Decision #88/02 - Type: Workers Compensation

Preamble

A non-oral file review was held on June 27, 2002, at the request of the claimant's advocate.

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

While lifting a rack of dishes on March 27, 1991, the claimant felt a sharp pain in her lower back. The diagnosis rendered by the attending physician was a lumbar back strain. The Workers Compensation Board (WCB) accepted the claim for compensation and benefits commenced.

In June of 1991, the claimant was assessed by an orthopaedic specialist. Based on his examination and x-ray findings, the claimant was diagnosed with degenerative lumbar disc disease.

In an August 16, 1991 report, the orthopaedic specialist noted that the claimant had CT scanning of the lumbar spine which showed only slight bulging at the L4-5 level without any evidence of disc protrusion. The specialist commented that the claimant's symptoms, namely back pain, was thought to be related to the degenerative lumbar disc disease and the claimant only needed symptomatic treatment.

Following review of all medical information which included consultation with a WCB medical advisor, primary adjudication paid the claimant temporary total disability benefits to February 25, 1992 inclusive and final. It determined that the claimant had recovered from the effects of her compensable accident and any suggestion that she avoid certain activities was made to prevent possible subsequent exacerbation of symptoms or further injury. On March 27, 1992, this decision was confirmed by Review Office when it determined that the claimant's injuries resulting from the March 27, 1991 accident were muscular in nature and that the claimant had recovered from her muscular injury.

On July 13, 2001, the claimant's advocate submitted a physiotherapy report dated March 8, 2000 and a report from a rheumatologist who had assessed the claimant on September 8, 1999. Based on this new information, the advocate requested reinstatement of the claimant's wage loss benefits, consideration of a permanent partial impairment award or in the alternative, the convening of a Medical Review Panel (MRP) pursuant to section 67(4) of The Workers Compensation Act (the Act).

Following consultation with a WCB medical advisor on July 26, 2001, primary adjudication determined that the claimant was not entitled to reinstatement of benefits nor was she eligible for consideration of a PPI award. It was ultimately determined that the claimant had recovered from the effects of her 1991 injury and that any difficulties she now had with her lower back were related to her pre-existing condition.

With respect to the issue of convening an MRP, a WCB Sector Manager determined on July 31, 2001, that a difference in medical opinion as required by Section 67(4) of the Act, had not been established, i.e. both the attending orthopaedic specialist and WCB medical advisor diagnosed the claimant with degenerative disc disease.

In late December 2001, the claimant's advocate provided primary adjudication with a report from an occupational health physician dated December 6, 2001. Based on this report, the advocate requested reconsideration of the above decisions.

On January 8, 2002, primary adjudication confirmed that no change would be made to its previous decisions, i.e. that the decision to end WCB benefits as of February 25, 1992 was to remain in effect and that the claimant was not eligible for consideration of a PPI award.

With respect to the MRP issue, a WCB manager noted that both the occupational health physician and WCB medical advisor agreed that degenerative changes played a role in the claimant's current difficulties. The occupational health physician, however, offered no substantive clinical findings to support his opinion that the claimant suffered with 'chronic back aching and stiffness' that were related to the 1991 incident. On February 4, 2002, the advocate appealed the above decisions to Review Office.

On March 15, 2002, Review Office rendered the following decisions:
  • that the weight of evidence did not establish a reasonable or probable cause and effect relationship between the compensable injury of March 27, 1991 and ongoing difficulties that the claimant was experiencing with her lumbar spine;

  • the claimant was not entitled to a permanent partial impairment award;

  • that an MRP pursuant to Section 67(4) of the Act, would not be convened. Review Office noted that although the occupational physician indicated that the claimant suffered with chronic back aching and stiffness related to her 1991 compensable injury, he provided no clinical evidence to support his opinion. It was the opinion of Review Office that there were no grounds upon which to convene a Panel under Section 67(4) as a 'certificate of the physician in writing' providing a 'full statement of the facts and reasons supporting a medical conclusion' had not been supplied in concert with the advocate's request for a MRP.
On April 10, 2002, the claimant's advocate appealed Review Office's decision with respect to the MRP and a non-oral file review was arranged. On June 27, 2002 a non-oral file review took place at which time the Panel took into consideration a submission prepared by the claimant's advocate dated June 18, 2002.

