that the claimant's workplace activities of October 25, 2000 aggravated a pre-existing condition and the clinical findings supported total disability as a result of this aggravation for a period of one week. In a letter dated December 13, 2000, primary adjudication confirmed that the claimant had recovered from the effects of his compensable accident. Wage loss benefits were paid to November 2, 2000 inclusive and final.

Subsequent file records showed that the case was referred to the WCB's Preventive Vocational Rehabilitation Committee to determine whether the claimant qualified for assistance (the claimant has four prior claims with the WCB from 1998). On May 29, 2001, a Vocational Rehabilitation Consultant (VRC) determined that no occupational goal could be identified which would meet the costs outlined in the preventive vocational rehabilitation guidelines. Hence, the claimant was not entitled to any further assistance or assessment by vocational rehabilitation.

In correspondence dated June 18, 2001, the claimant's solicitor requested reinstatement of the claimant's benefits based on submitted medical reports from an occupational health physician dated February 15, 2001 and a physical medicine and rehabilitation (physiatrist) specialist dated April 12, 2001. In brief, the occupational health physician made the following comments in his report of February 15th:

"Following his October injury, he felt he had a 50% improvement with his physiotherapy, but it did not restore his ability to lift above shoulder which has sidelined him from his job as a drywaller The February 2000 injury that precipitated much of these symptoms involved sustained holding of a heavy weight with flexed finger grip, overloading the kinetic chain of the left upper limb. The October injury primarily involved the right shoulder, but was interpreted by the WCB to be a recurrence."

On April 12, 2001, the physical medicine and rehabilitation specialist stated, in part, the following:

"I feel this 53 year old man is suffering the soft tissue effects from multiple injuries collected in his years as a construction worker. The neck and shoulder symptoms are certainly compatible with the type of overuse problem seen with work like dry walling. He has also had a number of direct impacts to his neck and shoulder region which have contributed to his problems. There are long standing degenerative changes seen in the x-rays but I feel these are the result of long and hard physical activity and really, were producing no significant pain symptoms. The neck and the lower back are not as resilient to injury as if there were no degenerative findings, however, so injury that does occur may be quite severe and remain active longer than if there were no signs of degenerative disease in either the neck or back."

In a decision dated July 23, 2001, all interested parties were informed that the new medical information did not alter the WCB's decision that the claimant had recovered from the effects of his workplace injury and that he was not entitled to further wage loss benefits or ongoing medical treatment. Primary adjudication noted that the file was reviewed in consultation with a WCB medical advisor. While the medical advisor's opinion was that the claimant's ongoing difficulties did not relate to his recent workplace injuries, preventive restrictions were advisable due to the claimant's pre-existing condition. The case was then forwarded to Review Office for consideration.

In the interim, the claimant's solicitor requested the convening of an Medical Review Panel (MRP) pursuant to The Workers Compensation Act (the Act) on July 31, 2001. The request was based on a difference of medical opinions expressed between the claimant's treating physicians and the WCB medical advisor.

In early August 2001, a WCB orthopaedic consultant commented as follows to questions posed by Review Office with respect to the case:

"There is no history of a substantive work related injury occurring. The symptoms appear to be general aches and pains that may occur on a new job in an individual with reported CT evidence of pre-existing degenerative disc disease of the C-spine as well as degenerative disc disease and osteoarthritis of the lumbar spine. In my opinion the work activities have not appreciably altered these conditions. Any ongoing symptoms are related to the pre-existing conditions."

On August 3, 2001, Review Office determined that the claimant was not entitled to payment of wage loss benefits beyond November 2, 2000. With respect to the MRP issue, Review Office referred the claim to a WCB case manager to make a ruling.

The Review Office took into consideration the claimant's prior claims and in particular, the 2000 claim. Given the extremely limited work exposure in the year 2000 (3 days in total), Review Office did not believe that the claimant's ongoing problems could reasonably be attributed to the October 25th work experience. Review Office concurred with the opinion expressed by the WCB medical advisor and orthopedic consultant that any aggravation caused by the claimant's one day of employment in October would not have lasted beyond one week. He was therefore not entitled to payment of wage loss benefits beyond November 2, 2000.

On September 5, 2001, primary adjudication determined there was no basis to convene a MRP as the information submitted by the solicitor (i.e. the opinions expressed on February 15, 2001 and April 12, 2001) did not meet the definition of "opinion" as required in the Act. On September 11, 2001, the claimant's solicitor appealed this decision to Review Office.

