The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on October 7, 2002, at the request of an advocate, acting on behalf of the claimant. The advocate requested reconsideration of Appeal Panel Decision No. 146/98 pursuant to the provisions of Section 60.91 of The Workers Compensation Act (the Act) which was granted by the Chief Appeal Commissioner on July 2, 2002.

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 be convened pursuant to subsection 67(4) of The Workers Compensation Act.

Decision: Unanimous

Background

On September 3, 1998, an Appeal Panel review was held to consider the issue as noted above. A complete background concerning this case leading up to the September 3, 1998 review can be found in Appeal Panel decision No. 146/98 and will not be repeated in its entirety at this time.

Briefly, the claimant was performing his regular duties as a labourer when he was pinned between a tree and the box of a garbage truck on June 7, 1971. The claimant sustained injuries to his right leg, hip and shoulder as a result of the accident. Initial medical information revealed that the claimant developed symptoms in his right leg and that he developed "delayed neurogenic shock". By July 1971, the claimant developed an acute psychosis which prevented his return to work. It was also not known whether the shock of the accident was a causative factor, although it was thought to be a contributing one.

Reports were obtained from several psychiatrists who had treated the claimant dated May 2, 1997 and July 24, 1997. These reports were then reviewed by a WCB psychiatrist consultant at the request of primary adjudication.

In a decision dated December 3, 1997, primary adjudication determined that the claimant's psychological difficulties had no relationship to the compensable injury and that the work accident did not alter the course of the pre-existing psychological difficulties the claimant was suffering from.

On January 12, 1998, the claimant's advocate requested the convening of a Medical Review Panel (MRP) in accordance with Section 67(4) of the Act. Following consultation with the WCB's psychiatric consultant, a case management supervisor denied the request for a MRP, stating that the MRP request was not supported by the "opinion" of an attending physician as required under section 67(4) of the Act.

Following receipt of an appeal from the claimant's advocate, Review Office considered the case on April 3, 1998. Review Office denied the request for the MRP.

On April 14, 1998, Review Office considered the case again based on two medical reports that the advocate submitted dated April 20, 1998 and April 22, 1998 along with reports from a Legislative Committee dated April 10, 1997 and a statement tabled in the Manitoba Legislature on July 19, 1991. On June 5, 1998 Review Office confirmed that a MRP would not be convened. This decision was later appealed to the Appeal Commission.

On October 13, 1998, the Appeal Panel ultimately determined that there was no basis to convene a MRP pursuant to section 67(4) of the Act. The Panel found no difference of opinion between the claimant's physician and that of a medical officer of the WCB as was required by section 67(4) of the Act.

In a letter dated April 24, 2002, the claimant's advocate requested reconsideration of Appeal Panel Decision No. 146/98 pursuant to the provisions of Section 60.91 of the Act. In a response dated July 2, 2002, the Chief Appeal Commissioner granted reconsideration of the Appeal Panel's decision dated October 13, 1998.

On October 7, 2002, a non-oral file review was held at the Appeal Commission and the Panel considered all file evidence which included medical reports dated July 30, 2000, August 1, 2000 and September 11, 2000.

Reasons

The claimant last applied for a MRP to be convened pursuant to section 67(4) of the Act in 1998. In decision number 146/98 dated October 13, 1998, the Appeal Panel denied the request. After having reviewed all the medical information on the claimant's file to that date, the Panel determined that there was no basis to convene a MRP because there was "no difference of medical opinion between the claimant's physician and that of a medical officer of the WCB as required by section 67(4) of the Act."

Since the time that the above noted decision was rendered, several new medical reports have been obtained by both the claimant and the WCB. As a result of these reports, we now find that there does indeed exist a difference in medical opinion particularly in relation to the causation issues vis a vis the claimant's mental illness and its relationship to the compensable injury.

Specifically, the WCB sought and obtained two opinions on this matter from its new psychiatric consultant. From her report dated August 1, 2000 the medical consultant reviewed the claimant's WCB file including information submitted from the claimant's representative for the years 1987- 1999. She concluded:

"[t]here is no clear indication that there is a causal relationship between [the claimant's] injury in 1971, and his development of schizophrenia."

In a second report obtained from this same psychiatric consultant approximately one year later (September 6, 2001) she reviewed past medical records of the claimant obtained from the Health Sciences Centre and concluded the following:

The causation of major mental illnesses, such as schizophrenia and schizoaffective disorder is multifactorial and includes genetic predisposition, among several factors. There is no indication of head trauma/brain injury in the accident. There is evidence that [the claimant's] difficulties did not arise only after the accident. He had been evaluated as a young teen at the Child Guidance Clinic, and had been later described as shy, quiet and a loner. There is a strong family history of major mental illness (both father and paternal aunt were diagnosed with schizophrenia).

There is no causal relationship between his compensable injury, and the onset of the schizoaffective disorder.

On behalf of the claimant, his representative obtained a report dated August 28, 2000 from the physician who treated the claimant during the 1970's at the Health Sciences Centre OPD. In this doctor's opinion the claimant "suffers from a major mental illness, likely a bipolar mood disorder." He found that there was "no evidence of any major mental illness prior to the accident of 1971." The following opinion was set out by this physician in his report:

It seems evident that the truck-tree incident precipitated his 30 years of illness. The literature is replete with studies describing the development of mental disturbance following stressful events. Certainly a genetic vulnerability to a mental illness may exist (but, having a parent with schizophrenia only raises your chances of having the disease from 1% to 10% - i.e. 90% chance of not having it). There is general acceptance that severe stress can elicit a mental illness in a person at risk. There is no evidence that a mental illness was bound to happen anyway, without a stress. Being crushed between a truck and a tree is not a common occurrence.

Therefore, it is my opinion that a clear relationship exists between the work-related accident and his subsequent mental illness - as a post traumatic stress disorder or as an aggravation of a genetic vulnerability.

As a result of the above three noted reports it appears to this panel that there is clearly a difference of medical opinion between the board's psychiatric consultant and the claimant's original treating physician as to both diagnosis and causation. Accordingly, we find that the requirements of section 67(4) of the Act have been met and we refer this matter for a MRP as requested by the claimant.

Panel Members

K. Dunlop, Q.C., Presiding Officer
P. Challoner, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 28th day of November, 2002