Reasons

As the background notes indicate, the claimant's advocate 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 advocate contends that there is a clear difference of medical opinion between the claimant's physicians and the WCB's medical advisors and thus the requirements of the above section have been satisfied, which would then entitle the claimant to request the convening of an MRP.

In his letter to the Appeal Commission dated June 18th, 2002, the advocate asserted as follows:
    "There is a difference of medical opinion as it relates to:
    1. Aggravation, enhancement and acceleration;
    2. Causation;
    3. Recovery;
    4. Restrictions; and
    5. Treatment.

    All of these matters relate to entitlement; meet the criteria under Section 67(4) and will answer the question of pre-accident asymptomatology."
X-rays of the claimant's lumbar spine were taken on April 24th, 1991and revealed hypertrophic anterior spurs involving most of the lumbar vertebral bodies as well as moderate degenerative narrowing of the L3-L4 disc level with mild narrowing seen at L4-L5 and L5-S1. A CT scan conducted two months later showed slight bulging of the L4-5 intervertebral disc, but no disc protrusion at any level was evident. The treating orthopaedic surgeon diagnosed the claimant's condition as degenerative lumbar disc disease. On August 16th, 1991, he provided the claimant's attending physician with a consultation report, which stated in part the following:
    "Mrs. [the claimant] had the CT scanning of the lumbar spine which showed only slight bulging at L4-5 level without any evidence of disc protrusion. She certainly does not require any surgery on the lower back on the clinical grounds and also on the CT scan findings. She does have complete range of movements of the lumbar spine, though associated with complaints of pain. Neurologic status of both lower limbs was normal.

    The symptoms, namely the pain in the back, I would think is related to the degenerative lumbar disc disease and she needs only symptomatic treatment. The work situation was discussed with her and she said that she cannot go back to work because she has to stand the whole day, which is probably quite true. I do not think however that the back symptomatology which I would think is related to the degenerative lumbar disc disease is going to improve completely."
The claimant was assessed as having mechanical back pain by a rheumatologist in September 1999.

A WCB medical advisor reviewed the claimant's file on July 26th, 2001 in response to an avocation from the claimant's advocate. The medical advisor concluded his two-page report by saying:
    "Based on this information, this claimant had at the time of her reported compensable injury a degenerative disease of the lumbar spine. The claimant had a short period of aggravation of this. However, based on the expert examination at that time by the orthopaedic surgeon and the imaging studies, it is clear that the claimant suffered from degenerative disc disease of her lumbar spine and that the short term compensable injury had no prolonged effect on her condition.

    Any barrier that this claimant had in returning to work in 1991 can only be ascribed to her degenerative disc disease, which was a pre-accident condition and well established. There is no clear medical reason why this claimant should not have returned to her pre-accident employment at that time."
Finally there is the report prepared by the claimant's treating occupational health specialist on December 6th, 2001, in which he states:
    "In terms of questions posed to me by her worker advocate, it is my opinion that Ms. [the claimant's] back condition definitely did start with the 1991 injury, but more than eight years has elapsed since that injury and she now works with another employer with different job duties that are more directly responsible for the significant increase in pain complaints."
After having thoroughly canvassed the foregoing medical evidence, we have reached the conclusion that there is no difference in diagnosis and that there is no difference in opinion with respect the causal relationship of this diagnosed condition to the compensable injury. In so far as the assertions advanced by the claimant's advocate, we further find that there is absolutely no direct evidence on file to support such declarations.

Inasmuch as there is no differing opinion with respect to a medical matter between any of the claimant's treating physicians and a medical officer of the board opinion, the requirements of section 67(4) of the Act have not been satisfied. 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 4th day of July, 2002

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