On September 28, 2001, Review Office confirmed primary adjudication's decision that there was no basis to convene a MRP based on the following rationale:

• the February 15, 2001, report showed that the physician saw the claimant on September 21, 2000 prior to the present claim being established. Multi-level disc degeneration was noted in the cervical spine. When the claimant was seen on February 16th, the physician referred him to a physiatrist. Review Office felt there was nothing in this report that would satisfy the definition of an opinion regarding the relationship of the claimant's ongoing problems to the October 2000 and February 2000 claims.
  
  
• the report dated April 12, 2001, contained several generalizations regarding the cause of the claimant's long-standing degenerative changes. The physician was not relating these to the recent claims but felt they were the result of long and hard physical activity, a statement not supported by facts. The physician attributed the claimant's neck and shoulder problems to the type of overuse problem seen with work like drywalling. He did not attribute these problems to the accident. The WCB does not accept general wear and tear of a person's anatomy over time as being a personal injury caused by an accident that arose out of and in the course of employment.

On October 15, 2001, the claimant's solicitor appealed both of Review Office's decisions and requested an oral hearing be convened.

On January 9, 2002, an oral hearing was held at the Appeal Commission. The Appeal Panel hearing the case requested that additional information be obtained from the claimant's treating physicians prior to rendering a decision on the issues under appeal. On April 15, 2002, all interested parties were provided with correspondence that the Panel obtained from the treating physicians and were asked to provide comment. On May 16, 2002, the Panel met again and took into consideration a submission by the claimant's solicitor dated April 23, 2002.

Reasons

This case involves a person who worked as a drywaller for most of his adult life and who, in October 2000, sustained an injury to his right shoulder, neck and upper back in a workplace accident. His claim for compensation was accepted and he was paid benefits for approximately one week, after which time he was determined to have recovered from the effects of this accident.

He continues to experience problems with his upper body, which prevents him from returning to work as a drywaller. He is of the opinion that these problems are a result of his October 2000 compensable injury. He appealed to the Review Office asking that his benefits be reinstated. This was denied. He has appealed that decision to this Commission.

His appeal has asked the Commission to consider two issues: that his wage loss benefits be reinstated; and/or that a Medical Review Panel (MRP) be convened to assess whether or not his ongoing condition is a result of the October 2000 injury.

For his appeal to be successful on the first issue, the Panel would have to determine that his ongoing medical problems are causally related to the October 2000 injury. To be successful on the second issue, the Panel would have to determine that he meets the test set out in legislation for the convening of an MRP. We were not able to make either determination.

In coming to our decision, we made a thorough review of the case file, including the files on other, recent compensable claims involving the claimant; and we conducted an oral hearing at which we heard testimony from the claimant and his legal counsel.

Issue 1 - Whether or not the worker is entitled to wage loss benefits beyond November 2, 2000.

In respect of this issue, we noted that the worker sustained his injury on his first day of work after about eight months of lay-off while he recovered from the effects of another compensable injury. The initial medical assessment noted a diagnosis of "aggravation of cervical and lumbar disc disease. cervical and lumbar strain." This was reported to be due to reaching over his head to hold and screw in heavy boards.

A board medical consultant, who was asked to assess this claim, found that it was reasonable to pay wage loss benefits for a period of one week, as well as providing a short course of physiotherapy. It was his opinion that the worker should be recovered from this strain injury by that time.

This medical advisor also notes that the claimant has significant pre-existing medical problems in his back, neck and shoulders, which are the major cause of his ongoing symptoms. As noted in the Background, a board orthopaedic consultant, in August 2001, reported on the evidence of pre-existing degenerative disc disease and osteoarthritis, supporting the previous conclusion that these were the cause of his current and ongoing problems.

We were persuaded by these opinions and have concluded that - on a balance of probabilities - the claimant had recovered from the effects of the October 25, 2000 workplace accident by November 2, 2000.

Accordingly, the appeal on this issue is dismissed.

Issue 2 - Whether or not a Medical Review Panel should be convened.

Subsection 67(4) of The Workers Compensation Act of Manitoba provides for the convening of an MRP in very specific situations:

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.

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

We have concluded that this test has not been met. The medical reports of the claimant's physicians do not equate a full statement of facts and reasons. In this regard, we adopt the reasons of the Review Office, contained in its decision, dated September 28, 2001. These reasons are included, above, in the Background section to this decision and will not be repeated here.

Accordingly, the appeal on this issue 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 29th day of May, 2002